READINGS IN THE CAMEROON CRIMINAL PROCEDURE CODE
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Readings in the Cameroon Criminal Procedure Code
Presses Universitaires d'Afrique Marque déposée de AES sa - Yaoundé 2007
ISBN : 978 - 9956 - 444 - 34 - 0
© L'Africaine d'Édition et de Services (AES sa) B.P. 8106 - Yaoundé - Cameroun Tél. (237) 22 20 26 95 / 22 01 80 93 - Fax. (237) 22 20 26 98 E-mail : aes@iccnet.cm - Site web : www.aes-pua.com
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Edited by
EWANG SONE Andrew With the collaboration of : DASHACO John TAMBUTOH ADE AKWO Catherine MBONE Simon TABE TABE
AMADOU MONKAREE NAH Thomas FUASHI TANTOH-AZUH Chrysanthus
Under the Supervision of
Prof. Paul-Gérard POUGOUÉ
Readings in the Cameroon Criminal Procedure Code Preface by
Chief Mathias EPULI ALOH Supreme Court of Cameroon Postface (Envoi...) by
Prof. Paul-Gérard POUGOUÉ Vice-Rector for Academic Affairs University of Yaounde II
Presses Universitaires d’Afrique B.P. 8106 Yaoundé - Cameroun -3-
Readings in the Cameroon Criminal Procedure Code
Dedication
To Late Professor Peter YANA NTAMARK, a procedural law expert who taught, inter alia, Criminal Procedure, Civil Procedure, Principles of the Law of Evidence and Comparative Criminal Law in the University of Yaounde (now University of Yaounde II) for wellover (03) three decades. He slept in the Lord on December 11, 2006. May his soul rest in perfect peace.
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Table of Contents
Dedication ............................................................................................... 4 Preface ...................................................................................................... 7 Foreword ................................................................................................ 11 1. Criminal Procedure in Cameroon : from dualism to a common code ............................................................................ 15 By EWANG SONE Andrew 2. A bird’s eye view of the Cameroon Criminal Procedure Code .................................................................................................. 31 By ADE AKWO Catherine MBONE 3. A look at preliminary inquiry under the Cameroon Criminal Procedure Code ............................................................................... 49 By Simon TABE TABE 4. Nolle prosequi under the Cameroonian Criminal Procedure Code ............................................................. 81 By DASHACO John TAMBUTOH 5. Examination of witnesses and joint trial under the Cameroon Criminal Procedure Code ................................. 113 By EWANG SONE Andrew -5-
Readings in the Cameroon Criminal Procedure Code Table of Contents
6. Due process in criminal trials under the Cameroon Criminal Procedure Code ............................................................ 133 By TANTOH-AZUH Chrysanthus 7. Habeas corpus under the Cameroon Criminal Procedure Code ................................................................................................. 151 By DASHACO John TAMBUTOH & EWANG SONE Andrew 8. The differing conceptions of bail in Cameroon ....................... 179 By EWANG SONE Andrew 9. The trial rights of an accused person in Cameroonian criminal proceedings ................................................................... 179 By AMADOU MONKAREE 10. The protection of the maxim « innocent until proven guilty » by the Cameroon Criminal Procedure Code ........................... 231 By NAH Thomas FUASHI 11. Envoi... / Envoy... .......................................................................... 255 By Prof. Paul-Gérard POUGOUÉ Index ..................................................................................................... 263
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Preface
READINGS IN THE CAMEROON CRIMINAL PROCEDURE CODE is the result of the concerted effort of a group of University Lecturers in Cameroon State Universities to present in easily readable language the new Cameroon Criminal Procedure Code (Law No. 2005/ 007 of 27 July, 2005) before it comes into operation on 1 January, 2007. It is to me a great privilege to be invited to write the preface of this work. Just as, in pursuance of provisions of Decree no. 2000/322 of 7 November, 2000 to set up and lay down the composition of Judicial Law Reform Commissions, Justice Daniel MINLO, of blessed memory, and I, were assigned by the Rt. Hon. Chief Justice Alexis DIPANDA MOUELLE to represent the Supreme Court on the Criminal Law Commission which completed the work started some forty years earlier of drawing up a uniform code on criminal precedure. To countries of the developing world, globalisation has the effect of a gale, a sand-storm even, creating panic and damage, while the same wind becomes a balmy breeze and harbinger of all the good things of life as it approaches the shores of the have nations. However, as they say, necessity is the mother of invention. Consequently, the countries of the developing world are fighting to set up wind-brakes and shelters which consist not only in the appropriation of modern salutary science and technology but also the adoption of rules of law that meet with generally accepted -7-
Readings in the Cameroon Criminal Procedure Code
standards in ordering the conduct and protection of states, governments, communities, groups and individuals. The Cameroon Criminal Procedure Code is an example of such action. The code is a bold, well thought-out and innovative effort of a country seeking to come to terms with its history and to meet with the challenges of the present and the future with regard to the place of state authority, the rights of the individual, crime and punishment in a modern state exposed to the winds of globalisation. Every new road needs to be sign posted before it is put into use if it is to serve as an instrument of progress and improved welfare and not as a death trap. With time, more road signs are added and structural defects, which can only be detected through use, are remedied. As with a new road, so too with a new code. The initial application of a new code will be smoother and more beneficial if it is preceded by studies such as are contained in READINGS IN THE CAMEROON CRIMINAL PROCEDURE CODE. READINGS IN THE CAMEROON CRIMINAL PROCEDURE CODE is an attempt to sign post the new code and thus ease its introduction into the ever turning wheels of justice in Cameroon. The scholars present the code as it is, while pointing out to practitioners the pitfalls they may encounter in its application. The work quite appropriately opens with a historical conspectus of the code (EWANG SONE Andrew, Criminal Procedure in Cameroon: From dualism to a Common Code). In that article, the author takes us on a guided tour of the code’s unlikely colonial origins, its forty year period of gestation - like the Jews wandering in the desert ? - and its premature birth, requiring a further incubation period of eighteen months in the nursery before it is released on January 1, 2007. While general principles of law and the rules defining and punishing specific offences are in themselves inanimate objects, codes of procedure are living organisms and as such have parts and systems. These have to be called into play in order to give life to the general principles and rules on specific offences. The parts constitute the structure of the code, while the systems consist of the legal rules and principles enshrined therein. -8-
Preface
With regard to the parts, ADE AKWO Catherine MBONE in A Bird’s Eye View of the Cameroon Criminal Procedure Code, presents us with a point by point description of the various articulations of the code. For his part, Simon TABE TABE in A Look at Preliminary Inquiry under the Cameroon Criminal Procedure Code, dwells on the key issue of the preliminary inquiry which has gone back to the Bench, after a thirty -five year sojourn in the Legal Department brought about by the Judicial reforms of 1972. (See Ordinance No. 72/4 of 26 August, 1972 on the judicial organisation of the State). In Nolle Prosequi under the Cameroonian Criminal Procedure Code, DASHACO John TAMBUTOH deals with an act which borders on an act of State since it cannot be questioned, though the State or the People reserve the right to re-institute the proceedings they so withdraw. The author points out the risk of such unquestionable power in the hands of the people. Though one may wonder whether it does not undermine the independence of the judiciary, it is worth mentioning that the power to use the nolle is to be construed as a manifestation of the sovereignty of the State and its obligation to act at all times and in all circumstances in the general interest. Anyway, the discretion to prosecute is a State prerogative except where the law provides otherwise. The practical issue of the examination of witnesses is the subject matter of EWANG’s Examination of Witnesses and Joint Trial under the Cameroon Criminal Procedure Code. This issue does indeed become complex in a joint trial. The author emphasises that forensic skills are required for the process to be successfully carried out. Dealing with systemic issues, TANTOH-AZUH Chrysanthus in Due Process in Criminal Trials under the Cameroon Criminal Procedure Code, poignantly analyses the place of due process in the code. DASHACO and EWANG in Habeas Corpus under the Cameroon Criminal Procedure Code, examine the treatment given to habeas corpus in the code, while EWANG in The Differing Conceptions of Bail in Cameroon, revisits the sister concept of bail in the existing criminal law systems in the country, pointing out the shining lights we should expect in this area of the law from January 1, 2007.
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Readings in the Cameroon Criminal Procedure Code
The pieces by AMADOU MONKAREE (The Trial Rights of an Accused Person in Cameroonian Criminal Proceedings) and NAH Thomas FUASHI (The Protection of the Maxim «innocent until proven guilty» by the Cameroon Criminal Procedure Code) leave us with the distinctly pleasant feeling that with the coming into force of the code, «innocent until proven guilty» will no longer be just a principle but a rule of law. By explaining and disseminating the contents of the new code, READINGS IN THE CAMEROON CRIMINAL PROCEDURE CODE is a powerful instrument in the promotion of the rule of law. I recommend READINGS IN THE CAMEROON CRIMINAL PROCEDURE CODE not only to men and women of law but also to men and women on the Clapham Omnibus.
Chief EPULI ALOH Mathias Supreme Court, Yaounde 20 December, 2006.
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Foreword
Uniformity is an essential ingredient of law. The normal and necessary marks, in a civilized community, of justice administered according to law, are generality, equality and certainty.1 This statement is in fact the «Cape Horn» of legal science.2 In the words of Sir Carleton Allen:3 «Uniformity and universality are essential characteristics of law. To the quality of uniformity, there can be no exception; a rule cannot be expressed in different forms having different meanings, for then it ceases to be a rule; though it may be expressed, as legal rules often are, in different forms having the same meaning. The essential meaning and intention of the rule must be uniform.» The effectiveness of any rule of law depends on its painless harmonisation with the society within which such rule is to operate.4 The greater or less happiness of a people depends on the degree of Pollock, Jurisprudence, 5th Edn., p.37. M.I. Jegede, Principles of Equity, Ethiope Publishing Corporation, Benin City, Nigeria, 1981, p.9. 3 Allen, Law in the Making, 7th Edn., 1964, p.387. 4 See Abolition of the Osu System Law, Eastern Nigeria, No. 13 of 1956, cf. Obi, Ibo Law of Property, 1963, p.163. 1 2
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promptitude with which such harmonisation is done.5 Public respect for law, without which law cannot exist and civilization itself is threatened, depends upon the law’s ability to satisfy the average man’s feeling for common justice visibly done.6 The contemptuous disregard of the Common Law for human values aided the expansion of Chancery jurisdiction, in that the latter recognised and gave effect to the accepted elementary principles of social justice.7 The Code d’Instruction Criminelle derived from the French Ordinance of 14th February 1838 and its subsequent amendments (formerly applicable in Francophone Cameroon) and the Criminal Procedure Ordinance, chapter 43 of the Revised Editions of the Laws of the Federation of Nigeria, 1958 (formerly regulating criminal proceedings in Anglophone Cameroon), have both given way to the 2005 Criminal Procedure Code, which enters into force throughout Cameroon on January 1, 2007 – a code which, from its face value and the greater portion of its contents, no doubt leaves one with the impression that it recognises and, thus, incorporates the elementary principles of the rule of law, fair trial and social justice which are the hallmarks for Cameroon’s attainment of greater civilization and modernity. As Professor Maurice Kamto has remarked:8 « The new criminal code is a very unique code because it is the first time Cameroonians have succeeded to merge in one single system, the Anglo-Saxon and Romano-Germanic rules of law. The new code will go a long way to strengthen the unity of our country during the execution of our laws... The new criminal procedure code entails that the citizen’s right as a human being must be protected no matter the crime the citizen has committed.»
5 See Maine, Ancient Law, 10th Edn., p.29. See also Elias, Nigerian Legal System, pp.5-6. 6 Cooper, « The Common and the Civil Law – A Scot’s view », 63 Harv. L. Rev. (1949 – 50), 468, 473. 7 M.I. Jegede, supra, note 2, p.10. 8 Prof. Maurice Kamto, Minister Delegate to the Minister of Justice, cf. L’Effort Camerounais, English Version, No. 379, May 24- June 6, 2006, p.4.
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Foreword
We think that a lot of effort has to be put in by legal practitioners, no matter the legal divide in which they happen to find themselves, towards the application of this new code. However, mindful of the fact that many of the concepts embedded in the new code are English Law oriented, we, a group of English Law Lecturers drawn from some State Universities in Cameroon, have thought it wise to yield to the scholarly advice of Professor Paul-Gerard POUGOUE, Vice Rector in charge of Academics at the University of Yaounde II, (to whom we express our sincere gratitude), and so put together, in the form of a book, our comments on some salient issues incorporated in the new code. Professor Paul-Gérard POUGOUE, an eminent scholar and prolific writer, did not only supervise the writing of the book, but went further to accompany the reader on his path towards a better understanding of the new code, by writing a fascinating «.envoi » - a sort of conclusion or «postface» of our work. We highly appreciate the intellectual and professional consciousness of Maître TWENGEMBO for his open-mindedness in readily drawing our attention to some burning issues incorporated in the new Criminal Procedure Code. The book is entitled, Readings in the Cameroon Criminal Procedure Code. It is made up of (10) ten Chapters which, strictly speaking, are academic papers drawn from some legal experts, with each chapter dwelling on a particular concept or a number of concepts embodied in the common code. With an authoritative preface coming from a seasoned jurist, Chief Justice Mathias EPULI ALOH, Judge of the Supreme Court of Cameroon who represented the latter on the Criminal Law Commission, we hope that this piece of work will be considered as a starting point on issues relating to the application of criminal proceedings in Cameroon in the light of recent legislation. We therefore highly recommend the book to Magistrates, Lawyers, University Lecturers and Students, Legal Researchers, Civil Servants, Employers and Employees of Private and Public Enterprises, as well as the Public at large. It is our hope that this work will promote more
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Readings in the Cameroon Criminal Procedure Code
research and documentation in this aspect of adjectival law. In this way we « would have cleared the bush and laid the foundation on which wiser heads in time may build».9 For a better understanding of our comments, the reader should also obtain for himself/herself copies of the Criminal Procedure Code, the Penal Code, the Cameroon Constitution and other relevant texts. While this work was taken to press, Law No. 2006/008 of 14 July, 2006 was promulgated, amending Section 747 of the newly enacted code which provides that the Criminal Procedure Code will come into force on the first day of the 13th month following that of its promulgation, which was August 1, 2006. According to this amendment, the new code will come into force on January 1, 2007 in order, (in the language of the explanatory statement to the bill), «to enable the government to complete the extensive popularisation exercise it has already begun». We owe a lot of appreciation to Chief Justice Mathias Epuli Aloh for accepting to write the preface of this book, the very short notice and his tight schedule notwithstanding. His patience in reading through the work - correcting and making concrete proposals - guided us, a great deal, in restructuring the title and contents of the work. We thank Mrs Mzeka Vivian Mambo Akoh, Miss Bezejuh Atembe Evelyne and Mr Nke Fils for the pains taken in typing most of our manuscripts as well as correcting the entire work. Our gratitude also goes to Messrs. John Taku Alemanji and Thaddeus Menang for translating some portions of the work. Finally, we very much appreciate the services of our publishers, « Presses Universitaires d’Afrique » and those of « Juridis SA ». Their Directors, Mr Serge Dontchueng Kouam and Me Twengembo, have not only been very patient with us, but have always been available to provide us with some relevant texts and office space. Yaounde
EWANG SONE Andrew
September 21, 2006.
Editor / Coordinator
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Carlson Anyangwe, The Cameroonian Judicial System, CEPER, Yaounde, 1987, p. xv. - 14 -
Criminal Procedure in Cameroon : from dualism to a common code By EWANG SONE Andrew Senior Lecturer Faculty of Law and Political Science University of Dschang * 1.
*
*
A brief legal history of Cameroon
The present Republic of Cameroon was part of the German protectorate1 of Kamerun proclaimed on 14 July 18842. Cameroon was therefore one country under the Germans. With the defeat of Germany in the First World War, the two Occupying Powers who had entered Cameroon (Great Britain and France), provisionally agreed to the partition of Cameroon, with France taking the lion’s share.3 1 H.N.A. Enonchong, Cameroon Constitutional Law, Centre d’Edition et de Production de Manuels, Yaounde, 1967, p. 49. Professor Carlson Anyangwe however submits that the tag ‘protectorate’ was merely a labelling swindle for the territory was to all intents and purposes a German colony : Carlson Anyangwe, The Cameroonian Judicial System, CEPER, Yaounde, 1987, p. 3. 2 Charles M. Fombad, «The Scope for Uniformised National Laws in Cameroon», Rev. Jur. Afr., No.3, 1990, p. 60. 3 P.Y. Ntamark, « The Constitution of the Federal Republic of Cameroon and the Federal Principle,» Cameroon Law Review, 2nd Series, No. 19-20, 1980, p. 5.
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In 1922, this partition was recognised by the League of Nations which conferred mandates on the British and French to administer Cameroon. With the birth of the United Nations Organisation in 1946, the «two Cameroons» became trust territories. The Mandates and the Trusteeship Agreements were, therefore, the legal instruments that authorised the translocation of foreign laws into Cameroon.4 In fact, Article 9 of the Mandates Agreement5 provided as follows: «The mandatory shall have full powers of administration and legislation in the area subject to the mandate. The areas shall be administered in accordance with the laws of the mandatory as an integral part of his territory. The mandatory shall therefore be at liberty to apply his laws to the territory subject to the modifications required by local conditions.» Through the Nigerian connection, Britain transplanted the English Common Law in her own territory (British Cameroons). This meant that laws already introduced in Nigeria were merely extended to British Cameroons.6 English law applies in Anglophone Cameroon by virtue of Sections 11 and 15 of the Southern Cameroons High Court Law (SCHCL) 1955.7 Meanwhile, France, as far back as 1924, had set up the Civil Law system in her own part of the territory.8 On October 1, 1961, the former British Trust Territory of the Southern Cameroons reunified with the Republic of Cameroon which had already become independent on January 1, 1960, to form the Federal Republic of Cameroon. In this union, the Southern Cameroons and the Republic of Cameroon became respectively the Federated Simon Tabe Tabe, «Some antipodal hurdles that beset the uniform working of the OHADA Uniform Acts in Cameroon,» Faculty of Law Annals, University of Dschang, Vol. 6, 2002, p. 34. 5 This Article 9 was re-enacted in Articles 5(a) and 4(1) of the Trusteeship Agreement with Britain and France respectively. 6 Emmanuel Mbah, « The relics of colonial heritage in African Laws: stopping cheques in Cameroon», African Journal of International and Comparative Law, Vol. 10, 1998, p.329. 7 See Inglis, J. in Enongenekang V. Enongenekang (982) HCSWP/28mc/82, unreported. 8 See Articles 1 and 2 of the French Decree of 16 April 1924. 4
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Criminal Procedure in Cameroon : from dualism to a common code
States of West Cameroon and East Cameroon.9 Following a nationwide referendum held on May 20, 1972, the people of Cameroon voted overwhelmingly to transform their Federal State into a Unitary State.10 This merger of the two Federated States of Cameroon gave birth to the Unitary Constitution of June 2, 1972.11 Cameroonian law, like those of most other African countries that went through the colonial experience, has therefore been influenced by foreign laws particularly the English Common Law and the French Civil Law. Determining the extent to which these foreign laws would be combined with the various customary laws to formulate uniform national laws has not been an easy exercise, given the disparity in approach, form and substance on many issues between the English Common Law and the French Civil Law, and the predominant influence they have had and would continue to have on the development of a unique Cameroonian law.12 2.
Successive commissions charged with the drafting of the Criminal Procedure Code
By 1964, barely two and a half years after reunification, two federal law reform commissions had been set up – the Federal Commission for Penal Legislation and the Federal Commission for Civil and Customary Legislation.13 The former was charged with drawing up a Penal and Criminal Procedure Code, and the latter, a Civil Code, a Code of Civil and Commercial Obligations, and a Civil Procedure Code. This arrangement immediately led to the unification of the varied substantive criminal law with the promulgation of the Cameroon Penal Code.14 Subsequently, the following areas of the law P.Y. Ntamark, supra, note 3, p.5 Ibid. 11 Law No. 84/1 of 4 February 1984 changed the appellation «United Republic of Cameroon» to «Republic of Cameroon», while Law No. 96/06 of 18 January 1996 extensively revised the 1972 Constitution. 12 Charles M. Fombad, supra, note 2, p. 62. 13 See Carlson Anyangwe, supra, note 1, pp. 266-267. 14 Books I and II. See respectively Law No. 65/LF/24 of 12 November 1965 and Law No.67/LF/1 of 12 June 1967. 9
10
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Certaines pages ne font pas partie de la section consultable du livre. Pour toute information sur notre fonds et les nouveautĂŠs de notre catalogue, consultez notre site web : www.aes-pua.com .
Readings in the Cameroon Criminal Procedure Code
remands in custody could have been ordered by the State Counsel himself. Where this is so, any application addressed to him would certainly be rejected23. That notwithstanding, the natural upshot of this provision is that the application may be addressed to the court, the State Counsel or the Legal Department, as the case may be. If the State Counsel can afford to make available this remedy, then he is competent to hear the applications as well. By the same strand of reasoning, therefore, the Legal Department can also receive applications to this effect, the State Counsel being a member of the Legal Department. IV. Grounds on which an application for a writ of habeas corpus may be based Not all actions or measures which place constraints on physical freedom will constitute a deprivation sufficient to trigger an application for habeas corpus. But deprivation of freedom does not only mean the placing of an individual under lock and key. While arrest and imprisonment are the clearest cases of limitation of freedom, any number of lesser restrictions on physical liberty may be imposed on individuals which may reach the level of intrusion that merit the use of the habeas corpus procedure. Determining whether a person has been deprived of liberty therefore requires the assessment of the duration, degree and intensity of the constraint that has been imposed. In addition, whether deprivation has taken place depends on the situation of the person affected and the degree of freedom enjoyed prior to the restraint. On this basis, a prisoner who is confined to a cell as punishment for an infraction of the prison rules will not be held to have been deprived of his freedom24. The High Court would, therefore, entertain an application for habeas corpus if certain conditions were satisfied. 23 For more reading on this possibility, see infra, Magistrate Johanes Mbunja’s comment in Affaire BINYOUMA Désiré Emmanuel c/. Ministère Public, ordonnance n° 04 du 16/11/2000, TGI d’Edéea, Juridis Périodique, n° 56, Octobre-Novembre-Decembre, 2003, pp. 45-54 24 Johan de Waal, Lain Currie & Gerhard Erasmus, The Bill of Rights Handbook, Juta & Co. Ltd, South Africa, 3rd edition, 2000, p.226.
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1.
There must have been an arrest, custody or detention of the applicant
The importance of this requirement cannot be over-emphasised. In the absence of custody or detention, the object of a writ of habeas corpus would be defeated. Where therefore an application is made by a person in custody, but before the hearing the person had been released or is at large, the need for the issue of a writ of habeas corpus becomes outmoded. But should he be still in custody, the habeas corpus procedure would be the most efficient remedy. This was the case in Etengeneng Joseph Tabe v. Governor Oben Peter Ashu & anor.25. In that case the applicant was detained on the strength of an Order emanating from the Governor of the South West Province at the Public Security in Buea. Several attempts to have him released failed. He consequently filed a motion on notice for an order of habeas corpus adsubjiciendum to issue against the respondents to produce him in court for the issue of his continued detention to be enquired into. Epuli J. found, inter alia, that a ruling nisi of habeas corpus will be discharged if the person detained is at large or has already been released and is at liberty. In this case, however, he was not at large and the court held the application of the applicant justified in fact and in law and his release was ordered forthwith. 2.
The arrest, remand in custody or detention must be within the jurisdiction of the court hearing the application for habeas corpus
The question of the court competent to hear applications for release through the habeas corpus procedure has been discussed above. Suffice it to add here that the jurisdiction of each High Court is limited to the division in which it is situated. In this regard, the provisions of Section 16(c) of the 1972 Ordinance as amended by the 1989 Law is clear. Section 584(1) of the new Criminal Procedure Code equally makes it express that it is the duty of the President of the High Court or the court of the place of the arrest or custody of the detainee to hear the application for habeas corpus. 25
(1998) 1CCLR 9. - 159 -
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3.
The arrest, remand in custody or detention must be illegal
This is a fundamental requirement for any application for a writ of habeas corpus. But how should illegality of an arrest or detention or custody be determined? The factors below would serve as guidelines. a.
Duration or time limit for custody or detention exceeded.
Generally, this has to do with police custody during investigations, arrest with respect to simple offences, and remand in custody for felonies and misdemeanours. Each of these remands is endowed with a specific duration enshrined respectively in different provisions of the code. For example, during investigations the police have a time limit of (48) forty-eight hours renewable once or exceptionally twice on the written approval of the State Counsel26, with respect to the length of time they may keep someone in custody. As concerns arrest for simple offences, the duration is (24) twenty-four hours27. As concerns remand in custody for misdemeanours and felonies, it may be (6) six or (12) twelve months28. Where these provisions are not respected, that is, where the applicant finds himself in continuous detention after the expiration of the prescribed time limit, an application for habeas corpus could lie at the instance of the detainee, his counsel or someone else on his behalf. This was the obiter dictum in Nyoh Wakai & 172 Others v. The People29, which although based principally on application for bail consequential on an administrative remand during the period of emergency, could be helpful in our understanding of the illegality of a detention or custody founded upon the duration of same. In that case, the applicants were 173 and had been arrested in the North West Province during the 1992 State of Emergency that was declared following post Presidential Election violence, on the strength of an 26 27 28 29
The Code, Section 119(2)(a). Ibid., Section 32. Ibid., Section 221(1) & (2). (1997) 1CCLR 127. - 160 -
Habeas corpus under the Cameroon Criminal Procedure Code
order from first, the Governor of the North West Province, and then the Minister of Territorial Administration. The 173 persons through their counsel applied to the court by motion for an order admitting them to bail pending charges that may be brought against them. In granting judgment in their favour, the court held that when the required period of time within which a person can be detained has elapsed under the law, such a person is entitled to be released as of right. However, the applicants in this case equally prayed the court to grant any other such order or orders as it saw fit within the framework of Section 16(c) and (d) of the Judicial Organisation Ordinance, as amended. Indeed, some of the applicants were released forthwith although no mention was made by the court that it did so following the habeas corpus procedure. The role of the court in the determination of a habeas corpus application was aptly described by Epuli J. in Etengeneng Joseph Tabe v. Governor Oben Peter Ashu & anor.30, when he said inter alia that: (i) In a habeas corpus application, the main concern of the court is the man’s detention in prison and not the merits of the case. (ii) Where an order nisi has been made as in the present case, the burden is on the jailer to show cause why he should keep the applicant in detention or release him without more. (iii) The burden to show cause can only be discharged by the filing of a counter affidavit denying, challenging and/or disproving the allegations of fact contained in the supporting affidavit, or by moving the court to dismiss the application on grounds of law. (iv) A ruling nisi of habeas corpus will be discharged if the person detained is at large or already released and is at liberty. In a reading of the same judgment, Epuli J. further provided that: (v) In exercising the powers of detention conferred on administrative authorities in peace time, the said authorities can renew their detention orders and thus extend beyond 15 days the period of detention of the person who is the object of the detention order. (vi) The burden is on the respondents to furnish the court with the detention order since it is in their particular knowledge. 30
(1998) 1CCLR 9. - 161 -
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(vii) The writ of habeas corpus is of such sovereign and transcendent authority that no privilege of person or place can stand it31 and that Hyde C.J. correctly stated the law when he said: ÂŤWhether the commitment be by the King (President or the Executive Power of the State) or others, this court (the High Court) is a place where the King (President) shall sit in person, and we have power to examine it, and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison againÂť32. Lastly, Justice Epuli stated that: (viii) Where there is an allegation of impropriety or illegality of the detention by an administrative authority and, as in the present case, the said authority does not even enter appearance or attend to show cause, it is to be presumed that the allegation of impropriety or illegality is founded and that the court would order the immediate release of the detainee on pain of the jailer being cited for contempt. The points raised by Epuli J. in this case are significant in relation to habeas corpus. In fact, he summarises the procedure with respect to the role the courts are expected to play, and the role of the detainee, his counsel or someone else on his behalf. Whatever be the case, the detention in question must be illegal and the release of the detainee would be ordered, except where the jailer appears and gives reasons to the satisfaction of the court or judge why such release should not be ordered. He therefore clearly establishes in paragraph (ii) that it is incumbent upon the authority who ordered the remand to show cause why he should continue to detain the person in question. What is also evident from a reading of the judgment in paragraph (iii), is the fact that an application for a writ of habeas corpus may be challenged by the jailer. In other words, the release of the person in 31 32
Halsbury’s Laws of England, 4th ed. Vol. II, para. 1454. The bracketed words were added by the learned judge. - 162 -
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custody is not automatic by reason of the fact that he has indulged in the habeas corpus procedure. The jailer may, by way of a counter affidavit, challenge, deny or disprove the allegations in the applicant’s supporting affidavit, or call the court to dismiss his application on grounds of law. Otherwise put, a successful challenge of the writ is tantamount to its rejection by the court. So an administrator or any competent authority who remands someone in custody and who, for some reasons believes that he should continue to lavish in jail, should, in the face of writ of habeas corpus application, challenge same by way of a counter affidavit. But it must be understood that it would be at the discretion of the court to entertain such challenge depending on the circumstances of the case and the legal prescriptions related thereto. But should the jailer or the authority ordering the remand fail to appear before the court to justify the said remand, the illegality of the said remand would be founded with the consequential result being the immediate release of the victim. So, that administrative authorities in peace time can renew their detention orders and thus extend them beyond (15) fifteen days period of detention without the approval of the court (as it is evident from paragraph (v) of Epuli J’s judgment above), should no longer be possible under the newly enacted code, particularly where the detainee applies for habeas corpus. b.
Want of a process (warrant) or order for the arrest, custody or detention of the applicant
Individual liberty is of the essence and it is expected that any arrest and detention of a person must not only respect the prescribed time limit for remands in custody but must also be backed by a warrant or order duly signed by a person competent to do so. As emphasised by Epuli J. in paragraph (vi) in the Etengeneng case, it is incumbent upon the respondents to furnish the court with the detention order since it is in their particular knowledge. But what types of order would suffice here? The recognised court processes capable of depriving someone of his liberty are contained in the code. They include the remand warrant and the imprisonment warrant found in Section 11 of the code. To these we may add orders from administrative authorities provi- 163 -
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Readings in the Cameroon Criminal Procedure Code
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Index
A A charge 219 a discharge 112, 253 a holding charge 101 a no-case ruling 76 absolute nullity 227 abuse of power 187 abusive State power 120 accessory penalties 87 accusatorial system 134 accusatorial or inquisitorial systems of law 30, 261 accusatorial method 213 accusatorial system 200, 261 accomplice 57 acquittal 54, 85, 108, 164 Adam and Eve 234 adjudicating authorities 227 admission by conduct 227 admission to bail 194 Administrative Bench 169
administrative casket 164 administration of justice 117 adverse party 73 affidavit 161, 188 African Charter of Human and Peoples’ Rights 190, 232 African Journal of International and Comparative L 16 aggravated theft 105 aid of a lawyer or counsel 220 alibi 145 amateur 63 amended charge 100 amnesty 86, 98 an acquittal 112, 253 Anecdote Newspaper 123 Anglo-American system 51 Anglo-Saxon 12, 259 Anglo-Saxon legal background 19 Anglo-Saxon legal culture 260 Anglo-Saxon practice 81
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Readings in the Cameroon Criminal Procedure Code
armed-robbery 213 arraignment 82, 97, 201, 202, 239 arrest 136 arrest warrant 137 Assemblée nationale 20 assistance of an interpreter 222 Attorney-General 91, 208 Audi Alterem Partem 204 autrefois convict or acquit 53 autre fois acquit or autre fois convict 85 auxiliaries of the State Counsel 119 B bad character 142 bail 41, 59, 78, 105, 138, 155, 179, 243, 261 bail before conviction 180 bail upon appeal 180 bailee 179 balance of probabilities 111 bar against ex post facto law 215 Bar Council 43, 60 Barreau du Cameroun 19 bench warrant 71 bill of indictment 91 Borstal institution 42 bounced cheque 127 breach of contract 127 British Cameroons 152 British High Commissioner 26 burden of proof 121, 141, 233 burden of proving 213 C Cameroon Bar Council 19 Cameroon Constitution 14, 153, 239 Cameroon Law Review 15
Cameroon Panorama 24 Cameroon Tribune 26, 44, 123 Canon Law 234 Cape Horn 11 carbon copy 260 case by case basis 105 censorship 61 certiorari 154 Chamber of Inquiry 135 Chancery jurisdiction 12 charging of the defendant 64 character evidence 142 cinematographic equipment 146 circumstantial evidence 54, 84 citation 236 citation directe 99 civil action 38, 110 civil claim 111 Civil Law 12 Civil Law background 232 Civil Law system 16 Civil liberties 206 civil party 67, 73, 99 civil party claim 99 civil party’s claim 89 clapham omnibus 10, 30 classes of witnesses 69 close doors 193 co-accused 57 co-offenders 90 Code d’Instruction Criminelle 12, 20, 32, 121, 127, 191,199 colonial era 35 committal cases 82 committal order 78, 136 committal proceedings 78
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Index
committed for trial 64 Common Law 12 Common Law background 232 common law system 114, 119, 200 Common Court of Justice and Arbitration 109 Commonwealth 124 comparative legal studies 22 compellability 69 compensation for damages 129 compensation for illegal detention 77 compensation of victims 128 competence 69 Conditional bail 195, 249 confession 54 confessional statement 148 confidence in the judiciary 47 Constitution 212 Constitution of the Republic of Cameroon 203 Constitutional Law 199 Constitution of Cameroon 140 contempt of court 69 continental advocate 119 contempt 162 contempt of court 146, 226 Content Analysis 33 corrobative evidence 257 corruption of youth 97 counter-affidavit 188 counter claim 125 counter-expert 242 counter-expert opinion 79 course of a trial 220 court processes 120 Court of Competent Jurisdiction 217 criminal investigation 36
Criminal Law Commission 18 criminal and civil cases 121 criminal libel 124 Criminal Procedure 49 Criminal Procedure Ordinance 32, 50, 82, 181, 200 criminal record 142, 182 criminal trial 202 Cross-examination 44, 73, 116, 148, 223, 259 Crown 95 culpable homicide 218 custodian of the person detained 172 D de novo 221 deaf and dumb 241, 223 dehumanization 257 Department of Public Prosecutions 56, 82 defamation 123 deposition 75 Discharge 77, 164 discharged and acquitted 124, 126, 194, 213 discontinuing prosecution 87 direct summons 42 Director of Public Prosecutions 92 Divisional Court 173 dock 113 Doctor Honoris Causa 29 donkey’s guide 255 double jeopardy 108, 202 drafting charges 112 due process 220 due process of law 260
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Readings in the Cameroon Criminal Procedure Code
E Eden Newspaper 124 Effort Camerounais 12 endorsement 181 English Common 17 English Common Law 204 English Law Department 21 English Police and Criminal Evidence Act 177 English Rules 175 English Supreme Court (Civil Procedure) Rules 173 Envoy 255 equity 260 ethical balance 261 ever turning wheels of justice 8 Evidence 69 Evidence Ordinance 140, 200 examination of witnesses 67, 223 Examination-in-chief 72, 114, 148, 223, 259 expert opinion 63 Execution of Judgments 39 Explanatory Statement 28 explanatory statement 14 Extradition 170, 197 extradition simpliciter 171 F facts in issue 114, 148 Faculty of Law Annals 16 fair trial 47, 140 fair hearing 67, 146, 202 false report 77 Family Division 156 Federal Republic of Cameroon 152
Federal State of Cameroon 205 felonies 78 felony 53, 88 Feudal Law 234 fiat 93 flagrante delicto 39, 42, 137, 240, 257 flagrant irregularity 169 foolhardy 112 force majeure 73 forensic skills 9 free and confidential communication 66 French Cameroon 152 French Civil Law 17, 204 French Equatorial Africa 170 fresh recognizance 180 full hearing 210 fundamental freedoms and rights 256 G German protectorate 15, 152 Germano-Roman legal background 19 Germano-Romanist system 118, 122, 247 globalisation 7 good character 142 Governor of the North West Province 161 H hearing procedure 259 Habeas Corpus 29, 44, 151, 154 habeas corpus adsubjiciedum 151, 154, 159 harbinger 7 harmonisation 46 Herald 29, 35, 44, 123 hearsay evidence 70 hierarchical subordination 93, 109
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Index
historical conspectus 8 holding charge 52, 138 homosexuality 123 human rights 36, 149, 188, 232 Human Rights Advocacy Coalition 45 hybrid standard 122
interpreters 71, 241 investigatory powers 119 ius gentium 236 J
I idea of fraternity 256 illegal detention 78, 155 immediate release 172 impartiality of the judge 147 in abstentia 242, 243 in camera 145, 212, 219 in issue 142 in rem 90 inalienable rights 193 inanimate objects 8 incubation period 8 indecency to a child 97 independent arbitrator 148 Indictment Act, 1915 100 information 82 innocent until proven guilty 9, 233 Inquiry Chambers 136 Inquiry Control Chamber 39, 79, 242 inquisitorial court 79 inquisitorial method 213 inquisitorial system 121, 200, 261 insidious manoeuvres 251 insurer of liability 63 interlocutory ruling 176 International and Comparative Law Quarterly 25 International Journal of Comparative and Applied C 34 International Covenants 239
joint criminal and civil trial 127 Journal of African Law 22, 25 Judges’ Rules 138 judgments in default 39 judgment on the merits 90, 100 Judicial Law Reform Commissions 35 Judicial Organisation 125 Judicial Organisation Ordinance 157 judicial reforms 9 Judicature Acts 99 judicial hearing 102 judicial supervision 61, 76, 197, 242 Juge d’Instruction 51, 52 jumping bail 182 Juridis Périodique 119, 158, 164, 170, 182, 193, 194 jurisdiction to stay proceedings 187 justice for sale 45 juvenile delinquency 43 juveniles 40 K kinship 255 L law reporting 21 Le Messager 22, 247 leading questions 73, 115, 148 Legal Aid Commission 229 Legal Institutions 229 legal practitioners 30, 35, 81
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Readings in the Cameroon Criminal Procedure Code
legal process 186 legal propaganda 229 legal right 64 libérté provisoire 190 Locus-in-quo 57 loopholes 112 M magistrate of the bench 79 mala fide 96 malicious prosecution 108 Mandates Agreement 16 mandamus, prohibition 154 Mandate 152 manslaughter 95, 216 means of a surety 180 medical examination 61, 139 Medieval Europe 234 mens rea 126 merits of law 255 mini-hearings 114 Minister in charge of Justice 47, 81, 171, 244 Minister of Justice 12, 18, 30, 37, 89 Minister at the Presidency of the Republic 123 Minister in Charge of Telecommunications 61 Minister of Territorial Administration 161 misappropriation of public funds 106, 192 miscarriage of justice 195 misdemeanour 53, 78, 88 misjoinder of causes of action 127 motion paper 186 N Napoleonic Code 19
National Assembly 27, 35, 247 national integration 37 natural justice 147 nature of criminal procedure 199 nature of the hearing 218 nature of the offence charged 219 Nemo Judex in Causa Sua w 204 nolle prosequi 37, 81, 196 Northern Cameroons 35 notice of the hearing 210 Nouvelle Afrique News paper 124 null and void 143, 227 Nulla Poena Sine Lege 135, 215 Nullum Crimen Sine Lege 135, 215 O oath or affirmation 70 of Judicial Law Reform Commissions 7 OHADA 109 OHADA Uniform Acts 16 on oath 147 oral evidence 70 order for commencing an inquiry 68 Ordo iudiciarius 234 P Pardon 86 partie civile 122, 124, 191 partie civile’ procedure 125 party calling the witnesses 114, 223 Per curiam 125 per se 127, 209 pleadings 119 plea of double jeopardy 217 plea of guilty 259 plebiscite 152 police custody 42, 257
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Index
popularisation exercise 14 postface 13 pre-trial detentions 29, 189 pre-trial investigation 49, 51 preliminary application 188 preliminary inquiries 37, 101, 135, 155 preliminary inquiry 239, 259 preliminary investigation 119, 138 prerogative orders 177 prerogative writs 177 prescription 88 President of the Republic 171 Presses Universitaires d’Afrique 14, 41, 115, 200 presumption of innocence 44, 141, 186, 202, 212, 213, 236, 232 presumption of guilt 55, 113, 233 preventive detention 186 prima facie 55, 137, 147, 175, 242 prime suspect 182 principle of equal terms 259 principle of legality 88 principal offender 57 private act as 164 Private prosecution 99 privileged proceedings 40 Probate Division 156 probation officer 86 probative value 117, 251 process of the bailiff 71 professional secrets 211 prohibition against double jeopardy 217 prolific writer 13 proof beyond reasonable doubt 111, 122, 144 Prosecution of Offences Act 1985 92
Q quality of justice 256 quality of law 260 quasi-judge 55, 79 quashed the conviction 213 Queens Bench Division 156 R raison d’etre 51 rape 98 ratio decidendi 225 reasonable force 136 Re-examination 74, 148, 223, 259 re-opening of the inquiry 76 Record Book 22 recording of the evidence 224 recognizance 60, 107, 139, 179 records of the proceedings 78 recours gracieux préalable 169 rehabilitation 40 Release on Licence 40 Relevant evidence 70 Rem non novam 236 remand in custody 42 Repeal of the law 87 Republic of Cameroon 152 repugnant to public order or morality 212 requested State 170 requesting State 170 res judicata 217 Research Method 33 retrospective effect 204 retrospective legislation 202, 215 reunification 17 Rev. Jur. Afr 15, 25 Revue Africaine de Droit International et Comparé 27
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Readings in the Cameroon Criminal Procedure Code
Revue Général de Droit 24 right-thinking persons 123 right to a medical examination 258 right to consult a lawyer 258 Right to Defend 220 Rights 201 rights of the accused 63 rights of defence 204 rights of natural justice 207 rights of the defence 258 right to periodic security 261 right to silence 226 Right to Counsel 66 Right to an Interpreter 66 right to silence 65 rogatory commission 62, 120, 135, 136, 138 Romano-Germanic 12 Romano-Germanic system 181 Roman Law 234 rule against bias 206 rule of law 149, 188, 255 Rules of Natural Justice 204 S safe keeping 78 safeguards for the accused 64 search 58 Science of Law 229 self bail 194, 248 self-incrimination 141, 202, 225, 251 separation of powers 93 sententia 236 simple offence 53, 78, 88 sine die 39, 82, 110 sine qua non 221 someone at large 107
State privilege 211 sureties 248 Southern Cameroons 35, 152 Southern Cameroons High Court Law 16, 173 Special courts 42 special pleas in bar 85 Special Procedures 40 standard of proof 111 State of Emergency 167 statute of limitations 45 stay of proceedings 83 submission of a «no case to answer» 83 summary trial 52, 84 summonses 65 suo motu 136 superintendent of the prison 61 sureties 105, 139 surety 61, 179 suspect 102 systemic issues 9 T tenure of office 214 The People V. Daniel Mokondo 196 thumbprint 72 trial by jury 83 trial rights 199 tried on information 54 Trusteeship Agreements 16, 152 U unanimous judgment 127 unification 31 unintentional killing 128 Uniform Acts 18 Uniform Laws 109 uniform national laws 17
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Index
Uniformity 11, 18 unintentional killing 95 unconditional bail 194, 248 Unitary Constitution 153 uncross-examined witness 225 Unified Political and Administrative Republic 200 United Republic of Cameroon 152 Universal Declaration of Human Rights 232 University of Yaounde Law Reports 21 V Vice Prime Minister 27
Vice Rector 13 Voie de fait 168 voies des faits administratives 167 W warrant of arrest 136 West Cameroon Law Reports 21 withdrawal of complaint 38, 53 withdrawal of a complaint 89 witnesses 69 witness-in-chief 115 writ of summons 173 wrongful detention 258
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Readings in the Cameroon Criminal Procedure Code
Achevé d’imprimer en août 2007 Dépôt légal Août 2007
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