A legal system is designed primarily to order and regulate the political, social, and economic lives of the people and society within its juridical sphere of influence. It is invariably derived from and conditioned by the history and customs of the territory in which it holds sway, thereby becoming a cardinal attribute of its culture. The psyche, way of life and very existence of a people and their society is usually inextricably intertwined with its legal traditions. This explains why a Russian’s perception and conception of his prerogatives and obligations in matters pertaining for instance, to family, property, commercial transactions, civil liberties, citizenship, etc. may be in striking contrast to that of a Canadian or Australian.
The ideological chasm in the orientation and functioning of different legal systems and the people molded in their respective spheres of influence, finds quintessential expression in the differences which exist between the civil and common law systems of justice. Whereas the former, which is best exemplified by the Napoleonic Code in France, is the colonial legacy of France to La Republic du Cameroun, the latter is the legacy of England to the people of Southern Cameroons, during its forty-three years of colonial rule. It is this sometimes ideological and philosophical antagonism between the above colonial legacies, that is the fractured crucible, which has laid bare the fault lines in the on-going crisis pitting an overwhelming majority of Anglophones against the Francophone establishment elite.
Sadly, for the Anglophones, their unwitting and unsuspecting forbears had been forewarned of the potential hazards of this strange alchemy – the betrothal of a people so disparate and conflicting in their legal origins and cultures. In a statement admonishing against the perils of unification, which the wisdom of time has revealed to have been eerily and prophetically made some fifty-eight years ago, the former Prime Minister of Southern Cameroons, E.M.L Endeley warned: “if you vote for Cameroon Republic, you will invite a new system under which everyone lives in fear of the police and army. You will not be free to move about; you cannot lecture freely or discuss your political views in public; … and you can be arrested and flogged by the police and even imprisoned without a fair trial.” With an acute clairvoyance, Endeley further warned: “who amongst you would like to live in a country which lacks complete respect for human dignity and where you cannot speak out your mind or pursue your business in peace … who amongst you will like your children to grow up in servitude?… this will be our lot if we join French Cameroon…” Despite Endeleys’ foreboding and admonition, some in our pioneer political class were appositely naïve and unsophisticated to discern and wade through the nefarious web and ominous designs of Ahidjo, master-minded and propped by the French. They were cajoled, hoodwinked and bamboozled to become unwary and benign suitors in an abortive and unholy engagement which they later lived to regret.
However, this begs the basic question as to why this hallowed re-union between two supposed erstwhile brothers has been so fragile and tenuous even after a fifty-six year experiment. Apart from the manifest bad faith of Ahidjo and his hegemonistic French colonial overlords, who had never sought to establish a genuine federal political dispensation between Southern Cameroon and La Republic du Cameroun, the deepest rift between the two polities lies in their inherited colonial laws. Just as in the case of Cameroon, the civil and common laws are exogenous laws propagated to the rest of the world mostly through colonization and conquest. While these laws have endured varied progressive modifications in the recipient countries, the philosophical underpinnings remain the same and continue to impact social, political and economic affairs in these countries.
In analyzing these legal systems and in an attempt to show how they color and have varied our perception of justice, we will cursorily examine a few foundational areas in which they are extremely opposed.
What Inspired the two Legal Systems?
In its formulation, the common law was influenced by the desire and aspiration of the landed gentry and merchants to develop a legal system which will provide robust protective mechanisms for contractual rights and for private property. It was also aimed at curbing and keeping at bay, the ability of the king and the English aristocracy to interfere in the private business affairs of individuals. Protection of individual liberties was of paramount importance in its conception. The common law supports a form of social control which is designed to facilitate and achieve enhanced productivity of the private market. The civil law system of justice on the other hand is predicated on a paternalistic philosophy in which the law is designed to achieve state desired goals by constituting norms of conduct, backed by state coercion, primarily aimed at protecting the supreme interest of the State (L’interet Supérieur de l’état), no matter whose ox is gored. Civil law was conceived by the Romans in the middle ages. However, contemporary reference to civil law usually and commonly refers to that of the French which emanated from the French Revolution and the subsequent Napoleonic Codes, written in the early 19th century. It is characterized by a militant and centralized governing philosophy which aspired to employ the power of the State to radically alter the dynamics of property rights in its favor.
What is the Source of the Power to Govern? – Does it Reside with the People’ or with the State?
Common and Civil law countries are diametrically opposed on how they conceive the authority of the State. The continental European countries and their colonies view the State as the “Leviathan” from whose authority law and justice emanates. According to this view, the “Pouvior Constituant” is this veritable crucible from and around which the rule of law, justice, legitimate State authority and human rights, spring and evolve. According to the civilian legal tradition, all rights are given to citizens by the political authority, the State, and not by any Supreme being. They view the ‘rule of law’, as compelling its citizens to a slavish obeisance of any laws imposed on them by the State.
The constitution is viewed, in civil law countries, as a mere mechanism to formulate, structure and enable the legislative and executive branch to devise and implement governmental policy. It is not perceived primarily as a tool to regulate and constrain the excesses of governmental power as it is in common law jurisdictions. Pursuant to Napoleon’s idea of the State as an instrument to bring social change, he set out to introduce a novel concept of public law which will immune State action from the supervisory authority of judges. Notwithstanding the changes brought about by “le consiel d’état” which imposed some limitations against the use of excessive State power, in present day France and its colonies, the administrative judge does not have unfettered power to execute its decisions against the State. The prevailing judicial thinking and ethos in these jurisdictions remains that the State cannot be at par or at the same level with its subjects in the context of any administrative or judicial proceeding. The judge cannot issue and/or enforce any prohibition or mandamus against any activity of the government or worst of all, order Her to be in contempt of its authority. They posit that human rights are not an inalienable God given attribute of citizenship but a privilege accorded to citizens by the State through the constitution. The State is perforce, morally but not legally, obliged to enact fundamental human rights, providing some safeguards against their abuse by executive powers, into the constitution. An incredulous and ridiculous example of the omnipotent and omniscient powers of the State are the extended powers given to auxiliaries of the State like Divisional Officers, Senior Divisional Officers, and Governors. Under their system of ‘Droit Public’ these personages are empowered to issue ‘administrative acts’ which carry the same authority and are legally compelling as court judgements. They have been known in Cameroon to be, the accuser, judge and executioner. They can arrest who so ever, using the administrative detention powers accorded to them by law. Legal observers and civil society have fresh memories of the arrest and detention, a few years ago, of an eminent lawyer of the Cameroon Bar Association in Tiko by the Divisional Officer. In further display of unconstrained and overzealous executive power, a colleague who was called to help (a representative of the President of the Cameroon Bar Association in the South West at the time) was equally arrested and detained by executive fiat. This travesty was done with little or no judicial oversight and with absolute impunity.
The almost complete antithesis of the civilian legal philosophy, as enunciated above, which is found in the common law universe, is the American legal thinking. Ironically the American founding fathers in revolting against, what they considered to be, oppression by the British drew inspiration from the English philosopher, John Locke. The Lockean judicial philosophy aligns with the view of limited State powers and authority and subscribes to the idea that citizens are ruled and governed by God-inspired law and not by the authority of a fellow man. The Americans felt that the colonial government of England had violated their inalienable rights and spurred by Locke, they opened their Declaration of Independence with these words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator, with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness”. Implicit in Locke’s concept of natural law and the Declaration of Independence are the following precepts. Human rights are conferred by God and therefore pre-constitutional and should as a matter of necessity, define the limits of State authority. Secondly, a people had to give their consent to be governed and immanently possess the right to self-determination. Thirdly, intrinsically rooted in those God conferred rights was the Right and Duty to resist any State powers which violated them. Fourthly, in constituting the American nation and its government, the constitution opens thus: “We the people of the United States”; this is a tacit expression of the idea that power properly resides in the people.
Equality of all before the law was not a novelty when it was enunciated by the American founding fathers or John Locke. Their precursor is the Magna Carta, otherwise called “The Great Charter”, issued by King John of England in 1215. A bulwark against the arbitrary use of State power, it established for the first time that everyone including the king was subject to the law. Lord Alfred Denning described it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”. So, it has remained the cornerstone of all civil liberties afforded by English common law – right of free and fair trial, due process of law, trial by jury, habeas corpus. It has also inspired above all, the universal Declaration of Human Rights.
The Rule of Law or L’Etat de Droit (State of Law or Police State)??
The Rule of Law in the Anglo-Saxon context is predicated on the principles affirmed in their constitutions and the Declaration of Independence (in the case of the U.S.), stating that government should be of law and not of men. In conceiving the Rule of Law, in these societies, the jurist does not only consider the substantive legal rules governing the relationships of citizens inter-se. Of paramount importance to the rule of law, is the defense of individual liberties from unconstrained violation by their government. The procedural due process rights of citizens, such as that of habeas corpus, are of equal import as their substantive legal rights. Whereas a judge in a civil law jurisdiction is solely preoccupied with the substantive rights of the citizens as are spelled out in the constitution or codes. In these jurisdictions, scant regard is paid to the legal procedure which is employed to enforce the substantive rights of the citizens.
In England, the crown (king/queen) through the Lord Chancellor (Minister of Justice) had conferred on the courts the power to issue something called the Prerogative Writs. This power was to ensure two things. First, the independence of the courts against the exercise of unhindered State power. Secondly, protection of the rights and liberties of citizens against the executive branch of government. The said prerogative writs are: writs of habeas corpus, mandamus and certiorari.
By using the writ of habeas corpus, the court can order the superintendent of a prison or a police commissioner to bring forth to court a person who is being detained and to justify their arrest and detention. The prisoner will be released if the court considers the police acted unlawfully in arresting him or his continuous detention was otherwise not warranted by the law. This device is anathema to the Criminal Procedure Codes of most civil law countries; a ‘bête noire’, if you will, an impediment to the expedient administration of justice.
The Writ of Mandamus can also be used to compel any employee of the administration to do an act which they are otherwise required by law to do. This writ has been supplanted by the writ of injunction in most common law countries. It could be used by private persons through the courts, to compel specific acts or measures of the executive branch. The defendant in such administrative proceedings in common law countries would be the top civil servant appointed to head that office and not necessarily the authority or directorate under his control. Therefore, the said civil servant could be punished with contempt of court, if he fails to abide by the orders of the court. One of the most celebrated and memorable cases of use of an injunction or mandamus in recent memory is Brown V. Board of Education. In this case, the writ was used to mandate a “for white only school” to also admit African American students. Administrative courts in the civil law world do not have any powers to prohibit a civil servant from acting or otherwise compel him to act. They are also bereft of the ability to enter contempt orders against a civil servant. Administrative courts can only review administrative decisions to see if they are ultra-vires (beyond the scope of their authority). And, if they are found to be, the court will enter an order to quash. This is the only remedy they have in civil law courts which is akin to the writ of certiorari. Moreover, the State, in civil law countries, can only be sued in the courts if she acted in the capacity of a private person.
The writ of certiorari is a tool which is often used by common law courts as a check against any misuse of discretionary power and other due process violations by the executive branch of government or administrative authorities. Using this procedure, a court will review whether an administrative decision was made within the scope (intra-vires) or without the scope (ultra-vires) of the directorate’s authority. In the common law system, such ultra-vires acts are void ab-intio (i.e. considered null and void from the time they are enacted). Whereas, in the civil law system, an ultra-vires act is not considered void until its unlawfulness is contested by a party. Furthermore, there is a period of limitation within which the unlawfulness of an administrative act could be challenged. Once this period of limitation expires; the otherwise unlawful administrative act inherently regains its validity. This is a flagrant affront to the common law principle that an ultra-vires administrative act cannot be redeemed to be made intra-vires.
Due Process or No Process?
The concept of Due Process of law is an emanation of the magna carta and variations of it have been enshrined in the constitutions of most common law countries. Thus, under the fifth and fourteenth amendments of the U.S Constitution, for example, the federal and state governments have respectively been prohibited from depriving any person of “life, liberty or property without the due process of law”.
What exactly is the Due Process of Law?
There is procedural due process and substantive due process. Procedural due process protects all persons from the coercive power of the state in ensuring that while a law might be valid, the process of its enforcement should be fair and impartial. The main protections envisaged here include: reasonable notice to a person as to why they have to appear before a tribunal, the right to an independent judge or jury in criminal proceedings, the right to present testimony and relevant evidence at trial. Whereas, substantive due process seeks to protect persons against acts which the courts deem to be beyond the scope and authority of governmental intrusion. In short, the due process guarantees, like the rule of law concept in England, are meant to ensure that the State respects all legal rights which are owed to an individual. It serves as a counter-poise against the use of State power to the detriment of individual liberties.
Thus, criminal prosecutions in common law countries, are usually founded on the principle of equality of the litigating parties. The prosecutor, who embodies and espouses the interest of the State is an adversary of the suspect defendant and they are, as such, at par in the eyes of the court. The defendant is presumed to be innocent until proven guilty by the State. A sage of the common law once opined, that it is better for one hundred guilty persons to go free than for one innocent to be convicted. As a corollary to this, he has the right to bail (with a few exceptions) and the burden will be on the State to show why he is not so entitled. His right to bail also gives him the opportunity to prepare his defense. Thus, every other thing being equal, both parties are accorded a fair chance of success at the end of the proceedings. The situation under civil law is different. There are no constitutional guarantees of due process. The prosecutor is deemed to be a purveyor and protector of the public interest; which is deemed to be a higher interest. There is as such no parity in the way they are perceived by the law. The defendant accused, is not presumed innocent and is not, as a matter of right, entitled to bail.
Adversarial Versus Inquisitorial System of Justice
In the adversarial system of justice, the judge is a neutral umpire. He listens to the facts and the law of the case as presented by the plaintiff and then the defendant, before making a decision based on the presentation of both parties. He does not meddle in the investigation of the facts of the case, neither does he engage in the questioning of witnesses. In making his decisions, he will mostly rely on the judgement of courts or judicial decisions as the primary source of law. The principle of ‘stare-decisis’, meaning ‘let the decision stand’, compels him to apply the decisions made in previous cases, with similar facts, to the case before the court. Reliance on statutory law is usually minimal. Owing to the dependence on judge-made law, the judiciary wields tremendous influence in the socio-economic and political development of common law nations. The adversarial system of justice harbors an abiding distrust for the prerogatives of State power and perceives it as unfair when it is reined unchecked over an individual.
On the other hand, the civil law operates an inquisitorial system of justice in which judges are compelled to rely on legal codes in making decisions after a review of the facts. In doing so, he is trained to rely on the opinions of legal scholars who should have either aided in the drafting of the codes or in their interpretation. In this system therefore, the judges’ decisions are not consequential in the overall socio-economic and political development of the society as they would be under the common law.
In the inquisitional system of justice, the judge/court is actively involved in the investigation and in the production of evidence in the case before it. He engages in the questioning of litigants and witnesses. In doing so, he risks the appearance of unfairness and public confidence in the process could be jeopardized. The role of counsel, partisan advocacy and equal opportunity to present opinions is sacrificed at the altar of what is in “the best interest of society” and the interest of the individual is rendered subservient to the process.
Independence of the Judiciary
Judicial independence is vital to the unfettered functioning of a democratic society. It serves to guard against the oppression of the poor by the rich, the weak by the strong, the minority by the majority. It serves as a bulwark and shield for the citizens against governmental excesses. The idea is that judges should be at liberty to decide on cases before them based on the facts and the law without the compunction to yield to interferences or any undue influence from the other branches of government. But how is the independence of the judiciary secured? The first principle is to distance the appointments, removal, promotion and compensation of judges, from the executive branch as much as possible. Most State judges in the U.S are, for example, elected by the populace. While federal judges are nominated by the president, they still have to be confirmed by the senate, who are representatives of the people. However, federal judges have a life tenure. This guarantees that they can make decisions without fear of reprisals. Judges, both state and federal, have powers to find anyone, no matter how politically powerful, in contempt of court; if they interfere with their decision-making authority. Judges in common law countries can only be disciplined or promoted by the Higher Judicial Council which is typically constituted by their peers. There is no member of the executive in that forum. The financial security of judges is assured and guaranteed by State or federal law and the executive has no role in this process.
The situation in civil law countries like Cameroon is quite converse, and a far cry from the above. To become a magistrate in these countries, one has to take a competitive entrance examination into the National School of Administration and Magistracy; which is under the Ministries of Public Service and Justice. Upon graduation, they become civil servants under the Ministry of justice. Their remuneration, postings, promotions and discipline are managed by these ministries and the Higher Judicial council. The latter body is composed of representatives of these ministries, amongst others; but above all, chaired by the President of the Republic. It comes as no surprise therefore that very few magistrates or judges in such countries are able to demonstrate judicial courage, to rule against the interest of the State, even where the law and the facts so warrant. Which is why, there is ample anecdotal evidence that they are routinely under pressure from hierarchy in cases involving the State or powerful interests.
Has Endeley been vindicated?
At the beginning of this essay, I cited E.M.L. Endeley who warned against the pervasive, ubiquitous and unconstrained authority of the State viz-a viz individual liberties, in La Republic du Cameroun. Unfortunately, this is the main issue at the heart of the rancor and turbulence which has almost engulfed the English-speaking region. Its citizenry has remained maladjusted to the excesses of unchecked executive power even after fifty-six years of cohabitation. Coming from a parliamentary system of government in which the Prime Minister was answerable and fully accountable to the representatives of the people, their stomachs are constipated with the political corn-meal they are now being fed. From repressive and opportunistic civil administrators, “chef terres”, who misappropriate indigenous and state land worth millions of Dollars with impunity, to tax inspectors and treasurers who habitually loot the States’ treasury of similar sums, the abuse of State power and resources extends from there to the pinnacles of power.
English speaking Cameroonians are yet to come to grips with the fear that constituted authority evokes. While they have been groomed to respect authority, the reverence and adoration accorded to uniform officers and auxiliaries of the administration is alien to their culture. Whereas their background predisposes them to consider the police as a friend of the citizen, the reality is pathetically different. Unperturbed police misconduct is rife. From arrests of citizens without warrants; to detentions of suspects based on the uncorroborated statements of a complainant, and even before the requisite investigation is conducted; to the torture of detainees, the abuse of police power is in full galore. Thanks to pervasive social media, the mass arrests and detention of students and lawyers during peaceful demonstrations was in display for the world to watch. The shooting of eight peaceful protesters on September 22nd, 2017, the further fortification of military resources and the declaration of a state of emergency in English-speaking regions of Cameroon, in anticipation of October 1st peaceful demonstrations, are the ultimate hallmarks of a police state. The free movement of people, within their country, which they are inclined to take for granted, now comes at a price. Failure to produce an Identity card in any of the four to five checkpoints between Douala and Buea, could earn you a spot behind bars. Faced with an impending arrest and detention, a citizen will have no choice but to oil the lips of rent-seeking police officers. The vigorous freedom of speech practiced in English Cameroon, at the vanguard of which was titans of journalism like Akoaya of Cameroon Outlook is no more. The litany of ministerial gag orders: banning media outlets or anyone from reporting on or discussing the Anglophone crisis; disconnecting the internet in the North West and South West Regions; and banning/criminalizing of any public or private discussions on the topic of federalism completes the portrait of a closed society, which Anglophones are yet to understand.
The inherent wisdom in the Anglo-Saxon judicial dispensation which identifies “the people” as the source of State power is as crucial as judicial independence. If their lives, liberties, and pursuit of happiness are to be protected, then an independent judiciary is necessary. In the eyes of any casual observer, a judge is for all intents and purposes, far from independent if he is appointed, promoted, compensated and dismissed by the executive. He is as such so handicapped even when the procedural law of the system provides for habeas corpus, mandamus, and certiorari reliefs.
Paradoxically, the circumstances of the arbitrary arrest, detention, and trial of some anglophones during this crisis unwittingly brought to international public prominence the differences between the two systems of justice. While some can argue that due process guarantees like the right to free and fair trial, presumption of innocence and bail are now contained in the Cameroon Constitution or the Criminal Procedure Code, the devil is in the details. The influence of a hundred years and over of authoritarian rule and application of French derived civil law, remains potent. The arrests of suspects without probable cause and warrants, their arraignment and trial before a militant tribunal, ineffective translation of proceedings, excessive adjournments, non-disclosure of the identity of some supposed civil parties to the proceedings, refusal of their right to counsel of their choice, refusal of bail, etc. constitutes an in-exhaustive list of irregularities that worked to deprive Agbor Balla, Justice Ayah Paul, Dr. Fontem Neba and the rest, of their due process rights.
Before the sad events of Friday, the 22nd of September 2017, I had hoped that the task of forging a “United Cameroon”, although fraught with diverse hurdles, was surmountable. Before eight English-Speaking protestors were ruthlessly slain, I had nursed a forlorn hope that the train for the restoration of Southern Cameroon statehood, which has manifestly left the station, could be miraculously reversed. Before the blood of protesters for justice and freedom was casually shed, I thought the specter of a two-state federation could be alluring to a majority of Anglophones. I had mused that the government will reform its position and table this option for negotiation so as to avoid outright separation. I had hoped our government will awaken to the truth that countries like the USA are not any less united because they are divided into fifty autonomous states. Before that ‘Black Friday’, I had harbored this great but naïve expectation that out of this current inferno will emerge a new nation. But my audacious hope has given way to intrepid fear. I now fear that Black Friday is a defining moment and turning point in the psyche of advocates for restoration and the vast majority of Anglophones. I am righteously frightened and indignant that the barbaric response to peaceful protests have served to whip up and galvanize negative public sentiments against Yaounde. I can perceive the hearts and minds of our people being stained dark-red, by the percolating dye of the martyrs’ blood, against the oppressors. It seems to me that the rubicon has now been crossed. Our people now feel their blood and that of their children is expendable. I am scared the people might harken to their children’s blood crying out of the grave for retribution. The history of liberation movements should teach us one lesson – the cause of liberty is invariably magnified when the sweat, tears and blood of the oppressed is wantonly and callously shed. Since the tree of freedom is usually watered by the blood of martyrs, Black Friday may have only served to make the Southern Cameroon freedom tree taller, lusher and greener.
By Michael E. Enow, Esquire
*** About the author
Michael is an attorney who began his preliminary legal studies in Cameroon before continuing to obtain an LL.M. (International law) at the University of Lagos, Nigeria and another LL.M. (Energy and Environmental law) from Tulane Law School, in New Orleans, Louisiana, U.S.A. He was called to the Bar of the Supreme Court of Louisiana, the Bar of the United States District Court, Eastern District of Louisiana and the American Bar Association in 1996. He has served as a legal consultant to several African governments and international companies operating in the continent. A charismatic speaker, he has been invited to speak at international conferences for investment and trade lawyers from developing countries. A philosopher, writer, entrepreneur and Member of the Cameroon Bar, Michael is passionately consumed by issues pertaining to the social and economic progress of the African Continent.