INTRODUCTION
Cameroon, like many other countries, has ratified a number of human rights instruments, which engage the responsibility of the state to protect and promote the human rights guaranteed in them. Among these instruments are the International Covenant on Civil and Political Rights (ICCPR)Footnote 1 and the African Charter on Human and Peoples’ Rights (ACHPR)Footnote 2 that guarantee, inter alia, the right to personal liberty. Those instruments have been complemented by domestic law, including the Criminal Procedure Code (CPC).Footnote 3 It was expected that the CPC would complement existing legislation on, and herald a new era for, the protection of human rights. However, many commentators and international institutions agree that Cameroon's record on human rights protection remains poor and, in particular, the right to personal liberty continues to be violated with impunity.Footnote 4 Security forces and some administrative authorities abuse their powers by arbitrarily arresting and detaining civilians, particularly members of opposition parties, journalists and human rights activists, as a means of pre-empting challenges to or criticism of the incumbent regime.Footnote 5 There is also an endemic crisis of lengthy pre-trial detentions.Footnote 6
Although it is widely agreed that Cameroon's human rights record remains poor, there is a dearth of scholarly analysis specifically investigating the reasons for the problem.Footnote 7 This article seeks to understand why Cameroon falls short of its international obligations with respect to the protection of the right to personal liberty even though statutory provisions regarding that right appear largely to comply with international standards. To accomplish that objective, the article first demonstrates the extent to which the law in Cameroon is compatible with article 9 of the ICCPR and article 6 of the ACHPR, which guarantee the right to personal liberty.Footnote 8 It goes on to identify and explain the main reasons why violations continue to be rife in Cameroon, in spite of statutory provisions. It then offers some recommendations on how to develop the most feasible and practical mechanisms for more effective enforcement.
INTERNATIONAL STANDARDS AND THE LAW IN CAMEROON
General overview of the right to personal liberty
Article 9(1) of the ICCPR provides: “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Similarly, article 6 of the ACHPR states: “[e]very individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”
Both articles comprise two principal rights: the right to personal liberty and the right to security. The right to security is not discussed here because this article focuses on mandatory procedural safeguards relating to arrest and detention rather than the security of individuals deprived of their liberty. Moreover, it has been argued that the right to security is a separate and distinct rightFootnote 9 that has been accorded a broader interpretation beyond the significance of article 9(1) of the ICCPR and article 6 of the ACHPR.Footnote 10
Deprivation of liberty has always been a legitimate means of state controlFootnote 11 and so the right to personal liberty under these instruments is not absolute. Measures restricting personal liberty are permissible under certain circumstances. Nevertheless, both instruments provide normative requirements that such measures be reasonable and necessaryFootnote 12 and be carried out pursuant to the circumstances and procedures established by law.Footnote 13 The two fundamental principles that emerge from article 9(1) of the ICCPR and article 6 of the ACHPR are the requirement of legality and prohibition of arbitrariness.
In order to pre-empt the arbitrary deprivation of liberty, article 9(2)–(4) of the ICCPR provides some procedural safeguards that must be observed to protect the rights of individuals deprived of their personal liberty. Article 6 of the ACHPR has no equivalent provisions relating to procedural safeguards, although some of the relevant points have been clarified in the jurisprudence of the African Commission on Human and Peoples' Rights (the African Commission).Footnote 14 Moreover, some of the procedural safeguards are reflected in other provisions of the ACHPR,Footnote 15 resolutions adopted by the African Commission and the African Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.Footnote 16 The principal safeguards include the right to information as to the reasons for arrest, prompt presentation before a judge or judicial officer, release pending trial (bail) and habeas corpus.
The right to personal liberty and the law in Cameroon
To what extent do the provisions in Cameroon comply with international standards? In terms of legislation, the Constitution of Cameroon recognizes and guarantees the right to personal liberty.Footnote 17 That is complemented by other legislation, including the CPC, the Penal Code,Footnote 18 the Judicial Organisation OrdinanceFootnote 19 and the 1990 Law on the Maintenance of Law and Order.Footnote 20 The most elaborate is the CPC, which was enacted in 2005 and entered into force in 2007. It harmonized the criminal procedure legislation in the anglophone regions (where the common law is applicable) and the francophone regions (where French civil law is applicable).Footnote 21 It regulates the conditions and procedures for lawful arrest and detention, including avenues for redress for victims whose rights have been violated. It should be noted that the substance of the CPC forms what might be regarded as procedural safeguards under article 9(2)–(4) of the ICCPR and the relevant instruments relating to the ACHPR.
Procedural safeguards to protect the rights of persons deprived of their personal liberty
Information as to the reason for arrest
According to article 9(2) of the ICCPR, anyone arrested must be informed of the reasons for their arrest at the time of arrest and must be promptly informed of any charges against them. However, there is no rigid prescription as to the interval between the moment of arrest and the time when the reasons or charges are made known. The fluidity of the international position gives room for criticism as an inadequate standard-setting measure, given its lack of precision. Nevertheless, rigidity may be impractical given that underlying circumstances may affect the extent to which information can be provided promptly, for instance where an interpreter is required. However, it is unlikely that delays will normally exceed a few days without reasonable justification.Footnote 22 Although great latitude would not normally be acceptable to discharge the duty of prompt information, the individual circumstances of the case will determine whether or not there has been a violation of article 9(2).Footnote 23
Arrests in Cameroon may be carried out with or without a warrant. The CPC provides that any person arrested shall be informed at the time of his arrest of the reasons for that arrest.Footnote 24 An exception applies when someone is arrested for an offence (misdemeanour or felony)Footnote 25 in flagrant delit [during commission of the offence]. This seems to suggest that in all other circumstances an officer carrying out an arrest is under a duty to disclose to the suspect the reasons for his arrest. The provision raises the presumption of implied knowledge of the reasons for one's arrest if the arrest is carried out while an offence is being committed or immediately after the fact. This presumption is buttressed by the fact that a magistrate who witnesses a felony or misdemeanour committed in flagrant delit is not obliged to inform the offender of the reasons for his arrest if he proceeds to arrest or order the arrest of the offender.Footnote 26 The provision appears to accord with international standards because, although a precise reason for the arrest is not provided, it is reasonable to presume that a person arrested while committing a crime is aware of the reasons for his arrest.Footnote 27
Further, in Cameroon, the CPC provides that, where a judicial police officer intends to remand a suspect in custody, the officer is bound to inform them of the grounds for suspicion.Footnote 28 This fact is restated in section 122, which goes further to provide that the suspect shall “immediately” be informed of the allegations against him. It is clear that the law in Cameroon recognizes the importance of informing a suspect of the charges against them.
Judicial control of arrest and detention
The requirement for judicial control of arrest and detention under article 9(3) of the ICCPR entails at least three distinct aspects: the prompt presentation of a detainee before a judge or judicial officer; the length of pre-trial detention; and the right to release pending trial (bail).
Prompt presentation before a judge or judicial officer
The requirement for prompt presentation before the competent authority is for the purpose of the suspect's initial examination after his arrest or detention and is distinct from proceedings to determine the lawfulness of the detention.Footnote 29 Although the meaning of “promptly” has not been specifically defined, the jurisprudence of the Human Rights Committee (HRC) indicates that a delay exceeding three days is likely to breach article 9(3). In Jijon v Ecuador Footnote 30 and Borisenko v Hungary Footnote 31 there were delays of three and five days respectively before the accused were brought before the competent authority and the HRC held that the delays constituted a breach of article 9(3).
In Cameroon, the CPC provides that a person arrested on a warrant shall be brought immediately before an examining magistrate or the president of the trial court that issued the warrant, who may order his release or remand him in custody.Footnote 32 The CPC further provides a time limit of 48 hours within which a detainee should be interrogated by an examining magistrate or the trial court that issued the warrant.Footnote 33 However, the CPC is silent on the requirements for arrests carried out without warrants. As a result, there is uncertainty as to whether section 19(2)(b) is applicable to arrests without warrants or whether the procedure is determined on an ad hoc basis depending on individual cases. It is possible to infer that, on the face of it, the law appears compatible with international standards, given that the relevant period does not exceed 48 hours.
The length of pre-trial detention
The primary concern with the length of pre-trial detention is that it should not be excessive and should only be resorted to in exceptional cases.Footnote 34 What constitutes a reasonable time for the purpose of article 9(3) of the ICCPR is determined on a case by case basis,Footnote 35 although excessively lengthy pre-trial detentions such as three years in Fillastre and Bizouarn v Bolivia will probably constitute a breach of article 9(3).Footnote 36 The African Commission has also held pre-trial detention periods of one monthFootnote 37 and three monthsFootnote 38 to constitute a violation of article 6 of the ACHPR.
The position in Cameroon according to the CPC is that pre-trial detention should be an exceptional measure which should not be resorted to except in a case classified as a felony or misdemeanour, and must be for the purpose of preserving evidence, maintaining public order, protecting life and property or securing the appearance of a suspect before the relevant authority.Footnote 39 The initial limit for being remanded in custody is six months. This period can be extended by a maximum of 12 months by the examining magistrate.Footnote 40 Thus, the law provides a total maximum period of 18 months for pre-trial detention. On the face of it, 18 months appears to be an excessively long time for a suspect to be remanded in custody. Nevertheless, due to the complexity of some cases, long periods on remand may be necessary to enable investigations to be carried out and evidence to be collected.Footnote 41 However, for such a lengthy period to be consistent with article 9(3) of the ICCPR or article 6 of the ACHPR, it must be shown that it is absolutely necessary to remand the accused in custody. The law in Cameroon does not provide adequate safeguards to ensure that periods on remand are not unduly extended. It simply provides that an examining magistrate may order an extension by a “reasoned ruling”, without stating the circumstances under which extensions may be granted. Although it may be argued that the law cannot possibly contemplate a comprehensive list of circumstances, it is submitted that such a vague provision may provide scope for the arbitrary use of authority.
Further, the Law on the Maintenance of Law and Order permits administrative authorities to order a person's detention for a renewable period of 15 days to fight banditry.Footnote 42 There is no stated limit on the number of times this period can be extended and the law fails to provide the circumstances under which an extension should be ordered. As a result, this leaves scope for the arbitrary use of power. In fact, in Cameroon, it is a well known fact that pre-trial detention is used by the executive as a means of punishment rather than a means for upholding order and security or facilitating investigations.Footnote 43 Administrative authorities have been known to detain suspects in pre-trial detention for prolonged periods for political reasons.Footnote 44
The right to release pending trial (bail)
In Cameroon, under the CPC, any person lawfully remanded in custody may be granted bail subject to entering into a recognizance to appear before the examining magistrate when duly summoned.Footnote 45 Bail may be granted by the examining magistrate (on his own initiative) at any point during preliminary investigations or may be granted on application by the detainee.Footnote 46 Bail may also be granted as of right on expiry of the period of remand, whereupon the examining magistrate is compelled to order a detainee's release on bail.Footnote 47 However, in practice, the detainee usually has to make a formal application for bail. The National Commission on Human Rights and Freedoms (NCHRF) can in certain circumstances exercise powers within its protection mandate to intervene on behalf of victims of arbitrary detention to secure their release on bail.Footnote 48
Depending on the circumstances of the case, an application may be made to the judicial police officer, the state counsel, the examining magistrate or the court.Footnote 49 The law requires that a decision be made within five days of the receipt of a bail application.Footnote 50 The procedure is that the examining magistrate forwards the application to the procureur général Footnote 51 within 24 hours of receipt.Footnote 52 The latter is required to review and return the file to the examining magistrate together with his report within 48 hours.Footnote 53 The examining magistrate must deliver a ruling within 48 hours of receiving the report.Footnote 54 A right of appeal exists against a decision to refuse bail.Footnote 55
The law recognizes that the amount of bail should not be prohibitive. Thus, it provides that the detainee's resources should be taken into consideration when determining the amount of bail.Footnote 56 On the face of it, the provisions regarding bail appear to adhere to international standards in terms of its availability, expediency and the right of appeal.
Nevertheless, a more profound analysis of some provisions, particularly in the light of other laws, reveals some serious substantive issues. One significant example is the provision that states that bail is not available to persons charged with felonies punishable with life imprisonment or death.Footnote 57 That is not necessarily incompatible with article 9(3) of the ICCPR and article 6 of the ACHPR, given that, under those instruments, people charged with such offences pose a higher risk to society. They are also more likely to abscond or interfere with witnesses or evidence.Footnote 58 Nevertheless, the HRC requires that people charged with serious offences such as homicide or murder who are denied bail be tried expeditiously.Footnote 59
In Cameroon, problems arise in at least two main areas. First, due to the excessive length of pre-trial detention discussed earlier, persons to whom bail is not available are unlikely to be tried expeditiously. Secondly, the classification of some offences as felonies punishable with life imprisonment and for which bail is therefore not available is arguably too stringent. For instance, the offence of misappropriation of public funds where the value exceeds 500,000 FCFAFootnote 60 is a felony punishable with life imprisonmentFootnote 61 and therefore not an offence for which bail is available. It is arguable that this amount is too low to attract such a severe punishment. The value of that amount in 1965 (when the law was passed) might have reflected the sentence that the offence attracted. However, due to inflation and other factors, the equivalent of that sum today would be significantly higher than that figure, implying that the law today is far more stringent than the legislator intended over 50 years ago. In other jurisdictions, such as Nigeria, the position in different. Under the applicable laws in Nigeria, the punishment for corruption and related offences such as misappropriation of public funds is five or seven years imprisonment,Footnote 62 with bail available for such offences.Footnote 63 In Cameroon, the argument is not that misappropriation of public funds is not a serious offence. The point being made is that the minimum sum involved is too low to justify such a severe punishment and to deny bail. That provision, in particular the unavailability of bail, calls into question the compatibility of the law in Cameroon with international standards.
An additional difficulty relating to section 224(2) of the CPC is that the provision can sometimes be used unjustly to refuse bail where an application is made before the preferment of charges, on the basis that any charges eventually made might be for an offence for which bail is not available. This was the situation in Dr Martin Luma v The People Footnote 64 where the Court of Appeal in Bamenda set aside a High Court order granting the applicants bail. The Court of Appeal was of the opinion that it was wrong for the High Court to have granted bail when at the time of the bail hearing the applicants had not been charged. The Court of Appeal took the view that the applicants might have subsequently been charged with a felony for which bail was unavailable.Footnote 65 That view has been criticized for being unsupported in law and, more importantly, for perpetuating a violation of the applicants’ rights to personal liberty.Footnote 66
The law of habeas corpus
Article 9(4) of the ICCPR provides that a person who has been arrested or detained has the right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. Moreover, in A v Australia Footnote 67 the HRC took the view that the courts must have jurisdiction to review the lawfulness of detention and the power to order release.
The African Commission expressed a similar view in Zegveld and Ephraim v Eritrea,Footnote 68 stating that the decision to keep a person in detention should be open to periodic review so that the grounds justifying the detention can be assessed.Footnote 69 In that respect, it held in Constitutional Rights Project and Another v Nigeria Footnote 70 that depriving courts of the ability to test the legality of a deprivation of liberty violates article 6 of the ACHPR.Footnote 71
In Cameroon habeas corpus is regulated by the CPC and section 18(2)(b) of the Judicial Organization Ordinance.Footnote 72 Habeas corpus can be applied for by the detainee or his representativeFootnote 73 and, upon receipt of an application, a judge is mandated to order the appearance of the custodian before the court, the production of the detention order and the detainee.Footnote 74 Where the court determines that the detention is unlawful, it shall order the immediate release of the detainee.Footnote 75 The judgment is enforceable immediately, irrespective of any appeal that may be made against it.Footnote 76 This is a very significant provision that can be contrasted with the general practice in Cameroon where an appeal against a judgment suspends its enforcement until the outcome of the appeal.Footnote 77 If a detainee were to remain in custody as a result of an appeal against the decision authorizing his release, it would be likely to constitute a breach of article 9(4) of the ICCPR because the appeal process normally lasts several days.Footnote 78 The provision thus reiterates the importance of personal liberty for which a suspension as described above will constitute a violation.
However, this adherence to the requirement for a decision without delay is diluted by what actually happens in practice at the level of the initial habeas corpus application. Sometimes, for administrative or other reasons, the court's decision in a habeas corpus application does not materialize until several days or even weeks later. That was the situation in DS Oyebowale v Company Commander Fako,Footnote 79 where the application for habeas corpus was made on 8 July 2009. On 23 July, 15 days after the application was made, the court made an order for the custodian to appear in court. It took another 12 days for the court to make an order for the applicant's release. Although the permissible time for a court to issue its decision is usually influenced by the individual circumstances of a case, it is unlikely that a delay of 27 days without reasonable justification would be acceptable.Footnote 80 Moreover, a defence of administrative constraints, such as a backlog of cases before a court, is unlikely to exonerate a state from its responsibilities.Footnote 81
This analysis demonstrates that, but for a small number of provisions, the provisions on the right to personal liberty in Cameroon are largely compatible with international standards. Why then is its enforcement problematic?
CHALLENGES TO THE EFFECTIVE ENFORCEMENT OF THE RIGHT TO PERSONAL LIBERTY
It is argued that the most objectionable factors impeding the effective enforcement of the right to personal liberty in Cameroon lie in socio-political and structural factors, such as the absence of a culture of respect for human rights, feeble enforcement machinery (evidenced by the lack of judicial power, inefficiencies in the justice system and a feeble national human rights commission) and the absence of an effective mechanism for the judicial review of legislation. These points are discussed below.
Absence of a human rights culture
The existence of a positive human rights culture is fundamental to the effective realization of rights in a community as this shapes the attitudes of rights and duty bearers towards their enforcement.Footnote 82 This is a particularly poignant aspect in Cameroon where the public political culture is historically rooted in attitudes about executive ascendancy, deference for authority and lack of public information on human rights obligations. This has shaped the formation of a negative attitude towards human rights, buttressed by a long tradition of police arbitrariness.Footnote 83 Security officers and other executive officials tend to disrespect human rights partly due to their expectation of deference from the public and the lack of public awareness of the rights they possess and how to assert them. In terms of personal liberty, this manifests itself in numerous forms of violations.
Security officers seldom adhere to the requirement to inform a suspect of the reasons for their arrest and it has become common practice not to inform them immediately of the grounds of suspicion before detention.Footnote 84 The lack of a culture of respect for human rights is vividly demonstrated in the persistent arbitrary arrest and detention of journalists and human rights defenders who have become common targets for police harassment.Footnote 85 They are routinely arrested and detained without charge, ostensibly for expressing political views, predominantly those critical of the government and its human rights record.Footnote 86 Although there has been serious international denunciationFootnote 87 of such arbitrary practices, the situation has persisted.Footnote 88 In Ebenezer Akwanga v Cameroon,Footnote 89 the applicant, a known supporter of the opposition, was arrested on 24 March 1997 by security officers in the North-West Region of Cameroon, without being informed of the reasons for his arrest. He was detained without charge until 5 October 1999 and was never brought before a judicial officer. During that period, he was subjected to torture and inhuman and degrading treatment. The HRC held Cameroon in breach of article 9(2), (3) and (4) of the ICCPR.
Arrests without warrants are also prevalent during police neighbourhood sweeps for criminal activities.Footnote 90 These sweeps are infamously referred to as callé-callé. During the sweeps, security officers usually cordon off a whole neighbourhood, search houses without warrants, subject residents to torture and carry out arrests, often for unexplained reasons.Footnote 91 These forms of arbitrary arrest are pervasive and cause more fear and insecurity than they prevent criminal activity.Footnote 92
The absence of a culture of respect for human rights has led to mistrust of enforcement officials. According to the US Department of State, the population was generally apprehensive of security officers due in part to their arbitrariness.Footnote 93 Although the government has argued that it is taking measures to curb arbitrariness,Footnote 94 those measures are not systematic and therefore meaningful change is yet to be realized.Footnote 95 Moreover, the public remain largely unaware of their rights, providing additional leverage for security officers to act arbitrarily.Footnote 96 These factors have combined to undermine the development of a positive attitude towards the importance of human rights in society.
Feeble enforcement machinery
Lack of judicial power
The lack of sufficient judicial power is a fundamental weakness in the structural framework for the enforcement in Cameroon of human rights in general and the right to personal liberty in particular. This has fostered the development of a culture of executive disregard for the rule of law, manifested in defiance of court orders.Footnote 97 That problem affects the exercise of the right to habeas corpus and bail, as executive officials show contempt for the judiciary by refusing to release victims pursuant to court orders.Footnote 98 That was demonstrated in DS Oyebowale Footnote 99 where, on 8 July, the complainant applied to the High Court for an order of habeas corpus under section 584 of the CPC for the purpose of determining the legality of his detention. Upon receipt of his application, the court issued an order for the company commander to appear in court, producing the applicant and the documents authorizing the applicant's detention. The company commander failed to appear in court and also failed to release the applicant. Having reviewed the circumstances of the detention, the court held that his arrest and detention were arbitrary. On 4 August, pursuant to sections 585(5) and 586(2) of the CPC, the court ordered the applicant's immediate release. The company commander again refused to comply with the court order and failed to release the applicant. The applicant remained in custody until 20 August when he was released on bail. That again was in violation of the court order for his immediate release.
The problem of lack of judicial power in Cameroon arises in part from the absence of judicial independence, a problem that owes its origins to the historical development of the constitutional system.Footnote 100 Cameroon inherited the French civilian constitutional model, which, as developed in Cameroon, emphasizes the subordination of the judiciary to the executive. Although the constitution affirms the independence of the judiciary,Footnote 101 that independence is guaranteed by the executive in ways that effectively place it under the aegis of the executive.Footnote 102 For instance, the president of the republic, who is head of the executive, has been conferred with practically unilateral powers to control judicial tenure through appointments, promotions and discipline.Footnote 103 In addition, the judiciary relies on the executive for its funding and for the salaries of judges in circumstances which make the financial arrangements unsecure. These factors combine to create an environment adverse to the exercise of judicial independence.
Despite the constrained environment in which they operate, some judges have on occasion exercised their independence and ruled against executive arbitrariness. However, their heroism has been undermined by the absence of judicial power that, as seen above in Oyebowale, prevents the effective enforcement of their decision. A similar situation occurred in The People v Nya Henry,Footnote 104 where a High Court granted bail to detainees who were arbitrarily detained for ostensibly political reasons, given that they were members of a political organization advocating secession of the anglophone regions of Cameroon. Acting on the instructions of the procureur général, the legal departmentFootnote 105 failed to release the detainees in defiance of the court order. Instead it launched an appeal that was heard by the Appeal Court without any condemnation of the legal department's conduct in perpetuating the continued violation of the victims’ right to personal liberty. The reason for the Appeal Court's unacceptable approach became obvious when the High Court judge was transferred from his position on the bench to the legal department in a different geographical jurisdiction. It was clear that the judges in the Appeal Court were reluctant to condemn the continued violation of the victims’ right to personal liberty for fear of potential retribution from the executive.
The lack of judicial power is a situation that will continue to undermine the effective enforcement of the right to personal liberty as victims are unable to rely on the courts for habeas corpus or bail. Ultimately, confidence in the judiciary may diminish significantly, exacerbating disrespect for the rule of law and consolidating the culture of disrespect for human rights.
Inefficiency in the justice system
The Cameroonian justice system is said to be inefficient, which partly accounts for delays in judicial processes.Footnote 106 There is lack of adequate coordination between the courts, the prosecution and the penitentiary services. Moreover, court processes can be very lengthy, primarily due to administrative inefficiency and insufficient preparation by the prosecution.Footnote 107 This results in frequent delays and adjournments.Footnote 108 These factors undermine the enforcement of the right to personal liberty, in that victims are not brought promptly before a judge or judicial officer as required by law and tend to be detained far beyond the legally acceptable limits. That was the situation in Namondo Makake v Bernard O Bilai,Footnote 109 where the applicant was detained for 45 days by the senior divisional officer for Fako for theft or misappropriation before she was brought before a judicial officer. That was clearly contrary to the statutory limit of 48 hours mandated by the CPC.Footnote 110 The results of inefficiency also affect the expediency of habeas corpus applications, which may not necessarily be heard within the statutory time limit.Footnote 111
Perhaps the most symptomatic consequence of the inefficiency of the justice system is the problem of excessively lengthy pre-trial detentions.Footnote 112 That problem is of major concern as it is not uncommon for detainees to be in pre-trial detention for more than ten years.Footnote 113 The complainant in Pierre Désiré Engo, who had been arrested on charges of embezzlement, remained in pre-trial detention for over seven years.Footnote 114 The complainant in Akwanga was in pre-trial detention for over two years without any opportunity to challenge the lawfulness of his detention.Footnote 115 Non-governmental organizations have raised concerns about the length of pre-trial detention, arguing that it contributes significantly to prison overcrowding and the subjection of detainees to inhumane and degrading prison conditions.Footnote 116 The government's statistics published in its 2012 human rights report to the African Commission indicated that two-thirds of the national prison population between 2008 and 2010 consisted of pre-trial detainees.Footnote 117 According to the Cameroon Bar Association and the NCHRF, the problem can be attributed to a number of factors, including judicial inefficiency, a dearth of competent judicial and legal personnel, insufficient use of procedures for temporary release, corruption and lost files due to inadequate tracking systems.Footnote 118 The government has argued that judicial delays and the number of pre-trial detentions have been curbed through its Programme for the Improvement of Detention Conditions and Respect for Human Rights, partly funded by the European Union. In addition, the Cameroon Bar Association in collaboration with the Project on Promoting the Right of Inmates and Detainees (PRIDE Project), initiated by Catholic Relief Services, has also attempted to alleviate the problem of lengthy pre-trial detention. These efforts have involved a programme on effective record keeping and training judges on more effective implementation of the CPC.Footnote 119 In spite of these efforts, pre-trial detention remains of great concern. The US Department of State country report for 2013 revealed that more than 60 per cent of detainees in Cameroon were still in pre-trial detention.Footnote 120 That figure was confirmed by the UN High Commissioner for Human Rights who raised concerns about unnecessarily lengthy and slow judicial processes.Footnote 121 Some non-governmental organizations have argued that the government's efforts are insufficient and fail to take account of the problems attributed to lengthy pre-trial detention.Footnote 122 In addition, there appears to be some reluctance on the part of senior judges to adopt some of the procedures introduced in the CPC.Footnote 123
Feeble National Commission on Human Rights and Freedoms
National human rights institutions have the potential to play a significant role in the protection of human rights. Their effectiveness is predicated largely on the extent of their independence from the executive and other institutions that may inhibit their effective functioning.Footnote 124 Determining the scope of the concept of independence is not without its problems.Footnote 125 However, it is generally accepted that independence in this sense entails an institution's financial independence, independence of its personnel and its subjective independence.Footnote 126
Regrettably, in Cameroon the NCHRF is an institution that lacks independence, a factor that, unsurprisingly, has undermined its effectiveness. Its lack of independence is an historical deficiency which originally emerged after its initial creation by presidential decree in 1990.Footnote 127 Its creation was a reluctant government response to popular demands for democratization and respect for human rights. That decree vested the president of the republic with exclusive powers of appointmentFootnote 128 and restricted NCHRF membership in such a way that it did not represent a cross-sectionFootnote 129 of society as recommended by the Paris PrinciplesFootnote 130 and Commonwealth Best Practice.Footnote 131 Subsequently, a significant number of government officials, ostensibly supporters of the government, were appointed to the NCHRF, further undermining its legitimacy and credibility.Footnote 132 In addition, the decree had vague provisions on security of tenure, a limited mandate for the institutionFootnote 133 and inadequate financial provisions,Footnote 134 which made the institution untenably reliant on the executive. Due to its lack of independence, the institution remained silent in the face of human rights violations. In 2004, in an effort to reflect better the international standards espoused by the Paris Principles and the Commonwealth Best Practices, a new law was enacted.Footnote 135 The new law introduced sweeping reforms including a wider membership, a degree of financial independenceFootnote 136 and a broader mandate.Footnote 137 However, the institution remains weak, due in part to the insufficiency of the reforms.Footnote 138 For instance, it still retains the problem of lack of independence. Although the majority of its membership is appointed through prior nominations,Footnote 139 key authorities including the president and vice-president are appointed by presidential decree.Footnote 140 Moreover, the key officials and the entire membership are accountable to the executive rather than to Parliament.Footnote 141 In addition, despite its relative financial autonomy, it is still grossly underfunded.Footnote 142 The lack of financial resources has undermined the extent to which it can perform its duties effectively.Footnote 143
The NCHRF's weaknesses have been exploited by some public officials who wilfully undermine its effective functioning. In terms of protecting the right to personal liberty, it faces serious challenges. Although the NCHRF is vested with powers to investigate incidents of human rights violations and intervene on behalf of victims of arbitrary detention to secure their release on bail,Footnote 144 its work is hindered by a lack of collaboration from some administrative authorities who remain unresponsive to cases of illegal detention brought to their attention.Footnote 145 Administrative authorities are “not only passive but also confrontational”.Footnote 146 In fact, members of the NCHRF have themselves been arrested by police officers when the former have approached police stations to offer assistance to victims on remand.Footnote 147 Police arbitrariness and contempt demonstrated to NCHRF officials is also an expression of the lack of a culture of respect for human rights discussed earlier. The situation is further compounded by the fact that, even where the NCHRF could investigate an alleged violation, the paucity of resources inhibits its ability to proceed.Footnote 148
Inadequate judicial review mechanism
In addition to the small number of specific provisions, such as those on bail and pre-trial detention, which appear incompatible with international standards, there are provisions of other laws which tend to facilitate arbitrary arrest and detention.Footnote 149 One example is section 347 bis of the Penal Code, which criminalizes sexual relations between persons of the same gender. There is a general hostility towards homosexuality in Cameroon, which, coupled with the law, provides the opportunity for security officers to arrest suspected homosexuals, without reasonable suspicion.Footnote 150 They are usually arrested and detained for prolonged periods without charge and subjected to torture and lengthy pre-trial detention.Footnote 151 Judicial review should be the mechanism by which the continued application of such legislation could be challenged. However, there are several weaknesses attributed to the system of judicial review in Cameroon, foremost of which is the form of review and standing.
The form of review envisaged by the law is the abstract model based on the traditionalFootnote 152 French a priori system of judicial review. Cameroon's Constitution provides that, “[l]aws as well as treaties and international agreements may, prior to their enactment be referred to the Constitutional Council”Footnote 153 for determination of their constitutionality. This implies that a challenge relates to bills that have been adopted by Parliament before their promulgation, thereby precluding the review of enacted legislation.Footnote 154 The advantage of that system is that legislation with the potential to infringe human rights would have been checked before its promulgation.Footnote 155 Nevertheless, a major disadvantage is that a law may still be passed that infringes human rights and yet it will be applied until it is repealed by Parliament. Besides, the purported advantage of that system is dependent in part on the existence of an active and autonomous legislature that has the power independently to debate bills tabled before it. That is not the case is Cameroon where Parliament is hardly independent and is known to be an institution for the authentication of executive arbitrariness.Footnote 156
Another weakness attributed to the mechanism for the judicial review of legislation relates to standing. The constitution limits the category of persons with standing to the national president, the president of the National Assembly, the president of the Senate and one-third of the members of the National Assembly or Senate.Footnote 157 Heads of regional executives also have standing where the interest of their region is likely to be affected by legislation.Footnote 158 With respect to the protection of the right to personal liberty, two significant problems are discernible. First, the restriction amounts to a denial of justice to ordinary citizens who are most likely to be victims of arbitrary arrest and detention. Secondly, individuals in that special category are unlikely to challenge the constitutionality of laws, given that they would have initiated and voted for those laws in the first place. For instance, a significant proportion of legislation is introduced by the executive and in particular the president of the republic.Footnote 159 It is improbable that the president would challenge a law that he initiated in the first place. In addition, Parliament lacks institutional independence and is controlled extensively by the executive.Footnote 160 Members of the ruling majority are generally reluctant to challenge proposals from the government.Footnote 161 It is therefore doubtful that the majority would be keen to challenge a law initiated by the president. That is even less likely to be the case with the president of the National Assembly who is from the ruling party.Footnote 162 The opposition could fill the gap depending on its ability to secure one-third of the parliamentary majority. In any democracy that would be a challenge. In Cameroon, it is a practical impossibility given the ruling party's historical record of an overwhelming majority in Parliament. The current distribution of parliamentary representation demonstrates that the ruling Cameroon People's Democratic Movement occupies 148 of the 180 seats, leaving a paltry 32 seats to the opposition in the National Assembly, hardly sufficient to mount a challenge to unconstitutional legislation.Footnote 163
The mechanism for judicial review is severely inadequate, leaving the majority of the population without any reasonably accessible avenue to challenge the constitutionality of laws infringing their personal liberty. These weaknesses largely account for the absence of any reported instances of an actual challenge to the constitutionality of a law in Cameroon.Footnote 164
This discussion has highlighted some of the major challenges inhibiting the effective enforcement of the right to personal liberty in Cameroon. However, those challenges are not insurmountable and could be addressed to provide better protection for the right to personal liberty.
PROSPECTS FOR THE EFFECTIVE PROTECTION OF THE RIGHT TO PERSONAL LIBERTY
The government of Cameroon has ratified and domesticated international instruments that have been complemented by domestic laws and the existence of protection mechanisms. The task is to determine how those legal instruments and protection mechanisms can be harnessed to enhance their effectiveness. That will entail an all-encompassing set of reforms affecting the judiciary, the criminal justice system and the judicial review mechanism. Ultimately, there is a great need to develop and entrench a culture of respect for human rights.
Strengthening the protection mechanism
Judicial power
In Cameroon, it is vital that the constitutional guarantee of judicial independence is made a reality. That will go a long way to strengthen judicial power. For that to happen a number of institutional features need to be reformed.Footnote 165 For instance, an independent and transparent system needs to be introduced for the appointment, promotion and discipline of judges. Further, the judiciary should be vested with powers to control its budget and judges should be adequately remunerated. A judiciary so strengthened is less likely to be pressured to protect unjustly the interest of the executive against victims of human rights violations. With respect to enforcement, the advantage is that the courts would have clout to compel enforcement officers to execute court orders even against executive officials, because there would be little or no expectation of reprisals from the executive in the form of disciplinary sanctions or the withholding of finances.Footnote 166
The justice system
As identified earlier, the problem with the criminal justice system involves the judiciary, the penitentiary and the prosecution. A key to the required reform is increased cooperation between these organs to ensure that information is exchanged expeditiously. Moreover, all relevant officials should be kept informed of the actions that they are required to undertake at the necessary times. This will entail periodic training to ensure that the officials are equipped with up to date knowledge of best national and international practice. Increased coordination has the potential to enhance the prompt presentation of detainees in court and timely execution of court orders.
Judges also need to be trained on alternative sentencing methods in order to shift the focus away from custodial sentences. The UN High Commissioner for Human Rights has recommended that judges should adopt a human rights oriented approach and consider alternative sentencing options in order to decongest the overcrowded prisons.Footnote 167 Alternative sentences could include community service for minor infractions.Footnote 168 Judges should also make more use of bail, as provided for in the CPC.
A further reform worth considering is reform of administrative practices in the courts to reduce administrative inefficiency. Again, that requires some training of administrative personnel to instil good practices in office management, such as systematic record keeping. That could be further enhanced by the introduction of electronic filing systems, for which the government would have to be solicited for resources. Although there may be cost implications, that would be an investment worth considering.Footnote 169 A programme for the computerization of prison records was introduced under the PRIDE Project.Footnote 170 That should be extended to the justice system in order that the reforms can achieve their maximum potential. An e-justice programme was successfully introduced in South Africa to tackle inefficiency in the justice system.Footnote 171 It aimed to address problems such as huge backlogs and prison overcrowding with a large number of detainees in pre-trial detention.Footnote 172 The South African system could be instructive in developing an approach suitable for Cameroon's requirements and resources.
The National Commission on Human Rights and Freedoms
Like the judiciary, the NCHRF needs a high degree of independence in order to discharge its mandate to protect and promote human rights in Cameroon. In order to achieve this, its accountability base must first be reformed. Thus, the commissioners, including and in particular the president and vice-president, should be accountable to the legislature rather than the executive. That would require the NCHRF to report to Parliament and have the opportunity for an effective and engaging debate of its reports as recommended by the Commonwealth Best Practice.Footnote 173 Further, the appointment of the president and the vice-president should follow similar procedures of independent nomination and approval by Parliament. Reforms along those lines have the potential to enhance the NCHRF's independence, to the point of affording scope for it to be assertive in denouncing executive violations of the right to personal liberty.
As recommended by the Paris PrinciplesFootnote 174 and the Commonwealth Best Practice,Footnote 175 there is a need for enhanced cooperation between the judiciary, the legislature and the executive. This is undoubtedly a herculean task, given the antagonistic attitude of some executive officials towards the NCHRF. Nevertheless, the law implicitly makes provision for cooperation by requiring the NCHRF to submit reports and complaints about violations to the minister of justice,Footnote 176 to request the presence of prosecution authorities during NCHRF organized visits to detention sitesFootnote 177 and to request assistance from the competent judicial authorities to facilitate the acquisition of evidence during NCHRF investigations.Footnote 178 While these provisions do not expressly oblige the relevant authorities to cooperate, the NCHRF can use them as the basis to exact cooperation from them. That could be done through a process that would expose the relevant authority to public scrutiny in the event that it failed to provide assistance to the NCHRF. A system adopted by the Nigerian Human Rights Commission is instructive. That commission assists the government in preparing a national action plan presented to Nigeria's international partners, such as the United Nations, as Nigeria's commitment to protecting and promoting human rights.Footnote 179 The plan subsequently serves as a benchmark for assessing Nigeria's human rights standards. Professional bodies such as the Nigerian Bar Association or other prominent civil society organizations can question the government or the commission to explain why the action plan or some parts of it are not being implemented.Footnote 180 In that way, the government and other relevant authorities are obliged to collaborate with the commission to enhance human rights.
In Cameroon, it is also necessary for the NCHRF to receive sufficient funding. There is no clear cut way of ensuring that the government provides sufficient funding, given its relative resource constraints and other financial commitments. However, the government needs to demonstrate its commitment to the protection and promotion of human rights by prioritising financial allocations to the NCHRF. The NCHRF can also seek to secure private funds through grants from national and international partners. For that however, it needs to demonstrate good practices and positive results in discharging its mandate. One way of achieving the twin objectives of enhancing its credibility with donors and seeking cost effective measures is by cooperating with civil society organizations and the press, and using volunteers. The South African Human Rights Commission was successful in carrying out an extremely costly project to investigate violations against immigrants, despite insufficient funds, by cooperating with civil society organizations and involving university students.Footnote 181
Judicial review and conventionnalité
The reforms envisaged with respect to judicial review require opening up the review mechanisms to permit post-legislative review. This reform is of primary concern, given that it provides scope for the reform or repeal of laws that inherently or by their application impinge on the right to personal liberty.
The next reform will entail providing individual access to the Constitutional Council. A number of francophone African countries have introduced reforms allowing ordinary citizens access to their constitutional courts. For instance, the Constitution of the Democratic Republic of Congo makes provision for individual access to the Constitutional Court.Footnote 182 That is also the position in Benin, where individual access to the Constitutional Court is said to be the key feature that permits the court to exercise its mandate as a guarantor of human rights.Footnote 183
Undoubtedly, the proposed reforms require constitutional change and change in a constitutional tradition, a project which may be met with reluctance from the government. In the interim, there is scope to address the lacuna by resorting to a review of national legislation for compatibility with international instruments ratified by Cameroon. That practice was developed by the courts in France and is known as “le contrôle de conventionnalité” (conventionnalité).Footnote 184 It developed from a creative interpretation of article 55 of the French Constitution which gives pre-eminence to duly ratified international instruments, stating that, once ratified, they override national laws. That provision has allowed the courts in France to review national legislation for compatibility with international instruments through conventionnalité. The practice was first used by the Court of Cassation in Société des Cafés Jacques Vabre Footnote 185 where the court declined to apply section 265 of the Custom Code on the ground that it was incompatible with article 95 of the Treaty of Rome. Referring to article 55 of the French Constitution, the court reasoned that the legislator intended to give precedence to the treaty. Therefore, that provision of the code could not be applied, due to its incompatibility. The practice has been further developed and used successfully by the Conseil d’ÉtatFootnote 186 to review human rights legislation to fill the gap that existed in France before the introduction of post-legislative review in 2008.
In Cameroon, as in France, the constitution gives pre-eminence to duly ratified instruments stating that, “following their publication, [they] override national laws”.Footnote 187 The inference that could be drawn from that provision is that the legislator intended domestic law to be compatible with international instruments, failing which it should be overridden. The judges in Cameroon could be creative in applying that constitutional provision to review the compatibility of national legislation with international instruments such as the ICCPR and ACHPR. In fact, two decisions of the courts in Cameroon appear to indicate some scope for conventionnalité. In Maïramou Oumarou,Footnote 188 where the court of first instance in Ngaoundéré was faced with a matter on forced marriage, it stated that Cameroonian law, in particular section 356 of the Penal Code, was compatible with article 16(1)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women.Footnote 189 A similar approach was adopted by the court of first instance in Yaoundé in SA Ami Voyage v Ayisi Ndzana and Others Footnote 190 with respect to article 45 of the constitution. The court there held that article 45 was compatible with the OHADA Treaty, given that it affirmed the pre-eminence of international law in the domestic legal order, a normative requirement under the OHADA Treaty. It went further to state that a domestic judge seized in a matter within his competence is obliged to apply the treaty fully to protect the rights it confers on citizens and to set aside any incompatible domestic law. These cases demonstrate that judges can be creative and assertive in applying article 45 as a basis for conventionnalité.
Admittedly, for such a practice to develop in Cameroon there will need to be some activism on the part of the judges, for at least two reasons. First, the constitution does not expressly provide for this form of review. Naturally, judges would be reluctant to adopt a practice not expressly provided for. In fact, judges appear to be reluctant to apply international law directly. Although reference is frequently made to Cameroon's international human rights commitments, judges have been reluctant to apply specific provisions in lieu of domestic law. For instance in Wakai,Footnote 191 although the court affirmed the primacy of international law in the domestic legal order, it stated clearly that it was more concerned with the acts of violation of personal liberty complained about, rather than the regulatory instrument under which the acts were committed. Secondly, as discussed earlier, judges are severely constrained due to their lack of independence. Given that position, they would naturally seek to protect the status quo, rather than to engage in a practice that is not sanctioned by the constitution and of which the government is likely to disapprove. Brusil Metou argues that the judges in Maïramou and Ami Voyage were bold spirits in making a declaration on conformity only because, in those instances, domestic law conformed with international law.Footnote 192
Nevertheless, as seen above, there is scope for that practice to develop in Cameroon. If that happens, it will go a long way to enhance the protection of human rights, and the right to personal liberty in particular. Moreover, because conventionnalité will be performed by ordinary courts that are accessible to the ordinary person, it is likely to address the problem of limited access to the Constitutional Council.
Developing a human rights culture
There is a general need to develop a culture that supports respect for human rights. This will entail greater understanding of basic entitlements, their protection and promotion, and a shared sense of responsibility for their continued protection, including firm denunciations of unfair or unjust restrictions. That is not too idealistic given that Cameroon is already equipped with the legislative framework and the structural or institutional mechanisms that could work in tandem to foster the development of such a culture. There should also be extensive education for the public on their rights and duties, as a well-educated community is better placed to use available mechanisms to assert its rights. Such a venture should be spearheaded by the NCHRF with the assistance of other civil society organizations and public authorities. In particular, the Directorate for Human Rights and International Cooperation at the Ministry of Justice should be more visible and proactive in developing a national human rights promotion and implementation strategy. Further, respect for and the promotion of human rights should be embedded in all government policies and decision making processes. Again, continuous professional development of relevant officials including administrative authorities, police officers and judicial personnel should incorporate elements of human rights training. In due course, the combined effect of the proposed strategies has the potential to nurture and entrench a culture of respect for and promotion of human rights in Cameroon.
CONCLUSION
These discussions highlight the age old problem of the domestic implementation of international standards. After analysing the enforcement of the right to personal liberty in Cameroon, this article finds that, although domestic legislation recognizes and purports to guarantee the protection of that right, a small number of provisions are incompatible with international standards. The analysis also uncovers the fact that, besides the inadequacies identified in the law, the major obstacles to the effective enforcement of that right can be traced to socio-political factors such as the absence of a culture of respect for human rights and structural weaknesses in the protection mechanism. The latter relates to such aspects as the absence of actual judicial power, weaknesses in the justice system, a feeble NCHRF and the existence of an inadequate mechanism for the judicial review of legislation. This article has argued that a number of reforms are necessary in order better to secure the effective enforcement of that right in compliance with international standards. Thus, there is a need to guarantee actual judicial independence, which will go a long way to strengthen judicial power. It is also necessary to strengthen, integrate and modernize the criminal justice system and to endow the NCHRF with actual financial and political independence. There is also a need for a constitutional amendment to enable post-legislative review of legislation. However, in the interim, there is a call for judges to be more proactive in applying constitutional provisions to develop a practice of review of legislative provisions to determine their compatibility with international instruments. Ultimately, a culture of respect for human rights in Cameroon needs to be developed. In the absence of these proposed reforms, the effective enforcement of the right to personal liberty in Cameroon will remain illusory.
