THE RIGHT TO FAIR HEARING IN CAMEROON: PROSPECTS AND CHALLENGES

THE RIGHT TO FAIR HEARING IN CAMEROON: PROSPECTS AND CHALLENGES (BY AWA RUMARICK MOKOM)

Abstract

The Right to Fair Hearing is a fundamental human right and essential bedrock for preventing the abuse of the rights of litigants in adjudication. Without a fair trial, trust in the judiciary and the rule of law collapses. As such, the Cameroonian Government has hitherto enacted a plethora of laws and ratified several international treaties to ensure its realization. However, a closer look at the provisions of these laws and their actual implementation reveals a yearning gap between legal theory and practical reality. It also shows a clear imbalance in the objectives set, viz a viz goals attained. Concerning the rights of litigants, it is possible to identify how apart they are from the fulfilment, thus proactive measures become invaluable. In addition to the high rate of corruption, findings revealed that these rights have been deterred by the interference of the executive arm of Government in the Judiciary, undue delay in the adjudication process and the absence of political will in the enforcement of laws and policies. As a panacea, it is recommended that the Government of Cameroon step up the enforcement of already existing laws and policies, increase the number of magistrates and their salaries and commit herself genuinely to the fight against bribery and corruption.

BACKGROUND

As averred by Justice Iyizoba[1],

The fair hearing provision in the Constitution is the only machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Litigants who have nothing useful to advocate in favour of their case should leave the fair hearing Constitutional provision alone because it is not available to them just for asking.

Basically speaking, the Right to Fair Hearing[2] is a Norm in International Human Rights Law which aims at protecting individuals from unlawful and arbitrary deprivation of their rights and freedoms in litigations. Without the right, the rule of law will collapse.[3] Thus, the right has been severally referred to as the cornerstone to a just society. The right has its origin and has been instituted by several tests at the National and International level.[4] Its roots could be traced to the very origin of creation. The “Bible”, which stands out as an outstanding substratum of the law gives a scenario of an instance where God instituted the principle of Fair Hearing. In the Garden of Eden following the wrongs of both Adam and Eve, God before issuing a permanent injunction on them tried Adam and then tried Eve, thus generating impetus for the notion of equality in Hearings. The “guilty” parties Adam and Eve where presumed innocent by an Omniscient “being” as supported by the question put to them.[5] As Byles J puts it;[6]

“The laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence on Adam before he was called upon to make his defense. “Adam,” says God, “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?”

God in this instant case played the role of a judge who understands the right of man. Man has the right to fair investigation of an acclaimed crime, and the right to be heard, even if as in the case of Adam and Eve, it will incriminate him.[7]

As a very crucial principle in International Law, the right to Fair Hearing is very significant particularly when it comes to International Cooperation to Combat Crimes. Whilst extradition laws and treaties have traditionally been interpreted in favor of an extradition request, Human Rights considerations are coined in the opposite direction. As such, In Soering v. United Kingdom[8], the European court of Human Rights established that “…knowingly to surrender a fugitive to another State where there are substantial grounds for believing that he will be in danger of being subjected to torture or inhuman or degrading treatment will be a violation of the European Extradition Convention on Human Rights. Also, a flagrant denial of Fair Hearing in the requesting country may hinder extradition.”

In order to implement this principle, the Cameroonian legislator has enacted laws[9] and put in place commendable institutional mechanisms. However, a critical examination of these measures reveals a yearning gap between legal theory and practical reality. Against this backdrop, this article strengthens the understanding of the Human Rights principle of Fair Hearing and the extent of its actual implementation in the Cameroonian judicial system. It identifies some of the critical Human Rights issues raised in the context of the right to Fair Hearing and highlights the relevant Human Rights principles and standards that must be adhered to in the context of its implementation in the Judicial domain.

CONCEPTUAL DISCOURSE OF THE CONCEPT OF FAIR HEARING

The Right to Fair Hearing is amorphous and cannot be limited to a single definition. Before expounding on the concept, it is worth explaining, in brief, the concept of fairness. Fairness is not in any way akin to perfection. Indeed, perfection is something more for the “province of gods”. As averred by Lord Diplock in his celebrated dictum, “the fundamental Human Rights is not a system that is infallible but one that is fair.”[10] Indeed, perfection is farfetched when it comes to litigations. Fairness, therefore, speaks of reasonable, average, honest, just and comely litigations.

To hear on the other hand means to listen to a matter attentively, consider and decide on it.[11] In the case of Akoh v. Abuh,[12] the supreme court of Nigeria held that to hear a cause or matter means to hear and determine the cause or matter. Hearings can only be deemed fair when all the parties to the dispute are given the opportunity to be heard.

The concept of fair hearing, therefore, postulates a hearing in which judicial authority is properly exercised, that is, consistent with the fundamental principles of justice embraced within the concept of Due Process of Law.[13] In the case of Baba v. Civil Aviation[14], the courts expatiated on the ingredients that make up the hallowed concept, viz. a party’s right to be present during the proceedings and to hear all the evidence against him, to cross examine or otherwise confront or contradict all the witnesses who testified against him, to be appraised of the case before him and be afforded the opportunity to prepare his defense personally or through his chosen counsel. The simplest connotation of these requirements is that the party be given unhindered opportunity to present his case before the court, tribunal or body that will determine his right.

Fair trial rights do not pertain only to the rights available to litigants during the trial, but also encompasses pre-trial rights, trial rights and post-trial rights. Pre-trial rights refer more or less to the rights available to litigants before a case is committed to trial[15], while trial rights are rights available to litigants during the trial[16] and post-trial rights are rights available to the accused after the trial.[17] The right to fair hearing otherwise known as the principle of natural justice is encapsulated in the two traditional maxims: Audi Alteram Partem[18]  and Nemo Judex In Causa Sua.[19]These basic principles enunciate so many fair trial rights of a litigant, such as the right to a public trial, the right to be heard and the right to an independent and impartial tribunal.

Ensuring the implementation of the right to fair hearing is therefore a fundamental obligation of government and she must of necessity play a leadership role to ensure that it is strictly complied with. On this basis, the Cameroonian Government has enacted lofty laws and ratified several international treaties to that effect.

LEGAL FRAMEWORK REGULATING THE RIGHT TO FAIR HEARING IN CAMEROON

There exists a plethora of laws regulating the right to Fair Hearing in Cameroon. These laws encompass International Ratified Conventions, Regional Norms and Domestic Statutes. An analysis of these laws will help provide a better grasp of the legal framework both at international, regional and national levels.

The principal international text for the protection of the right to fair hearing is the much heralded 1948 Universal Declaration of Human Rights. Its Articles 10 and 11 could be taken as the foundation of this principle. As rightly enshrined in Articles 10 of the UDHR, everyone is entitled to full equality to fair and public hearing by an Independent and Impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11 corroborates by providing for the right to Presumption of Innocence for anyone charged with a penal offence. It further provides that no one shall be held guilty of any penal offence on account of any act or omission which did not constitute an offence at the time when it was committed.

Furthermore, the International Covenant on Civil and Political Rights [ICCRR] further provides for the right to Fair Hearing. The ICCPR[20] has some peculiar sections regulating the right to Fair Hearing. Articles 14 depicts the requirement of an Independent and Impartial tribunal as sacrosanct in the realization of the rights to Fair Hearing. It provides for the notion of Presumption of Innocence and further provides for a trial without undue delay, legal assistance and the availability of an interpreter if the accused cannot understand or speak the language used in court.[21] Sections 14 (5) (6) provides the guilty offender with the right to appeal to a higher jurisdiction and peradventure the previous conviction is reversed on appeal, the accused has the right to compensation. Finally, section 14 [7] prohibits double Jeopardy [ne bis in idem] which is a general criminal law principle that prohibits judging a fugitive twice for the same offence.

At the regional level, the African Charter on Human and Peoples Rights (ACHPR) also known as the Banjul charter ensures the promotion and protection of Human Rights and basic freedoms in the African continent. Its articles 7 could be taken to comprise fundamental rules regulating the rights to Fair Hearing. Articles 7 [1] of the charter accords everyone the right to be heard which comprise of the right to an Appeal to competent National courts, the right to Presumption of Innocence until proved guilty, the right to be defended by a counsel of his choice, and the right to speedy trial within a reasonable time by an impartial tribunal. Sections 7 [2] of the charter provides that ‘no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No punishment may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender’’.

At the national level, the Cameroonian Constitution of 1996[22] provides for the right to Fair Hearing. It provides in its preamble that no individual may be prosecuted and arrested unless on the basis of the law and hence the law may not have a retrospective effect[23]. As enshrined in the preamble, “…the law shall ensure the rights of every person to a Fair Hearing before the court”[24]

The Cameroonian Criminal Procedure Code (CPC) also provides guarantees to Fair Hearing in criminal proceedings. Its sections 8 and 9 provides for the right to Presumption of Innocence to anyone regarded as an offender be it a suspect, accused or defendant. Sec. 119 (1) of CPC provides that where a Judicial Police Officer intends to remand a suspect in police custody he shall inform him of the grounds for the suspicion and invite him to give an explanation he deems necessary. This provision falls in line with the right to be informed of the charges against one. During the preliminary inquiry, the CPC provides for the rights of the accused to be informed of the charges against him in words in his first appearance as a suspect.[25] The CPC further provides for the right to compensation in event of any illegal detention done against the accused as rightly enshrined in sec. 236(1). Sec 302(1) provides that hearings shall be conducted in public. Where an accused speaks a language not understood by the members of the court, or where it is necessary any document produced in court, the presiding magistrate shall of his own motion, appoint an interpreter of not less than 21 years of age as per sec 354.  Hence, the C.P.C kind of incorporates International standards governing the Right to Fair Hearing into our National laws[26]

For the right to fair hearing, to be attained, individuals whose rights have been infringed must have access to justice. As such the 2006 Law on Judicial Organization[27] could be said to be one of the major instruments that protects the right to Fair Hearing in Cameroon. This law establishes the court of First Instance, High court and Court of Appeal while law no 2006-16 of 29^th December establish one Supreme Court in Yaoundé. Sections 13 of the 2006 law established a court of First Instance in all subdivisions but on a decree by the president of the Republic, its jurisdiction may cover several subdivisions. As per sections 16(1), the High Court shall be established at the chief town of each division. Sections 13(1) provides for the establishment of the court of Appeal in each Region. This has gone a long way to ensure that justice is easily accessible to persons seeking redress for wrongs

Furthermore, the Cameroonian Penal Code[28]incorporates some key principles governing the right to Fair Hearing. Its sections 3 provides for the non-retrospective effect of the law by providing that “No criminal law shall apply to acts or omissions committed before its coming into force or in respect of which judgment has not been delivered before its repeal or expiry.” Hence, criminal law shall apply only to acts committed after its entry into force. This provision is in line with Articles11 (2) of the UDHR. Indeed, the Penal Code makes hearing in our courts to be fair by providing mitigating factors for guilty offenders. Hence, anyone charged with a felony may have his sentence reduced to not less than ten years’ loss of liberty if the offence is punishable with death, not less than five years if it is punishable with life imprisonment and not less than one year in any other case. In case of simple offence and misdemeanor, the court may reduce to five days any sentence to loss of liberty.[29]

You can also read THE PROTECTION OF THE RIGHTS OF PERSONS WITH DISABILITIES BY AWA RUMARICK HERE

PROCEDURAL GUARANTEES FOR THE RIGHT TO FAIR HEARING UNDER CAMEROONIAN LAW

There exists a plethora of mechanisms geared towards the protection of the rights of litigants in hearing. These procedural guarantees are x-rayed below;

Public Trials:  One of the major hallmarks of fair hearing is the right to publicity of trials. This is the tenor of sections 302 of the CPC.[30] The “public” here refers not only to a formal courtroom but a place where there is access by the public. In Oviasu v. Oviasu[31] the Nigerian Supreme Court defined pubic to mean a place ‘open to everyone without discrimination. Anything, gathering or audience, which is not private, is public’. Any omission of this obligation renders the proceeding and judgment null and void. In the case of Djoumegang Remy & Kemta Andre v. The People & 1 other[32], the appellants were tried and sentenced to death by the Mifi High court. Although the judgment was delivered publicly, there was no mention in the judgment that they were tried in public. The proceedings and judgment resulting therefrom were consequently nullified. Proof of public hearing and delivery of judgment in public is done when the trial court states in its judgment as follows: “judgment delivered in open court after a public hearing”.[33]

Presumption of Innocence:  Moreover, every person who is charged with a criminal offence must be presumed innocent until proven guilty.[34] In this regard, it is the duty of the prosecution who alleges that the accused person committed an offence to prove it beyond all reasonable doubts.[35] This is often illustrated through the Latinism “Ei incumbit probation qui dicit, non qui negat”.[36] Where it is done the other way round, the proceedings are a nullity. This was the case of Mbassi Daniel & 1 other Vs. The People & 2 others[37]wherethe accused persons were heard by the trial court before the prosecution and the civil party were called upon to adduce evidence. The proceedings were logically declared a nullity.

It is important to note that once the prosecution discharges the burden placed upon it by the CPC, the burden shifts to the accused (not to prove his innocence) but to disprove the allegations. Where he fails to do this and the trial court finds the case of the prosecution sufficiently proved to the prescribed standard, the presumption of innocence hitherto enjoyed is displaced and the accused will be convicted and given the appropriate punishment.[38]

Audi Alteram Partem[39]: In the resolution of disputes, the court is duty bound to listen to and consider evidence of both sides of the case. This is in tandem with the provisions of sections 52, 53 and 300 of the Cameroonian CPC and Sections 14 of the ICCPR. The right is a fundamental rule of natural justice which requires that each party to a case be given a clear, reasonable and adequate notice of the case he is to face, and be offered reasonable opportunity to prepare and state his case in rebuttal or contradiction of allegations or arguments made against him.[40] In  Padawa and &Ors v. Jatau[41], it was held as follows, “The principle of audi alteram patem both under the constitution and common law insist that each party must not only be heard but must be afforded the opportunity to present/defend the case either in person or through counsel of their own choice”

This is necessary for providing a fair hearing and no doubt, the rule against bias would be part of the procedure. A corollary has been deduced from the audi alteram pertem rule, namely ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit’ that is, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right or in other words, as it is now expressed, justice should not only be done but should manifestly be seen to be done. In R. v. Susex Justice,[42] Lord Hewart’s  observations regarding the principles of natural justice (Audi alteram partem) posited that, “it is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Perhaps this rule of natural justice was even invoked by God when he meted out punishment to Adam and Eve for disrespecting his command”. However, if the accused person refuses to state his case, he cannot claim that his right to Fair Hearing has been violated.[43]

Nemo Judex in Causa Sua[44]: Justice must not only be done but must be seen to have been done. The maxim simply means that a person shall not be a judge in his own cause. Therefore, once the circumstances are such that any right thinking member of the society may say that the judge is biased, then the judge should not hear and determine the case. In Eriobuna v. Obiorah^[45], Tobi, JCA^[46] while explaining the meaning of bias said;

‘In a charge of bias, the integrity, honesty or fidelity of purpose and the Judge’s traditional role of holding the balance in the Matter are questioned. He is branded or seen as one who leaves his exalted, respected and traditional arena of impartiality to descend unfairly on one of the parties outside all known canons of judicial discretion. The Judge is said to have a particular interest, a propriety interest which cannot be justified on the scale of justice, as he parades that interest recklessly and parochially in the adjudication process to the detriment of the Party he hates, and to the obvious advantage of the Party he likes. The Judge at that level is incapable of rational thinking, and therefore rational judgment. His thoughts are blurred against the party he hates. He is poised for a fight, an uninstigated fight in which he is the main Participant. The conduct of the Judge invariably and unequivocally points to one trend – and it is that he will give judgment to the Party he favours at all cost, come day, come night, come rain or sunshine. Such is the terrible state of mind of the biased Judge or one who is likely to be biased…. This arises when the Judge at one time or the other had done something in the Matter to the extent that he cannot be said to be a completely neutral person or stranger to it’^[47].

The laws of Cameroon strives to portray these standards by expressly providing that any party who has reasons to suspect that a judge may not handle his matter with impartiality or where neutrality of the judge is in doubt, to ask for replacement of such a judge.[48] The courts earn public trust and confidence when they are impartial, neutral and independent because they serve as an equilibrium between the need for social order and individual freedom in the administration of justice.[49] As what the proper test of bias, Akpata JSC in Yabugbe v. Commissioner of Police[50] stated that; “In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the Tribunal, or whoever it may be who sits in a judicial capacity…. The courts look at the impression, which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand….”

An allegation that the judge is biased is a serious allegation as it tends to smear or impugn the integrity of such presiding officer.[51] Judges who find themselves in such a situation ought to recuse themselves, that is, step aside and allow the case to be transferred to another judge.

The Right to Speedy Trial: The accused person is entitled to a fair trial within a reasonable time. This is because the accused person is entitled to know his fate as soon as possible so that the curtailing of his liberty for the period of the trial can be minimized. What has bothered legal scholars, however is: what amount to reasonable time within the meaning of the law? In Okeke v. The State[52], the appellant’s trial lasted about six years. In explaining what reasonable time means, the court held:

Reasonable time depends on the nature of the case, how many witnesses testified and the number of exhibits involved and their effect on the possibility of the trial Judge losing track of the scenario of the case. Were the accused persons numerous that a possibility exists that what witnesses said on each accused is lost in the recollection of the trial judge.

The court held that in view of the circumstances of the case, six years was not an unreasonable long period. The word: “reasonable” means in its ordinary usage, moderate, tolerable or not excessive.[53] In Effiom v. State[54], the Nigerian Supreme Court held that in considering whether there was unreasonable delay in the trial of an accused person, the following factors must be taken into account: length of the delay, reasons for the delay, the accused person’s assertion of his right; and prejudice to the accused.

Equality of Arms: The principle of equality of arms requires that there should be a fair balance between the opportunities given to the parties involved in litigations.[55] This principle has been envisaged in our criminal procedure and practice through five essential components: the right to be present during trial[56], the right to counsel[57], the possibility of legal aid[58], the right to be tried in the language the accused understands[59] and the right to be granted adequate time to prepare for prepare for the trial.[60]

You can also read THE PROTECTION OF THE RIGHTS OF PERSONS WITH DISABILITIES BY AWA RUMARICK HERE

CHALLENGES TO THE IMPLEMENTATION OF THE RIGHT TO FAIR HEARING IN CAMEROON

Looking at the adequacy of the initiatives and/or action plans formulated by the government of Cameroon to foster the right to fair hearing, it might be tempting to establish that these fundamental initiatives have been successful in accomplishing significant Human Right improvements in the arena of the protection of the rights of litigants. Such an establishment would be fundamentally flawed.

One of the major limitations to the implementation of the right to Fair Hearing in Cameroon is the powers of the executive over the judiciary. Independence of the judicial power is very important for any country attempting to ensure the promotion and protection of the Right to Fair Hearing. Judicial independence is the idea that the judiciary needs to be kept apart from other branches of power (be it executive or legislative). Courts should not be controlled or subjected to improper influence from other branches of government. No matter who is in power, and without undue influence from any other source, the judiciary must not suffer any influence in its litigations.[61] The Cameroonian Constitution guarantees the independence of the judiciary. It States that judiciary power shall be independent of the executive and legislative powers[62]. As rightly enshrined in articles 37 (2) of the Constitution “judicial power shall be exercised by the supreme courts, courts of Appeal and Tribunals. The judicial power shall be independent of the executive and legislative powers…”

Notwithstanding the above provision of the law, Articles 37(3) gives the President of the Republic[63] (who heads the executive arm of government) the “locus standi” to interfere in the judicial arm of government. He shall:

• Be the Guarantor of the independence of the judiciary,
• Appoint members of the bench and legal department,
• Be merely assisted in this task by members of the higher judicial council,
• Nominate members of the bench and shall discipline actions against judicial and legal officers with the higher judicial council merely acting as opinion givers.

It goes without saying on analysis of the above, that the president of the Republic is at the helm of the both the executive and judicial arm of Government. He has in the past chaired sessions of the higher judicial council. In one of the session held at the Unity Palace on 7^th June 2017, seven cases of indiscipline of magistrates were examined[64]. Also, there are cases where the president of the Republic is the one conducting the proceedings and deciding on who should be arrested or released as it was the case with Operation Epervier…. Such a mechanism has the effect to undermine the Judicial authority and its Independence… On the 31^st of August 2017, the president of the Republic signed for the release of some Anglophones whose case was pending at the military court of Yaoundé on the basis of powers given him under Articles 8[7] of the Constitution. These are but some of the many instances where the President has interfered in the judiciary speaks for itself the fact that judicial independence in our Nation is a myth to reality.

Another challenge to the right to Fair Hearing in Cameroon is the corrupt nature of the judiciary.As Oputa JSC[65] asserts: “It is a calamity to have a corrupt judge for money – its offer and its receipts corrupts and pollutes not only the channels of justice but the very stream itself. Honesty and judicial restitute are therefore the very minimal requirements of the judicial office”. The bias judicial process in Cameroon is no longer a surprise to anybody. The renowned German based anti-corruption watchdog Transparency International had way back 1999 classified Cameroon as the most corrupt country on planet earth with the judiciary as leading in this domain. With aim of curbing the incidence of corruption, Cameroon set up an anti-corruption body CONAC. After years of struggling to beat back the cankerworm, the body published its own 2016 corruption perception index indicating that the police and the judiciary as well as most customs departments where the most corrupt sectors in Cameroon[66].According to the 2016 Human Rights Report, over half of Cameroonians perceive that the judiciary is very corrupt. On Thursday, July 06 2017 in the evening the President of the Republic of Cameroon Paul Biya dismissed Pascal Magnaguemabe, a magistrate of the 4^th grade on basis of corrupt practices. He was accused for “extortion of powers of attorney” to ladies who were heirs of an estate and for appropriation of part of the sales funds of a part of the coffees plant of the said estate[67]. It is indeed a fact that Cameroons judiciary is still being plagued by the cankerworm of corruption and thus a threat to the right to fair hearing.

More so, as enshrined in articles 142 (3) (c) of the ICCPR, everyone accused of an offence must be tried without undue delay. Articles 7(1) of the ICCPR corroborates by providing for the right to speedy trial within a reasonable time. The time span of justice is very important indicator of the trustworthiness of justice. It is a truism that justice delayed is justice denied. Indeed, justice cannot be considered as rendered if it is made within a long period of time. Beyond a certain time, the decisions taken by courts may lose their value. However, the appreciation of reasonable time can be difficult to ascertain since in most cases, no text of law provides a period of time within which a decision is supposed to be rendered. In Cameroon, the issue of delayed justice has become a ‘no issue” in the eyes of the judiciary. Hence, the African Commission for Human and People’s Rights has in the past heard Cameroonian cases like that of Embga Mekong v. Cameroon[68]. In which case the government was held liable for unjustly arresting and detaining Mr. Mekong for 12 years without trial thereby thwarting his right to be heard within a reasonable time. Another example is the classic case of Amadou Vamoulke[69] who was arrested on the 29^th of July 2016 for alleged embezzlement. As of 27^th July 2021, his matter was adjourned for the 74^th time at the Special Criminal Court.[70]

Hence, several Cameroonians have lost their right to Fair Hearing because of our delayed justice. During the researcher’s practicum, he was perplexed by the fact that the Appeal court of Bamenda on a hearing date will have to entertain more than 60 cases that appears on its course list. Even if these magistrates where to be in the developed world, they cannot within twenty hours hear 40 cases effectively. As a consequence, they will most often than not resort to adjournments and hence, delayed justice.

You can also read THE PROTECTION OF THE RIGHTS OF PERSONS WITH DISABILITIES BY AWA RUMARICK HERE

CONCLUSION AND RECOMMENDATION

It suffices to say that the Cameroonian legislator has enacted a considerable number of provisions geared towards the protection of the right to fair hearing.  However, a closer look at the provisions of these laws and actual implementation shows that their implementation is handled most haphazardly. It also shows a clear imbalance in the objectives set, viz a viz goals attained. Concerning the rights of litigants, it is possible to identify how apart they are from the fulfillment. Thus, proactive measures of fulfillment or protection from or against the state are invaluable.

 To expunge the drawbacks x-rayed in this paper and attain the objectives spelt out in the above-mentioned laws, the government of Cameroon must take proactive measures. As a panacea, it is therefore recommended that the government of Cameroon step up the enforcement of already existing laws regulating the right to fair hearing, increase salaries of judicial authorities and enroll more pupil magistrates and get them trained to become competent magistrates and judges in the judiciary. This will go a long way to curb the numerous adjournments, which has a consequence-delayed justice. Finally, the government should commit herself genuinely to the fight against bribery and corruption.

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[1] Per Iyizoba, JCA in the case of First Alstate Securities Ltd & Anor v. Adesoye Holdings Ltd (2013) 3 NWLR PT 80, P. 25.

[2] Also referred to as Fair Trial. In fact, the two terms are often used interchangeably. In Ogbo v. FRN (2002 FWLR (pt. 106) 968 at 976), the Nigerian Supreme court held: “Fair hearing involves a fair trial and a fair trial of a case consists of the whole hearing and there is no difference between the two. In other words, a fair hearing connotes a fair trial and a breach thereof has its implication on the whole proceeding.

[3] The rule of law in its most basic form is the principle that no one is above the law. Thomas Paine in his pamphlet “Common Sense” (1776) Stated; “For as in absolute government, the king is the law so in free countries the law ought to be king and there ought to be no other”.

[4] Peter Halstead, Unlocking Human Rights (London, Taylor & Francis 1^st Ed, 2009) P. 199.

[5]  “Did you eat from that tree that I told you not to eat from?”, See Genesis 13 v. 11 – 24.

[6] See case of Cooper v. Wandsworth Board Work (1861 – 73) ALL ER 1554.

[7] Sacasa Carlos, The Original Trial: God v. Adam and Eve, Available at www.timeforthefamily.com/2015/03/the-original-trial-god-v-adam-and-eve-html&ved (Accessed on the 20/07/2021).

[8] (1989) 11 EHRR439.

[9] These Laws include inter alia the 1996 Cameroonian Constitution, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights inter alia.

[10]Maharaj v. Attorney of Trinidad and Tobago, privy council, (1979) AZ 385.

[11] Chigoze Nwagbara, “The Role of Fair Hearing in the Dispensation of Justice in Nigeria: A Legal Perspective”, (2016), International Journal of Innovative Legal and Political Studies, 4(4), Pp. 1 – 10: 2.

[12] NWLR PT 85, pg. 676, (SC, 1988).

[13] Chigoze Nwagbara, Up.cit.

[14] (1986) LCN/0024 (CA).

[15] These rights include inter alia, the right to counsel, protection from Arbitrary Detention, the right to be informed of the rights available to him upon arrest, Presumption of innocence and the right to bail.

[16] The right to presumption of innocence, the right to be heard and the right to defend himself.

[17] The right to Appeal.

[18] The other side must be heard.

[19] You cannot be a judge in your own case.

[20] Adopted by Resolution 2200A [XX1] of 16^th December 1996 and entered into force 23 May, 1976

[21] Articles 14 (2) ICCPR.

[22] Law No. 96/06 of the 18^th of January 1996 as amended on the 14^th of April 2008.

[23] Which is in tandem with Articles 11 (2) of the UDHR

[24] Pursuant to Article 65 of the Cameroonian Constitution, the preamble is part and parcel of the Constitution.

[25] sec 167(1) (a) of the CPC.

[26] Articles 7[1a] of the ACHPR talks on the Right to Presumption of Innocence whilst Articles 14 [6] of ICCPR which is in tandem with sections 236 CPC provides for right to compensation if conviction is reversed on Appeal.

[27] Law no 2006-15 of 29^th December 2006 on judicial organization (As amended in 2011).

[28] Law No. 2016/319 of 12 July, 2016.

[29] See Articles 90 – 92 of the Penal Code.

[30] However, the public, including the press may be excluded from proceedings for reasons of morality, public order, national security or where the preservation of the discretion of private lives of the parties so requires. (See sections 304 and 720 of the CPC).

[31] (1973) 11 SC 315.

[32] Judgment No. 283/P of 23 August 1984 (RCJCSC  part 2, vol. 1, P. 1234).

[33] See case of Yende Amadou & 1 other Vs. The People & 1 other (Judgment No. 156/P of 16 June 1994 (RCJCSC part 2, vol. 1, p.1233).

[34] See Section 8 of the CPC and article 14(1) of the ICCPR.

[35] Sections 307 of the CPC reiterate this principle by stating that the burden of proof shall lie upon the party who institutes criminal proceedings.

[36] The burden of proof is on he who alleges, not on him who denies.

[37] Judgment No. 156 of 18 June 1998 (RCJCSC part 2, vol. 1, p.440).

[38] Agaba James Atta, Practical Approach to Criminal Litigation in Nigeria, (Emerald Publications, 3^rd ed, 2015) P. 568. Also see the case of Chukwu v. The State (1991) 6NWLR (pt.195) 1.

[39] Hear the other side.

[40] “The Application of the Audi Alteram Partem Rule with Particular Reference to Public Service Contracts of Employment”, 13 Nigerian L.J. 42 (1986), Available at https://heinonline.org/hol-cgi-bin/get_pdf (Accessed on the 25/09/2021).

[41] (2003) FWLR (pt. 282) 2010.

[42] (1924) KB 256.

[43] See case of R v. University of Cambridge (1723) S128.

[44] Which translates as “No one should be a judge in his own cause” also known as the rule against bias.

[45] (1999) 8 NWLR PT 616 p. 622.

[46] As he then was.

[47] (1999) 8 NWLR PT 616 p. 622.

[48]  See Sections 591 of the CPC – 599 CPC.

[49] Fonkwe J. Fongang & Eware Ashu, Cameroon Criminal Procedure and Practice in Action, (Editions Veritas, 2019) P. 327.

[50] (1992) 4 N.W.L.R.

[51] Ikumonihan v. The State (2014) All FWLR (pt. 727) 774.

[52] (2003) FWLR (159) 1381.

[53] See Websters New 20^th Century Dictionary, p. 1502

[54] (1995) 1 NWLR (pt. 373) 507.

[55] Ibid.

[56] See the provisions of Sections 349, 350 and 351 CPC.

[57] See the provisions of Sections 170, 352 and 417 of the CPC. In fact, the Cameroonian CPC provides for mandatory legal representation for capital offences.

[58] Closely related to the right to counsel, legal aid is providing assistance to accused persons who are unable to afford legal representatives. See Article 14 ICCPR and the Law No. 2009/004 of 14 April 2009, to organize legal aid in Cameroon.

[59] See Sections 354 – 358 CPC and Articles 14(3) of the ICCPR. In the case of Kadiri Ousmanou Vs The People & Nji Ningou (Judgment No. 69/P of 3 February 2000 RJCCSC part 2, vol.1, p. 763) the accused (appellant) was an illiterate and could not understand French language used by the courts during the trial. No interpreter was designated to interpret the proceedings to his native dialect. The supreme court quashed the decision arrived at by the lower court for violating the right of the accused to be tried in the language he understands.

[60] Every person alleged to have committed an offence must be given adequate time to prepare for his defense. This is the precursor of adjournments. However, the accused person is not entitled to continuous adjournments without reasonable cause. See sections 300 – 301 CPC.

[61]www.jstor.org stable (sourced on 22^nd August 2017).

[62] As per the Law No 96/06 of 18 January 1996 to amend the Constitution of 2^nd June 1972.

[63] Who heads the executive arm of government.

[64] Crtv.com (sourced 22^nd August 2016).

[65] A retired justice of the Nigerian Supreme Court.

[66] edennewspaper.net (Accessed on the 23^rd August 2017).

[67] See Decree No 2017/359 of 06^th July 2017.

[68] 56 (ACHPR 1995).

[69] The former managing director of the state owned Cameroon Radio Television (CRTV) broadcaster.

[70] Cameroonian authorities’ case against Amadou Vamoulke, Available at, https://ifex.org/cameroonian-authorities-case-against-amadou-vamoulke-hinges-on-discredited-witness/&ved (Accessed on the 24^th/09/2021).