CHAPTER ONE

GENERAL INTRODUCTION

Thomas Hobbes famously wrote that, without civilization, human’s life is “solitary, poor, nasty, brutish, and short.” So, humans formed into groups and ever since have had their leader chosen for them; be it a tribal Chief, Feudal Lord, King or Raja.

Two and a half million years ago, human kind began an experiment with self-rule, with choosing one’s own rulers. And it has had varying degrees of success.

A perennial problem, however, has been the corrupting influence of power, especially absolute or unchecked power. Perhaps Lord Acton phrased it best: “Power tends to corrupt, and absolute power corrupts absolutely.”1The solution suggested to this perennial problem is ‘separation of powers’.

The doctrine of separation of powers is not merely philosopher’s theoretical conception. It is significant in modem days as it determines the political structure of the government.

It is the concept which appears to be simple but is deeper in complexity.2Separation of powers forms a vital part of modem constitutionalism.

It has influenced the structures of governments tremendously. There are three main functions of the government executive, legislative and judicial. These functions of government are performed by three organs of the government. The legislative organ of the government makes laws, executive enforces that and judiciary adjudicates upon it.

Thus there is separation of functions amongst the three organs. Corresponding to these functions there are powers of these organs which also are separated. This is popularly known as “separation of powers” as laid down by Montesquieu.

In the 17th and the 18th centuries, the ideas of the ancients reborn in the attempt to react against the feudal obscurantism, the medieval seclusion, the abuse of power, the theory of separation of powers being considered a necessity in the fight against absolute monarchy, where the king focused on supreme power, as suggested by Louis XIV when stating: “l’étatc’estmoi” (“I am the state”).3

Although it is considered that the accent was on the idea of the separation of powers in the state, being unthinkable at that time that the powers could collaborate or even more, they could be in a state of balance showed through cooperation and mutual control, actually tried to create or to find a balance between the identified powers and, especially, between the legislative and the executive.

Initially, it was considered that the legislative power is superior to the others that have to subordinate. This idea was stated by John Locke in 1690, so that later Montesquieu, but also Rousseau, considered that law enforcement has its natural limits.

It was shown that to avoid despotism it is mandatory that the three powers; three functions (the enlightened philosophers that have contributed to substantiate this theory have used, generally, the term “power” as a synonym of “function”) not to be entrusted to the same body, whether this had an individual or collegiate character, requiring their specialization.4In this context it was spoken about the impossibility to function, of the no overlapping of functions principle, principle that could be applied in relation to the legislative function and to the executive one.5

Thus, these theories have emphasized the characteristics of the legislative powers, respectively of the executive one, and also the relations between them.

The one who gave it its first doctrinal form, after Aristotle, underlying the importance of the separation of powers in the state in order to guarantee individual freedom, was the English philosopher John Locke in his writing “Essay on Civil Government”.6

Considering that the arbitrary and omnipotent powers of the ruler is something unacceptable, John Locke held that political power cannot be absolute, its limit being given by the natural rights of human beings, rights for which, incidentally, it had been established.

John Locke considered that the existence of society is conditioned by the existence of laws and as a starting point he made a distinction between the natural state and the civil state, the latter being based on a contract whose object is the guarantee of natural rights. “Signatories” of this contract granted the right to punish and to make justice, to the society.7

This right is identified with the judiciary power which, in its turn, is divided into: legislative power, which determines the fact that it violates the rules of coexistence and the corresponding penalties; executive power, which specifically runs the laws issued by the legislative power and the confederative power, which exercises the powers of the state in relation with other states.8

The separation of the power into the three powers was justified through the fact that none of the powers in the state should be absolute, but this division does not have to affect the quality of the people who are the sole holders of the powers in the state.

Locke also said that it is necessary that the legislative power and the executive power should be exercised by different holders that are independent and distinct, and the judiciary power should be a component of the legislative power.9

Although John Locke and some political scientists, such as Plato, Aristotle, Rousseau, Kant and the authors of Federalist papers in the seventeenth and eighteenth centuries had the conception of the doctrine of separation of powers in their various writings,10 but the theory of separation of powers was clearly formulated for the first time by a French political thinker and jurist, Charles De Montesquieu.11

Montesquieu divided the governmental powers into three separate and co-ordinate branches the legislature, the executive and the judiciary. He then argued that if the liberty of every citizen is to be fully guaranteed each function of the power of the government must be exercised by a separate and independent organ of government; that is an, organ must be charged with the legislative function, another with the executive function and another with the judicial function.12

Since independence, Cameroon has had a Constitution that appears to provide for separation of powers. It therefore becomes imperative to highlight the evolution of the Constitution of Cameroon.

Cameroon’s Constitutional history has gone through three major phases of administration and at least through five profound political and constitutional changes13. The first phase runs from 1884-1914, when Germany was defeated and left Cameroon.

The second phase runs from 1914-1960 when Britain and France ruled Cameroon till independence. The third phase covers the period from independence till date. Our focus here is on the third phase.

After the adoption of the Federal Constitution, there was an indication from the Ahidjo leadership of the intention to consider the creation of a unified party in Cameroon.

That vision was subsequently strengthened by continuing political instability occasioned principally by the opposition UPC party attempting to challenge Ahidjo’s authoritarian regime. In May 1972, Ahidjo surprised the Federal Assembly with his intention to hold a popular referendum aimed at abolishing the Federation. Following an overwhelming vote in favour of a unitary system, the Federation was abolished.

The 20th May 1972 re-unification of the two Cameroons to form the Republic of Cameroon resulted in the adoption of the 1972 Constitution of the Republic of Cameroon.

This Constitution was promulgated in June 1972, which though amended several times, forms the base of the current Cameroon Constitution.

The unitary Constitution was thus adopted in June 1972.14The Constitution endorsed the continuous application of the separate legislations in force in the former East and West Cameroon as long as they were not inconsistent with any provisions of the Constitution or any subsequent laws or regulatory process.15This Constitution recognized the functions of the Executive, Legislative and Judiciary.

The Constitution further preserved the mechanism for the review of administrative acts and the constitutionality of laws with perhaps the main significant difference being that the institution now vested with jurisdiction was the Supreme Court which replaced the Federal Court of Justice16.

A Constitutional Council was introduced in Cameroon in 1996 by law No.96/6 of 18 January 1996 which amended the Constitution of 2nd June 1972 with jurisdiction over Constitutionality of laws.17 In 1996 the Constitution provided for an independent judiciary in its articles 37 to 42.

This Constitution was last amended in 2008. The provision of an independent judiciary is a recognition of the principle of separation of powers.

1.2 Statement Of The Problem

Separation of powers is taken into consideration in the Constitution of Cameroon. However, there are problems.

There is the problem of concentration of powers in the hands of the executive. Since the reunification of Cameroon in 1961, the country has had only two executives: Ahmadou Ahidjo and Paul Biya who have both exercised absolute control over the judiciary18and the Legislature has been no more than a malleable institution which simply rubber stamps what Government presents before it.19

Anyangwe calls the Legislature “a hand clapping chambers and a mere extension of the executive, that executive being the President himself.”20

The Constitution of 1996 attributes over bearing powers to the President of the Republic to the extent that he exerts influence over every sphere of the state since article 51of that Constitution grants the President of the Republic the power to appoint members of the Constitutional Council which is the organ that determines the constitutionality of laws, to guarantee the independence of the judiciary.21

This amounts to mere rhetoric given that the guarantee of that independence is effected through appointment of judges, their promotion and disciplining and these appointees can therefore not be independent of the President’s influence.22

The dependence of the judiciary on the executive is a serious weakness of separation of powers in Cameroon. The independence of the judiciary in practice is not guaranteed given that the President who is the head of the executive branch of government doubles as the Head of Supreme Council of Magistracy.

Article 37(2) of the Constitution further appears to enhance the position of the judiciary by providing that ‘The judicial power shall be independent of the executive and legislative powers’. Article 37(3) however contradicts the above provision.

It provides that ‘The President of the Republic shall guarantee the independence of the judicial power’. The crux of this provision is the appointment of judges by the President. It provides that:

he…shall appoint members of the bench and of the legal department. He shall be assisted in this task by the Higher Judicial Council which shall give him its opinion on all nominations for the bench and on disciplinary action against judicial and legal officers.

From the above, it can be gleaned that the judiciary of Cameroon is not independent from the executive if judges are appointed by the President. This therefore means that access to justice to people Cameroon is a serious problem.

1.3. Research Questions

This research seeks to answer the following questions:

Main Research Question

What is the principle of separation of powers?

Secondary Research Questions

1. What are the various organs of separation of power in Cameroon?
2. Are there any relationships between the various organs of separation of power in Cameroon?
3. What are the strength and weaknesses of the separation of power in Cameroon?
4. What policy recommendations can be made to redress the problem raised?

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