7, April 2017
Cameroon’s law on “the suppression of acts of terrorism”, to wit: No 2014/028 of 12/23/2015, came into being within the backdrop of the necessity to contain the constant threats of terrorism which the country witnesses from Nigeria’s Islamist Jihadist group, Boko Haram. This law does not define terrorism, but merely lays down what it may constitute, a la Camerounais. Section 2 of Chapter II specifically states that, whoever, acting alone or as an accomplice or an accessory, commits or threatens to commit an act likely to cause death, endanger physical integrity, cause bodily injury or material damage, destroy natural resources, the environment or cultural heritage with intent to: “(i) Intimidate the public, provoke a situation of terror or face the victim, the government/and or a national or international organization to carry out or refrain from carrying out an act, adopt or renounce a particular position; (ii) disrupt the national functioning of public services to the public to create a crisis situation among the public; (iii) create widespread insurrection in the country; (iv) shall be punished with the death penalty”. For the same motives as stated above, the law imposes capital punishment for anyone whosoever provides or makes use of arms and war material; provides or makes use of micro-organisms or any other biological agent, especially viruses, mushroom clouds, or toxins; provides or uses chemical, psychotropic, radioactive, or hypnotizing agents; or takes hostages.
Fight against terrorism.
Recently, the Boko Haram insurgents from Nigeria have found safe heavens in Nigeria’s neighbors, Cameroon inclusive. The three Northern Provinces of Adamawa, North, and Extreme North of Cameroon, because of proximity, have been the most hit hard throughout the country. While the fight against terrorism is a legitimate concern, there is fear the government of Cameroon can turn this law into an oppression tool, to crack down on any oppositional movements that may seek to demand better living conditions when the government becomes autocratic, tyrannical and or oppressive. The law increases the government’s power to impose executive lawlessness, high handedness and dictatorialness to the extent where the same law seems to shackle the scales of justice, tilting them towards the favour of the government operatives, against citizens of the country.
Intriguing here is, the law does not define what terrorism is. In loose terms, this means in the Cameroons, any activity that challenges state polity, can be deemed to be an act of terrorism. In that vein, social activism and other legitimate political manifestations stand chances of easily being branded as terrorist activities, just to punish the concerned, or crackdown on dissent. For a country that claims to battle the ills of terrorism, this law, may well be a recipe for abuses or infringements on personal liberties and freedoms. The importance of this law lies more not on what it has stated to protect, but on what it implies and as such, it may be making justice not to be just.
Crackdown on dissent.
The seventeen (17) Sections of the counter-terrorism law that are divided into four (04) Chapters, cover great grounds not only pertaining to “terror”, but also other spheres of societal and state life that are not even terrorism-related. With the inclusion of words like “act likely to cause death”, “endanger physical integrity”, “intimidate the public”, “disrupt the national functioning of public services”, “create widespread insurrection in the country”, etc., the government arrogated to itself, the legal instrumentality to suppress any form of challenge to its supremacy. The legislation vastly expands power that usually is invoked only during a state of emergency.
Quite often than not, most civil society organizations and their activities all over the world have been perceived to be attempts at causing social instability and unrest and by extension, causing harm to the government. These may fall within what this law refers to as, “acts that disrupt the “national functioning of public services, acts that cause bodily injury or material damage, etc.” By projecting itself to be a strong legislation against terrorism, the Cameroon government has either deliberately or inadvertently shut the doors for any attempts at political reconciliation, dialogue, or rehabilitation of those who may find themselves on the wrong side of state excesses and perceived successes. The domestic predicament is further accentuated by the fact that in the Cameroons, there are a great many groupings of dissatisfied peoples. Thus, whilst the Bamilekes of the West Province may still bare the grudge of state-sponsored terrorism of the 1960s during which there were the Maquizaars that brutally maimed and killed many of their peoples, the Anglophones of Southern Cameroons are dissatisfied with discrimination, marginalization and general maltreatment by the Yaounde government, the Ewondos and Beties of the South are angry at the lavish and posh life lived by the president and his men, right in their faces, yet they wallow in abject poverty like the rest of the country. In short, in the Cameroons, there is no tolerance for dissent.
Unconstitutionality of the law.
Cameroon’s anti-terrorism law is in total contradiction of the Constitution of the country. It establishes permanent special terrorism circuits in the court system and suffers from constitutional deficiencies in the course. Chapter 3, Section 11 ordains that, “the duration of remand in custody shall be fifteen (15) days renewable upon the authorization of the state prosecutor”. This means once accused, a person can be incarcerated ad infinitum, as there is no limit to the remand periods. Such incarceration, it also means, can be ordered by a state prosecutor. It is trite law that only a trial magistrate in a duly constituted court has the powers of deciding that someone can or should do time in jail. Unfortunately, this law strips off the powers of sentencing from the trial judge and gratuitously awards them to the prosecutor. This is an anomaly. It is an arrogant usurpation of the judges’ role. An accused who benefits from a ruling of the court admitting him or her to bail, may under the Cameroon counterterrorism law, be re-arrested and detained by a prosecuting magistrate. The prosecutor here (of course for the state) assumes the avuncular position of an accuser, judge and jury. Having not taken into consideration the difference between the duties of a prosecuting and those of a presiding magistrate, this law threatens the buoyancy of any oppositional opinions in societal life as holders of such opinions may be arrested and detained at any time, if their ideas are rooted in dissent of any kind. This is inauspicious! With this new era of ubiquitous prosecutors on behalf of the state, the very fabrics of fair trials are under a dangerous threat of extinction within the face of the Cameroonian legal sphere, at least when it comes to counter terrorism. It is trite law that once a ruling of a court has been handed down, it can only be reversed by a court of appellate jurisdiction. But with the law under review, a prosecutor may ignore the court ruling and arrest and incarcerate an accused person who is already enjoying bail. This again is a fragrant violation of the basic principles of law and fair hearing. It is a travesty of justice.
An accused person is expected to be deemed to be innocent until proven guilty by a duly constituted trial court. The illegality of this law is further seen from the perspective where it deprives the accused of the presumption of innocence. This is against the constitution of the country, which in its preamble states that: “the law shall ensure the right of every person to a fair hearing before the courts… and every person is presumed innocent until found guilty during a hearing conducted in strict compliance with the rights of the defence”. For the period of remand in custody to be according to the length of the prosecutor’s foot, is a compendious way of saying the accused has no right to be admitted to bail or at most, they are at the mercy of the prosecutor. In a civilized society, this is not how justice works. That being so, the accused, it may seem, are being declared guilty under this law, even before trial. This is in contravention with the Constitution which states that everyone has a right to bail when they are deserving thereof.
Under Cameroon’s law on suppression of acts of terrorism, the accused cannot benefit from the common law remedy of habeas corpus, which is a writ challenging the reasons or conditions of a person’s arrest and confinement. It is intended to probe into the lawfulness or lack thereof, of a person’s detention and thus prevent unlawful or arbitrary imprisonment. This remedy is made available in Articles 584 – 588 of the Criminal Procedure Code 2005, under its Book VI Special Procedures. If an application for habeas corpus is granted, a writ is issued directing the custodian to bring the confined person before the court to stand trial for the alleged charges and to be admitted to bail. Habeas corpus, is a very strong-spirited tool a person under custody can use to ensure that his or her arrest and incarceration is not unlawful. Whenever a person is arrested and detained through an unfair process, that imprisonment is unlawful, and the concerned must be given enough information by the legal department in order to know why their liberty is being restricted so that they may be given the opportunity to answer any charges levied against them in court. It is our contention that this anti-terrorism law violates the constitution of Cameroon when the same denies the accused a right to habeas corpus. This is because the constitution in its preamble again states that, “every accused person has a right to …humane treatment in all circumstances. Under no circumstances shall any person be subjected to torture, cruel, inhumane or degrading treatment”. The Article 65 of the constitution provides a very invaluable support to the preamble by stating that the preamble is an integral part of the constitution. It is unimpeachable therefore to say that both the constitution and its preamble are of the same probative value and possess the same weight and magnitude. The Cameroon law on the suppression of acts of terrorism fails to afford the accused with all the constitutional protections accorded him or her by the constitution which in its preamble further states that, “the state shall guarantee all citizens … the freedoms set forth in the Preamble of the Constitution”. This, to me, is an aberration. It is repugnant to equity, natural justice, and good conscience.
Doctrine of Supremacy of laws.
Also known as the principle of hierarchy of laws, this principle puts laws in a conformity pyramid, with the international laws and treaties at the top of the niche, while municipal laws are found lower in the echelons. It is a legal principle which stops nations which are signatories to certain international conventions and treaties, from legislating laws that contravene the said conventions and treaties. Cameroon is signatory to the UN Convention against Torture and Other Cruel, Inhumane and Degrading Treatment and Punishment 1987, the Universal declaration of Human Rights 1948, The African Chatter on Human and Peoples’ Rights 1986, and many others. By accepting to become a signatory to these conventions, the government signed to acquiesce to the provisions of these international treaties and conventions. All of these legal instruments condemn the death penalty. Article 45 of the Cameroon constitution even gives legislative recognition to the above, when it states that, “duly approved and ratified treaties and international agreements shall, … override national laws…”. These provisions also render illegal, unconstitutional, and unacceptable within the committee of law-abiding nations of the world, the portions of the counterterrorism laws that impose capital punishment.
The wisdom of military justice.
The Cameroon counter terrorism law places jurisdiction for adjudication of matters relating to suppression of acts of terrorism exclusively in the hands of the military tribunals. Hitherto now, the military tribunals had jurisdiction to try offences of purely military nature, provided for in the “code de justice militaire” governed by Ordinance No 72 of August 26th 1972 as amended by law No 87-9 of July 15th 1987. These offences were those committed by soldiers, inside military establishments or in the course of service or of any nature in which a soldier is involved, or offences relating to firearms and firearms legislation or offences during state of emergency. Terrorism laws make citizens to be tried under military law. The law makes military tribunals to also try civilians for events that are committed neither by military officers, nor with the use of firearms. This in itself, could be seen as the fabrication of a self-serving law on terror, … a smoke screen to terrorize the public and ordinary citizens with.
The code de justice militaire observes the inquisitorial system of adjudication as opposed to the adversarial system that obtains in the civil courts. While in the adversarial system the presiding judge listens to both sides without prior knowledge of the facts and evidence of the case, in the inquisitorial system, the judge gathers evidence directly from the accused, by questioning them rigorously, with the intention of bringing out the truth. A premium is placed on the rights of the accused in the adversarial system, while on the inquisitorial system, those rights are secondary to the discovery of truth. It is a worrisome situation in that although the accused in an inquisitorial system may not be considered guilty before the trial, a presumption of innocence which is the bedrock of the adversarial system is not a requirement here.As such, it is easy to see that an accused undergoing trial in an inquisitorial system of adjudication (which obtains at the military tribunal,) is disadvantaged over his or her counterpart in an adversarial system. For a crime where punishment is death, it is only a bad law that sets up a trial that puts the accused at a disadvantage of any kind.
Judgment at the military tribunal is made after a collective vote of the assessors and the trial judge. Assessors are usually lay in the law. For crimes where the punishment is death, isn’t it outrageous to hear that such huge responsibilities are put into the hands of lay people? Scholars have held that this is a joke.Worse of all, a two-thirds majority is required to convict a suspect/accused in an inquisitorial system, whereas a unanimous verdict is the norm in an adversarial system. Again, the accessors, apart from having neither knowledge of the law nor of counterterrorism, the accused in these cases do not have the opportunity to question them about possible biasses. It is unheard of that people’s lives can be toyed with, in a manner as despicable as letting them undergo life-determining trials under military justice.
With such a draconian law, the Cameroon government enshrined a latent state of emergency as the law of the land. The law seems to set out, not to protect the citizenry, but rather to protect the state… making it indicative of the consolidation of excessive power in the hands of the executive. While the ruling elite splurges, the rest of the clan wallows in squalor. With this law, the government equipped itself with even greater powers to continue stamping out its critics and opponents under its opaque war on terrorism. Cameroon’s anti-terrorism law looks like a midnight law that marks and makes the country a republic of darkness. It considers all criticism or dissent as terrorism. On a whole, this law is an affront to common sense. With all its deficiencies, the law is a good example of what a good law should not be. It is unwarranted, inadmissible, and unacceptable as the same was not legislated to prosecute, but to persecute the accused. Dissenting such a law to my mind, is a non-reformist reform that should become part of a broader Pax Kamaruna movement that recognizes the interconnectedness of the law and the importance of being fair. The struggle to ensure the existence of a fair society is inextricably linked to the struggle to dismantle any ideation that breads bigotry, gaffe, despotism, and their ilks. Movements for the defense of fair laws in Cameroon must preach ex cathedra, sermons that seek to remove the whole country from this quack mire of a scandal and bring it into the mid-and-center of the fight for justice that is truly just. Justice, it is said, must not only be done, but must also be seen as being done, and that to my mind, must start with the existence of good laws, not the laws that shackle the very hands of justice itself.
By Tanyi-Mbianyor Samuel Tabi
*Tanyi-Mbianyor Samuel Tabi is an Attorney-at-Law, a Solicitor and a Notary Public. An expert in counterterrorism, he holds a Master’s Degree in Public Administration with a concentration in Terrorism, Peace and Mediation. He is a member of both the Cameroon and Canadian Bar Associations and is currently a Ph.D candidate in Public Policy and Law at the Walden University School of Public Policy.