Legal Pluralism or The Unification of Laws in Cameroon
Keywords:
Cameroon, legal pluralism, conflict of laws, constitutional law, harmonisation, unification, non-discriminatory, divorce, colonial masters, customary lawAbstract
This article examines the present state of the law in Cameroon (pluralism) and argues that unification is a better option. It considers other alternatives such as constitutional overrides and harmonisation/integration before settling for unification. Legal pluralism creates a situation of overlapping laws some of which are discriminatory and thus cannot adequately protect the individual’s human rights particularly the right to non-discrimination. Also, the complexities created by the internal conflicts of laws as a result of legal pluralism make it more difficult to achieve justice. Unification on the other hand will greatly reduce non-discriminatory rules and the problems created by the conflict of laws. This article focuses mainly on personal law. While parliament has enacted laws that are applicable in the entire country in some fields such as labour law, marriage, criminal law and procedure, in others such as divorce parliament has never legislated. Thus, where parliament has not yet legislated, the applicable laws are still those received from her colonial masters as well as customary law.
References
1. The phrase Anglophone Cameroon, or Southern Cameroon refers to the English - speaking part of Cameroon, administered by the English and comprising two of the ten regions (North West and South West regions) in Cameroon today.
2. This is by virtue of section 15 of the Southern Cameroon High Court Law (SCHL) 1955.
3. The phrases Francophone Cameroon refers to the French -speaking part of Cameroon administered by the French and comprising eight out of the ten regions in Cameroon today.
4. E Mveng, Histoire du Cameroun (Présence africaine, Paris 1963) p29.
5. A N Allot in his article, „Towards the Unification of Laws in Africa‟ (1965)14 ICLQ at 366; explains that, Unification is the „creation of a new uniform legal system entirely replacing the pre -existing legal systems which no longer exist as autonomous systems while „harmonisation is the removal of discord, the reconciliation of contradictory elements between the rules and eff ects of two legal systems which continue in force as self - JCLJ (2020) 37–52 © Law Journals 2020. All Rights Reserved Page 50 sufficient bodies of law. Harmonisation is „a process in which diverse elements are combined or adapted to each other so as to form a coherent whole while retaining their individuality.‟ M Boodman “ The myth of harmonization of laws (1991) 39 AJCL at 702; It therefore aims at reconciling the „preoccupations and interests of the various systems so as to avoid conflict and clashes.‟ M T Meulders-Klein, “Towards a European civil code on family law? Ends and means” in K Boele -Woelki (ed), Perspective for the unification and harmonisation of family law in Europe (Intersensia 2003) at 105. Integration occurs when different laws with regards to a particular branch are brought together under one enactment so t hat “the different systems continue to exist but without conflict and that some elements thereof may be unified.” A. Allot, “Towards the unification of laws in Africa” (1965) 14 ICLQ at 366
6. State legal pluralism is a situation in which differently official ly recognised state laws co -exist. (G. J. van Niekerk, “Legal pluralism” in J C Bekker, C Rautenbach, N M Goolam (eds), Introduction to Legal Pluralism in South Africa (2nd ed Lexis Butterworths 2006) at 5.
7. When other regulatory orders are generated in sem i-autonomous social fields other than that of the state it creates a situation of deep or strong legal pluralism. (C Himonga “State and individual perspective of a mixed legal system in Southern African contexts with special reference to personal law” (201 0) 25 Tul Eur and Civ LF at 26.
8. Preamble to the Constitution.
9. C. Fombad Constitutional Law in Cameroon (Wolters Kluwer, 2012) at 215.
10. Ratified 23rd August 1994.
11. See Report of the Committee on the Elimination of Discrimination against Women, Considera tion of Reports submitted by States Parties under Article 18 of the Convention on the Elimination of Discrimination against Women - Cameroon (CEDAW/C/CMR/1) May 1999; Report of the Committee on the Elimination of Discrimination against Women, Consideration o f Reports submitted by States Parties under Article 18 of the Convention on the Elimination of Discrimination against Women, Combined Fourth and Fifth periodic report of States Parties due in 2011 -Cameroon (CEDAW/C/CMR/4-5) November 2012.
12. M Malik “Minorit ies and law: past and present” (2014) Current Legal Problems at 71.
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14. Achu v Achu (1988) BCA/62/86 unreported
15. Suit No HCSW/32MC/85 (unreported).
16. Suit No HCSW/108MC/84 (unreported).
17. Suit No HCSW/8MC/82 (unreported).
18. Appeal No CASWP/12MC/79 (unreported).
19. Jugement No 43/CIV/TGI/du 09 juin 2003 Dschang (unreported).
20. Jugement No 251ADD/1012 (unreported).
21. 23/CC du 13 décembre 1979.
22. Unlike in Anglophone Cameroon, the rules on divorce in Francophone Cameroon is based only on the fault system.
23. Divorce under this section is not based on any fault committed by the respondent.
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25. The numerous discriminatory laws that exist in Cameroon put a question mark on the effectiveness of the Constitutional Council.
26. Art 47 (2) of the Constitution. JCLJ (2020) 37–52 © Law Journals 2020. All Rights Reserved Page 51
27. Loi constitutionnelle no 2008 -724 of 23 July 2008 relating to the modernisation of the institutions of the Republic.
28. For an analysis, see M Hunter -Henin “Constitutional development and human rights in France: one step forward, two steps back?” (2011) 60 ICLQ at 2.
29. s 167(4) of the Constitution of South Africa.
30. Gardener v Whitaker 1996(6) BC LR 775 (CC).
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32. Boesak v The State CCT 2001(1) BCLR 36 (CC). For a discussion, see Z Motala and C Ramaphosa, Constitutional Law - Analysis and Cases, (Oxford University Press 2002) at 512.
33. 1988 BCA/36/81 (unreported).
34. 1981 CASWP/cc87/81 (unreported).
35. 1982 BCA/36/81 (unreported).
36. In Cameroon disputes involving the state are being handled by the administrative courts.
37. While the French legal system dominates in Cameroon, the English legal system dominates in Botswana.
38. Sec 18, 104 and 105 of the Botswana Constitution.
39. (1984) BLR 14.
40. (1992) BLR 119.
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43. The ordinary courts, especially those in Anglophone Cameroon, could fail to act by not considering customary rules that are „repugnant to natural justice‟ unconstitutional.
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48. Preamble to the Constitution.
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50. These laws include the criminal code, the criminal procedure code, the labour code, various land tenure legislations and the civil status registration ordinance.
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56. The Francophones are not entirely to be blamed for the Anglophone problems. Anglophone political leaders are partly responsible for the Anglophone problems. When they realised that their influence within the Federation was decreasing, they started competing for President Ahidjo‟s favour and aspiring to positions of power within the single party and the Federal government and eventually within the JCLJ (2020) 37–52 © Law Journals 2020. All Rights Reserved Page 52 unitary state, thus shamelessly abandoning the protection of the interests of Anglophone Cameroon.
57. P Konings and F Nyamnjoy, “Negotiating an Anglophone Identity: A study of the politics of recognition and representation in Cameroon” above note 28 at 54.
58. Tjouen Droits domaniaux et techniques foncières en droits Camerounais (Etude d‟une réforme foncière législative) (1982) at 69. See generally C Fombad “Cameroonian bi -juralism: current challenges and future prospects” p11.
59. C Fo mbad “Cameroonian bi -juralism: current challenges and future prospects”, above note 51 at 11. For more on the Anglophone problems, see P Konings and F Nyamnjoy “Negotiating an anglophone identity; a study of the politics of recognition and representation i n Cameroon” above note 28 at 76.
60. A N Allot, “Towards the unification of laws in Africa” above note 5 at 381.
61. This is a derogatory statement which implies that the North Westerners are visitors who have refused to go back to the North West when they are no longer wanted.
62. P Konings and F Nyamnjoy “Negotiating an anglophone identity; a study of the politics of recognition and representation in Cameroon” above note 28 at 117.
63. ibid at 112.
64. Law No 65-LF-24 of 12th November 1965 and Law No 67-LF-1 of 12th June 1967. It is important to note that the criminal code was elaborated by foreigners (two Frenchmen and one Englishman with no Cameroonian involved).
65. Law No 2005 of 27 July 2005.
66. J Smits, “Mixed jurisdictions: lessons for European harmonisation?” in E. Örü cü (ed), Mixed Legal Systems at New Frontiers (Wildy, Simmonds & Hill Publishers 2010) at 296.
67. A Fiorini “The codification of private international law in Europe -could the community learn from the experience of mixed jurisdiction?” (2008)23 Tulane European & Civil Law Forum at 98.
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70. W Twinning Globalisation and Legal Theory, (Butterworths 2001) 255.
71. K Zweigert and H Kötz Introduction to Comparative Law above note 85 at 21.
72. This is from my personal experience as a lecturer in the subject.
73. The official languages are French and English, and the official legal systems are the civil law and the common law.
74. Sec. 8 (2) (a).
75. Sec. 8 (2) (b).
76. In the Uniform Act of the Harmonisation of Business Law in Africa (OHADA) which is basically civil law oriented, the procedure for seizing the competent jurisdiction is by Assignation. “Assignation” has been translated in some Uniform Acts as writ of summons. However, as M Tumnde explained, “Assignation as a civil law concept has no direct equival ent in the common law. Unlike assignation which is an extra judicial act, a writ of summons is signed by a judge, magistrate or other officer empowered to sign summonses.” M Tumnde Harmonisation of business law in Cameroon: issues, challenges and prospects (2010) Tur. Eur. & Civ L. F at 125. Cite this Article Acha-Morfaw epse Ghogomu Dorothy Lekeaka. Legal Pluralism or the Unification of Laws in Cameroon . Journal of Constitutional Law and Jurisprudence . 2020; 3(1): 37–52p.
