Reflection on Police Power of Arrest, Detention and The Treatment of Suspects Under the Cameroonian Criminal Procedure Code and Extra-National Laws: Human Right Digest
Keywords:
Police power/ arrest and detention/ suspect/ human rights/ Cameroon and international laws/ Cameroon Criminal procedure code.Abstract
It is normal that the society cannot be peaceful without the coverage of the police and the society needs the police for security. All human beings have the right to enjoy the respect for their liberty and security. Law No. 2005 of 27 July 2005 of the Cameroon Criminal Procedure Code (CCPC) and international laws have provided much protection to suspects, and fundamentally, human rights (HR) safeguards. This paper seeks to examine the formal legal requirements for an arrest, detention and the treatment of suspects, and the steps to be respected before arrest is lawful, within national and extra-national laws, to see if there are some correlations between the Cameroonian and international laws. Thus, arrest and detention should be commensurate with the law.
References
1. Magna Carta of 1215, as amended in 1225 under the seal of Henry III. This is one of the first traces of legal documents on human rights.
2. Thomas R. Dye, Politics in America, 2nd edn (Prentice Hall, 1997), at 543.
3. United Nations, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, (New York: Geneva, 2003) at 161.
4. David Hoffman & John Rowe QC, Human Rights in the UK: An Introduction to the Human Rights Act 1998, 2 nd edn (Pearson and Longman, 2006) at 158.
5. Article 5 of the European Convention on Human Rights Act 1998. It sets out very strict limits and conditions on the V olume 2, Issue 1 NJCL (2019) 4-21 © Law Journals 2019. All Rights Reserved Page 16 ability of the state to arrest and detain its citizens.
6. Section 30 of the CCPC defines arrest as to apprehend a person for the purpose of bringing him without delay before the authority prescribed by the law or by the warrant.
7. Detention or police custody shall be a measure whereby, for purposes of criminal investigation and the establishment of the truth, a suspect is detained in a judic ial police cell, wherein he remains for a limited period available to and under the responsibility of a judicial police officer. A person with a known place of abode may not be remanded in police custody; save the offence is a misdemeanor or felony committed flagrante delicto, unless strong corroborative evidence exists against the suspect. This is guaranteed by Section 118 (1) and (2) of the CCPC.
8. David Hoffman & Rowe QC, supra note 4, at. 158.
9. David Feldman, Civil Liberties and Human Rights in England an d Wales, (Clarendon Press: Oxford, 1993) at 207.
10. Henry Campbell Black, M.A & Others, Black’s Law Dictionary, 6 th edn (West Publishing Co, 1990) at 1157.
11. Article 9 (2) of the ICCPR.
12. Section 122 (1) (a) of the CCPC.
13. Section 116 (3) of the CCPC.
14. Sections 122 (2)-315 (2) of the CCPC.
15. R v Prager, (1972) ALL E.R. 144.
16. This right is ensured in the Preamble of the Cameroonian Constitution of 18 th January 1996, Section 8 of the CCPC, Article 7 (b) of the African Charter on Human and Peoples’ Ri ghts 1981/1986, and the UDHR.
17. Glanville Williams, Reshaping the Criminal Law, (London Stevens & Sons, 1978), at 192-193.
18. Section 40 of PACE.
19. In Cameroon, a suspect cannot be detained for more than 48 hours, renewable once and exceptionally twice as seen above.
20. Section 42 of PACE. Continued detention can be authorized when a senior police officer has reasonable grounds for believing that (i) the detention of that person without charge is necessary to secure or preserve evidence ; (ii) the offence for which the accused is under arrest is a serious arrestable offence; and (c) the investigation is being conducted diligently and expeditiously.
21. Principle 5 of the United Nations Basic Principles on the role of Lawyers (1990), AG Trinidad and Tobago v Whiteman (1992) 3 NZLR 540.
22. Section 122 (1) (b) of the CCPC.
23. Section 122 (1) (c) of the CCPC.
24. Canal Police CRTV , Who Can be held in Police Custody, the Rights of Suspects, CRTV Radio Canal Police, Y aoundé, 15th and 16th August 2018.
25. Section 122 (4) of the CCPC.
26. Section 122 (5) of the CCPC.
27. Section 8 (2) of the 2006 law on Judicial Organisation of Cameroon and Sections 482 -489 of the CCPC. Legal aid in Cameroon is governed by Law N° 2009/004 of 14 th April 2009 Organising Legal Aid in Cameroon.
28. This is to avoid con tamination of the suspect and or other suspects of contentious disease and other health reasons.
29. Section 37 of the CCPC.
30. Rold W. J., Legal Considerations in the Delivery of Health Care Services in Prisons and Jails, Puisis M. Clinical Practice in Correctio nal Medicine, 2 nd ed. (Philadelphia, PA: Mosby -Elsevier, 2006), at 520-528.
31. Section 37 of the CCPC.
32. Section 123 (2) of the CCPC.
33. Section 123 (3) of the CCPC.
34. Sections 354-358 of the CCPC.
35. Simon T. Tabe, Lecture course; Comparative Criminal Procedure, Ph.D 1, University of Dschang, Faculty of Law and Political Science, English Law, 2017/2018), at 163.
36. Section 137 (2), 584-588 of the CCPC.
37. The following cases: Etengeneng Joseph Tabe v Governor Oben Ashu & NJCL (2019) 4-21 © Law Journals 2019. All Rights Reserved Page 17 another, reported (1978) 1 C.C.L.R.9, Retired Jus tice Nyoh Wakai and 172 others v The People (1992) 1 C.C.L.R, Peter Baseh v Commissioner of Brigade Mobile Mixte Bamenda (1978) Suit N° HCB/12M/78 (Unreported), Jesco Manga Williams v The Fako Land Expropriation Commission and Chantier Naval (2005) 2C.C.L. R. / Part II, p. 99.
38. Section 236-237 of the CCPC.
39. Section 37 of the CCPC.
40. Sections 238-239 of the CCPC.
41. Section 245 (4) (h) of the CCPC.
42. Section 245 (4) (i) of the CCPC.
43. Huri-Laws v Nigeria, Communication N° 225/98 , when two allege victims were failed to be brought promptly before a judge for trial, wherein the victims had been detained for weeks and months respectively, without any charge brought against them.
44. The time for remand in police custody in Cameroon is 48 hours, renewable once, and exceptionally twice.
45. Section 17 of the PC and the preamble of the Cameroonian Constitution of 18 January 1996, which states ‘’no person may be compelled to do what the law does not prescribe’’.
46. Otherwise known as the UDHR of 1948.
47. The same reasoning is stated in Sec tion 6 of the ACHPRs. Equally Section 7 of the American Convention of Human Rights (ACHRs). Sub 1 of Section 6 of the ACHR says ‘’ every person has the right to personal liberty and security ’’. Sub 2 is to the effect that ‘ ’no one shall be deprived of his p hysical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by law established pursuant thereto’’. And Sub 3 states that ‘’no one shall be subject to arbitrary arrest or imprisonment’’.
48. Violation of Article 9 (1) of ICCPR, Section 30 (1) of the CCPC and United Nations supra note 2, at 165.
49. Article 5 of the European Charter on Human Rights (ECHRs) and Section 24 of PACE.
50. Section 119 (1) (a) of the CCPC.
51. Section 119 (1) (b) of the CCPC.
52. Sections 103-114 of the CCPC.
53. Feldman supra note 9, at 186.
54. Based on Section 18 of the CCPC, a warrant of arrest is an order given to an officer of the judicial police to arrest a defendant, an accused or a convict and bring him befor e State Counsel, an Examining Magistrate, or a trial court. See also Section 12 of the CCPC.
55. Starmer & Christou, Human Rights Manual and Sourcebook for Africa, (the British Institute of International and Comparative Law Bar Human Rights Committee of Engla nd and Wales, (BIICL, (2005), at 762.
56. Sections 103-114 of the CCPC.
57. Sections 32 and 86 (1) of the CCPC.
58. This is governed by Section 291 of the Penal Code (PC).
59. Section 13 of the CCPC. The purpose of a summons is to command the person named therein to appear before the State Counsel, an Examining Magistrate or a trial court on the date and hour mentioned in the summons.
60. J. Hatchard, B. Huber and R. V ogler, Comparative Criminal Procedure, (British Institute of International and Comparative Law, London, 1996) , at 192.
61. Article 9 (2), 4 (4), 4 and 5 (2) of the ICCPR, ACHR, ACHPR and ECHR respectively.
62. In the case where the suspect is informed days after his arrest, this will mean the law has been violated.
63. Section 122 (1) (a) of the CCPC.
64. Section 116 (3) of the CCPC.
65. J. Hatchard, B. Huber and R. V ogler, supra note 65, at 192.
66. Criminal Justice and Public Order Act 1994 (CJPOA).
67. Criminal Justice and Public Order Act 1994 (CJPOA). Ibid, at 193.
68. Starmer & Christou supra note 60, at. 762.
69. Section 119 (2) (a) (b) and (c) of the CCPC. V olume 2, Issue 1 NJCL (2019) 4-21 © Law Journals 2019. All Rights Reserved Page 18
70. David Hoffman & John Rowe QC, Op.cit note 8, p.159.
71. Section 119 (3) of the CCPC.
72. Section 119 (4) of the CCPC.
73. Section 120 (1) of the CCPC.
74. Section 120 (2) of the CCPC.
75. Section 120 (3) of the CCPC.
76. Section 121 of the CCPC.
77. Section 23 of the CCPC.
78. Section 299 of the PC captioned ‘invasion of residence’ sanctions whoever enters or remains in another’s residence against his will shall be punished with imprisonment for from 10 days -1 year or with fine of from 5000 CFAF-50,000, or with both such imprisonment and fine..
79. David Feldman Op.cit note 58, p. 186.
80. Section 142 (3) of the CCPC, also Section 24 o f the December 2006 Law on Judicial Organisation of Cameroon, which an Examining Magistrate shall be member of the Bench.
81. That is to say P .I shall be secret and anyone taking part in the investigation shall be bound by professional secrecy, the violation leads to sanction under Section 310 of the PC as ensured by Section 154 (1) (2). Nevertheless, if the Examining Magistrate deems it necessary for the discovery of the truth, carryout some of the proceedings in public or cause the State Counsel to publish some of the facts which have been brought to his knowledge, as protected by Section 154 (3) of the CCPC. See also Section 154 (3), 155 and 156 of the CCPC.
82. Section 143 (1) of the CCPC.
83. Section 143 (3) of the CCPC.
84. Simon T. Tabe article entitled ’’A Look at Preliminary Inquiry under the New Criminal Procedure Code of Cameroon’’, p. 3.
85. Ibid. Criminal proceedings may be discontinued (Section 60 (a) to (h) of the CCPC): when the suspect, defendant or accused dies; prescription; amnesty; repeal of the law; after a successful plea of autrefois convict or acquit; by agreement of the parties if the law expressly so provided; the withdrawal of the complaint, where the lodging of such a complaint is a precondition for the commencement of prosecution; the withdrawal of the complaint or the civil claim by the civil party who lodged the complaint in respect of a simple offence or a misdemeanour.
86. Section 142 (1) of the CCPC and Section 25 (1) of the 2006 Law on Judicial Organisation in Cameroon.
87. Section 142 (2) of the CCPC and Section 25 (1) of the 2006 ibid.
88. Ewang S. A. & Nah T. F. (2012/2013), Lecture Course on Criminal Procedure, University of Dschang, Faculty of Law and Political Science (Unpublished), pp. 44 to 45.
89. Ewang S. A. & Nah T. F., Ibid.
90. Ewang S. A. & Nah T. F., Ibid.
91. Simon T. Tabe Op.cit note 89, p. 5.
92. Sections 147 (1) and 157 (1) of the CCPC.
93. Section 177 (1) (2) of the CCPC.
94. Sections 178 and 179 of the CCPC.
95. Generally Sections 218 to 221 of the CCPC.
96. Generally Sections 222 to 235 and 246 (g) of the CCPC.
97. Section 245 (4) of the CCPC. But cannot intercept telephone line of a barrister’s officer or residence as per Sub 4 (g) obligates.
98. Section 246 of the CCPC.
99. Section 192 (1) of the CCPC.
100. Sections 203, 214 and 217 of the CCPC.
101. As governed by Sections 180 to 190 of the CCPC.
102. Section 246 of the CCPC.
103. Section 151 (3) and 152 of the CCPC.
104. Section 151 of the CCPC.
105. Sections 267 to 289 of the CCPC.
106. Section 275 (1) of the CCPC.
107. Section 275 (2) of the CCPC.
108. This constitutes the first part of the oral evidence of the witness, which continue by taking oath with the aim to provide true evidence in the proceedings. In short, examination -in-chief is when the witness is questioned by the party who calls the witness. The aim of this is to get evidence in support of the facts in issue or relevant to the fact in issue as NJCL (2019) 4-21 © Law Journals 2019. All Rights Reserved Page 19 contended by the party calling the witness, or to elicit from the witness a complete and coherent story as is relevant to t he case. The cardinal rule here is that leading questions are not allowed, where it is objected by the adverse party. A leading question therefore one suggesting the answer which the person putting it wishes to get as propelled by Sections 379 and 380, which is different from suggestive question in that the latter conveys the a vivid picture so that if asked, it will set the mind of the witness at work and thus enable him to recollect the event in an orderly manner. See Sections 184 (1) (a) and 331 (1) of t he CCPC. And see also Simon T. Tabe Op.cit note 123, p. 18.
109. On its part, cross -examination may be administered by the opposing party or his counsel on the witness, with the aim of testing the accuracy of the evidence adduced during examination -in-chief. Also, its purpose is to destroy the evidence of the witness as well as adducing facts which are favourable to the examiners’ case, as governed by Section 332 (3) of the CCPC. It may not be limited to the facts which the witness testified during his examination-in-chief.
110. This is ensured by Section 331 (3). A witness may be re-examined by the party who called him after cross -examination. The motive behind this examination type is to explain the statement made during cross-examination as well as reduce any damaging effects which cross - examination might have had on the evidence. New matters are not permitted, except by leave of the court. That is only matters that arose during cross - examination are allowed. See the case of Christopher Ajaka Tamod v Babila Denis Tita Sama (1998) 2 C.C.L.R p. 246. The main adjective is to mend any cracks created in the walls of the case by cross- examination, where possible. See Simon T. Tabe Op.cit, p. 20.
111. Sections 256 (1) (2), 259 and 158 (1) of the CCPC.
112. Sections 256 (5) 258 (1), 258 (2) 259 and 260 (1) of the CCPC.
113. Section 256 (3) of the CCPC.
114. Section 222 (1) of the CCPC.
115. As per Section 222 (2) of the CCPC.
116. The conjunction of Sections 224 (1) and 246 (g) of the CCPC. But bail cannot be granted to persons charged with felonies punishable with life imprisonment or death. It is normally known that felonous offences are no mercy offences. But those who commit such offences are human beings and thus, they should be treated same as other offenders. Should they be denied bail, then their rights are denied equally.
117. Simon T. Tabe Op.cit note 142, p. 8.
118. Self-bail is granted by the Examining Magistrate on his own motion, while conditional bail on its part, is bail granted to the accused either because a sum of money has be en deposited or a surety has been taken by a person duly authorised by law as stipulated in Sections 222 and 224 of the CCPC respectively.
119. United Nations Op.cit note 3, p. 195.
120. An impecunious person should not be expected to provide a huge sum of money, whereby, he earns virtually nothing. Amendment 8 to the United States Constitution runs thus, ‘’excessive bail shall not be required’’. The Case of Stack v Boyle is the only case in which the Supreme Court has held the bail imposes is constitutionally excessive. In that case, the court found $50,000 to be excessive in relation to the flight risk for impecunious defendants charged under the Smith Act. In United States v Salerno, the court upheld the Bail Reform Act of 1984, which authorised the considerati on of future dangerousness in the determination of the amount of, or the denial of bail.
121. But when the killing involve a law officer, a material or potential witness, or where the killing was in the course of committing robbery, stock theft, theft of a motor vehicle, rape or indecent assault of a person below 16 (see Section 246 of the Cameroonian PC) years or by persons belonging to a gang or V olume 2, Issue 1 NJCL (2019) 4-21 © Law Journals 2019. All Rights Reserved Page 20 syndicate, the accused shall be released on bail unless he satisfies the court that there are exceptional circums tances that would permit his release, see also Starmer & Christou Op.cit note 73, p. 764.
122. Section 8 (1) and (2) of the CCPC.
123. Section 7 (2) of the ACHPR’s 1981/1986.
124. United Unions Op.cit note 3 p. 165.
125. Article 9 (1) of the ECHR looks at arbitrary arrest not to be against the law, but most be widely construed to include elements of inappropriateness, injustice, lack of predictability and due process of the law. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in the situations.
126. The case of A.W. Mukong v Cameroon, 1991 from Human Rights document, Op.cit note 51, p. 165.
127. United Nations Op.cit note 126, p. 165.
128. Sections 119 and 121 of the CCPC.
129. Section 7 (2) of the ACHPRs 1981/1986 and article 9 of the ECHRs.
130. David Hoffman & John Rowe QC, Op.cit note 75, p. 159.
131. Generally articles 11 to 29 of the CCPC.
132. Article 6 of the ACHPR and United Nations Document, Op.cit 132.
133. Article 6 of the ACHPR and United Nations Document ibid.
134. This is what is going on in the crisis of the English speaking community, known as the ‘’Anglophone problem’’ that started in November 2016 and the situation that happened in Nigeria the victims had been held for over 3 years following an elections
135. Ensured in Article 7 (2) (3) of the Inter - American Court on Human Rights.
136. The case of Gangaram Pandy v Suriname, 1994 in United Nations document Op.cit.
137. United Nations Op.cit note 138, p. 168.
138. Article 9 of the ICCPR.
139. United Nations Op.cit note 142, p. 170.
140. Section 7 (1) (d) of the ACHPR’s 1981/1986, and see also the preamble of the Cameroonian Constitution of 18 January 1996.
141. United Nations Op.cit note 144, p. 173.
142. Reasonableness of arrest pre -supposes the existenc e of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.
143. The case of Fox, Campbell and Hartley, (1990) EC, gotten from United Nations document, Op.cit; see also the case of Brogan v UK (1989) 11 EHRR 117.
144. The government of Cameroon and the Anglophone crisis, which they do not have any organisation, but the government calls them terrorists. Also see United Nations Op.cit note 2 p. 183.
145. R. v Brosch (1988) Crim. LR 743, CA, see equally David Feldman, Op.cit note 9, p. 208.
146. Starmer & Christou Op.cit note 73 p. 762.
147. Starmer & Christou Op.cit note 152, p. 162.
148. Article 9 (5) of the ICCPR, Article 5 (5) of the ECHR and also the case of Monja Jaona v Madagascar (1985).
149. Sections 236 and 237 of the CCPC.
150. Sections 236 (1), 119 to 126, 218, 235, 258 and 262 of the CCPC, and see also Simon T. Tabe, Op.cit note 150 p. 23.
151. David Hoffman & John Rowe QC, Op.cit note 75, p. 174.
152. Christof Heyns (2004), Human Rights Law in Africa V olume Two: Domestic Human Rights Law in Africa, Brill Academic Publishers Incorporate the Martinus Nijhoff Publishers, Leiden/Boston, p. 1141.
153. Sub-4 of Article 5 of the Act.
154. Sub 5 of Article 5 of the Act.
155. The classic definition which was approved by Court of Ap peal in Meering v Grahame-White Aviation Co. Ltd, (1920) 122 L.T. 44. Prison for false imprisonment could exist without stone walls, could be in open field or in the stocks or cage in the streets or in a man’s own house and men may be prisoners without infra parietes carceris. But in this context, false imprisonment will amount to total confinement of the suspect. NJCL (2019) 4-21 © Law Journals 2019. All Rights Reserved Page 21
156. Glanville Williams (1978), Reshaping the Criminal Law, London, Stevens & Sons, pp. 190-191.
157. The case of Spinning House which arises out of th e prosecution and imprisonment of Daisy Hopkins by the University of Cambridge, shows. The girl who was suspected of being a prostitute by the University of authorities, secured her release from detention by writ of habeas corpus, and then went on to claim (albeit unsuccessfully) damages for false imprisonment.
158. John lewis & Co. Ltd v Times (1952) A. C 676; Dallison v Caffery (1965) 1 Q.B. 348.
159. The House of Lords’ decision in R. v Governor of Brockhill Prison, ex parte Evans (No. 2) (2001) 2 AC 19, see also Nicholas J McBride & Roderick Bagshaw, Tort Law, 2nd Edition, Pearson Longman p. 264. Cite this Article Rodrick Ndi. Reflection on Police Power of Arrest, Detention and The Treatment of Suspects Under the Cameroonian Criminal Procedure Code and Extra -National Laws: Human Right Digest . National Journal of Criminal Law. 2019; 2(1): 4–21p:
