Abstract

The subject of this research topic is the right to fair hearing in Cameroon. The right to fair hearing is enforced in Cameroon through the Cameroon penal code. the right to fair hearing is enforce worldwide using some laws like the Universal declaration of Human right, Geneva convention of Yugoslavia and more. Despite the fact that there are some laws that enforce the right to fair hearing in Cameroon there are still some shorting coming.

CHAPTER ONE

GENERAL INTRODUCTION

1.0 Introduction

The right to fair trial is an important human right norm that affords protection to the citizen and guarantees the observance of the rule of law. It ensures that a litigant before a court is afforded all the necessary protections before the law to check arbitrariness. The concept of fair trial is protected under international human rights law and has been enshrined in the constitutions of many states, not least Cameroon. It is constitutional principle of fundamental importance in Cameroon and its origins dates back several years. Its importance in the furtherance of justice cannot be over-emphasized.

This chapter introduces the concept of fair trial by discussing its background, establishes the statement of the problem relating to the study, the significance of the study, the objectives to be achieved, the research methodology employed and the scope of the subject .

1.1 Background to the study

Before examining the origin of the right to fair hearing, it is worthy to explain in brief he concepts of fairness. What fairness does not require is perfection; indeed, perfection is something more for the province of gods. As rightly intimated by his celebrate dictum “the fundamental human right human right is not a system that is infallible but one that is fair”. Indeed, perfection is farfetched when it comes to litigations. As could be rightly interpreted from Diplocks dictum, fairness demands not perfection but for reasonable, average, honest, just and comely litigations.

The right to fair hearing mean a judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality. During a fair hearing, authority is exercised according to the principle of due process of law. Fair hearing means that an individual will have an opportunity to present evidence to support his or her case and discover what evidence exists against him or her. In criminal law, when an individual is arrested a fair hearing means the right to be notified of the charge brought against him or her and the chance to meet that charge.

In order for a hearing to be fair and comply with due process requirements, it must be held before an impartial tribunal; however, a hearing can be unfair without any intention that an individual that it be way. A fair hearing must provide a reasonable opportunity for an individual to present at the designated time and place, during which time he or she may offer evidence, cross examine opposition witnesses, and offer a defence. Formalities of a court action need not strictly complied within order of the proceeding to be considered a fair hearing.

The right to fair hearing is indeed a basic human right and it protection is of enormous essence and hence a fundamental obligation of government. International treaties such as the Universal declaration of human right make incumbent on state to ensure the promotion and protection of human rights in litigations States therefore has obligation to ensure the protection of the right to fair hearing on their nationals and others by taking measures to protect them.

Fair trial stand under ICCPR are found principal within article 14. They are supplemented by procedural guarantee applicable to proceedings concerning the

expulsion of the alien (article 13 of ICCPR) and the principle of non-retro-activity of criminal/penal law (article 15 of the ICCPR). The various elements of the right to fair trial codified in the ICCPR and also be found within the Universal Declaration of human rights, customary international law norms and other treaties, pertaining to international humanitarian law international criminal law or to countering of terrorism. In similar terms article 14 of the American convention on human rights and, in somewhere lesser detail, article 7 of the African chart on human and people rights, article 13 of the revised Arab chart on human rights and article 20 of the ASEAN Human Right Declaration.

Under international humanitarian law, he third and fourth Geneva Convention 1949 provide judicial guarantees of prisoners of war and civilians detain for criminal offences relation to international armed conflict. Common article 3(1)(d) of the Geneva conventions governing non-international armed conflicts prohibits the passing of the sentences and carrying out of executions ‘’Without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are recognized as indispensable by civilized people.’’, considered to reflect customary international law.

Specific additional fair trial guarantee relevant to non-international armed conflicts are to be found in article 6 Additional Protocol II. Fair trial guarantees under human rights treaties in question. Denial of the right to fair trial can constitute a war crime in certain circumstances. Rome statute of the international criminal court also includes the basic requirements for a fair trial in the context of international criminal.

The right to fair hearing is an international law principle that is being observed in Cameroon and many other countries in the world. The right to fairing is a municipal law in Cameroon. A municipal law is a law that govern the relationship of persons in a country.

The preamble 1996 constitution of the Republic of Cameroon provide that the law shall ensure the right of everyone to a fair hearing before the courts and section 4 of the judicial organisation ordinance corroborates same that ‘’ all judgements shall be pronounce in open court’’. This is an aspect of judicial neutrality and impartiality and independence. Justice must not only be done; it must be seen done.

According to justice Patrick Robinson the right to fair trial can be traced all the way back to the Lex Duodecin Tabularum also known as the twelve tables which was the first written code of laws in the Roman republic around 455 B.C.2 contained within these laws was the right to have all parties present at a hearing, the principle of equality amongst citizens and the prohibition. With the first ten table published around 445 B.C with the last two published around 449 B.C. Another important historical event of the right to fair trial can still be seen under the work of Judge Patrick Robinson. Which is the Magna Carta. In forcing King John sign the Magna Carta Libertatum in 1215, the English nobles ratified the principle that even a king will could be circumscribed by law.

In doing so, the Magna Carta paved the way for later developments during the age of enlightenment that would seek to subject governments to the will of the people. The Magna Carta proclaimed that: No freeman shall be taken, prisoned, disseized, outlawed, exile, or any way harmed nor will go upon him save by the unlawful judgement of his peers or by the law of the land.

Thus, the Magna Carta like the twelve tables recorded in writing a set of clearly formulated rights. Subsequently, court have looked to the Magna Carta in articulating rights such as trial by jury, habeas corpus, abolition of arbitrary imprisonment and equality before the law.

The right to fair trial can also be traced from the very origin of the event of the garden of Eden following the wrong of Adam and Eve GOD before punishing them tried them there by granting right of fair trial. The guilty parties Adam and eve where innocent by an omniscient being as supported by the question put to them ‘’Did you eat of from that tree that I told you not to eat from’’ As could rightly be interpreted, a fugitive even if caught flagrante delicto should be presumed innocent.

If the right to fair hearing is been observe fully setting benefit will be obtained. Benefit not only to the state but to it citizenry.

Innocent person will be set free, in the sense that innocent person arrest will be trial and their own part of the event will be heard by observing the right to fair trial. And nobody will be held liable for what he has not done.

Quick and fast justice will be obtain in sense that setting long procedure which are  not  part of  the law of the right to fair hearing  will be kept aside ,.that is the right to fair trial  will be followed according to the law to fair trial ,that is in its isolation.

1.2 Statement of the Problem

The term “fair hearing” is a problem in itself in terms of the definition. Several attempts by legal scholars to give an adequate definition which encompass this human right principle has most often than not be in futility. Existing declarations, resolution and universal “sectorial” treaties relate just too specific aspects to the “fact in issue.” Treaties such as the Universal Declaration on Human Rights (UDHR) 1948, the International Convention of Civil and Political Rights (ICCPR) 1966, the African Charter for Civil and Political Rights (ACCPR) 1981, the Cameroonian constitution of 1996 (as amended in 2008) only instigates for the protection and promotion of the right but failing to define. Same is indeed a lacuna in the law that needs to be solved.

However, another problem emanates from the actual implementation of the right to fair hearing in Cameroon. It is indeed no “news” of fact that Cameroon has wonderful laws ensuring the protection and promotion of the right to fair hearing. Regional commissions such as the African commission has in the past entertained cases like that of Emdga Mekong v. Cameroon. Here, the government was accused of dictatorship on the plaintiff and was held liable for unjustly arresting and detaining Mr Mekong for 12 years without trial within reasonable time thereby refusing g his right to fair hearing.

It is, of course recognized that, the right to fair hearing is stated in the Cameroon constitution, judicial organisation of Cameroon, Cameroon criminal procedure code. It is rarely put in to practice as stated by the law. Based on the problems identified above a number of inescapable questions arises including;

What accounts for the fact that despite its provision under municipal law the principle is rarely observed?

What are the best measures aimed at improving the observance of the right in Cameroon?

These are some of the questions my research will attempt to answer.

1.3 Research Questions

Based on the problems identified above a number of inescapable questions arises including.

1. What accounts for the fact that despite its provision under municipal law the principle is rarely observed?
2. What are the best measures aimed at improving the observance of the right in Cameroon?

These are some of the questions my research will attempt to answer.

1.4 Aims and Objectives

The objective of this research shall be divided into two. Specific and general objective. The specific will look at the extent to which Cameroon adheres to the principles and laws governing the much heralded human rights doctrine of fair hearing whereas the specific will be looking at the following;

1. My essay will provide a practical tool for practitioners charged with the implementation of human rights in the judicial domain in Cameroon.
2. My essay will examine the laws governing the right to hearing.
3. My essay will depict hearing norms provided in Cameroonian laws
4. My essay will examine specific challenges to the actual implementation of fair hearing in Cameroon
5. My essay will propose measures that could be taken to curb the unfairness in litigations

1.5 Research Methodology

This research method involves the primary and the secondary source of data collection. Primary means of data collection includes statutory provisions, human rights conventions, case laws and legislations while secondary data collection comprises of computerised online research, textbooks, lecture notes, interviews, newspapers publications and journals which are all form of quantitative research method. The decision to follow this research methodology is based on the fact that results of the findings should be a representative sample of not just what the law deems fit to be applicable but on what is actually.

As stated in the above paragraph the research method adopted for my long essay is quantitative research method, which involves the collection of data from different sources. This sources will be explained in the paragraphs below.

Material was collected from the library of the University of Buea. I went to the library look for human rights books, look at their table of content to see which chapter match with title. If the chapter of the book match with my title or my research objective, I then go ahead and open the page of the book and chapter which has my research objective and read. Not all material read is being considered in my research. Material read are being sample to select the right material that match the specific research objective. If the material in the book matches my specific research object is being taking note of, and finally added to my long essay. This is how my material was collected from the library of the University.

Material was collected from the internet with help of search engines. Search engine like Google, Wikipedia and Ask.com. These search engines are found on my computer and phone. So when I need specific material for my long essay, open the search engine, type research objective on the space giving on the search engine, the search engine will search and give alternative from which  I will choice the best which match my research objective. After what read the page or the alternative I open to actually see, if it has the material which I am looking for. If it has, I sample it then bring it into my work.

Lecture note has also provided material for my long essay, lecture note of the course human right and public liberty, course code law 332, lecture by Dr Sone patience. This note provides part of the evolution of the right to fair hearing. it give a brief account of the event at the garden of Eden.

Law is an important instrument of every state. law text like the African chart, Universal Declaration on Human Rights (UDHR)1948, the International Convention of Civil and Political Rights (ICCPR)1966, the African Charter for Civil and Political Rights (ACCPR)1981, the Cameroonian constitution of 1996, Criminal procedure code amended and put into fore in 2005 by law N0 2005/007 of the 27th of July 2005, have all being important source of material to my long essay. This texts state how this rule of fair hearing should be apply in their various section and article.