CHAPTER ONE

GENERAL INTRODUCTION     

1.1 Introduction

Judicial organization in Cameroon has had a very long and winding history. This is so because our political history as a nation has witnessed the going and coming of three different European countries, (Germany, Britain and France), with all of them having different legal backgrounds. The aftermath of this is that they left behind their legal systems, thus leading the existence of both the Common and Civil law systems in Cameroon due to the 1972 ordinance on judicial organization in 2006.

After independence and re-unification in 1961, Cameroon adopted a system of dual courts that is Federated courts in East and West Cameroon and a Federal Supreme Court in Yaoundé. This was in consonance with the federal constitution of 1961;  this constitution was short lived as in 1972, a unitary system of government was created in Cameroon wiping away the federal courts. The unitary system of government provided for a unitary system of courts.

As a result of the judicial system of government, the French Civil Code of 1937 and the Criminal Procedure Ordinance from Nigeria in 1958, that use to be applicable in both French and British Cameroon gave way to a harmonized system of legal application in Cameroon.

Note should be taken that section 2(1) made it clear that justice shall be administered in the name of the people of the Republic of Cameroon in conformity with section 37(1) of the constitution.

The rules of criminal procedure today are stipulated in the Criminal Procedure Code of Cameroon which today serves as the main source of law on criminal proceedings in Cameroon.   But before this code came into being, the major source of procedural law in Anglophone Cameroon in criminal matters were the applicable laws in England before 1900, Criminal Procedure Ordinance 1958 from the Federation of Nigeria and in French Cameroon were the French Civil code of 1937, the Code of Criminal instruction  of 14th  February 1938.

The Criminal Procedure Ordinance from Nigeria contains some 487 sections covering every aspect of criminal procedure in Anglophone Cameroon. The substance criminal law was contained in the penal code of Cameroon 1965 which was said to be “the first harmonization of law unification in Cameroon in1972”. The Cameroon Penal Code is made up of 370 sections published in both the French and the English language taking into consideration the bilingual nature of the country.

However, to be current, a new criminal procedure code which has 747 sections was introduced to unify procedural laws concerning criminal matters in both Anglophone and Francophone Cameroon since there were fundamental differences between the French and English criminal procedure which obtained in both parts of the country.

The criminal procedure implemented in francophone Cameroon was characterized as “inquisitorial” while that of Anglophone Cameroon was termed “adversarial”. Now a new criminal procedure code has been enacted in Cameroon which retains both the adversarial element of the English system and the inquisitorial elements of French system. 5

This research piece seeks to examine the role of the Examining Magistrate in a criminal suit such as, preliminary inquiry and the visit to the locus in quo and all other surrounding circumstances as it is under the new procedure code with a cooperative analysis of the old law in Cameroon.6

It is equally the aim of this research piece to primarily examine the procedure for preliminary inquiry and the visit to the locus in quo under the new code which is understandably the new law in Cameroon today

Preliminary inquiry means an investigation of a criminal charge held by a Magistrate’s court with the view to committal of an accused person for trial before the trial court. It is a criminal hearing usually conducted by an examining Magistrate to determine whether there is sufficient evidence to prosecute an accused person. The visit to the Locus in quo on the other hand is an order by the examining Magistrate for the visit to where the offence was alleged to have been committed for purposes of inspection as stipulated by the Criminal Procedure Code.

Moreover, a novelty of the new Criminal Procedure Code in Cameroon is that preliminary inquiry shall be carried out by an Examining Magistrate who shall be a member of the bench. Such an inquiry can only be carried out if the state Counsel requests the examining Magistrate to do so by a judicial act. The judicial act by which the state counsel seizes the examining Magistrate is known as a holding charge and such a charge prepared by the state Counsel must be in writing and made against a known or an unknown person. 7

It shall contain the statement of the offence committed and must mention the fact that the prosecution has not been discontinued. It shall be dated and signed.8

Nonetheless, the main idea behind a preliminary inquiry is to discover the truth of a matter and to ensure that there is a case against the accused before the case is sent to Court for trial. Same with the visit to the Locus in quo, It is an additional investigation but this time done at the place of the commission of the crime. This is equally in line with ascertaining whether there is a case against the accused or not

 1.2   Statement of the Problem

There has been a lot of concern on the power and authority given to the examining magistrate through the role he plays in a preliminary inquiry. This authority is sometimes abused by most magistrates.  Problems mostly arise where the examining magistrate favours a guilty person and after conducting the inquiry he comes to the conclusion that the case cannot be taken ahead for an open court trial.

Even though there can be some objections but due to the corrupt nature of the country the examining magistrate can still in some cases manipulate his way through and as such will lead to injustice on an innocent person thus he will not be able to pull through with his legal rights and so this is to say that due to the power of the examining magistrate there have been problems faced by some individuals which leads to injustice and by so doing individuals  are denied their rights to justice which every citizen should have.

6Latin meaning for the location where the cause of action arose

7Section 144 (1) Criminal Procedure Code

8Ibid, section 144 (3)

1.3 Research Questions

1. Why is it necessary for a magistrate to conduct an inquiry before an open court trial?
2. What is the essence of conducting a visit to the locus at any instance of the trial?
3. What are some of the problems or challenges faced during the preliminary inquiry and the visit to the Locus in quo?
4. How can these problems and challenges be resolved?

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