Abstract

This thesis is concerned with the judicial review of governmental acts in Cameroon. It points out the nexus between the principle of judicial review propounded by Montesquieu and judicial review.

To Montesquieu effective judicial review is guaranteed provided there is the separation of powers between the executive, judiciary, and legislative or better still, that the judiciary is independent of the executives. Given this principle of separation of powers, this work ascertains if it is applicable in Cameroon. There are various types of judicial review to wit: concrete review, abstract review, and individual constitutional procedure are provided for in Cameroon’s Constitution and other national laws.

Judicial review is done in Cameroon by the Constitutional Council that is in cases of the constitutionality of laws and the Supreme Court in cases of acts of administrators and individual constitutional procedure.

A prominent problem that impedes judicial review in Cameroon is the absence of independence of Cameroon’s judiciary. The impact of this was the silence of the Constitutional Council on the amendment of the Constitution in 2006 and 2008. Another difficulty stems from the fact that individuals do not have access to the Constitutional Council. A timely recommendation has thus been proposed to remedy the problems raised in the work.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background To The Study

An overwhelming majority of constitutions around the world recognize the power of courts to interpret constitutional provisions and to invalidate unconstitutional laws and other measures. As of 2011, more than seventy-two percent of the world’s constitutions gave courts the power to review the constitutionality of laws  Almost all constitutions in Africa establish procedures through which the constitutionality of laws and executive measures may be challenged, especially based on fundamental rights provisions.

Constitutional courts in some countries have jurisdiction to review governmental acts. There are two types of judicial review to wit; abstract judicial review and concrete judicial review. In some countries, laws may be challenged in the abstract outside the context of specific facts and parties or in the absence of harm from state action.

Two distinct legal systems, civil law, and common law have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition, judges are seen as those who apply the law, with no power to create (or destroy) legal principles. Judicial review is premised on the principle of separation of powers advocated by Montesquieu.

At the helm of the hierarchy of norms in Cameroon is the constitution. The power of the judiciary to review governmental acts is enshrined in the Cameroon constitution. Cameroon’s constitutional history has gone through three major phases of administration and at least through five profound political and constitutional changes.

The first phase runs from 1884-1914 when Germany was defeated and left Cameroon. The second phase was nuns from 1914-1960 when Britain and France Wiled Cameroon till independence. The third phase covers the period from independence till date.

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.

A further innovation of the Federal Constitution was the specific provisions for constitutional anal administrative review Jurisdiction in that respect was vested in the Federal Court of Justice. In administrative review, the Court had jurisdiction to entertain petitions for the annulment of ultra vires or unlawful acts and claims for damages resulting from acts performed by federal administrative authorities.

In Constitutional review, the Court’s jurisdiction was limited to providing an advisory opinion on the constitutionality of state and federal laws .The constitution failed to state how to proceed once an opinion was given and the fact that it only delivered an advisory opinion implied that the President was under no obligation to adhere to that opinion.

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.

A unitary Constitution was thus adopted in June 1972. The 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 processes. 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 Justice.

The introduction of the constitutional courts with jurisdiction to review, strike legislation, and adjudicate conflict among state branches is a vital development of the 20th century.  This has led to the wide acceptance of the idea of judicial review as a guardian of the legitimacy of laws in the constitutional world. Cameroon has had a highly centralized, autocratic political system with a strong executive, a judiciary under the control of the executive, and a National Assembly dominated by the ruling party.

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 the constitutionality of laws.

Access to constitutional protection through judicial review of the constitutional amendments or through adjudication has been a problem in Cameroon as far back as the colonial rule as seen in the 1 September 1961 Federal constitution. In that Constitution, only the President has the discretion to refer constitutional controversies on the constitution to the federal court of Justice. It was only in 1996 that the constitution provided for an independent judiciary in its articles 37 to 42. This constitution has been amended several times.

Judicial review of governmental acts in Cameroon is vested in the judiciary. This authority is carried out by the supreme court of Cameroon. The Constitutional Council of the supreme is vested with the authority to review governmental acts. The judges of the Supreme Court are appointed by the President of the Republic.

1.2 Statement Of The Problem

The Constitution of Cameroon empowers the judiciary to sit on the constitutionality of laws, but it is sad to know that this is an unrealistic scenario.

To begin with, there is the problem of the Constitutional amendment in Cameroon. It has been amended several times in the interest of the President. Though Cameroonians were not happy with the 2008 amendment of the constitution, Parliament still went ahead to amend the constitution. The constitutional council was silent on this amendment. The question to answer here is why was such an act not reviewed by the judiciary?

Another act worth mentioning is the appointment of judges by the President. It is clear that effective judicial review cannot be exercised in Cameroon taking into consideration the fact that the supreme court of Cameroon that has jurisdiction over administrative matters is composed of judges appointed by the head of state.

The president also appoints members of the Elections Cameroon (ELECAM), the governing body of elections in Cameroon without consultation with other political bodies, of which there is no provision as such under Cameroonian law.  Thus, the problem with elections as a means of achieving democracy in Cameroon is that the Elections Cameroon renders the playfield very slippery that the possibility for manipulation and distortion of the electoral process cannot be overlooked. It is the duty of the Cameroon judiciary to review such an act.

There is also the problem of the 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 judiciary and the Legislature has been no more than a malleable institution which simply rubber stamps what Government presents before it. Anyangwe calls the Legislature “a hand clapping chambers and a mere extension of the executive, that executive being the President himself.”

The Constitution of 1996 attributes overbearing powers to the President of the Republic to the extent that he exerts influence over every sphere of the state since art 51 of 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 96, to guarantee the independence of the judiciary . This amounts to mere rhetoric given that the guarantee of that independence is effected through the appointment of judges, their promotion, and disciplining and these appointees can therefore not be independent of the President’s influence.

Also, article 47(2) of the Cameroon Constitution indirectly elects the President of the Republic to be the only person capable of referring matters or a dispute to the Constitutional Council. The Constitution empowers the President with unchecked or discretionary powers as he can declare a state of emergency through a decree and a state of siege as well as by decree and decides all by himself what measures he deems necessary to salvage the situation.

1.3 Research Questions

1.3.1 Main Research Question

how Effective is Judicial Review on Government Actions in Cameroon

From these problems, the following questions seek to guide this research.

1.3.2 Specific Research Question

1. What is the concept of judicial review?
2. How is the principle of separation of powers related to judicial review of governmental acts in Cameroon?
3. What are governmental acts and how effective is the Cameroon judiciary in reviewing governmental acts?
4. What policy recommendations can be made to redress the flawed system of the Cameroon judiciary in reviewing governmental acts?