A CRITICAL EXAMINATION OF CORRUPTION AND ITS EFFECT ON THE RIGHT TO DEVELOPMENT IN CAMEROON
The name of the author: Akem K. Nkwain
Title of the Thesis: A CRITICAL EXAMINATION OF CORRUPTION AND ITS EFFECT ON THE RIGHT TO DEVELOPMENT IN CAMEROON
Defended in the University of Buea-Cameroon in 2021
The year of publication at HRLRC: 21 March 2023
Name of the Website: Human Rights and Legal Research Centre,
The URL or link: https://hrlrc.org/2023/03/21/a-critical-examination-of-corruption-and-its-effect-on-the-right-to-development-in-cameroon/
ABSTRACT
Corruption is a phenomenon with serious consequences that affect the human society all around the world. It is so rampant in Cameroon that not even the church is free from it. In 1998 and 1999, Cameroon as per Transparency International Indices was classified as the most corrupt country in the world. Its effects are widespread in all sectors whether public or private. It is a problem that has plagued the Cameroonian society by diverting funds intended for development, and undermining the government’s ability to provide basic services, such as adequate healthcare, electricity and infrastructural development. The government in an effort to eradicate corruption and enhance the right to development has put in place legal, institutional and policy frameworks to combat the ill, yet the phenomenon still prevails. This research therefore aims at critically examining the prevalence of corruption and its effects on the right to development. The study adopts qualitative research methodology which involves the content analysis of primary and secondary data. This study reveals that corruption prevails in Cameroon because of the lack of political will to implement the laws against corruption, especially section 66 of the constitution which obliges public officials to declare all their wealth and assets at the start and end of their mandates, and other factors. In Conclusion, the prevalence of the phenomenon largely hampers economic growth and human rights protection especially the right to development. It leads to further indebtedness of the country, causes chaos and political instability, brain drain as skilled labour exits to seek greener pastures, and results in poverty and low living standards. The study therefore recommends that the political will and proper implementation of section 66 of the constitution will be a great step towards eradicating corruption in Cameroon. If Cameroon must be corruption free as Finland, there must be committed leadership with a strong political will to inculcate the principles of accountability, honesty and patriotism in the management of public affairs and national resources for the common good of all.
Keywords: Combating, Corruption, Right to Development.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS/ACRONYMS xiv
1.2 STATEMENT OF THE PROBLEM 5
1.3.1 General Research Question 6
To what extent has corruption affected the right to development in Cameroon? 6
1.3.2 Specific Research Questions 6
1.7 THE CONCEPTUAL AND THEORETICAL FRAMEWORK 16
ii. Collective Action Theory 17
iii. The Triple Pronged Theory 18
1.8 JUSTIFICATION FOR THE STUDY 19
1.9 SIGNIFICANCE OF THE STUDY. 20
1.12 CONTEXTUAL DEFINITION OF KEY TERMS 22
1.12.3. The Right to Development. 24
OVERVIEW OF CORRUPTION AND THE RIGHT TO DEVELOPMENT
2.1. OVERVIEW AND NATURE OF CORRUPTION 27
A) Grand Corruption (State Capture) 29
2.4 MANIFESTATION OF CORRUPTION AND CHARACTERISTICS 33
a) Electoral Financing and Vote Buying 33
b) Bureaucratic Corruption /Influence Peddling 36
d) Corruption in the Budget Processes and Public Finance Management 40
e) Corruption in Tax administration 40
2.4 THE RIGHT TO DEVELOPMENT 45
b) Content of the Right to Development 49
2.5 THE RELATIONSHIP BETWEEN CORRUPTION AND THE RIGHT TO DEVELOPMENT 52
ii) Implementation of the Right to Development 54
ii) Duty bearers for the implementation of the Right to Development 55
LEGAL, INSTITUTIONAL AND POLICY FRAMEWORKS ON ANTI-CORRUPTION IN CAMEROON
i. United Nations Convention against Corruption (UNCAC) 2003 58
ii. Council of Europe Convention on Corruption (1998) 59
i. African Union Convention on Preventing and Combatting Corruption 61
ii. Law No 2016/007 of 12 July 2016, Relating to the Penal Code (PC) 63
iii. Law No. 2005/007 of 27 July 2005 to Institute the Criminal Procedure Code (CPC) 66
iv. Law No. 2 003/004 of 21 April 2003 to Establish Confidentiality Act in Cameroon 67
v. Public Procurement Code (2004) 67
D) INSTITUTIONAL FRAMEWORKS 68
i. The National Anti-Corruption Commission (NACC) 68
iv. The Special Criminal Court 68
vi. Cameroon Human Rights Commission (CHRC) 72
vii. Ministry of Public Contracts 73
ii. Toll Free Telephone Line of The National Gendarmerie. (1501) 79
iii. United Nations Sustainable Development Goals 80
IV. UNDP Global Program on Anti-Corruption 80
EFFECTIVENESS OF THE ANTI CORRUPTION FRAMEWORKS IN CAMEROON
4.1. UNITED NATIONS CONVENTION AGAINTS CORRUPTION (UNCAC) 82
b) Prevention and Criminalization 85
4.2 AFRICAN UNION CONVENTION ON PREVENTING AND COMBATTING CORRUPTION 86
a) Objectives and Principles 86
b) Prevention and Criminalization 87
b) Oath of Office/Hippocratic or Ethics code 94
The Jurisdiction of the SCC in Combating Corruption 99
The Usefulness of its Imposition of Imprisonment to Those It Finds Guilty of Corruption 101
The Influence of the Executive over Proceedings in the Court 103
4.5 CRITICAL APPRAISAL OF THE FRAMEWORKS 106
a) Uniformity of the Standards 106
b) Inadequacy of compliance and implementation of Measures 107
EFFECTS OF CORRUPTION ON THE RIGHT TO DEVELOPMENT IN CAMEROON
5.1. EFFECTS OF CORRUPTION ON HUMAN RIGHTS 108
5.1.2 Effects of Corruption on the Economic and Socio-Cultural Development of Cameroon 112
5.1.3 The Effects of Corruption on the Realization of the Right to Development in Cameroon 113
5.1.4 The Effects of Corruption on the Supply of Social Amenities 114
5.1.6 The Effects of Corruption on the right to self-determination 115
5.1.7 The Effects of Corruption on the Justice System in Cameroon 117
5.1.8 The Effects of Political Corruption on the Right to Development 120
5.2 CHALLENGES IN COMBATING CORRUPTION IN CAMEROON 120
ii. Lack of Accountability and Transparency 121
iii. Difficulty Recovering Stolen Assets and Mitigating the Consequences of Corruption 123
SUMARRY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS
TABLE OF STATUTES
National Laws
Law No. 2000/15 of 19 December 2000, Relating to Political party and campaign financing
Law No. 2 003/004 of 21 April 2003 to Establish Confidentiality Act in Cameroon
Law No.2004/016 of 22 July 2004 to set up national commission on human rights and freedoms Law No. 2005/007 of July 2005 relating to the Criminal Procedure code
Law No. 003/2006 of 25 April 2006 relating to the Declaration of Assets and Property
Law No. 2008/001 of 14 April 2008 to amend and supplement some provisions of law no 96/6 of 18 January 1996 to Amend the Constitution.
Law No. 2011/028 of 14th December 2011 to Set Up the Special Criminal Court
LAW No. 2012/011 of 16 July 2012 to amend and supplement certain provisions of Law No. 2012/001 of 19 April 2012 relating to the Electoral code
Law No. 2014/016 of September 2014 on the Standing Orders of the Congress of Parliament.
Law no 2016/007 of July 2016, relating to the penal code.
Law No 2019 of 19 July 2019 relating To the Establishment, Organization and Functioning of the Cameroon Human Rights Commission.
Decree No, 77-245 0f July 1977, to organize Chiefdoms
Decree No. 2012/223 of 15 May 2012 on the Administrative Organization of the Special Criminal Court
Decree No. 2013/131 of 03 May 2013 on Establishment, Organization and Functioning of the Special Criminal Court
Decree N ° 2013/287 of September 04, 2013. On the organization of Superior State Control
International Laws
International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI) 1966
International Covenant on Civil and Political Rights (1966)
International Conference on Human Rights, held in Tehran, Islamic Republic of Iran, 1968
Declaration on Social Progress and Development, 1969 (in its resolution 2542(XXIV))
Declaration on the Right to Development, 1986
UN Commission on Human Rights, resolution 4 (XXXIII), 1977
UN General Assembly resolution 1161 (XII), 1957
United Nations General Assembly resolution 41/128
United Nations Committee on the on Economic, Social and Cultural Rights, 1993
Resolution 36 (XXXVII) of 11 March 1981
The United Nations Convention against Corruption, 2003
The convention against torture and other cruel Inhumane or Degrading treatment or punishment adopted on 10th December 1984 by the United Nations General Assembly.
The Committee on Economic Social and Cultural Rights; Adopted by the World Conference on Human Rights, Vienna, 25 June 1993 (A/CONF. 157/24
Rio Declaration on Environment and Development 1992
The Vienna Declaration and Program of Action, 1993
Convention on Combating Bribery of Public Officials in International Business Transactions (1997)
Council of Europe Convention on Corruption (1998)
The Millennium Declaration of 2000
Resolution 15/25 ‘The Right to Development’
REGIONAL LAWS
African Charter on Human and People’s Right, (1981)
African Union Convention on Preventing and Combatting Corruption, (2003)
LIST OF CASES
Bongam Isa and Boni Ako Nasako Peter V. The People of Cameroon (CASWR/41C/2010)…………………….…………………………………………………Page131
The people of Cameroon (represented by the ministry of finance) V. Bongam Isa and Boniako Nasako Peter (HCF/114c/05/2006)……………………………………………….……. Page 131
The people of Cameroon V. Tang nee N. Rebecca, Suit No (HCK/94C/2005, CASWR/3CR/2008)………………………………..………….…………………………Page 131
The people of Cameroon and the state of Cameroon (MINJUSTICE) V. Tambang Victor Mbang Menj, Charge No 012/RG-TCS/2014, Judgment No 13/TCS/2014………Page 121, 131
The Public Ministry and the state of Cameroon V. Haman Adama nee Halimatou Kangue and 12 Others, SUIT No. 026/CRIM/TCS of September 2013……………….Page 25,127,130,145
The public ministry and the state of Cameroon, The CAMAIR liquidation V. Fotso Yves Michel, ARRET No 011/CRIM/TCS DU 29 Avril 2012………………………………….Page 130
Public Ministry Case and Ministry Of Finance (The People of Cameroon) V. Achidi Forba Ernest, Cho Forba Edwin Tanayen Anthony, JUDGMENT No- 033 / CRIM / TCS OF 09 DECEMBER 2014……………………….……………………………………………..……Page24
The People of Cameroon V. Jean-Marie Atangana Mebara, Communication 416/12, 2015…………………………………………………………………………………Page126, 152
The People of Cameroon V. NGWE Anastasie, AKOM TAWANI TEKU Calicious, NGO BIKAI Marthe marries, NDJIP ACHIDI FORBA Ernest, TANAYEN Anthony and CHO FORBA Edwin (judgment no- 201 / CRIM)……………………… ……… ..……………Page 24
The state of Cameroon V. Alioum Bappa Issa ( ARRET No 028/CRIM/TCS DU 28 OCTOBRE 2014 Affaire Ministere Public Et La Cameroon Postal Services(Campost) V. Abakar Mansale (Arret No 011/Crim/Tcs Du 02 Avril 2014………………………Page24, 132
LIST OF ABBREVIATIONS/ACRONYMS
AU African Union
ANIF National Agency for Financial Investigation
ARMP Public Works Regulatory Agency
CESCR Committee on Economic, Social and Cultural Rights
CHRC Cameroon Human Rights Commission
CHRDA Centre for Human Rights and Democracy in Africa
CONSUPE Control Superieur de l’Etat
CPC Criminal Procedure Code
CRTV Cameroon Radio and Television
CPDM Cameroon Peoples’ Democratic Movement
ELECAM Elections Cameroon
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
MDGs Millennium Development Goals
MRC Cameroonian Renaissance Movement
NACC National Anti-Corruption Commission
NCHRF National Commission on Human Rights and Freedoms
PC Penal Code
RTD Right to Development
SDG Sustainable Development Goal
SDF Social Democratic Front
SCC Special Criminal Court
TI Transparency International
UN United Nations
UNCAC United Nations Convention against Corruption
CHAPTER ONE
GENERAL INTRODUCTION
The phenomenon of Corruption has continued to spark a debate among scholars on the relationship it has with human rights.[1] In many parts of the world, including Cameroon, leaders in both the public and private sectors have illegally diverted, for personal gain, resources meant for a country’s development in areas such as education, health care and infrastructure projects.[2] Corruption is a term with many meanings, but generally it entails misusing one’s office for a private gain or unofficial end. This first chapter of the thesis introduces the background to the study, presents the problem statement, research questions, objective of the study, research methodology, scope of the study, justification and significance of the study, literature review, the theoretical frameworks, scope of the study, the conceptual definitions of key terms and the synopsis of chapters.
1.1 BACKGROUND TO THE STUDY
Corruption originates from the Latin word ‘corrumpere,’ which means bribe, mar or destroy.[3] Much evidence suggests that it has been around the world from time immemorial, and in recent times, it has occupied a front seat in global discussions.[4] In October 2003, the United Nations Convention against Corruption (UNCAC) was adopted by the General Assembly and entered into force in December 2005. In the preamble of this convention, the seriousness of the problems posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing the sustainable development and the rule of law was acknowledged.[5] The purpose of this legal instrument among others is to; promote and strengthen measures to prevent and combat corruption more effectively; promote facilitate and support international corporation and technical assistance in prevention and fight against corruption, including asset recovery and to promote integrity, accountability and proper management of public affairs and public property.[6] The anti-corruption law gave state parties the obligation to adopt in accordance with the fundamental principle of its legal system, develop and maintain effective anti-corruption policies that promote the participation of society in the fight against corruption.[7] The law encourages state parties to endeavor to establish and promote effective practices aimed at the prevention of corruption.
At the regional level, the African union has equally been worried about the prevalence of corruption in the continent, prompting the organization to take steps in the eradication of the phenomenon and pave a way for development, considered to have been hampered largely by Corruption. To this effect, the member states of the African Union adopted the African Union Convention on Preventing and combatting Corruption (The Convention 2003). This convention was adopted at the second ordinary session of Assembly of the union, held in Maputo (Mozambique) on the 11th of July 2003.[8] The convention entered into force on the 5th of august 2006, thirty days after the deposit of the fifteen (15th) instrument of ratification.
Prior to the adoption of these global and regional legislations on anti-corruption, the state of Cameroon has been plagued by corruption since the 1960s when she got her independence.[9] In fact, corruption is a canker worm that has invaded the Cameroonian society. It cuts across all sectors in Cameroon, whether Public or Private sectors, and not even the church is free of corruption.[10] Corruption is an age-old phenomenon that is visible in a majority of sectors in Cameroon. It has been seen manifest in the Health, Educational, Judicial, Financial, and the Military, the award of public contracts and in the Law and Order enforcement departments.[11]
Corruption has enormous negative consequences for development.[12] The UN General Assembly’s Agenda 2030 for sustainable development of 2015 asks all states to ‘substantially reduce corruption and bribery in all their forms’ and to return all stolen assets by 2030.[13] In their official contributions to this Agenda, the Human Rights Treaty Bodies have ‘identified mismanagement of resources and corruption as obstacles to the allocation of resources to promote equal rights.’[14] In fact, countries with high rates of corruption are the ones with a poor human rights record. For instance, According to Transparency International indices,[15] Cameroon has twice topped the chart of the most corrupt states in the world in 1998 and 1999 respectively.[16] The problem of corruption in developing countries including Cameroon is manifested in the malfunctioning of institutions responsible for governance. There is no doubt that corruption creates a vicious atmosphere of the lack of respect for law and undermines the effective functioning of democratic institutions.[17] It also leads to feeding inequality, injustice and discourages foreign aid and investment. The phenomenon has corrosive implications on poor countries.[18] It undermines democracy and the rule of law, distorts markets, erodes the quality of life and allows organized crime and other threats to human security to flourish. As a consequence, civil, political, economic, social, and cultural rights of people as well as the right to development are violated.[19]
Corruption is manifested in several forms including; bribery, nepotism, fraud, speed money, theft, pilferage, embezzlement, falsification of records, tribalism, influence peddling, and many more. The fight against corruption in Cameroon started as far back as the 1960s immediately after independence, the first institution against corruption was a Special Criminal Court in Cameroon charged with the prosecution of those guilty of the embezzlement of funds that plagued the cocoa industry in the 19 60’s. This Court was dissolved by Ordinance No 72/04 of 26August 1972 on Judicial Organization in Cameroon, upon completion of its mission.[20]
After dissolving the special criminal court in 1972 to pave a way for the judicial organization law in Cameroon, this phenomenon of corruption was incorporated into the Cameroonian penal legislation. Corruption (commission or omission) is punishable under section 134 of the Penal Code of Cameroon: It indicts “Any national, foreign or international civil servant or public employee, who for himself or for a third party solicits, accepts or receives any offer, promise, gift or present in order to perform, refrain from performing or postpone any act of his office. Also indicted under this section is anyone who receives a reward as remuneration for having already performed or refrained from performance of an act.[21] The popular notion of a corrupt person suggests that only the ‘receiver’ is corrupt. However, this is far from the truth as the ‘giver’ commits no lesser evil.[22] The Cameroonian Penal Code goes as far as punishing the corruptor. It provides that, “Whoever makes promises, offers, gifts and presents or yields to requests liable to result in corruption in order to obtain the performance, postponement or abstention from an act or one of the favours or benefit … shall be punished in a like manner as under section 134(1) above whether corruption produced its effects or not.”
The classification of Cameroon by Transparency International as the most corrupt nation in the world in 1998 and 1999, made the government more willing than ever to combat and eradicate the ill. To this effect, the government created the National Anti-Corruption Observatory in 2000, which was later replaced in 2006 by the National anti-Corruption Commission (NACC), also known by its French acronym (CONAC), by Decree No 2006/088 on the 11 of March, 2006. The members and chair of this commission were on the 15th of Match 2007 appointed to take up service. The CONAC is a public independent body which comes directly under the supervision of the head of state and has as mission to monitor and evaluate the effective implementation of the government anti-corruption program.
In more anti-corruption measures, the government adopted the slogan “Corruption kills the nation,” the slogan was aimed at educating the nation on the ills of corruption.[23] The national newspaper – Cameroon Tribune had a column devoted every day to corruption. The aim of this campaign was to educate Cameroonians on the ills of corruption and the potential damage it could do to the nation if it persisted.[24]
The Special Criminal Court was also created with jurisdiction to entertain embezzlement cases. These institutions were created to jointly and severally uproot corruption which hinders development as it accounts directly and indirectly for loss of revenue by the government. Despite the existence of a robust legal framework against corruption, we still find corruption prevailing in Cameroon at different levels.
1.2 STATEMENT OF THE PROBLEM
Corruption is still a problem in Cameroon despite the enactment of numerous anti-corruption laws and the application of various anti-corruption approaches in the fight against corruption. Corruption cuts across all sectors, whether public or private, it is an age-old phenomenon that has plagued the Cameroonian society notably in the Health, Educational, Judicial, Financial, Military, and in the Law and Order Enforcement departments.[25] The prevalence of the phenomenon in Cameroon hurts the country disproportionately by diverting funds intended for development, and undermining the government’s ability to provide basic services, such as adequate healthcare, electricity and infrastructural development. It is a key element in economic underperformance and a major obstacle to poverty alleviation and development. The underlying problem that informs this study is that corruption has now become a violator of fundamental rights of the citizens inter alia the right to development.
1.3 RESEARCH QUESTIONS
In this study, we attempt answers to these questions, which constitute the very basis for this research. These questions include inter alia;
1.3.1 General Research Question
To what extent has corruption affected the right to development in Cameroon?
1.3.2 Specific Research Questions
- What is corruption; its types, nature and manifestation?
- What are the legal, institutional and policy frameworks both international and local to combat corruption?
- How effective are the frameworks in the fight against corruption?
- How has corruption affected the right to development in Cameroon?
- What solutions can be proffered to remedy the situation?
1.4 RESEARCH OBJECTIVES
The objectives of the study are divided into general and specific objectives.
1.4.1 General Objectives
To examine the prevalence of corruption and its effects on the right to development
1.4.2 Specific Objectives
- To examine the concept of corruption, its nature, types and manifestation.
- To discuss the legal, Institutional and policy frameworks in combating corruption
- To assess the effectiveness of these frameworks in the fight against corruption.
- To critically examine the extent to which corruption affects the right to development.
- To proffer solutions to redress the situation.
1.5 RESEARCH METHODOLOGY
This study shall rely principally on the doctrinal research methodology. It adopts the qualitative research method which does not make use of numerical data.[26] This method is qualitative since it entails a systematic inquiry that includes a socio-legal research which involves understanding the paradigms for the fight against corruption, and its effects on the right to development. Qualitative research refers to a scientific method of observation to gather non-numerical data.[27] It is primarily exploratory in nature.[28]
Content analysis used to analyze primary data such as the UN Conventions Against corruption, the African Union Convention on Preventing Corruption, the constitution, Penal code of Cameroon and all international, regional and national laws preventing corruption and promoting human rights. Secondary data sourced from published and unpublished materials such as books, journal articles, newspapers, reports of anti-corruption bodies collected from existing documentation on the subject matter from libraries shall be used.
In addition, purposive unstructured interviews of key stake holders to properly appreciate what corruption is, how it is manifested and its effect on the right to development.
The qualitative approach in this study means that the information gathered is analyzed and categorized thematically. This work weighed the information from legal sources based on their authoritative quality. Thus, to arrive at findings and conclusions of this research, the researcher relies on different techniques of legal reasoning namely inductive, deductive, reasoning by analogy and reasoning by justification. Inductive refers to reasoning from a particular premise to a general premise while deductive reasoning here refers to reasoning where logical conclusions are arrived at by moving from a general premise to a particular premise. Reasoning by analogy refers to a situation whereby to arrive at any logical conclusion or finding, it must be based on the movement from a particular premise to another particular premise while reasoning by justification refers to a situation of any logical conclusion that must be backed by both law and facts. This different legal reasoning’s are relevant to the study since they help to learns credence to the study, make it more authoritative and helps in achieving the correct results. The Data gathered through these techniques of reasoning will be analyzed via sequential reasoning and logical presentation of existing views by various schools of thought on the subject matter with the aim of developing and departing from mainstream thinking and adopting a pragmatic approach.
1.6 LITERATURE REVIEW
The literature reviewed here is based on the specific research objectives of this thesis. A number of writers have discussed on anti-corruption and the right to development in Cameroon. A review of existing literature on this topic will aid the understanding of this research. Bechem[29] analyzes the public perception on the role and effectiveness of the different anti-corruption agencies in Cameroon. In his work, he attempted to provide a definition to the phenomenon of Corruption, and identified some notorious sectors in which corruption is rampant. To him, corruption strives more in sectors like taxation, customs, treasury, police, gendarmerie, education, and the judiciary. He tested his argument through semi structured questionnaires administered to the public in Buea, and through interviews with respondents at the anti-corruption agencies. According to him, evidence shows that corruption is a problem in Cameroon, and its existence is due to lack of accountability, transparency, greed and inadequate sensitization on its consequences. His work also revealed that the National Anti-Corruption Commission, the Special Criminal Court, and the Supreme State Audit are the notorious bodies championing the fight against corruption in Cameroon.
However, Bechem in his work focused only on knowing the perception of the public on the role of various anti-corruption agencies in the fight against corruption in Cameroon, and as a result, paid little attention in accessing the effectiveness of these institutions in the fight against corruption in Cameroon. This research seeks to fill this lacuna by providing an indebt understanding of the anti-corruption frameworks and the effectiveness of the legal, institutional and policy frameworks in the fight against corruption in Cameroon.
In line with the offence of Corruption, Avitus A. Agbor[30] makes a presentation on one aspect of corruption which falls within the jurisdiction of the Special Criminal Court, misappropriation of public funds. He preceded his argument by stating that the fight against the misappropriation of public funds perpetrated by individuals, especially public servants for private gains, enjoys different degrees of commitments by different countries, and that the enactment of laws and the establishment of institutional mechanisms towards this end are partly a reflection of the attainment of such a mission which is to bring perpetrators to justice and can be assessed. He goes further to state that Cameroon, rated as the most corrupt country by transparency international, and the global anti-corruption watchdog, the Cameroon government saw the need to create a Special Criminal Court (SCC) by the law of 2011,[31] to put an end to corruption in the country. The author further opines that the creation of the court comes as a robust and significant legislative development in the fight against the misappropriation of public funds. The writer goes ahead to state the legal framework of the court, the jurisdiction, composition and some cases brought before the SCC. He stated further that, the establishment of the SCC which evidently targeted the very senior public officials who embezzle public funds for their private gain, and that the 1996 Constitution included a clause that called for the disclosure of assets by some individuals and subsequent legislation was passed to give effect to this law.[32] Yet, the growing incidence of corruption in the country confirmed the view that anti-corruption laws and institutions are inadequate if the political will to implement them is lacking.
The writer then concludes his paper by stating that while corruption has plagued the development of the country, very little effort has been made to bring the perpetrators to account. As a result, corruption has grown into the fabric of Cameroonian society and can no longer be described as the invisible enemy of Cameroonians. Rather, it is the currency in which public service is conducted. However, with the introduction of the SCC, which has actually targeted top politicians including a former Premier and cabinet ministers, there is a strong sentiment across the nation that the government is now determined to put an end to the corruption committed by persons in power.
In analyzing the offence of corruption and misappropriation of public funds as proscribed by the constitution and the penal code, Avitus A. Agbor however, did not examine critically the constitutional provision which requires that certain officials must declare their assets before assuming office, and also the subsequent enactments which added impetus to this constitutional provision, he also failed to examine the effectiveness of some institutions like the Special Criminal Court (SCC) to be able to really ascertain whether their decisions have always been in accordance with the law to put an end to corruption in Cameroon. This work is therefore going to critically examine the effectiveness of the law (constitution) which prescribes that assets must be declared by top officials in government as a measure against corruption and reasons for the prevalence of corruption despite the existence of these laws.
Khulekani Moyo.[33] In his work, argues that although the relationship between corruption and economic performance is now extant in the development literature, the nexus between corruption and its impact on the realization (or non-realization) of human rights is much less understood and therefore, in need of further elaboration. The writer stated that emerging research appears to show a strong correlation between corruption, poverty, and inequality though this nascent research does not show any hierarchy among human rights affected by corruption. What is clear, however, is that when corruption becomes endemic in a polity, it benefits the well-connected and wealthy, debases the marginalized to lives of poverty and impoverishment. Inevitably, this leads to the weakening of the very accountability structures which are cardinal for protecting human rights. However, to date, no convincing theoretical framework has been advanced which seeks to explain corruption as a human rights violation. The writer stressed on the idea that the traditional approach is to view corruption as impacting on, or contributing to human rights violations but not seeing it as a rights violation per se. As an entry point, he used the right to development as provided in the Declaration on the Right to Development and given legal teeth under the African Charter on Human and Peoples’ Rights, to argue that corruption is not only an obstacle to the realization of the right to development, but a violation of human rights. Linking corruption and human rights, in particular, the right to development, as established in his work serves mostly to add a new perspective by deploying human rights norms and institutions in fighting the deleterious effects of corruption on the realization of human rights.
In his works he discussed and evaluated the emergence and normative content of the right to development to give some perspective on how the right is impacted by corruption. Understanding of the nature and content of the right to development gives a better perspective in evaluating how corruption violates human rights. He further highlighted that this is the case in an environment where the incidence of graft is entrenched, and in the absence of effective mechanisms to fight the scourge of corruption. In conclusion, he stated that the right to development demands, that states should take steps to eliminate obstacles to development. Clearly, an environment of rampant and systemic corruption is one such obstacle to development, and realization of the right to development entails equality of opportunity for all within a particular polity in their access to socio-economic goods. Corrupt practices divert funds to line the pockets of the rich and powerful. A human rights approach to fighting graft has the potential to add a strong dimension in the fight against the scourge of corruption.
Florence Anaedozie,[34] centers her discussion on grand corruption. To her, Grand corruption remains a domestic crime that is not directly addressed by the international human rights and international criminal law regulatory frameworks. Her argument seems to corroborate what Khulekani Moyostated that it is not yet established if corruption is a direct violation of human right.[35] To her, scholars argue that the right to a society free of corruption is an inherent human right because dignity, equality and participation significantly depend upon it. She highlighted the fact that the academic discourse linking corruption to the violation of human rights is relatively new, and no regional or global human rights instrument has referred specifically to corruption while anti-corruption treaties rarely refer to human rights. She stressed further on the fact that there is insufficient research within this area, establishing the direct causal link between high-level corruption and systemic human rights violations. She tested her argument by way of qualitative interpretative analysis to address the lacuna with reference to the case of Nigeria by interrogating case law, treaties, and other relevant legal human rights instruments. Consequently, she based her research on the relevant international and regional oversight mechanisms by examining the impact of grand corruption upon human rights, as well as the analysis of accountability processes at the domestic level. She further, undertook an assessment as to whether a normative gap exists within international criminal law regimes when it comes to the structural violations of socio-economic rights. She also considered the question of whether corruption ought to be framed as an international crime falling within the jurisdiction of the Rome Statute of the International Criminal Court, and in conclusion, the writer suggested that grand corruption in Nigeria violates certain human rights and recommends that international criminalization of the crime of grand corruption could help to combat it in Nigeria.
Khulekani Moyo and Florence Anaedoziein their various arguments raised similar concerns about the correlation ship between Corruption and human rights. Both authors seem to suggest that corruption in one hand is just a factor that contributes to human rights violation as there is no much evidence that states that corruption is a violation of human rights. However, they failed to propose possible solutions on how the concept of corruption could be link to human rights. It does not suffice to raise questions without providing answers to. This work there seeks to analyze the concept of corruption and its manifestation while establishing the relationship between corruption and human rights.
Anne Peters[36] in her work seeks to examine the legal quality of the assumed ‘link’ between corruption and human rights more closely. She specifically asks the dual question whether and under what conditions corrupt acts or omissions can technically be qualified as an actual violation of international human rights (doctrinal analysis of the positive law) and whether corruption should be conceptualized as a human rights violation(normative assessment). The answer as provided by her work is that such a reconceptualization is legally sound as a matter of positive analysis, although very difficult doctrinal problems arise. The normative assessment is ambivalent, but the practical benefits of the conceptualization seem to outweigh the risks of reinforcing the anti-western skepticism towards the fight against corruption and of over blowing human rights. She then concluded that the framing of corruption not only as a human rights issue but even as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments and can usefully complement the predominant criminal law-based approach. However she failed to assess the effective implementation of these anti-corruption frameworks, and it is the gap this researcher seeks to fill by assessing the effectiveness of the anti-corruption frameworks.
Nicolai Shulz[37] in his work tries to examine the question why Anti-Corruption Agencies (ACAs) have reduced corruption in some developing countries but failed in most is unresolved. To him, many studies identify a lack of “political will” as the root cause, but in turn struggle to explain its source. He then argues that only where the distribution of power between contending social groups – the political settlement – is relatively cohesive, governments are able and willing to support ACAs. He stated in his work that the empirical test with a quantitative difference-in-differences-method applied to 172 countries confirms the hypothesis: in developing countries with cohesive political settlements the implementation of ACAs significantly decreases corruption while it has no impact in fragmented political settlements.
In the work of Nicolai Shulz, he raised the question of why Anti-Corruption Agencies (ACAs) have reduced corruption in some developing countries but failed in most other countries is unresolved, but failed to provide an adequate answer to it. He also failed to link corruption as a violation of human rights. This work then seeks to fill this gap by answering the question why corruption still exist in some developing countries especially Cameroon despite the robust legal and institutional anti-corruption frameworks put in place. It also seeks to assess the effectiveness of these frameworks in the fight against corruption, and how corruption affects the right to development in Cameroon.
1.6.1 Literature Gaps
The above literature provides insight in the understanding of the topic under research. However, the researcher has been able to identify certain gaps which the previous authors did not fill in their various works. In the works of the authors reviewed, most of them tried to examine the anti-corruption frameworks by looking only at the creation of the frameworks and what the public perceive about them, without actually looking at the effectiveness and functionality of the frameworks in Combatting corruption in Cameroon. They viewed corruption to be impacting on human rights but failed to provide an answer to why corruption still exists even though Cameroon has a framework against corruption. This work is therefore contending on an appraisal of the anti-corruption frameworks and how corruption affects the right to development, by answering the questions why corruption still exist in Cameroon despite the anti-corruption frameworks put in place. It also seeks to assess the effectiveness of these frameworks in the fight against corruption.
1.7 THE CONCEPTUAL AND THEORETICAL FRAMEWORK
This work is based on a number of theories which are discussed to explain the concepts in the research. As corruption is a complex phenomenon, no one theory explains it all. Some of the theories include among others: the principal-agent theory, collective action theory and the triple pronged theory.
i. Principal-Agent Theory
The craving for personal gain is often understood as the primary cause of public sector corruption; however, this is an over-simplification of the complex relationships between individuals and the State.[38] There are several theories that help to deconstruct these relationships. Two of the most popular theories on corruption in the economic literature are the principal-agent model and the related agency problem.[39]The principal-agent model assumes that agents (public officials) serve to protect the interests of the principal (whether the public, parliament, or supervisors). However, in reality, the interests of the agents often deviate from the interests of the principal, and while the former can prescribe the pay-off rules in the principal-agent relationship, there is informational disproportionateness to the advantage of the agent, which could be used by him or her for personal benefit.[40] In this context, an agency problem occurs where the agent choose to engage in a corrupt transaction, in furtherance of their own interests and to the detriment of the interests of the principal.[41]This theory is relevant to this work in that the public authorities who are being elected by the population and who are supposed to be answerable to the public in the management of public funds do not render accounts and rather work to their own benefit by misappropriating funds meant for development to their private interest, against the will of the citizens.
ii. Collective Action Theory
For decades, corruption was only explained by referring to principal- agent model in the economic literature.[42] More recently, collective action theory emerged as an alternative explanation for why systemic corruption persists despite laws making it illegal, and why corruption resists various other anti-corruption efforts in some countries. The collective action theory goes beyond traditional principal-agent relationships and emphasizes the importance of factors such as trust and how individuals perceive the behaviour of others. In the work of Persson, and others,[43] they regard systemic corruption as a collective problem. To them, this is because people rationalize their own behaviour based on the perceptions of what others will do in the same situation. When corruption becomes a social norm, everyone starts seeing it simply as the way to get things done. People are aware of the negative consequences of widespread corruption, but they engage in corrupt actions as they believe that “it doesn’t make sense to be the only honest person in a corrupt system.”[44] In such an environment, anti-corruption measures based on the principal-agent model will not be effective, as there are no “principled principals” who will enforce anti-corruption norms.[45] An institutional or organizational culture of corruption leads to the normalization of corrupt practices at a societal as well as individual level, and to impunity for violating or ignoring formal anti-corruption rules.[46] This theory is relevant to the work in that the anti-corruption frameworks such as CONAC, the courts and other independent bodies against corruption must first of all be corruption free before embarking on the quest to eradicate corruption in Cameroon.
iii. The Triple Pronged Theory
This thesis is inspired by the triple pronged theory as developed by Henry Shue[47] it is to the effect that states must protect, respect and fulfill the fundamental human rights of its citizens.[48] This model illustrates that human rights impose a combination of negative and positive duties on the state. Some examples of these fundamental rights include the right to life, the right to liberty, the right to health, dignity and equal treatment, right to good living standards and right to development. Etc. the duty to respect is to the effect that the state should not directly infringe upon its citizen’s rights. For instance, failing to provide citizens with their basic necessities or means for the realization of their basic needs like food, water, adequate shelter, education, good health and property, in the context of socio-economic rights, the duty to protect human rights obliges that states should take all measures to ensure that third parties should not infringe on the rights of its citizens. The state protects them both from the infringement by the state’s own instrumentalities and other persons within its jurisdiction. While the duty to fulfill requires that states should take positive measures towards the easy realization of the rights of its citizens. These measures can be administrative, financial and legislative in the form of policy initiative monitoring and evaluation.
Hence, this theory provides a wide spectrum giving the state the incumbent duty to protect and promote the human rights of its citizens within its national territory from abuse by other citizens both within and out of that state and also to protect their citizens’ rights from abuse by state institutions. This theory is relevant to the research in that it mandates the state with full responsibility to track down all corruption channels both in public and private sectors and punish the perpetrators so as to fulfill its duty on the respect and promotion of human rights, some of which are the rights to development, claimed by all citizens of the country from the government.
1.8 JUSTIFICATION FOR THE STUDY
The effects of corruption on especially the right to development cannot be gainsaid as it drains the natural income and denies the country the opportunity and right to carry on major developments properly that go a long way to improve on the lives of citizens. Corruption is said to be at the forefront of underdevelopment in Cameroon.[49] This is evident by the scandals recorded by CONAC and the number of cases prosecuted by the special criminal court,[50] all linked to corruption and embezzlement as well as misappropriation of public funds, meant for the execution of developmental projects with aim to achieve emergence by 2035 as envisage by the head of state.[51] On April 10, 2021, President Biya ordered for an investigation into the alleged misappropriation of covid-19 funds, involving 23 cabinet ministers, and the Supreme Court justice.[52] It is against this backdrop that the researcher deemed it necessary to examine reasons why corruption still prevails in Cameroon despite the legal instruments against corruption and the anti-corruption agencies put in place.
More so, it is necessary to carry out this research because it stands to boost and develop existing literature on anti-corruption and the right to development in international law. Corruption is a very disturbing social scourge and remains central to international discourse. Corruption kills development in most countries of the world most especially in sub Saharan Africa and Cameroon in particular.
1.9 SIGNIFICANCE OF THE STUDY.
The outcome of this work will be beneficial in that, in contrast to many works undertaken on anti-corruption such as those done by EE Bechem[53] this is perhaps one of those that that give thorough elucidation of the anti-corruption frameworks and its impact on the right to development in Cameroon. This work explores the impact of corruption on the right to development and also recommends measures on how to effectively eradicate corruption in Cameroon. It will therefore be beneficial to legal scholars, law students as well as the government of Cameroon.
The loopholes of the anti-corruption law discussed in this thesis and most especially the ones identified on the constitution, the penal code and the law creating the anti-corruption commission known by its French acronym CONAC and the recommendations made will be beneficial in that it will call to the attention of policy makers in Cameroon the problems and as such enable them to effect changes in the current legal instruments by adopting the recommendations in the work which if fully implemented will enhance economic growth and the right to development would have been achieved.
All other interested readers and researchers in the field of International law and human rights can further advance this foundation study, given that it is not academically exhaustive and is open to further research and criticism.
1.10. SCOPE OF THE STUDY
The thematic scope of the study a critical examination of corruption and its effect on the right to development is centered on the examination of laws put in place as a measure to combat corruption in Cameroon. The study further proceeds on the basis of decided cases of the Special Criminal Court, and cases pending before the court which are linked to embezzlement or misappropriation of public funds.
The scope in time for which this study is associated with is envisaged within the period 1990 till date. The 1990s can be contended as the period for which the new constitutional changes were made in Cameroon, (the 1996 constitution) and the period which Cameroon was classified to be topping charts among the most corrupt nations in the world. (1998 and 1999)[54]
In terms of geographical scope, focus is particularly made on corruption in Cameroon. The study shall focus more on Corruption in the civil service or public service, which involves mostly persons ranking as such, who are mentioned in article 66 of the Cameroon constitution, and who are required to declare their asserts before taking up service or when exiting the office.[55]
1.11 LIMITATIONS
The concept of corruption and the right to development is quite a broad subject, covering all aspects of it would not be possible within the limits of this work. The difficulties to access written material, poor internet connection, to retrieve online sources constitute some of the constraints under which the work is carried out. This, thus push the researcher to visit institutions (public offices like CONAC, Special Criminal Court and civil society organizations) for hard material
The epileptic supply of electricity in the Municipality of Buea constitutes a major setback to the study, as the researcher had to resort to the use of generator which sometimes destroys his laptop charger.
The difficulty of being granted audience after booking for an appointment as the topic under study is one which is very sensitive, and each time the researcher approaches any public official or institution to gather relevant information to the research, the individual is often reluctant to share any data with the researcher as there is suspicion and fear that the researcher might be investigating him or her and such information given out can be self-incriminatory. To overcome this, the researcher in all circumstances tried to explain the purpose of the research to the interviewees which then made some of them to give the needed information for the research.
Furthermore, this research is being carried out at a period where there is an unfolding armed conflict within the immediate studying environment with numerous “ghost towns” and lock downs, coupled with the covid-19 pandemic which contributed to a complete shutdown of schools and the researcher could not access the school library. The covid-19 rules was a major setback as the researcher could hardly meet with any course mate to share and exchange ideas. This was only made possible by sending it online to mates and learned individuals on the subject matter. To overcome the problem of non-accessibility of the school library, resort was made to friends abroad who purchased relevant data on the topic under study and mailed same to the researcher. With regards to poor internet sources, one had to subscribe for latest and secured internet bundles from the various supply services. the lockdown and ghost town actions were accepted as normal and material necessary for the study were retrieved beforehand while the internet sources equally complimented where such studying material were inadequate.
1.12 CONTEXTUAL DEFINITION OF KEY TERMS
1.12.1. Corruption
As corruption is a complex and multi-faceted phenomenon, the term is defined in many different ways. The Black’s Law Dictionary defines corrupt as: The act of doing something with an intent to give some advantage inconsistent with official duty, and the rights of others, a fiduciary’s or official’s use of situation or office to procure some benefits either personally or for someone else, contrary to the rights of others. [56]
Generally, corruption may be perpetuated by an individual alone, or is entrenched within a public sector in which case it is described as systematic corruption.[57] Corruption is condemned by all communities, yet it is widespread. Evidence shows that when both public officials and private agents have much to gain from corrupt transactions and little to lose, corruption thrives.[58]
Scholars such as Bayley and Nye all define corruption in ways that have in common a departure from the accepted public role and standards. Bayley[59] states that: “Corruption while being tied particularly to the act of bribery, is a general term covering misuse of authority as a result of considerations of personal gain, which need not be monetary”
Nye defines corruption as “Behavior which deviates from the formal duties of a public role because of private-regarding (personal, close private clique) pecuniary or status gain or violates rules against the exercise of certain types of private regarding influence.[60] This includes such behavior as bribery (use of reward to pervert the judgment of a person in a position of trust); nepotism-bestowed of patronage by reason of a descriptive relationship rather than merit); and misappropriation (illegal appropriation of public resources for private-regarding uses.” According to Garga Haman Adji: corruption is the result of a conscious act generally for money, performed outside legal, social and moral or spiritual norms: the corrupter and the corrupted violate these norms in a pre- meditated manner for their own concrete or abstract interests … Corruption is legally, morally and socially condemned because it is a denial of the constitutional or legal principles of the equality of citizens in rights and duties, of the free rendering of public services, of the promotion of the right to property and of the subjection of public employees and officials to the law and not the reverse. The society endeavors’ in this way to maintain the value of man not for what he has but for what he is.[61]
Corruption no longer involves just the request, a mere solicitation, the offer and reception of gifts and promises in order to perform or to refrain from performing or to postpone any act, nor is it just reward for an act performed or refrained from. In daily practice the civil servant or government employee no longer waits passively to receive gifts for services rendered; he demands that these gifts be offered before he acts or refrains from acting, that the person requesting his services make a “gesture”. This “gesture” in general is well known in advance that this or that amount of money has to be paid by any candidate wishing to enter a professional school.[62]
1.12.2. Development
Development is a very wide concept with many aspects. Some of the scholars equate development with economic growth.[63] Todaro as one of those scholars purported that development is concerned with the economic and political processes necessary for affecting rapid structural and institutional transformation of entire societies in a manner that will influence more economic progress to the broadest segments of their populations. Heidenheimer and others added that development implies a social and cultural transformation of a town or an area.[64] It is influenced by political, culture, leadership and corruption. The degree of development of a given society can be easily measured or examined its growth rate by looking at the size of the population and class structure.[65]
Generally development is used to denote the maximization of the potential of a society, regardless of any limits currently set by the goals or fundamental structure of the society.[66] The blanks law dictionary defines development as a substantial human created change to improved or unimproved real estate, including the construction of buildings or other structures. It further defines it as an activity, action, or alteration that changes undeveloped property into developed property.
1.12.3. The Right to Development.
The right to development (RTD) is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.[67] The RTD was first recognized in 1981 in article 22 of the African Charter on Human and Peoples Right as a definitive individual and collective right. Article 22(1) provides that all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in equal enjoyment of common heritage of mankind.[68] The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.[69] As per the preamble of the Declaration on the RTD, development is a comprehensive economic, social, cultural and political process which aims at the constant improvement of the well-being of the entire active, free and meaningful participation in development and fair distribution of benefits resulting therefrom.[70]
In the classification of human rights, under contemporary international law the right to development would be a third generational right and a group right. The right to development has moved to the forefront of the international agenda.[71] It was first proclaimed in the Declaration on the Right to Development, adopted in 1986 by the United Nations General Assembly (GA) in its resolution 41/128.[72] This right as recognized in the African Charter on Human and Peoples’ Rights, is also recognized and re-affirmed in several instruments including the Arab Charter on Human Rights, the 1992 Rio Declaration on Environment and Development,[73] the 1993 Vienna Declaration and Program of Action, the Millennium Declaration, the 2002 Monterrey Consensus, the 2005 World Summit Outcome Document and the 2007 Declaration on the Rights of Indigenous Peoples
1.13 SYNOPSIS OF CHAPTERS
This research is divided into six chapters. Chapter one engulfs the background to the study, the problem statement, research questions, objective of the study, research methodology, scope of the study, justification and significance of the study, literature review, the theoretical framework, scope of the study, the conceptual definitions of key terms and the synopsis of chapters.
Chapter two presents an overview of corruption; its nature, types and manifestation. It also links up the right to development and the relationship between corruption and the right to development.
Chapter three presents the legal framework to the study. It engulfs the legal, institutional and policy frameworks on anti-corruption in Cameroon. The frameworks shall comprise of the international, regional and domestic laws aimed at eradicating corruption and enhancing the right to development, while institutional framework shall focus on bodies or structures put in place to combat the corruption pandemic in Cameroon.
With regards to chapter four, the third research question and objective shall be discussed here. It presents a discourse on the effectiveness of the anti-corruption frameworks in Cameroon. It shall also look at some decided cases of the Special Criminal Court which relates to corruption, and misappropriation of public funds.
Chapter five opens a discourse on the concept of the right to development, and the effect of corruption on the right to development and the challenges in combatting corruption in Cameroon. The last chapter which is chapter six presents the summary of findings, conclusion and possible recommendations.
CHAPTER TWO
OVERVIEW OF CORRUPTION AND THE RIGHT TO DEVELOPMENT
2.0. INTRODUCTION
This chapter presents an overview of corruption; its nature, types and manifestation. It also links up the right to development and the relationship between corruption and the right to development. In so doing, answer research question one and attain objective one. The chapter is also underpinned by the Principal-Agent theory.
2.1. OVERVIEW AND NATURE OF CORRUPTION
The concept of corruption as described by Thusitha, can be referred to as an act done with intent to gain some advantage inconsistent with official duty and the rights of others.[74] To her, corruption includes bribery, but is more comprehensive; an act may be corruptly done, though the advantage to be derived from it is not offered by another person.[75] By simple definition, Corruption is a form of dishonesty or criminal offence undertaken by a person or organization, entrusted with a position of authority to acquire illicit benefit or abuse power for one’s private gain. According to transparency international, corruption is the abuse of entrusted power for private gain.[76] The term ‘Corruption’ as per the United Nations Development Program (UNDP), has been describe as the misuse of public power, office or authority for private benefit – through bribery, extortion, influence peddling, nepotism, fraud, speed money or embezzlement.[77]The word Bribe as used in these definitions is what is usually given or collected in a corrupt relationship. To pay or receive a bribe is corruption per se and is usually understood as the evidence of corruption. In Cameroon the word bribery carries different names such as ‘Ngombo’, ‘Choko’, ‘Beer’, ‘Transport’,‘Kolanut’,‘petrol’, ‘Brown-envelop’, ‘Soya’, ‘pepper’, ‘backdoor’, ‘pushing of files’, ‘oiling of palms’, and in French ‘Dossier bien habille’, ‘Dossier cravate’ and several others, in some countries it is called kickbacks. These terms are used mostly by actors in a corrupt relationship in a bid to downplay the pejorative meaning attached to bribery and corruption.[78]
Corruption involves not only bribery; it entails also misuse of public power for personal or private gain. It could be in the form of influence peddling (godfatherism), misappropriation of public funds and exploitation.[79] The practice of corruption has become a widespread phenomenon today and before an employee renders any service in the public or private administration he must be given or will most probably expect to receive from the person requesting this service payment whose amount would depend on the issue at stake.[80] In the dispensation of services at administrative offices or the civil service at large, various gifts are offered in exchange for these services (passive and active corruption).[81] In a corrupt relationship, not only the public authority or employee solicits for tips. Sometimes, they idea is proposed by an individual who wants a service from the institution, Most times an underserved one.[82] Even sex is offered: this is common at state universities not only in Cameroon but elsewhere in Africa, where some female students offer themselves in exchange for marks and other considerations. It works both ways as some lecturers also exploit some of the vulnerable female students before they can obtain what they want. In 2019, BBC eye on Africa revealed through its investigative report the exploitation of female students in universities of Lagos and Accra by lecturers before they could graduate.[83] For the fact that sex and other considerations other than money can be offered in exchange for services at public institutions, some parents even send their daughters, men their wives or girlfriends to those in positions of authority in order to win contracts or gain promotion.[84] However the most common bribe offered is money. All sectors of the national life are affected by this evil, starting from the helm of the state, which buys our consciences during election periods with drinks, food, money and appointments or reappointment to positions of responsibility.
The corruption pandemic is rife and affects every strata of life. Even religious institutions are not free of the evil, the conduct of church elections, church management and the management of church property are crucial issues with which corruption rotates.[85]
2.2. FORMS OF CORRUPTION
A) Grand Corruption (State Capture)
Corruption can be classified as petty (need based) and grand (greed based) corruption. Grand corruption otherwise known as State Capture or Administrative corruption has been described by the World Bank as the actions of individuals, groups or firms, both in the public and private sectors, who influence the formation of laws, regulations, decrees and other government policies to their advantage as a result of the illicit and non-transparent provisions of private benefits to public officials.[86] This form of corruption i.e. administrative corruption is seen to be the intentional imposition of distortions in the prescribed implementation of existing laws, rules and regulations to provide advantages to either government or nongovernment actors as a result of the illicit and non-transparent provision of private gains to public officials. [87]
B) Minor Corruption
Petty corruption is found where public servants who may be grossly underpaid depend on small kickbacks from the public to feed their families and pay school fees.[88] Grand corruption involves high officials who make decisions on large public contracts.[89] Here too, there is a negative impact on the poor as they cannot afford to provide any gains to public officials, or if they do, it constitutes a great part of their earnings which they could have otherwise used for their own subsistence or development.[90]
2.3 Causes of corruption
a) Neopatrimonialism
Neopatrimonialism is a system of a social hierarchy where patrons use state resources in order to secure the loyalty of clients in the general population. It is an informal patron-client relationship that can reach from very high up in state structures down to individuals in say, small villages. Neopatrimonialism may underlay or supplant the bureaucratic structure of the state in that only those with connections have the real power, not those who hold higher positions. Further criticisms include that it undermines political institutions and the rule of law, and is a corrupt practice. Neopatrimonialism also has its benefits, however. Neopatrimonalism can extend the reach of the state into the geographical and social peripheries of the country, provide short-term stability, and facilitate communal integration. Neo-patrimonialism, as defined by Christopher Clapham in The Nature of the Third World State, is a “form of organization in which relationships of a broadly patrimonial type pervade a political and administrative system which is formally constructed on rational-legal lines.” It is a system in which an office of power is used for personal uses and gains, as opposed to a strict division of the private and public spheres. Neopatrimonialism is a ‘universal concept’ that its proponents perceive to have particular value for explaining Africa’s state weaknesses, democratic deficiencies, and economic crisis. For instance, maintain that ‘the distinctive institutional hallmark of African regimes is neopatrimonialism. Neopatrimonial continuity in the country is evidenced by three factors: the concentration of political power, the award of personal favors, and the misuse of state resources[91]
Tribalism is a strong feeling of loyalty to a group, ideology, or tribe. In its most basic forms, tribalism is the glue that holds ethnic groups together, such as Native American tribes, Jews, or African-Americans.
b) Tribalism
Corruption is the misuse of authorized power by a private or public officer, administrator, executive, or any official for personal gain identified seventy causes of corruption including economic, non-economic, and cultural determinants. As to cultural variables, several researchers have concluded that ethnolinguistic homogeneity is prone to lessening corruption.[92] As such, tribal communities are more likely to be more corrupt than homogeneous populations since tribes are highly fragmented communities. Corruption is linked to tribalism by many researchers. In many cases, tribalism is conceptualized by Gullette as a form of corruption caused by kinship ties. Also conceptualized tribalism can be considered as the main reason for corruption in many corrupt states because of kin networks that force government employees to practice favoritism and nepotism to enrich their tribe members. People’s norms and values significantly determine corruption.[93] In that context, tribes have their values and norms that encourage corruption. For example, it is the norm among African tribal officials to receive gifts which is considered bribery in the Western culture. Another cultural norm among African tribes that can cause corruption is communalism (the loyalty to one’s ethnic group instead of the broader society)]. Communalism could make African tribal societies vulnerable to corruption because it causes the distinction between public and private funds to become vague; and because communalism puts people under enormous financial stress.[94] People are accountable to look after their immediate family members and relatives. That social pressure forced by the kinship and extended family system could cause people to become involved in acts of corruption to meet their obligations through nepotism and favoritism. As such, tribalism is an ideology that involves unreasonably favoring individuals within a tribe, extended family members, or a group of tribes. Such favoring behavior is visible when tribesmen and clansmen are obligated to favor kin should an opportunity arises to hire someone [9]. Following the above discussion, I argue that corruption is more likely to increase as the level of tribalism increases in society
c) Poor leadership
Lack of accountability of corruption acts in Cameroon. This is due to the fact that government officials report upwards to the president, rather than downwards to the local people. This creates a situation where government officials are free of doing what they want without fear of public judgment. Another reason as coined is that the laws that sanction corruption are not adapted to the corruption environment of Cameroon.Cameroonian laws punish both the corrupter and the corrupted. This way of punishment does not encourage people to denounce corrupt acts and further hinders the evidence of the offence.
d) Lack of political will.
There has been a crucial lack of political will to fight against corruption in Cameroon under the current administration. Political will can be defined as “the demonstrated credible intent of political leaders (elected or appointed leaders, civil society watchdogs, stakeholder groups, etc.) to attack the perceived causes of effects of corruption at a systemic level.” Political will is crucial in the fight against corruption as it sets the tone, creates the mood, and exudes the degree of seriousness that is needed to engage everyone. Political will is equally important in order to punish corruption committed by top government officials who are from the ruling party and it will equally promote a good way of preaching by example. In addition, the fight against corruption is not affected by the availability of economic resources or lack thereof. The current president, himself, after about four decades in power, has never fulfilled article 66 of the constitution of 1996 by declaring all his property and sources of income. Article 66 demands all government officials declare their assets and sources of income before assuming a position in government so that it will be possible to measure what they have gained (or lost) during their tenancy. President Biya created the CONAC (National Anti-Corruption Commission) in 2006 in order to actively fight corruption (mainly embezzlement). This has made many individuals carry out corrupt practices with impunity
e) Poor Regulations
One of the main regulations is the Presidential Decree No 2013/131 of 03 May 2013, instituting the restitution of corpus delicti. This decree provides that if a person embezzles and is caught and pays back, he can be set free. This has greatly contributed to the rise of corrupt practices in Cameroon.[95] This is because they know that they can do it with impunity to prosecution or sanction.
2.4 MANIFESTATION OF CORRUPTION AND CHARACTERISTICS
a) Electoral Financing and Vote Buying
In recent years, the world has witnessed a transformation in the political rhetoric. Almost all or a majority of regimes adhere to democracy as a form of governance, save for few who practice other forms of governance other than democracy.[96] In the pursuit of Democracy, regular elections between competing political parties and movements have become the dominant medium through which governments are selected. The state of Cameroon though practicing a democratic form of governance with multi-party politics, has in practical terms been ruled by one party, The Cameroon Peoples Democratic Movement (CPDM) of Mr. Biya Paul, since 1982.[97] According to Magnus C, Some experts agree this is achieved by high level control of regional and community funding by the executive and by manipulating electoral processes.[98] In 2018, presidential elections were conducted in the country, and many political parties including the main opposition party the Social Democratic Front (SDF) and the Cameroon Renaissance Movement (MRC) took part in the election. Before the build-up for the final elections on the 7th of October 2018, the opposition parties alleged that the electoral code is faulty and only favours the ruling party. They also alleged that polling stations were being placed at chiefs’ palaces, party head-quarters and military barracks and it would be practically impossible for militants of the opposition to vote and monitor their ballot in such polling stations. However, the election commission of Cameroon known as ELECAM took steps in a bid to ensure transparency in the electoral process. To this effect, the polling stations were removed from military barracks, party headquarters and Chiefs’ palaces, persons considered as auxiliaries of administration.[99] After the official voting took place in the 10 regions of Cameroon, the opposition parties of SDF and MRC and their defense lawyers note before the constitutional council in Yaounde that a plethora of irregularities and inconsistencies occurred both at polling stations in all ten regions and at the central computation headquarters of Elections Cameroon (ELECAM).[100] These irregularities they argued consisted of large-scale voter fraud with the use of duplicated voters and a lack of enforcement of electoral rules and voting procedures. One of the MRC defense lawyer, Barrister Nkongho Felix Agbor, recounts several instances where the party of the incumbent, (CPDM) allegedly created artificial voters, stuffed ballot boxes and used the military to expel opposition party representatives and election observers at polling stations. He cited polling stations in the village of Mbot, Donga-Mantung Division of the Northwest Region, others in the Far North Region of the country and in Buea, Southwest Region. [101]
Before the conduct of elections on the 7th of October 2018, the ruling party of Mr Biya through the Minister of Territorial Administration presented to the public over CRTV networks, some external election observers purported to be representatives of the German NGO, Transparency International. Immediately after the elections, The Reputable International NGO issued a press release disclaiming having sent its members to observe any elections in Cameroon.
On the 6 of November 2018 at the National House of Assembly in Yaounde, President Biya of the ruling CPDM party was sworn in as the new president of the Republic with a Seven (07) years mandate.[102] He was declared Winner by the Constitutional Council with a percentage of 71.28, followed by Professor Maurice Kamto of the MRC with a percentage of 14.23[103] The MRC party contested the results of this election and on January 26th, 2019, he called for nationwide protest against what he calls Fraud and electoral holdup, accusing several election management bodies in the country including ELECAM, the Constitutional Council, Ministry of Territorial Administration and the military for conniving with the ruling CPDM party to rig elections in the country of which he won.[104] The allegation of electoral Fraud and Electoral holdup in Cameroon was also alleged in 1992 by John Fru Ndi, National Chairman of SDF, and the main opposition party in the country.[105] This was during the ever first multi-party elections conducted in Cameroon after the abolition of the one party system in the early 1990s.[106]
In all electoral processes, political parties and candidates need access to money in order to reach out to the electorate and explain their goals and policies, and receive input from the people about their views.[107] Ayah Paul Abine[108] opines that the granting of access to this money in Cameroon by the government authorities usually come late to opposition parties and this money to them is very important in a democratic process as it helps to strengthen political parties and candidates to carry out election campaigns thereby engaging the population in the electoral process. He further opines that the electoral financing also provide opportunities to compete on more equal terms.[109]
Unfortunately, the conduct of elections in Cameroon often works rather differently from the ideals of inclusiveness and fair play on which the idea of the democratic process is based.[110] While electoral financing is a vital tool for democratic politics, the influence of money can also be a tool for some to unduly influence the political process by buying votes or influencing policy decisions. In one of his public speaking events at the National Symposium of Uganda in 2019, on the Theme “The Influence of Money in Politics: Commercialized Electoral Processes in the Country,” the Kenyan Orator Prof PLO Lumumba opines that the way African politics is designed, even the electorate expects to be bribed before they can cast their votes,[111] this is highly visible during electoral campaigns and rallies in Cameroon, as gifts such as salt, matches, maggi, fish, chicken, bread and sardine as well as bank notes are distributed to the electorate and militants by candidates and political parties to cajole them into voting. With money, some interest groups for example, may buy access to the corridors of power or issue outright bribes to decision makers. Foreign interests and criminal groups also use money to manipulate politics in their favour, and even governing parties also use state resources to maintain their grip on power.
b) Bureaucratic Corruption /Influence Peddling
Corruption in the public sector manifests itself through channels of administrative services. The Constitution of Cameroon in article 37 makes provision for separation of power between the executive, legislative and judicial arms of government.[112] The executive arm, consisting of the government, namely; the presidency controls most high-level appointments and dismissals in public service. Government Ministers including directors of para-public enterprises as well as Judges and prosecutors are appointed, promoted, transferred and disciplined by the executive arm of government. To both enter and ascend within the public sector, applicants and employees must be “sponsored” or “helped” by political patrons or must pay their way through.[113] They go through a process of “godfatherism” where a big man in government or an ally of the person making appointments holds the hand of an underserving candidate and sends to the person making appointments, unlike the natural selection process where everyone is given an equal chance, based on competence and merit. Equally, according to Transparency international,[114] civil service policies during the 1990s encouraged bribery in the public service. From December 1992 to December 1995, real wages of senior civil servants cut down by 75/80 per cent and this had a harmful impact on civil servants motivation and promoted corruption as well as poverty and inequality in Cameroon.[115] Civil servant salaries remain low to this day, and bribery and other malpractices are seen as methods of survival for civil servants. In 2008, there were also several reports that between 7,000 and 45,000 “ghost employees” existed in the public service. These people received government salaries without actually exercising their function.[116] In 2019 the government arrested the Director of Salaries at the Ministry of finance, Mr. Lebou Emmanuel and he was tried and sentenced by the Special Criminal Court for embezzlement and for defrauding the state of over 13 billion XFA through 2601 fake salary accounts he created at his ministry.[117]
c) Judicial Corruption
The Cameroon judiciary is one of the sectors in which corruption finds a fertile ground, presenting companies with very high risks. Companies report a high frequency of bribes in exchange for favorable judgments.[118] Judicial officials accept bribes in exchange for dropping charges, a reduction in prison sentences, or a release.[119] Over half of Cameroonians perceive the judiciary to be very corrupt.[120] The judiciary is not always free to independently investigate and prosecute cases of corruption[121]. Judges are susceptible to executive influence and delay judicial proceedings when pressured. Judicial corruption is connected to a deficiency of judicial independence from the executive power, namely the Ministry of Justice. Judges and prosecutors are appointed, promoted, transferred and disciplined by the executive branch.[122] Even the Higher Judicial Council, the institution responsible for managing judicial resources and for acting as Supreme Court, as well as the constitutional council is directly appointed by the Head of State.[123] The judiciary is inefficient, lacks adequate resources and expertise and has an inadequate tracking system of cases, resulting in lengthy court delays.
It is worth mentioning that the judiciary exercises great influence over individual rights and the notion that a judiciary is untainted by corruption is critical to society’s acceptance of a system of law as legitimate. The two most common types of judicial corruption are political interference and bribery.[124] Political interference is when politicians or staff from the legislative or executive branch meddle in judicial affairs or collude with judges in fraudulent schemes. Despite efforts in many countries to isolate the judiciary from politics, judges and other court personnel still face significant pressure to rule in favor of powerful political or business entities rather than in accordance with the law. A malleable judiciary can be used by those in power to provide protection for and lend legitimacy to fraudulent acts. Judges might also collude with politicians in a variety of different white-collar crimes, such as extortion, money laundering and embezzlement.
The judiciary was also allegedly used as a tool by the executive branch to intimidate opponents with politically motivated cases. Many have thus described the judiciary as “the most corrupt institution in the country.”[125]
The second most common form of judicial corruption is bribery. Judges or other court officials might accept bribes to exercise their influence over a case in a way that benefits the bribe giver. For example, a judge might delay or accelerate cases, accept or deny appeals, or simply rule in a particular way in exchange for kickbacks. Court officials also accept bribes[126] to exercise their influence over cases. When evaluating the integrity of a judicial system, there are two key aspects to consider: independence and public accountability. One of the difficulties jurisdictions face in tackling judicial corruption is striking a balance between the necessary independence of the judiciary and some degree of non-political oversight and accountability.[127] This is generally accomplished by arranging the judicial system so that it can effectively police itself and ensuring that it operates in a transparent manner.
d) Corruption in the Budget Processes and Public Finance Management
The budgetary processes for public and para-public institutions are one of the avenues for which corruption is rampant in Cameroon. At the beginning of each fiscal year all government ministries are expected to draft a budget and submit it to the National assembly for scrutiny.[128] Municipal and city councils also do same by drafting the budgets of their constituencies. In the presentation of such budgets, figures are often inflated;Budgeting tends to be approved without a clear rationale of what the law deems is an “appropriate transfer”.[129] Municipalities, for example, tend to over-budget and tend to declare their net taxes at much higher figures than realistic estimates would allow and the management of the public finances is poorly executed at regional and municipal levels.[130]In the interest of making aid effective, donors are increasingly stressing the importance of a good public financial management (PFM) system in partner countries.[131] The budget process is a part of the PFM system which is both very crucial to good development outcomes, and a process vulnerable to corruption.
e) Corruption in Tax administration
There is a moderately high risk of corruption in Cameroon’s tax administration. More than one in five companies expects to give gifts when meeting with tax officials[132]. Companies report frequent irregular payments and bribes to tax officials.[133] Over half of Cameroonians consider most or all tax officials to be corrupt.[134] Businesses consider tax regulations and tax rates to be among the most problematic factors for doing business. Tax evasion, corruption, and embezzlement constitute the majority of the financial crimes committed in Cameroon. Businesses in Cameroon spend more than twice the average of time to prepare, file and pay taxes compared to other countries in Sub-Saharan Africa.
Revenue administration covers the collection and management of domestic revenues such as taxes, customs duties, revenues earned from state-owned enterprises and other forms of revenues. Tax administration in particular is often perceived as one of the sectors most vulnerable to corruption due to complexity of tax laws, the high discretionary powers of tax officials and the low cost of punishment. Corruption undermines a country’s tax structure and its revenue collection capacity, resulting in significant loss of revenues and funding available for public service provision. Not only does it lower the tax to GDP ratio, but also causes long-term damage to the economy by increasing the size of the underground economy, distorting the tax structure, corroding the tax morality of taxpayers as well as eroding public trust in government institutions.[135] Although corruption and tax evasion are distinct and separate problems, they can easily become intertwined and reinforcing.[136] A society that is more corrupt may enable more tax evasion as corrupt officials seek more income via bribes; conversely, higher levels of tax evasion may drive corruption by offering more opportunities for bribes.
Corruption affects all processes conducted by a country’s tax administration, from the registration and removal of taxpayers from the national registry, the collection of tax dues, the identification of tax liabilities and the inspection and prosecution of alleged tax offences. Corruption in tax administration can be either collusive, where tax officials strike deals with taxpayers to allow the latter to underpay taxes in exchange for a share of the money “saved”, or abusive, where tax officials use their discretionary powers to extort bribes from honest taxpayers and can take various forms.[137]
Furthermore, taxpayers can abuse the complexity of tax laws to evade taxes by, for example, under-reporting turnover or over-reporting expenditure, with or without the involvement of tax officials. Rich and well-connected groups and individuals can also use political corruption to exercise undue influence on the tax regulations, lower and circumvent tax rates as they have both incentives and resources to buy influence, both legally and illegally.
In like manner, tax officials can abuse their position to issue tax exemptions, apply lower tax rates, un-register individuals from the tax registers in exchange for lower “private” tax, among others.
Also, tax officials can extort bribes from taxpayers by threatening them to pay above rates. They can also simply steal the tax revenues collected, sometimes with the complicity of bank officials or auditors. Internal auditing may also be inefficient or corrupt, reducing the likelihood of detection and punishment.
Moreover, tax fraud and evasion schemes often are built on legal loopholes providing for profits and assets being transferred to tax havens instead of being reported to domestic authorities. While such schemes make use of imperfect legislation in many cases, this implies a risk for corruption to influence law making and the judiciary to invent and utilize such legal loopholes and grey areas.
f) Public Procurement
Public Procurement refers to the process by which public authorities, such as government departments and enterprises or local authorities, purchase work, goods or services from companies.[138] As public procurement accounts for a substantial portion of taxpayers’ money, government authorities are expected to carry out their duties efficiently and with high standards of conduct in order to ensure high quality of service delivery, while safeguarding public interest.[139] Public Procurement is one characteristic through which corruption manifest.[140] In Cameroon generally, public procurement lacks transparency as revealed by the audit bench of the Supreme Court,[141] and details about government contracts are most ly not made public. Most often, large-scale projects put up for public procurement involve the decision of the head of state. Also, some contracts are awarded by individual ministries, institutions and municipal councils with little or no oversight from the National Procurement Regulation Agency (ARMP). In September 2020, after 18 months of investigation, the investigating Judge at the Special Criminal Court accused Minister Edgar Alain Mebe Ngo of Embezzling CFA 236 billion XFA as part of the purchase of military equipment for the army.[142] Mebe Ngo and his wife have been awaiting trial at the Kondengui Central prison since their arrest.[143]
A front member of the Social Democratic front, Hon. Jean Michel Nintcheu consistently raised an alarm on the mismanagement of funds raised to counter covid-19 in Cameroon, challenging the minister of public health to proof the contrary.[144] He cited overbilling and conflicts of interests within the health ministry.[145] In A 2021, the IMF and Human Rights Watch has accused Cameroon of Scant transparency in the management of funds made for the fight against the Corona Virus Pandemic in Cameroon.[146]They accused Cameroon for misappropriating money budgeted for the fight against covid-19. Human Rights watch had previously released a report on June 12, 2020, urging the government to publish immediately information on the revenues, disbursements and management of its health solidarity fund, adding that health-care facilities had made mandatory contributions to the emergency fund for more than 25 years.[147] The report further states that medical staff believe the government has never disbursed any money from the fund, including in response to covid-19, even though health-care facilities contribute 10 percent of their revenues.[148] The Head of State ordered for investigation into how the money was spent and the report of the audit bench of the Supreme Court revealed that the money was misappropriated through public procurement and the award of contracts by government ministers.[149] The report of the audit bench accused over 12 Ministries of over billing, fake deliveries, self-award of contracts( contracts awarded to non-existent companies), embezzlement among others. The report also disclosed that the purchase of protective equipment for health workers was in violation of purchase regulations and initial prices of items were increased.[150] They also reported about the disappearance of 610 thousand covid-19 test kits though the money had been disbursed to the minister of public health Manaouda Malachie.
In the execution of the covid-19 budget, the ministry of public health was obliged to construct quarantine and isolation centers in Douala and Yaounde, yet only a few were build but not well equipped to receive patients while in other areas, work was yet to start 8 months after the money was disbursed.[151] The purchase of personal protective equipment was initially budgeted at the cost of 5.5 million US dollars, but 38 million dollars was finally used for the purchase.[152] The Ministry of Scientific Research under Prof Magdalene Tchuente was disbursed money to fabricate chloroquine tablets locally but the drugs were imported from India and then repackage in Cameroon to give the impression that they were produced Cameroon.[153]
2.4 THE RIGHT TO DEVELOPMENT
a) Historical Background
The right to development can be rooted in the provisions of the Charter of the United Nations, the Universal Declaration on Human Rights and the two International Human Rights Covenants[154]. Through the United Nations Charter, Member States undertook to “promote social progress and better standards of life in larger freedom” and “to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”
The Universal Declaration on Human Rights contains a number of elements that became central to the international community’s understanding of the right to development. It attaches importance, for example, to the promotion of social progress and better standards of life and recognizes the right to non-discrimination, the right to participate in public affairs and the right to an adequate standard of living. It also contains everyone’s entitlement to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized. The right to development was proclaimed in the Declaration on the Right to Development, adopted in 1986 by the United Nations General Assembly (GA) in its resolution 41/128. This right is also recognized in the African Charter on Human and Peoples’ Rights and the Arab Charter on Human Rights and re-affirmed in several instruments including the 1992 Rio Declaration on Environment and Development, the 1993 Vienna Declaration and Program of Action, the Millennium Declaration, the 2002 Monterrey Consensus, the 2005 World Summit Outcome Document and the 2007 Declaration on the Rights of Indigenous Peoples. This sub heading sets out to the development of the right to development from 1950s to present.
To begin with, the first important step towards the recognition of the right to development was UN General Assembly resolution, made in 1957[155]. In this resolution, the General Assembly expressed the view “that a balanced and integrated economic and social development would contribute towards the promotion and maintenance of peace and security, social progress and better standards of living, and the observance of and respect for human rights and fundamental freedoms.”
Also, in 1968, an International Conference on Human Rights was held in Tehran[156]. The Conference expressed its belief “that the enjoyment of economic and social rights is inherently linked with any meaningful and profound interconnection between the realization of human rights and economic development.” It recognized “the collective responsibility of the international community to ensure the attainment of the minimum standard of living necessary for the enjoyment of human rights and fundamental freedoms by all persons throughout the world.”
In like manner, the General Assembly, in a resolution[157] adopted the Declaration on Social Progress and Development, which states that “social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms.”
Furthermore, in February 1977, the UN Commission on Human Rights decided in a resolution[158] to pay special attention to consideration of the obstacles impeding the full realization of economic, social and cultural rights, particularly in developing countries, and of national and international action to secure the enjoyment of those rights. Recognizing the right to development as a human right, the Commission requested the UN Secretary-General to undertake a study on “the international dimensions of the right to development as a human right in relation with other human rights based on international cooperation, including the right to peace, taking into account the requirements of the New International Economic Order and fundamental human needs.” The study was submitted and considered by the Commission on Human Rights at its thirty-fifth session in 1979.
The Commission subsequently, through a resolution[159] established a working group of 15 governmental experts to study the scope and contents of the right to development and the most effective means to ensure the realization, in all countries, of the economic, social and cultural rights enshrined in various international instruments, paying particular attention to the obstacles encountered by developing countries in their efforts to secure the enjoyment of human rights. It also requested the Working Group to submit a report with concrete proposals for implementation of the right to development and for a draft international instrument on this subject.
In the same light, the right to development was proclaimed by the United Nations in 1986 in the Declaration on the Right to Development which was adopted by the United Nations General Assembly resolution[160].
The Declaration on the Right to Development defines such right as “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.[161]
The Right to Development includes:
- full sovereignty over natural resources
- self-determination
- popular participation in development
- equality of opportunity
- The creation of favourable conditions for the enjoyment of other civil, political, economic, social and cultural rights.
The human person is identified as the beneficiary of the right to development, as of all human rights. The right to development can be invoked both by individuals and by peoples. It imposes obligations both on individual States – to ensure equal and adequate access to essential resources – and on the international community – to promote fair development policies and effective international cooperation.
Moreover, the World Conference on Human Rights, held in Vienna in 1993, dealt extensively with the right to development. It adopted the Vienna Declaration and Program of Action[162] which recognizes that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.
The World Conference thus reaffirmed by consensus the right to development as a universal and inalienable right and an integral part of fundamental human rights. It further stated that, while development facilitates the enjoyment of all human rights, lack of development may not be invoked to justify the abridgement of internationally recognized human rights.
As follow-up mechanism to ensure promotion and implementation of the Declaration on the Right to Development, the Commission established an intergovernmental Working Group on the Right to Development in 1998, and its high-level task force on the implementation of the right to development in 2004. This in a bid to enhance the right to development
Besides, the UN set out an ambitious international agenda to tackle peace and security, development, human rights, and the environment[163]. Alongside development goals on poverty, water and education, commitments were also made to promoting democracy and respect for all human rights. This included the right to development and relevant economic, social and cultural rights, with a particular focus on the rights of minorities, women and migrants, and the right to access to information.
All in all, in 2001, the development goals were slightly amended and published in a single list called the Millennium Development Goals (MDGs). The eight MDGs aimed to reduce poverty, hunger and disease and promote gender equality, education, environmental sustainability and global partnerships. Achieving them required a partnership between developed and developing countries, articulated in Goal 8 which asserts the collective responsibility for international cooperation to achieve all the MDGs by the target date of 2015. The MDGs were agreed to by all the world’s countries and all the world’s leading development institutions.
b) Content of the Right to Development
The right to development is put in place by the UN declaration on the right to development. This declaration provides that;
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
The human right to development also implies the full realization of the right to peoples to self-determination, which includes subjects to the relevant provisions of both international covenants on human rights, the exercise of their inalienable right to full sovereignty over their natural wealth and resources.[164]
The human person is the central subject of the right to development and should be the active participant and beneficiary of the right to development.
All human beings have a responsibility for development, individually and collectively, taking ino account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfillment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development.
States have the right and duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.[165]
States have the primary responsibility for the creation of national and international conditions favorable for the realization of the right to development.
The realization of the right to development requires full respect for the principle of international law concerning friendly relations and co-operation among states in accordance with the Charter of the United Nations.
States have the duty to co-operate with each other in ensuring development and eliminating obstacles to development. States should realize their rights and fulfil their duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and c-operation among all states, as well as to encourage the observance and realization of human rights.[166]
States have the duty to take steps, individually and collectively, to formulate international development policies with a view to facilitating the full realization of the right to development. Sustained action is required to promote more rapid development of developing countries. As a complement to the efforts of developing countries, effective international cooperation is essential in providing these countries with appropriate means and facilities to foster their comprehensive development.[167]
States shall take resolute steps to eliminate the massive and flagrant violations of the human rights of peoples and human beings affected by situations such as those resulting from apartheid, all forms of racism and racial discrimination, colonialism, foreign domination and occupation, aggression, foreign interference and threats against national sovereignty, national unity and territorial integrity, threats of war and refusal to recognize the fundamental right of peoples to self-determination.[168]
All States should cooperate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion. All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights. States should take steps to eliminate obstacles to development resulting from failure to observe civil and political rights, as well as economic, social and cultural rights.[169]
All states should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries[170]
States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices. States should encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights.[171]
All the aspects of the right to development set forth in the present Declaration are indivisible and interdependent and each of them should be considered in the context of the whole. Nothing in the present Declaration shall be construed as being contrary to the purposes and principles of the United Nations, or as implying that any State, group or person has a right to engage in any activity or to perform any act aimed at the violation of the rights set forth in the Universal Declaration of Human Rights and in the International Covenants on Human Rights.[172]
Steps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels.[173]
2.5 THE RELATIONSHIP BETWEEN CORRUPTION AND THE RIGHT TO DEVELOPMENT
According to Anaedozie,[174] many scholars have argued that the right to a society free of corruption is an inherent human right, and this is because dignity, equality and participation significantly depend upon it. The academic discourse linking corruption to the violation of human rights is relatively new, and no regional or global human rights instrument has referred specifically to corruption while anti-corruption treaties rarely refer to human rights.[175] She further argues that there is also insufficient research within this area, establishing the direct causal link between high-level corruption and systemic human rights violations.[176] The Raoul Wallenberg Institute for Human Rights and Humanitarian Law in her part opines that Corruption is a human rights issue, whichever form it takes. Whether grand or petty, corruption results in states not fulfilling their human rights obligations and in people not enjoying their rights.[177] This view is supported by Ban Ki Moon. According to him, “Corruption undermines democracy and the rule of law. It leads to violations of human rights. It erodes public trust in governments. It can even kill for example, when corrupt officials allow medicines to be tampered with, or when they accept bribes that enable terrorist acts to take place.”[178]
In the work of Khulekani Moyo,[179]he opines that corruption inevitably this leads to the weakening of the very accountability structures which are cardinal for protecting human rights. However, she argues that to date, no convincing theoretical framework has been advanced which seeks to explain corruption as a human rights violation. He stressed on the idea that the traditional approach is to view corruption as impacting on, or contributing to human rights violations but not seeing it as a rights violation per se.[180] As an entry point, he used the right to development as provided in the Declaration on the Right to Development and given legal teeth under the African Charter on Human and Peoples’ Rights, to argue that corruption is not only an obstacle to the realization of the right to development, but a violation of human rights. Linking corruption and human rights, in particular, the right to development, as established in his work serves mostly to add a new perspective by deploying human rights norms and institutions in fighting the deleterious effects of corruption on the realization of human rights.[181] Through the Human Rights Council, states have recognized “that corruption is an enormous obstacle to the realization of all human rights — civil, political, economic, social and cultural, as well as the right to development.”[182]
- The link between corruption and development
Corruption is the misuse of public power (by elected politician or appointed civil servant) for private gain or Corruption is the misuse of entrusted power (by heritage, education, marriage, election, appointment, or whatever else) for private gain.[183] Whereas, the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realized. According to the UN human rights commissioner,[184] corruption kills. The money stolen through corruption every year is enough to feed the world’s hungry 80 times over. Nearly 870 million people go to bed hungry every night, many of them children”, said the UN High Commissioner for Human Rights, Navi Pillay,[185] at a panel discussion on the negative impact of corruption on the enjoyment of human rights. “Corruption is an enormous obstacle to the realization of all human rights — civil, political, economic, social, and cultural, as well as the right to development. Corruption violates the core human rights principles of transparency, accountability, non-discrimination, and meaningful participation in every aspect of the life of the community. Conversely, these principles, when upheld and implemented, are the most effective means to fight corruption” [186] “A human rights-based approach to anti-corruption responds to the people’s resounding call for a social, political and economic order that delivers on the promises of freedom from fear and want,” said Pillay, adding that efforts to combat corruption would be most effective when coupled with an approach that respects all human rights, including those of the accused.
Based on the conclusion of the panel discussion of the UN human rights commission, the poor as well as vulnerable groups such as women, children, people with disabilities or minorities are the first ones hit by corruption when bribery and abuse denies them access to basic services, health, education, and land, stressed all seven panelists who represented UN agencies specialized in human rights, anti-corruption and development of governmental institutions, as well as international and civil society organizations. Corruption has devastating effects on the enjoyment of all human rights and especially the right to development[187]. This research thus seeks to saddest better ways to combat corruption and its effect on the right to development. This will be done in the subsequent chapters.
ii) Implementation of the Right to Development
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” (Article 1.1, Declaration on the Right to Development) “The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.”
ii) Duty bearers for the implementation of the Right to Development
Under the Declaration, States have the primary responsibility for the institution of conditions favorable to the realization of the right to development by its citizens. According to the high-level task force on the implementation of the right to development, the responsibility for the creation of this enabling environment encompasses three main levels: (a) States acting collectively in global and regional partnerships, (b) States acting individually as they adopt and implement policies that affect persons not strictly within their jurisdiction; and (c) States acting individually as they formulate national development policies and programs affecting persons within their jurisdiction. The high-level task force on the implementation of the right to development, established in 2004 with the composition of five independent experts to provide expert advice to the Working Group[188] charged with enhancing the respect of the right to development. At the request of the Working Group, the high-level task force proposed a set of criteria and corresponding operational sub-criteria[189] for the implementation of the right to development.
A key component of the implementation obligation set out in article 2(1) of the Covenant is that a state party must take steps ‘with a view to achieving progressively the full realization’ of the protected rights.[190] The embrace of progressive realization is an acknowledgement of the resource-dependent nature of especially the positive duties imposed by socio-economic rights. Progressive realization of human rights entails the dismantling of a range of obstacles such as grand corruption which impede access to Covenant rights. As noted by Peters, It follows that the embezzlement of public funds violates this obligation, because in such cases the financing of the lavish lifestyles of public officials is given priority over the realization of socio-economic rights of rights-holders. To avoid violating its duty in such circumstances, a state has a duty to protect against any adverse human rights impacts arising from acts of corruption. A duty is, therefore, imposed on states to adopt effective regulatory or other measures to prevent or investigate violations that occur and prosecute the perpetrators as appropriate, and to provide redress for victims. This clearly shows that the duty or responsibility for the implementation of the right to development is on the states which have the primary duty to ensure the enjoyment of all human rights, especially the right to development which is the bone of contention in this work.
iii) Monitoring mechanisms
If international rights commitments are to have genuine impacts for individuals, action must be taken to ensure that duty bearers fulfill their responsibilities to protect and promote these rights. Monitoring of human rights programs and projects is also essential for assessing the effectiveness of rights-based approaches or ensuring that other development interventions are compatible with the protection and promotion of human rights.
Despite state commitments in international human rights treaties, violations of human rights are prevalent across the world.[191] There is the need to examine the various approaches to monitoring the progress of governments in meeting their obligations. In this light, a treaty monitoring body or committee such as; The Committee on Economic Social and Cultural Rights,[192] the committee on the elimination of racial discrimination, The Committee on the Elimination of Discrimination Against Women, and The Committee Against Torture[193] has been created for each of the international human rights treaties. These treaty monitoring committees work by assessing periodic reports submitted by governments that have ratified the treaty. In addition to the formal state reports, some treaty monitoring bodies allow NGOs to submit shadow reports, providing an alternative perspective. The declaration on the right to development being just a declaration and not a treaty does not have any committee to assess compliance to the right to development. Based on this note, the duty and responsibility then lies on state parties to ensure the respect, protection and fulfillment of the right to development.
In the case of Cameroon which is the focus of this work, the body charged with ensuring that the government guarantees the respect for human rights is the national commission on human rights and freedom, pursuant to the 2004 law.[194] Given that the members of this commission are appointed by the head of state which simply means that they are state officials, given that most violation of this rights are perpetrated by corrupt government officials, there is no guarantee that the right to development can be fully utilized by the people of Cameroon. This is because the development of the country is done through projects from the various state departments for execution. Most of the administrators in charge of these projects meant to develop the country sometimes used the funds for their personal interest or does not give the appropriate funds thus leading to poor execution of projects, which intend violates the right to development. Since there is no committee to monitor and receive reports on the right to development from states, there is then high possibility that the right to development cannot be guaranteed most especially, as corrupt officials are allowed to go Scot-free.
CHAPTER THREE
LEGAL, INSTITUTIONAL AND POLICY FRAMEWORKS ON ANTI-CORRUPTION IN CAMEROON
3.0 INTRODUCTION
This chapter presents the legal framework to the study. It engulfs the legal, institutional and policy frameworks on anti-corruption in Cameroon. The legal framework comprises of the international, regional, domestic, institutional and policy frameworks, aimed at combating corruption and enhancing the right to development. It thus sets out to answer research question two and achieve objective two. The chapter is also underpinned by the triple pronged theory.
a) INTERNATIONAL LAWS
i. United Nations Convention against Corruption (UNCAC) 2003
In October 2003, the United Nations Convention against Corruption (UNCAC) was adopted by the General Assembly and entered into force in December 2005. The purpose of this legal instrument among others is to; promote and strengthen measures to prevent and combat corruption more effectively; facilitate and support International Corporation and technical assistance in prevention and fight against corruption including asset recovery and to promote integrity, accountability and proper management of public affairs and public property.[195] The anti-corruption law gave state parties the obligation to adopt in accordance with the fundamental principle of its legal system, develop and maintain effective anti-corruption policies that promote the participation of society in the fight against corruption.[196] The law encourages its state party to endeavor to establish and promote effective practices aimed at the prevention of corruption. As of November 15, 2000, corruption was criminalized internationally by the United Nations Convention against Transnational Organized Crime (UNCTOC), and in October 2003, the UN adopted a convention fully dedicated for the prevention and combating of corruption.
On the 10th of October, 2003, the UNCAC was signed by Cameroon and ratified by the President of the Republic on 6 February 2006. This convention also received impetus from Article 45 of the Cameroon Constitution which states that; duly approved or ratified treaties and international agreements shall following their publication override national laws, provided the other party implements the said treaty or agreement.[197] law and international conventions -when they are ratified by a law and enter into force, become an integral part of Cameroon’s domestic law and take precedence over contradicting provision of domestic law. Consequently, the Convention became an integral part of Cameroon’s domestic law following its ratification.
However, the Convention is not above the Constitution in the hierarchy of norms, occupying a rank between ordinary laws and the Constitution.
ii. Council of Europe Convention on Corruption (1998)
While At their 19th conference held in Velletta in 1994, the European Ministers of Justice considered that corruption was a serious threat to democracy, to the rule of law and to human rights.[198] The council of Europe, being the pre-dominant European Institution in defending these fundamental values was called upon to respond to that threat.[199] The ministers were convinced that the fight against corruption required a multidisciplinary approach and that it was necessary to adopt appropriate legislation in this area as soon as possible. To this effect, the Council of Europe Convention on Corruption was adopted in November 1998 by the committee of ministers.[200] The convention aims principally at developing common standards concerning certain corruption offences, though it does not provide a uniform definition of corruption.[201] In addition, it deals with substantive and procedural law matters which closely relate to these corruption offenses and seeks to improve international co-operation.[202] The convention therefore plays a role in combatting corruption in Cameroon through international cooperation with the state of Cameroon.
iii. Convention on Combating Bribery of Public Officials in International Business Transactions (1997)
The convention was adopted on 21 November 1997, following recommendations by the Council of the Organisation for Economic Co-operation and Development (OECD), adopted on May 23 1997 on Combating Bribery in International Business Transactions which, inter alia, called for effective measures to deter, prevent and combat the bribery of foreign public officials in connection with international business transactions.[203] It also in particular, looked to consider the prompt criminalization of such bribery in an effective and co-ordinated manner and in conformity with the agreed common elements set out in that recommendation with the jurisdictional and other basic legal principles of each country.[204] The convention deals with what, in law of some countries is called active corruption or active bribery, meaning the offense committed by the person who promises or gives the bribe, as opposed to passive bribery, the offense committed by the official who receives the bribe.[205] The convention also deals with Mutual legal assistance in art 9 and Extradition in art 10. A party to the convention may therefore consider the convention to be a legal basis for the extradition of its nationals or non- nationals for offenses falling within the jurisdiction of the convention as provided by the instrument.[206]
b. REGIONAL LAWS
i. African Union Convention on Preventing and Combatting Corruption
At the regional level, the African union has equally been worried about the prevalence of corruption in the continent, prompting the organization to take steps in the eradication of the phenomenon and pave a way for development, considered to have been hampered largely by Corruption. To this effect, the member states of the African Union adopted the African Union Convention on Preventing and combatting Corruption. This convention was adopted at the second ordinary session of Assembly of the union, held in Maputo (Mozambique) on the 11th of July 2003.[207] The convention entered into force on the 5th of august 2006, thirty days after the deposit of the fifteen (15th) instrument of ratification. Cameroon demonstrated her commitment to combat corruption by ratifying this convention on April 1, 2020. This was done by presidential decree No. 2020/ 166 of 1 April 2020 to ratify the African Union Convention on Combating Corruption.[208]
c. NATIONAL LAWS
The classification of Cameroon as the most corrupt nation in the world in 1998 and 1999,[209] made the government more willing than ever to fight the ill. In 2006, while chairing the extra ordinary congress of the Ruling CPDM party in Yaounde, the President of the Republic, Mr. Paul Biya declared that: “We still have, I am obliged to say, a serious public moral problem. Despite our efforts to combat them, fraud, embezzlement of public funds and corruption still continue to erode the foundations of our society. I have always expressed my determination to eradicate these antisocial behaviours. Severe sanctions have been meted out in the past years. We are not going to relent. Those who have enriched themselves at the expense of the general interest should return their ill-gotten gains. We now have an institutional mechanism to track down corruption in all its forms. The Administrative Bench is already operational. The National Anti-Corruption Commission, The National Financial Investigation Agency, several procurement commissions, all play an essential role at the service of the general interest. White-collar criminals should be ready to render account.”[210]
After this declaration of the Head of State, the government adopted several anti-corruption steps to eradicate the social ill through a robust legal framework. In Cameroon, corruption is considered as a specific offence and there exist national as well as international instruments that deal with the phenomenon. Being a bilingual country, Cameroon has a mixed legal system with elements of common law and civil law and both systems have been able to address the issue of corruption in their legal provisions.
i. The Constitution
The Cameroon Constitution have been put in place by law no. 2008/001 of 14th April 2008 to amend and supplement some of the provisions of law no. 96/6 of 18th January 1996 to amend the Constitution of 2 June 1972. In order to curb the misappropriation of public funds (corruption), the constitution in article 66 states clearly that all top government officials are obliged to declare their assets and property at the beginning and at the end of their tenure in office. An expansion on this article of the constitution is provided by Law No. 2006/3 of 25 April 2006 on The Declaration of Assets and Properties, obligating public officials and elected politicians to present asset and patrimony declarations annually and upon entering and exiting the public service or public office.
This is still far-fetched from being a reality, resulting to the continuous misappropriation of public funds by government officials. These have made the government to set up institutions like the Special Criminal Court and CONAC to curb the illegal act.
ii. Law No 2016/007 of 12 July 2016, Relating to the Penal Code (PC)
This law lays down the Penal Code of Cameroon, putting in place the various criminal offences and the punishment for such offences. These offences may be classified either as felony, misdemeanor and simple offence. These offences include inter alia; undue advantage, misappropriation of public funds, theft, fraud, money laundering etc. The offence of corruption in the penal code is sanctioned by section 134 and 134(1), labeled under the title “undue advantage.”[211] It punishes both the receiver[212] and the giver (active and passive corruption);[213] however, in the application of the law, the receiver or the person approached shall be exempted from prosecution provided he reports the act of corruption to the judicial authorities.[214] The section stipulates that persons found guilty of corruption shall be punished with imprisonment of from five to ten years and or with fine from two hundred thousand (200. 000) XAF to two million (2.000.000) XAF.[215] Where however, the act does not lie within the competence of the person corrupted, but was facilitated by his office, imprisonment shall be from one to five years, and a fine of from one hundred (100.000) XAF to one million (1,000,000) XAF. This form of corruption is known as Bribery in the penal Code, sanctioned by section 314, which punishes a public servant, government employee or anyone who for himself or a third party solicits, accepts or receives the bribe as well as he who gives the bribe or yields to it. According to this provision, bribery can take the form of an offer, a promise, gift, or present.[216] Such bribery is usually given in exchange for acting contrary to professional obligations or to accomplish certain duties. As per section 134 of this code, bribery must be in order to obtain the performance, postponement or abstention from an act of his office. It could be a reward for an act that had already been performed, or the person receiving had refrained from doing the act.
The classification of the offence of misappropriation of public funds in the penal code is based on the quantum of claim involve, and the amount determines the jurisdiction. Section 184 of the penal code clearly states the offence of misappropriation of public funds and the punishment for the offence.[217] Base on this provision, if the amount is less than or equal to ten million (10.000.000) XAF the competent jurisdiction is the Court of First Instance and where the amount is above ten million (10000000) XAF and less than fifty million (50.000.000) XAF, the jurisdiction is the High Court. The jurisdiction where the claim is above fifty million (50.000.000) XAF have shifted to the Special Criminal Court since the creation of the court in 2011.[218]
In section 137 of the PC, a related offence to corruption has also been addressed. The provision deals principally with public servants who act to the detriment of a government department, co-operative, or any State Authority or corporation either public or subject to the administrative control of the state, or in which the state holds directly or indirectly the majority of the shares. The offense here is named indulgence,[219] and the corrupt act manifest itself where the public servant grants exemption from any fee, due, duty, tax or contribution, or he delivers at a lesser price than that prescribed any produce of the establishment. The provision of the PC prescribes a penalty of two to ten years imprisonment with fine of from twenty (20.000) XAF to Two hundred (2.000.000) XAF. Furthermore, the PC in article 312 punishes an employee in receipt of any form of emolument. The corrupt act consist, on his part, in receiving any gift or accepting any promise without the permission of his employer, for doing or omitting any act of this employment. The punishment for such act is one (01) to three (03) years imprisonment and or a fine from fifty thousand (50.000) XAF to five hundred (500.000) XAF or both such imprisonment and fine.
Equally, Undue demand is proscribed by the PC. This offense is found in Section 142 penal code, where the law punishes any public servant, notary, public auctioneer, bailiff or process server or the representative of any such persons who act in a corrupt manner. The corrupt act as described by this section includes among others, demanding any fee, due, duty or taxes which is not due or any material benefit otherwise than on payment of the proper price. Such acts are punished with imprisonment for from two (02) to ten (10) years and with fine of from twenty thousand (20.000) XAF to two million (2.000.000) XAF.
In section 160, another related offense to corruption has been proscribed. Under this provision of the PC known as Compulsion of Public Servant, the law punishes anyone who through interference or threats procures a public servant improperly to perform or refrain from any act of his office. This is considered as corruption and is punished with imprisonment for from two to ten years and with fine of from twenty thousand (20.000) to one million (1.000.000) XAF.
The practice ofProcuring Influence, considered as corruption in section 161 Penal Code is punished similarly like the offence of compulsion of public servant. Under this provision, two categories of persons are envisaged:- any person, and then any public servant.The 1st category which is any person, must have acted with assault or threat or by presenting gifts or making promises, with intent to corrupt a person having any influence real or supposed, with interest to procure any advantage from any public authority.
The 2nd category is any civil servant who acts for himself or on behalf of a third party. The corrupt act here consist in soliciting, receiving, or accepting any offer promise or gift to procure any advantage from public authority or body placed under the control of the public authority, any contract, operation or other benefit arising from agreements concluded with public authority or body placed under the control of the public authority. The public servant by so acting takes due advantages of the real supposed influence that his status or office has conferred upon him. The punishment envisaged for both categories of offenders under this section is the same – imprisonment for from two (02) to ten (10) years, and with fine of from twenty (20.000) to one million (1.000.000) XAF.
iii. Law No. 2005/007 of 27 July 2005 to Institute the Criminal Procedure Code (CPC)
Subject to Law no 2011/28 of 14 December 2011, the law establishing the Special Criminal Court, the rule of procedure in the Special Criminal Court shall be the same as those applicable in the Criminal Procedure Code which is applicable in the ordinary courts.[220] These procedures include the conduct of preliminary investigation[221], preliminary inquiry[222] and the conduct of proceedings. It should be noted that the conduct of any of the above procedures is based on the order of the Procureur-General and not the state counsel as is the case in the ordinary courts. In conducting preliminary investigations, they also investigate allegations of corruption and suspected persons are tried before the competent courts. Article 92 of the CPC also provide for searches and seizures by the judicial police in the investigation of offenses including allegations of corruption.[223] Part xi, of the CPC that is from section 645 to 675 is dedicated to extradition. Extradition is the process whereby a requested state hand over a foreigner found in its territory to a requesting state in order that he is prosecuted for one or more specified offences of ordinary law or subjects him to a term of imprisonment passed against him after a criminal trial for an offence of ordinary law.[224] Section .642 (2) of this law also states:
(a) Felonies and misdemeanors of which are not directed against any kind of government shall be considered as common law offences and may justify extradition.
(b) Offences of universal jurisdiction provided by international conventions and ratified by Cameroon shall be considered as ordinary law offences.
iv. Law No. 2 003/004 of 21 April 2003 to Establish Confidentiality Act in Cameroon
The law establishes the Bank Confidentiality Act in Cameroon. In article 8 of this law, it is stipulated that bank secrecy may not be invoked as a stumbling block to criminal prosecution. As provided in article 20 of the law creating the National Anti-Corruption Commission, CONAC has the prerogative to lift the veil of bank confidentiality without the need for a court order whenever need arises. This prerogative enjoyed by CONAC is further given impetus by article 31 of the 2003 CEMAC Regulation on Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT) which gives CONAC and The National Agency for Financial Investigations (ANIF) the right to access bank documents for the purpose of data collection. In the course of investigation of corruption cases, the relevant ant-corruption agencies can use these provisions of the law to access such bank documents.
v. Public Procurement Code (2004)
The Public Procurement Code was established by a 2004 decree, it is “the rules applicable to the award, execution and control of Public Procurement” (Article1). This Code sets the rules “based on the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedure” (Art. 2). To complement the code, the Regulatory Agency for Public Procurement published a useful guide consisting of a collection of texts about sanctions in the area of Public Procurement
D) INSTITUTIONAL FRAMEWORKS
i. The National Anti-Corruption Commission (NACC)
The National Anti-Corruption Commission, also known by its French acronym (CONAC) was created in 2006 by Decree no. 2006/088 of 11th March 2006.[225] This institution replaces the Anti-Corruption Observatory. The purpose for which this institution was created was to combat corruption in Cameroon. CONAC’s main tasks are to educate the population about corruption and to investigate corruption in the public service and the state apparatus in general. The body collects information, investigates, studies cases and publishes texts on corruption and proposes solutions to competent authorities.
CONAC is a public independent body which comes directly under the supervision of the president of the republic. Its members are appointed and dismissed by presidential decree and they have a coordinating and regulating role in relation to the national anti-corruption policy framework in Cameroon. CONAC has a central structure with branches in almost all ministries.
CONAC does not have the capacity to take cases of corruption to the courts, nor does it have the ability to freeze or confiscate revenue coming from corruption, but the findings of a CONAC inquiry can ultimately lead to disciplinary or legal proceedings.[226]
iv. The Special Criminal Court
This court was created by presidential decree in 2011, as an attempt to completely eradicate the scourge of corruption in the country. This was in reaction to the classification of Cameroon in 1998 and 1999 respectively as the most corrupt nation in the world. [227] The decree, Law N° 2011/028 of 14 December, 2011 gave birth to the Special Criminal Court. Since the creation of the court, several top government officials and cabinet members including a former Prime Minister, Minister of State in charge of Territorial Administration and Decentralization, Minister of Finance and numerous General Managers, Directors General of public enterprises and Para-public have been convicted by this court for embezzlement of public funds.[228] The “Operation Sparrow Hawk” through this court was launched by the President of the Republic and placed under the coordination of the Vice Prime Minister, Minister of Justice, and Keeper of the Seals, to track down and expose public servants who misappropriate state funds.[229] These institutions were created to jointly and severally uproot corruption which hinders development as it accounts directly and indirectly for loss of revenue by the government. It is also important to highlight that the fight against corruption in Cameroon does not exist only in the public sector, but also in the private sector. The results of a survey carried out in 2008 showed that 49% of the 1052 companies interrogated affirmed to have bribed taxation officers.[230] The SCC has competence to hear and determine matters where the loss amounts to 50 million XAF relating to misappropriation and embezzlement of public property and other related offences as provided for in the penal code and international conventions ratified by Cameroon.[231] The court is created to support the work of the national anti-corruption commission (CONAC), The National Agency for Financial Investigations (ANIF), the Supreme State Audit office (CONSUPE), The Public Contract Regulatory Agency (ARMP), the ministerial anti-corruption units, the Tender Boards of public bodies and the Audit Bench of the Supreme Court.
The creation of this court was aimed at fighting embezzlement of public property, to ensure speed in judicial proceedings and the restitution of the property. It has changed the Penal Code punishment for misappropriation of public property. The Penal Code in its Section 184 call for punishment and confiscation of offence related property and the Special Criminal Court’s creation in Section 18 call for restitution and nolle prosequi
v. Supreme State Audit
The Supreme State Audit as an institution was created by Decree No 2013/287 of 4 September 2013 to organize the Supreme State Audit. Created by the Head of State president Paul Biya, the Supreme State Audit Office (CONSUPE) is task to fight against corruption, acts of mismanagement, and acts of irregularities and embezzlement by vote holders and authorized officers of public funds. It equally has the daunting mission of auditing the execution of state budget and public funds. The State Supreme State Audit services are under the direct authority of the President of the Republic, from whom they receive instructions and to whom they obtain an account.[232]
The institution is headed by a minister delegated to the presidency of the Republic. The State Supreme Audit services constitute the Supreme Public Financial Control Institution (SAI) of Cameroon.[233] They are responsible for the external audit. As such, their missions include:
Verification, at the highest level, of public services, public establishments, decentralized local authorities and their establishments, public and para-public enterprises, administrative and judicial liquidations, as well as confessional or lay organizations, establishments and associations benefiting financial assistance, endorsements or guarantees from the State or other public legal entities, on administrative, financial and strategic levels; Control of the execution of the state budget; Control of the execution of externally funded projects; Control, if necessary, of the quality of audit reports obtained on behalf of the State or its dismemberments by private firms; The evaluation of programs and projects; Support for capacity building of authorizing officers and public credit managers;
Technical, methodological and pedagogical support in matters of control and verification of the management of public wealth, to administrative control and internal audit structures of other ministerial departments and of public and para-public organizations;
The dissemination of auditing and auditing standards in the public and parapublic sector; Government assistance in the design, implementation and evaluation of state modernization programs;
The Higher State Control services may, on the instruction of the President of the Republic, carry out specific checks on private bodies pursuing an object related to the public service, and having a strategic nature for the economy or national defense.
In the exercise of their powers, the State Superior Control services carry out: compliance and regularity checks; financial control; performance control; environmental monitoring; control of information systems. The controls are carried out by the auditors of the State Superior Control on documents and on site. To this end, and notwithstanding the checks carried out by the other supervisory bodies, the managers of the audited structures are entitled to present the documents close to the audited period.[234]
As an external auditor, CONSUPE does not relent its efforts in working hand in gloves with internal auditing organs of ministries and state corporations to curb acts of mismanagement and cases of irregularities. The institution control all ministries, public corporations and councils all over the national territory. When state finances are disbursed to execute projects, it follows up the projects to access how the last franc is used; this is done with justifiable documents. After every two years, CONSUPE patrol the national territory to control government sponsored projects.
Through its Financial Disciplinary Board, the institution tries defaulters who have mismanaged public funds and if found liable they are asked to pay back the money and a special fine. However, their role is not only to reprimand, they also provide prevention in the exercise of their duties by carrying out regular checks that helps in preventing financial losses to the State.[235] According to law creating the institution, the Financial and Disciplinary Board sits monthly to handle aspects of irregularities and if a public servant is found guilty, copies of the judgement are sent to the Ministry of Finance and the embezzled money is curtailed from their salaries, for retired workers, subsequent measures is arrived at to recover the money. The Board does not have competence to hear criminal matters, and so for criminal cases, the Financial and Disciplinary Board sends the report to the Head of State who in turns channel it to the Ministry of Justice for action.
vi. Cameroon Human Rights Commission (CHRC)
This institution was established by presidential decree in 2019. The law creating it is Law No. 2019 of 19 July 2019 Relating to the Establishment, Organization and Functioning of the Cameroon Human Rights Commission. This institution established by this law replaces the National Commission on Human Rights and Freedoms ipso facto as provided in section 67 of the law. The law provides also in section 68 that upon entry into force, it shall repeal all previous provisions, particularly those of Law No 2004/16 of 22 July 2004 Relating to the establishment, organization and functioning of the National Commission on Human Rights and Freedoms and those of Law No. 2010/4 of 13 of April 2010 to amend and supplement some provisions of Law No 2004/16 of 22 July 2004 relating to the establishment of , organization and functioning of the National Commission On Human Rights and Freedoms.
Before the establishment of this law in 2019, the NCHRF serves as legal ombudsman for Cameroon, and is charged with defending citizens and victims of civil, economic, social and cultural rights. NCHRF provides legal consultancy and assistance to victims and takes up cases as prosecutor. In terms of corruption, NCHRF has a Sub-commission on Special Matters which carries forward corruption-related cases and aims to defend victims of corruption. The CHRC as per section 67 and 68 of the law creating it shall take up these responsibilities. Chapter II sets out the duties of the commission while chapter III sets out the organization and functioning of the commission. In the discharge of its duties, the commission has the prerogative to issue summons and failure to obey is backed by criminal sanctions. As per section 62 of the Law establishing it, in the investigation of an alleged offense including corruption, the commission can summon anybody for either as suspect or witness, and failure to honour the summons, the individual involve shall be punished with imprisonment for from five (5) to ten (10) Days and fine of from Four (4000) to twenty five (25000) XAF.[236]
vii. Ministry of Public Contracts
In the fight against corruption in Cameroon, the government demonstrates its efficacy through the Ministry of Public Contracts. This is done mainly by undertaking unannounced visits or on-site checks of contracts underway to ensure compliance with contractual terms and follow-up checks to analyze the behavior and nature of the completed works.
viii. Civil Society
Civil Society Organizations (CSOs) and Non-Governmental Organizations (NGOs) face a serious challenge to freedom of assembly and association as guaranteed by the constitution of Cameroon, as they are requested to obtain authorization from the government authorities before holding public meetings, and meetings that have to touch and concern on a sensitive topic like corruption can easily be denied authorization from being organized in a particular circumstance. Despite the setbacks to the mode of operation of CSOs, they play a great role in the fight against corruption in Cameroon. The Centre for Human Rights and Democracy in Africa (CHRDA) founded in 2005 with headquarters in Buea, with offices in other African countries and being an independent, nongovernmental, apolitical and non-profit making organization dedicated to the protection and advancement of human rights and the promotion of democracy as a political culture in Africa, has in collaboration with other CSOs been contributing greatly to the fight against corruption in Cameroon.[237]
In the past years, CHRDA in collaboration with other CSOs have been organizing a series of symposiums to discuss on the effects of corruption in Cameroon and how it negatively affects nation building and the right to development. They offer public lectures on the ills of corruption and for more accountability on the part of governments towards its citizens, working with government authorities to improve human rights situations, to keep abuses to a minimum, and to encourage ratification of international treaties and agreements related to human rights.[238]
In 2009 CHRDA organized a symposium in Buea on ‘Corruption and its Implication for Human Rights,’ which brought about participants from the National Commission on Human Rights and Freedoms, the judiciary, administrative authorities, CSOs, and human right activists.[239] In his presentation Prof. Ndiva Kofele Kale on the topic ‘Economic Crimes and International Justice: Elevating Corruption to the Status of a Crime in Positive International Law, ’situated the problem of corruption, more precisely as indigenous spoliation in both its African and global context, its effects on societies, and argued that corruption should be treated as an international economic crime in positive international law, more precisely, that is a crime that shocks the conscience of humankind.[240]
Ndiva argued that corruption is a coordinated plan whose effect, if not objective is the destruction of the essential foundations of the economic life of a society, it is the systematic looting and stashing in foreign banks of the financial resources of the state, the arbitrary and systematic deprivation of the economic rights of the citizens of a nation by its leaders, elected and appointed, in military regimes and civilian governments all over the world, on a scale so fast as never before seen in history.[241]
On the effects of corruption on human rights, Ndiva opines that a corrupt state creates a vicious circle in which the state quickly loses its authority and ability to govern for the common good. To him, corruption makes it possible for critics to be silenced, for justice to be subverted and for human rights abuses to go unpunished. When corruption reigns, basic human rights and liberties are threatened and social and economic contracts become unpredictable. He noted the failure of the Regional AU and Global UN anti-corruption conventions to address the question of official corruption as crime in positive international law, stating that the instruments talk instead of illicit enrichment as seen in articles 8, ix, and 20 respectively. He then concludes that it is his hope for states to see this crime of corruption as depredation of a sort and qualify it as a crime against humanity.[242]
Equally, on the 25th of May 2018 in Buea, CHRDA in partnership with Africans Rising for Justice, Peace, and Dignity, a Pan African Movement with head-quarters in the Gambia joined at CHRDA head office in Buea – Camerron to celebrate the 55th edition of the Africa Day, commemorating the foundation of African Unity (OAU) in 1963, now the African Union since 2002.[243] At the event, discussions were focused on corruption and illicit financial flows in Africa, and ways in which the civil society can contribute to fight impunity and to put an end to the capital flight where African leaders loot African resources and keep in foreign banks abroad for their private benefit against the will of their people and the development of the African continent. The event ended with the reading of the Kilimanjaro Declaration to the participants which was adopted on the 24th of August 2016 in Arusha, Tanzania. This declaration was adopted by 272 representatives drawn from civil society, trade unions, women, young people living with disabilities, parliamentarians, media organizations and faith based groups from across Africa and the diaspora, who gathered in Tanzania to take the commitment to fight against Corruption in Africa by demanding good governance and expanding space for civic and political action.[244]
In 2019, CHRDA in partnership with Lesley Foundation and other youth lead organizations organized a workshop on Fighting Corruption and Enhancing the Right to Development in Cameroon: The Role of Youth Leaders.[245]At the workshop, Tonga Benjamin, a youth leader in an attempt to give it a veneer of legality opines that youths often pretend that they don’t know what corruption is but in reality, they do and there is an attempt by them to give it a camouflage and they are in the business of celebrating thieves and giving corruption all kinds of beautiful English names such as embezzlement, fraud, looting, speed money or money laundry whereas they should call this men and women by the real names, they are thieves,stealing on an industrial scale, they are murderers and once the youths begin to call them like that and they have a mark of Kane upon their forehead then they can shun them.[246] To him, it has been done elsewhere. In countries such as Tanzania there are being dealt with, in Rwanda there are being dealt with, in Botswana there are being dealt with, in Mauritius there are being dealt with, once the youths begin to deal with them, then the others who want to behave like them will begin to take the cue. He also opines that the foreplay of the third term syndrome in Africa is seen where African leaders don’t want to leave power because there are afraid that when they do, they will be prosecuted for corruption and it is his view, they should be prosecuted.
Corruption is a canker worm that has invaded the Cameroonian society and cuts across all the sectors both public and private and even in churches[247]. In many African Countries like in Cameroon he mentioned that we have created for ourselves institutions to fight and combat corruption but we do not intend for those institutions to fight corruption. Cameroon is a signatory to the United Nations Convention against Corruption and The African Convention for the prevention and Combating corruption; we have created for ourselves the National Anti-corruption commission (CONAC) and have even incorporated it domestically in our Cameroonian penal code in its Section 134. Yet corruption remains well and alive, because the fight against it has been taken on tribal lines and the youths have been in the business of celebrating thieves, we had even ethicized corruption so much so that when a leader from our ethnic group is labeled as being corrupt and imprisoned thereafter we begin to say yes he is a thief but he is our thief.[248]
In conclusion, he therefore exhorted the young people in Cameroon to begin by having this conversation in their spaces of influence and more often it is through social media that young people are able to connect easily and can challenge the status quo in dismantling corruption in Cameroon. Social media to him is just one avenue to vent about this issue and more, social media has a huge potential to fuel change, the conversation should also be in spaces where young people populate including but not limited to class rooms and lecture halls, youth summits, camps, meetings of youth structures and other important spaces to ensure that it does not only become an academic exercise to speak about corruption but that new innovative ideas are brought up in order to win the fight against corruption.
ix. The Media
The fight against corruption in Cameroon has been a major preoccupation of some media outlets since the classification of Cameroon by Transparency International as the most corrupt nation in the world in the late 1990s. This is visible in the newspaper headlines of some news agencies such as the Cameroon Tribune, Le Messenger, Mutations, La Nouvelle Expression, The Guardian Post, The Post and many others as well as TV and radio channels.[249] In a research carried out by the Friedrich-Ebert-Stiftung foundation in Cameroon, it is revealed that in more anti-corruption measures, the national newspaper – Cameroon Tribune had a column devoted every day to corruption. The government adopted the slogan “Corruption kills the nation,” aimed at educating the nation on the ills of corruption and this was carried on all the headlines of the Cameroon Tribune.[250] The aim of this campaign was to educate Cameroonians on the ills of corruption and the potential damage it could do to the nation if it persisted.[251]
E) POLICY FRAMEWORKS
I. Operation Sparrow Hark
The Operation Sparrow Hawk, also known as “operation epervier” was launched in Cameroon in 2006.[252] The framework against corruption was launched by the President of the Republic and placed under the coordination of the Vice Prime Minister.[253] The main objective of the movement is to track down and expose public officials who misappropriate and embezzle state funds.[254]Through the efforts of Operation Sparrow Hark, many top government officials including Basil Atangana Kouna, former minister of Water Resources and Energy, Former Secretary of State at the ministry of Public works in charge of the roads, Luis Max Ohanda Ayina, the former Director General of CAMWATER, Jean William Sollo, former Rector of the University of Douala, Bekolo Egbe and Dieudonne Oyono were arrested in 2018 and detained at Kondengui maximum prison for alleged embezzlement of public funds.[255]Following the investigations of Operation Sparrow Hark, the Delegate General for National Security, Martin Mbarga Nguele issued a restriction orderand sent to Cameroon frontier and immigration police units, stopping about 21 senior state officials from leaving the country.[256] Following this restriction, Basil Atangana Kouna was arrested in Nigeria by a joint task force of Cameroon, Nigeria and Equitorial Guinean Security agents when he succeeded to escape from the country after prohibition from leaving.[257]
ii. Toll Free Telephone Line of The National Gendarmerie. (1501)
The fight against corruption has been a major concern of the National Gendarmerie in Cameroon.[258] On April 29 2019, a tall free number to denounce acts of corruption and human rights violations committed by elements of the national gendarmerie was launched in Yaoundé.[259] The 1501 number was presented to the public during a ceremony at the State Secretariat of the National Gendarmarie in Yaounde.[260] During the event, the Secretary of State to the minister of Defense in charge of the National Gendarmarie, Galax Etoga said just one year after the tall free number went operational, over 600 calls have been received and 100 gendarmes found wanting were given various degrees of sanctions.[261] The objective of the tall free line was to eradicate corruption within the elite corp of the Cameroon Defense forces and to enhance their image and bring the closer to people. Officials of the NACC present at the event saluted the putting in place of the toll free line to fight corruption and promised support in the drive to eradicate corruption in Cameroon.[262]
iii. United Nations Sustainable Development Goals
To ensure a sustainable life in the future for all, the United Nations Member States on the 25th September 2015 adopted a number of goals for sustainable development.[263] Taking into consideration every challenge faced by the world and which affects both developed and developing countries, they formulated 17 goals which will play the role of guide and reminder for all to make the world a better place by 2030.[264] The SDGs are an urgent call for action by all countries in a global partnership. They recognized that ending poverty and other deprivations as well as corruption must go hand in hand with strategies that improve health, education, reduce inequality, and spur economic growth.[265] The SDGs provides a shared blueprint for peace and prosperity for people and the planet, now and into the future. Corruption hampers economic growth and endangers sustainable development.[266] To combat corruption and ensure that countries could meet the needs of the present generation without endangering the needs of future generations, the UN General Assembly adopted the 17 SDGs which act as a reference in the fight against corruption.
IV. UNDP Global Program on Anti-Corruption
The United Nations Development Program (UNDP), as the lead development agency of the United Nations, has developed and implemented a large number of projects to support states in their anti-corruption work.[267] UNDP has been a leading provider of technical cooperation in the area of anti-corruption, which is one of the major service areas of the democratic governance practice.[268] For instance, during the 2004-2006 period, 51 countries had 113 active anti-corruption programs related to institutional, legal and policy frameworks established to promote and enhance accountability, transparency, and integrity.[269] UNDP’s country presence in more than 135 countries is backed by a vibrant anti-corruption community of practice and knowledge network that makes global knowledge and best practices readily available at the country level.[270]
UNDP has been an active player in the field of anti-corruption for many years.[271] The first generation of UNDP anti-corruption work focused on the accountability, transparency and integrity (ATI) programs upon which a number of activities are still building.[272] In 1999, UNDP produced its flagship manual Fighting Corruption to Improve Governance, a pioneer product in anti-corruption and development, which remains relevant today.[273]
The major strategy of UNDP when engaging in anti-corruption activities is to ensure that fighting corruption furthers UNDP mandates of poverty reduction, realization of Millennium Development Goals (MDGs) and promoting sustainable development.[274] The linkages between corruption and development clearly highlight that UNDP’s niche in fighting corruption is for development effectiveness.[275] Thus, UNDP supports national partners by providing anti-corruption policy and program advisory services; coordinating anti-corruption initiatives at national levels; strengthening the watch-dog role of the media and civil society; producing knowledge products on anti-corruption; and supporting nationally-owned anti-corruption diagnostic/measurement tools.[276]
UNDP also focus its energies and priorities in anti-corruption within its mandate of reducing poverty, realization of MDGs, and promoting sustainable development. It also plays a key role in the implementation of the 2030 Agenda for Sustainable Development and, notably, in supporting states to achieve the SDGs.[277]
CHAPTER FOUR
EFFECTIVENESS OF THE ANTI CORRUPTION FRAMEWORKS IN CAMEROON
4.0 INTRODUCTION
This chapter presents a discourse on the effectiveness of the anti-corruption frameworks in Cameroon. It also looks at some decided cases of the Special Criminal Court which relates to corruption, and misappropriation of public funds. It examines the global, regional and domestic anti-corruption frameworks in line with their application in the fight against corruption in Cameroon. It thus sets out to answer research question three and achieve objective three. The chapter is underpinned by the triple pronged theory.
4.1. UNITED NATIONS CONVENTION AGAINTS CORRUPTION (UNCAC)
As examined in the legal framework in chapter three, the UNCAC is the first genuinely global, legally binding instrument on corruption and related matters and developed with an extensive international participation. It is after this that corruption is no more the concern only of national and regional laws but also of international laws. It elevated anti-corruption actions at the international level in the form of legally binding obligations. It obliges States parties to implement a wide and detailed range of anti-corruption measures affecting their laws, institutions and practices. It is unique when compared to other conventions, not only in its global coverage but also in the detail of its provisions.
The UNCAC derives impetus in the fight against corruption in Cameroon through article 45 of the constitution which provides that duly ratified international treaties and conventions shall take precedence over national law when the other party implements same. The instrument makes provision for Preventive measures, criminalization, international cooperation, asset recovery and implementation mechanisms which constitutes the main substantive rules of the convention which the thesis focuses to discuss on their effectiveness in the fight against corruption in Cameroon. Against this background note, the sections below explore and analyze the approaches taken by the UNCAC to prevent and combat corruption.
a) Objectives and Coverage
As enshrined in article 1 of the UNCAC, the instrument was adopted purposefully to:
i) Promote and strengthen measures to prevent and combat corruption more efficiently and effectively
ii) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;
iii) To promote integrity, accountability and proper management of public affairs and public property.
There is no reference to human rights in the objectives so that the UNCAC is going to achieve, but the substantive provisions were intended to reach the goals enshrined in article one.[278] It is arguable that the goal of UNCAC is formulated based on the assumption that there are measures to prevent and combat corruption either at domestic or regional level but they are either ineffective or insufficient.[279] The UNCAC seeks to strengthen parameters against corruption via international cooperation and technical assistance among member States.[280] It further promotes measures against corruption by promoting values such as, integrity, accountability and proper management. The UNCAC approaches the problem of corruption from a political and economic perspective. In the political perspective, the approach is via international cooperation and technical assistance while the economic approach is via asset recovery.
International Cooperation which is discussed in chapter IV of the UNCAC, as a measure against corruption is to the effect that state parties shall cooperate in criminal matters relating to corruption. However, the UNCAC follows an optional strategy in civil and administrative matters as states may cooperate of offer mutual assistance only if it is appropriate and consistent with their domestic law and determined by them. Cooperation and technical assistance may take the form of extradition of corruption offenders,[281] mutual legal assistance in investigation,[282] and prosecution of offenders. In a public statement delivered by the chairman of the national anti-corruption of Cameroon (NACC, also Known as CONAC) before the national assembly, Dr. Dieuddone Massi Gams recalled the international cooperation his institution has had in the fight against corruption in Cameroon with international institutions. He cited Common Wealth Africa Anti-Corruption Agencies; Common Wealth Africa Anti-corruption Centre; l’Association International des Agences Anti-Corruption; l’Association Internationale des Autrites Anti-Corruption Africaines; le Reseau des Agences Anti-corruption D’afrique Centrale; and Interpol.[283] The additional and more specific provisions on cooperation can be found in chapters dealing with asset recovery in the UNCAC instrument.[284]
Asset recovery is a fundamental purpose of the instrument, and this is quite important for developing countries where cases of grand corruption have exported national wealth to foreign banking centers and financial havens and where resources are badly needed for the development of the countries. The UNCAC in the domain of asset recovery has established a series of mechanisms including both criminal and civil recovery procedures where assets can be traced, frozen, seized forfeited and returned to the requesting country.[285] In the statement of the Anti-corruption institution Chairman of Cameroon, through international cooperation, the institution from 2013 to 2017, has been able to recover the sum of 1,652 billion 582 million 114 thousand 37 XFA.[286]
Though these measures are important in addressing the political and economic impacts of corruption, the human rights impact is left unaddressed (the situation of victims of corruption). It is argued that the assets or funds recovered usually do not benefit the victims of corruption as they are sent directly to the state coffers and may still be laundered or used for something else other than the project for which it was intended for.[287] It is the discretion of states to comply with the demands of the legal instrument, and as duty bearers they owe a duty of care to claim holders (the citizens) the instrument has no monitoring mechanism and whether a state complies with the rules enshrine in the law or not, there is no sanction available for states who do not comply with the rules. This view is held by Argandona who notes that,[288] there is no mechanism which makes States parties accountable for their failure to fulfill their obligations under the convention. States parties that do not fulfill their obligations under the convention will be left unpunished. This therefore lives a lacuna in the fight against corruption through the objectives and purpose of the instrument.
b) Prevention and Criminalization
The barring of corruption from occurring both in the public and private sector is an approach adopted by the UNCAC in the first place. Even with the preventive measures adopted, corruption may not always be barred from occurring, and due to this fact, state parties are obliged to enact legislative measures that establish as criminal offences not only active and passive bribery of national public officials,[289] but equally active and passive bribery of foreign officials of public international organizations.[290] With regard to the public sector, states parties are at discretion to implement effective anti-corruption policies and create institutions specifically to combat it.[291] States parties must strive to ensure that their public services are subject to safeguards that promote integrity, transparency and accountability among civil servants and hiring based on efficiency and merit.[292] Once hired or elected, public officials must be subject to some ethics or codes of conduct,[293] including measures such as declarations of assets, and disciplinary measures.
States must also promote transparency and accountability in public procurement and management of public finances,[294] and must take measures to preserve integrity in especially critical areas such as the judiciary and prosecution services,[295] and to prevent money laundering.[296]
As concerns the private sector, States parties are expected to facilitate accounting and auditing standards, develop codes of conduct, promoting transparency, keep the maintenance of books and records, and disallowing tax deductibility for bribes.[297] The instrument equally advocates for the participation of society in the prevention of and fight against corruption including access to the appropriate administrative and judicial bodies, reporting to the local or domestic investigating and prosecuting authorities, and the protection of reporting persons and of witnesses, experts and victims.[298]
Though a handful of articles dealing with prevention of corruption commences with a mandatory obligation ‘shall’ it is worthy of note that the manner in which they are implemented is subject to ‘the fundamental principles of the legal system of States parties.
This signifies that States parties are not obliged to implement a specific measure to bar corruption. It can be argued that, this leeway has created problems in the monitoring of the implementation of the convention as there is the absence of a uniform prevention measure which should be taken, rendering the law ineffective.
4.2 AFRICAN UNION CONVENTION ON PREVENTING AND COMBATTING CORRUPTION
The African Union (AU) anti-corruption convention came into existence as one of the measures within the AU framework with the aim of accomplishing the legitimate desires and improved life for the peoples of Africa, promoting and protecting human and peoples’ rights, consolidating democracy, and enhancing economic and political growth in the region by averting and battling corruption. The instrument seeks a continental approach to the problem of Corruption and like the UNCAC, it also provides a compressive framework on measures of prevention, criminalization, cooperation, asset recovery and education about corruption as strategies to prevent and combat corruption in the region. The AU anti-corruption convention makes a clear reference to the impacts of corruption on human rights both in its preamble and in its objectives.
a) Objectives and Principles
The AU anti-corruption convention in its statement of objectives has set out a series of objective it aims to achieve. These include among others; to promote and strengthen the development of anti-corruption mechanisms in Africa, promote, facilitate and regulate cooperation among States parties, coordinate and harmonize policies and legislations between States parties, remove obstacles to the enjoyment of economic, social and cultural rights as well as civil and political rights, and establish necessary conditions to foster transparency and accountability in the management of public affairs. The instrument also lays out some principles which guide States parties in the implementation of the convention. The States parties to this convention undertake to abide by the following principles.
- Respect for democratic principles and institutions, popular participation, the rule of law and good governance.
- Respect for human and peoples’ rights in accordance with the African Charter on Human and Peoples Rights and other relevant human rights instruments.
- Transparency and accountability in the management of public affairs.
- Promotion of social justice to ensure balanced socio-economic development.
- Condemnation and rejection of acts of corruption, related offences and impunity.
Cognizant of the regional particularities of Africa, i.e., poverty, lack of good governance, democracy and serious violations and abuse of human rights, The AU anti-corruption convention covers corruption both in the public and private sectors. The instrument covers corruption through prevention, criminalization, international cooperation and asset recovery.
b) Prevention and Criminalization
Under this instrument, member states undertake to adopt legislative and other measures preventing corruption as established in article 5 of the instrument and other related offenses.[299]State parties are also required to establish, maintain and strengthen independent national anti-corruption agencies.[300]They are also required to implement and strengthen mechanisms for promoting the education of populations to respect the public good and public interest’ and awareness in the fight against corruption and related offences.[301] Further, adopting legislative and other measures to create, maintain, and strengthen internal accounting, auditing and follow-up systems, in particular, in the public income, custom and tax receipts, expenditures and procedures for hiring, procurement and management of public goods and services also form part of the preventive strategy.[302]
The instrument also makes provision for some specific preventive measures of corruption in the public sector. States parties are required to oblige public officials to declare their assets at the time of assumption of office during and after the term of office in the public service.[303] They are also required to establish an internal committee or a similar body which establishes a code of conduct and monitors its implementation. In addition, develop disciplinary measures and investigation procedures in corruption and related offences; ensure transparency, equity and efficacy in the management of tendering and hiring procedures in the public service. The instrument also obliges state parties to uplift or revoke the immunity of public officials for the purpose of investigation and prosecution of corruption as a preventive measure against corruption in the public sector.[304]
The AU anti-corruption convention also prevents corruption through the involvement of civil society and media by guarantying the right to access to information. In the domain of criminalization, the instrument criminalizes acts of corruption and related offences established by the convention and by the mutual agreement of States parties. Those acts explained in section 3.4.3 are criminalized. In that note, the AU anticorruption convention establishes jurisdiction for States parties to adjudicate acts of corruption and related offences.[305]It also makes provision for cooperation in criminal matters including corruption. This is contained in article 15 to 20, and these include among others; Extradition,[306] tracing, seizure, and confiscation of proceeds of corruption; and mutual legal assistance.[307] The international cooperation also go beyond member states, it extends to collaboration with non-parties so that corrupt officials may not be able to enjoy “stolen or ill-gotten assets” in countries that are not party to the Convention. In 2018, an Ex – Cameroon minister Basil Atangana Kouna was arrested in Nigeria and extradited to Cameroon through the assistance of the Nigerian Police.[308] He was charged for misappropriation and embezzlement of state funds in cash 1.2 billion XFA and assets worth 825 million XFA recovered from his home.[309] States parties are required to cooperate in asset recovery and assets derived from corruption should be returned to the requesting State even if extradition is not possible.[310] The AU anti-corruption convention makes asset recovery not a mere criminal punishment but also a tool to further development objectives.[311]
c) Monitoring Mechanisms
The AU convention against corruption, unlike other anti-corruption treaties has put in place an Advisory Board on Corruption (the Board) constituted of 11 members elected by the Executive Council of the AU among a list of experts of the highest integrity, impartiality, and recognized competence in matters relating to preventing and combating corruption and related offences.[312]
The Board is a treaty monitoring mechanism of the convention and it functions inter alia:[313] to promote and encourage the adoption and application of anti-corruption strategies on the continent; collect and document information on the nature, scope, and extent of corruption; develop approaches for analyzing the problem of corruption in Africa; and disseminate information and sensitize the public on the negative effects of corruption; advise governments on how to deal with corruption in their domestic jurisdictions; collect information and analyze the conduct and behavior of multi-national corporations operating in Africa, and disseminate such information to national authorities; develop and promote the adoption of harmonized codes of conduct of public officials; build partnerships with the African Commission, African intergovernmental organizations and NGOs in order to facilitate dialogue on corruption; submit a report to the Executive Council on a regular basis on the progress made by each State Party in complying with the provisions of this Convention; and perform any other task relating to corruption and related offences that may be assigned to it by the policy organs of the AU.
However, despite the fact that the Board performs these functions, and States parties are required to submit a report on the implementation of the convention on annual basis to the Board and it then will report to the Executive Council,[314] there is no means of sanctioning States parties for their failure to report to the Board, unlike in the reporting process for the African Charter on human and Peoples’ Rights. Besides, the Board has no power of investigation and cannot denounce acts of corruption.[315] The AU anti-corruption convention lacks serious and effective mechanism for holding States parties accountable for the obligations they assume under the convention.[316]
4.3 CAMEROON CONSTITUTION
a) Declaration of Assets
The first legal instrument applicable to the fight against corruption in Cameroon is the Constitution, which is also the highest law of the land. The constitution of Cameroon declares in its preamble the resolve to harness the natural resources of the state in order to ensure the well-being of every citizen without discrimination, by raising living standards, proclaiming the right to development as well as the determination to devote all efforts to that end.[317] The preamble also declares that “all persons shall have equal rights and obligations. The State shall provide all its citizens with the conditions necessary for their development.”[318] This declaration is illustrative of the Triple pronged theory, as postulated by Henry Shue.[319] This theory is to the effect that states must protect, respect and fulfill the fundamental human rights of its citizens.[320] This model illustrates that human rights impose a combination of negative and positive duties on the state. The duty to respect is to the effect that the state should not directly infringe upon its citizen’s rights. The duty to protect human rights obliges that states should take all measures to ensure that third parties should not infringe on the rights of its citizens. The state protects them both from the infringement by the state’s own instrumentalities and other persons within its jurisdiction. While the duty to fulfill requires that states should take positive measures towards the easy realization of the rights of its citizens. These measures can be administrative, financial and legislative in the form of policy initiative monitoring and evaluation.
Hence, this theory provides a wide spectrum giving the state the incumbent duty to protect and promote the human rights of its citizens within its national territory from abuse by other citizens both within and out of the state and also to protect their citizens’ rights from abuse by state institutions. This theory is relevant to this research in that it mandates the state with full responsibility to track down all corruption channels both in public and private sectors and punish the perpetrators so as to fulfill its duty on the respect and promotion of human rights, some of which are the rights to development, claimed by all citizens of the country from the government as stipulated on the constitution and which are often violated through corruption
In the fight against corruption, the constitution provides in article 66 that The President of the Republic, the Prime Minister, Members of Government and persons ranking as such, the President and Members of the Bureau of the National Assembly, the President and Members of the Bureau of the Senate, Members of Parliament, Senators, all holders of an effective elective office, Secretaries-General of Ministries and person ranking as such, Directors of the Central Administration, General Managers of public and semi-public enterprises, Judicial and Legal Officers, administrative personnel in charge of the tax base, collection and handling of public funds, all managers of public votes and property, shall declare their assets and property at the beginning and at the end of their tenure of office. It also provides that the other categories of persons to whom the provisions of this article shall apply and the conditions of implementation thereof shall be determined by law.[321]Due to the rise in Corruption in Cameroon, the law makers in an attempt to eradicate corruption, made available this provision so as to deter officials entrusted with state duties from fusing state property into their private property without being noticed. To add more impetus to this Constitutional provision, the legislator adopted Law No. 2006/3 of 25 April 2006 on The Declaration of Assets and Properties, obligating public officials and elected politicians to present asset and patrimony declarations annually and upon entering and exiting the public service or public office. The applicability of this law and its effectiveness in the fight against corruption is what the researcher seeks to establish in this chapter to answer research question three and achieve objective two.
The law on the declaration of assets clearly is one of the most distinct legal instruments on anti-corruption frameworks in the public sector in Cameroon. The law is designed to fight against grand corruption or state capture, evident in the categories of persons shortlisted to declare their assets in the constitution. The applicability of this law and its fight against corruption according to the law creating it is monitored by a commission, whose members are appointed by presidential decree, and charged with the receiving, using and maintaining the declarations made by the officials involved.[322]Among members of the commission are representatives of other anti-corruption agencies such as Supreme Court, supreme state control services and others which are charged with formulating national anti-corruption strategies. Despite the existence of this law, corruption is still rife in the Cameroonian society, and our corruption ranking over the years has barely seen a significant improvement. In 2020, transparency international named Cameroon 149, out of 179 countries sampled, with 25 percent score,[323] only jumping 4 places from the 153rd position out of 180 countries sampled in 2019.[324] Equally, in March and April 2021, Human Rights Watch and Transparency International accused Cameroon in a joint report of high level corruption,[325] and lack of transparency in the management of COVID-19 funds lend to Cameroon by the World Bank.[326]
According to the view point of some political pundits and some anti-corruption experts, the applicability of the law in the fight against corruption has been sloppy. Gaga Hamman Adji, former minister of supreme state audit posited that the law on the declaration of assets has never been implemented.[327] To him, the laws exist but have never seen the light of day, due to the lack of political will to implement same.[328] The members of the commission charged with implementing this law are appointed by the president of the Republic, who himself has never declared his own assets. This therefore presents a lack of political will in the implementation of the laws and eradicating corruption from Cameroon. Hamman Adji is supported in this position by Rev. Dieudonne Massi Gams, president of CONAC, who holds the view that the non-implementation of article 66 of the constitution on the declaration of assets is a major hindrance to the fight against corruption in Cameroon.[329]This therefore lives this researcher with the assumption that the neglect or the inability of the government to enforce or implement constitutional provisions on declaration of assets and its supporting text on declaration of assets is a major cause for the persistence of corruption in Cameroon.
b) Oath of Office/Hippocratic or Ethics code
As per article 66 of the constitution, state officials and persons ranking as such named in the document are obligated to declare their assets at the beginning and end of their mandates.[330] During inauguration or installation of these officials into their respective offices, they also take an oath of office, otherwise known as Hippocratic Oath for medical personnel. The wordings of the oath may be different for different offices and professions, but have the same intention and implications. As concerns ELECAM officials, the oath the board members will take before the constitutional council reads as follows; “I swear to fully and faithfully discharge my duties and exercise my office without fear or favour in accordance with the constitution and laws in force, to ensure the confidentiality of proceedings and votes, to abstain from taking public positions and to decline any consultation on matters falling within the purview of Elections Cameroon.”[331]Oath taking is not a mere formality for public officials, it is a public pledge that the individual understands the requirements of the position, and will work to meet such requirements.[332] Those taking the oath must fully consider the meaning of the oath and its important implications. An oath is a formal promise which traditionally invokes something which is sacred or Godly, something which the oath taker considers to act as witness to the oaths sincere intention to fulfill the promise.[333]
In taking oaths, the public officials pledge to faithfully and impartially discharge all duties required by their office. It imposes on them an affirmative duty to avoid conflicts and ensure impartiality in the exercise of official duties, shun corruption and the taking of bribes, and also to disclose any personal interest they may have in the exercise of public duty within their sphere of command.[334]
In general terms, the taking of oaths is a process by which the state employs in the fight against corruption and abuse of public office. The public officials are expected to act according to their professional ethics, respect the constitution and laws in force, moral values, and to act with dignity and personal integrity. Oath taking for public officials is also important as it is a means for the officials to make commitment to official responsibilities and obligations associated with holding public office. The extent to which an official is able to honour that commitment will profoundly impact the efficacy of that official’s service. In court processes, oath taking is done by swearing to the Holy Bible or Koran and for persons who are neither Christians nor Muslims; they are expected to make an affirmation. Any individual found lying on oath may be prosecuted for perjury.[335] In addition to the above requirements, any public official may be removed from office for neglect of duty, misuse of office, corruption and incompetence.
Corruption is considered an ethical issue, and even the bible condemns it as a sin and root cause of injustice and instability. In the book of Exodus 23: 8, the Bible says; “And you shall not take a bribe, for a bribe blinds the clear sighted and subverts the cause of the just.”[336] Also, Proverbs 29:4 says “By justice a king gives a country stability, but one who is greedy for bribes tears it down.”[337] This is also reiterated in the book of Deuteronomy 16:19 where it is said “Do not pervert justice or show impartiality”.[338] The moralists in their part describe corruption as “an immoral and unethical phenomenon that contains a set of moral aberrations from moral standards of society, causing loss of respect for and confidence in duly constituted authority”.[339]To Antonio Guterres, ‘Corruption is criminal, immoral and the ultimate betrayal of public trust.’[340]
In the appointment or employment of public officials, the individuals are expected to exercise moral integrity, good conscience and personal dignity. Due to the persistence of corruption in the public sector in Cameroon, there is an assumption that this is caused by impunity and total lack of personal integrity. The individuals involved in corrupt practices have no respect for their own oath and professional code of conduct or ethics. They rotate from one portfolio to another, following new appointments and promotion with the same bad conscience, shamelessness, greed and non-respect for oaths taken.
Non-respect for oaths and lack of integrity breeds corruption and the impact on human rights is enormous as victims cannot avail themselves since they have no locus standi to bring an action against the perpetrator as it is the duty of the state to do so. In a BBC report of 6 November 2012, titled ‘President Paul Biya: Cameroons “Lion Man,”[341] the reporter holds that; after the collapse of the single party system in Cameroon, presidential elections were held in 1992, and Biya was declared winner with a 40 % of vote – amid allegations of fraud. His main rival John Fru Ndi was believed to have won – but a Supreme Court Justice while proclaiming the results said his “hands were tied” and declared Mr. Biya victorious.[342] During the official launching of the 2014 judicial year in Cameroon, the Chief Justice of the Supreme Court, Alexis Dipanda Mouelle decried what he calls “Tied Hands on Corruption in the Judiciary.”[343]He said judges in Cameroon are caught in the critical dilemma of accepting or not accepting external influence from people who are not part of the judicial system especially family and decision makers. He went further to decry the fact that judges no longer pay attention to the values which they are expected to uphold such as independence, impartiality and integrity, which he described as the three ‘I’s. [344]The Supreme Court Justice in his opening addressed laid emphasis on the respect for professional ethics in the legal system, while calling on judges to desist from betraying their oath of office by indulging in bribe-taking, which interferes with the effective delivery of justice.
4.4 CRIMINAL LAW MEASURES
a) Special Criminal Court
With Cameroon being ranked the most corrupt country in the world twice by transparency international, the government decided to adopt some anti-corruption frameworks to curb the dangerous spread of the phenomenon in the country. In such a move, the government has put in place legal and institutional mechanisms in a bid to combat corruption in Cameroon. The institutions as already examine in chapter two include among others, the court system. (Court of First Instance, High Court, military Court, Administrative Courts etc.) Because of the gravity of the offense of corruption, which manifests itself sometimes through misappropriation of Public funds, the Special Criminal Court was created in 2011 with jurisdiction to try the offence of misappropriation of public funds as an anti-corruption measure. The effectiveness of this measure in the fight against corruption in Cameroon is what constitutes the focus of this work which the researcher seeks to examine.
Since the establishment of this court, some prominent members of government including managers and directors of state-own estates have been indicted to the court for corruption related offenses and embezzlement of public funds. The personalities brought before the court include among others; Inoni Ephraim (the former Prime Minister and Assistant Secretary General at the Presidency); Jean-Marie Atangana Mebara (the former Secretary General at the Presidency and the former Minister of Higher Education); Polycarpe Abah Abah (the former National Director of Taxation and Minister of Economy and Finances); Etogo Mbezele Luc Evariste (the Chief Inspector of the National Treasury); Ambassa Zang Dieudonné Télesphore (the former Minister and former Deputy at the National Assembly); Iya Mohammed (the former General Manager, SODECOTON); Haman Adama née Halimatou Kangue Maonde (the former Minister of Basic Education); Nguini Effa Jean Baptiste de la Salle (the former General Manager, SCDP); Yves Michel Fotso (the former General Manager, CAMAIR); Ntongo Onguene Roger (the former General Manager, ADC); Endale Marthe (the Director, SOCANET); Eny Rosper (the Director, SOTRACAM); Obouh Fegue Clément (the former General Manager, SNEC); Olanguena Awono Urbain (the former Minister of Public Health); and Metouck Charles (the former General Manager, SONARA).[345] In 2020, two other ministers, Basil Atangana Kouna (minister of water and energy) and Edgar Alain Me’be Ngo (former minister of Defense and minister delegate in charge of special duties at the presidency) were indicted to the court by presidential order on charges of corruption and misappropriation of public funds.
A fundamental principle of the criminal law in Cameroon is that no person is above the law and all persons shall be subject to the criminal law of the land. This is a cornerstone of the rule of law and a just society. The indictment and prosecution of top ranking personalities who perpetrate the act of corruption and violates the rights of Cameroonians to a developed society is in fulfillment of these fundamental principles of Cameroonian criminal law and accentuates the reach of the law and the justice system, as everyone, irrespective of position, is subject to the law. The arrest and prosecution of these top personalities at the SCC demonstrates a positive step in the fight against corruption through the SCC.
The SCC has investigated, prosecuted, convicted, and acquitted several state officials accused or found guilty of the misappropriation of public funds and other related offences. In some of the cases where the accused were prosecuted, some were convicted to serve prison terms while others were set free after restitution of the corpus delicti. The effectiveness of this court in the fight against corruption in Cameroon has come under criticism. Some scholars have expressed their opinions about the SCC, some questioning its jurisdiction and its purpose, the timing of its establishment, and the usefulness of its imposition of imprisonment sanctions to those it finds guilty. Some opinions have questioned the jurisdiction of the court, the nature of proceedings in the court and considering its decisions to be influenced by the executive arm of government. Some of these criticisms can be analyzed as follows;
· The Jurisdiction of the SCC in Combating Corruption
In Cameroon the judicial organization of courts falls under two grand categories; courts with ordinary jurisdiction and courts with special jurisdiction. Courts of ordinary jurisdiction are courts that have an all-embracing jurisdiction to hear and determine actions of every kind, whether civil or criminal. These kinds of courts include the High Court and the Court of First Instance.
The SCC is a court with limited jurisdiction. This means that it has jurisdiction to entertain only a specific class of cases. With the special criminal court, it has as material jurisdiction to hear the offence of corruption (misappropriation of public funds) where the quantum of claim amounts to fifty million (50.000.000) francs CFA and above. Its competence to prosecute the offence of misappropriation of public funds, therefore, can be exercised only when the quantum of the claim or the money misappropriated or embezzled is equal to or above fifty million (50,000,000 XAF).[346] Where the amount is less than the threshold of fifty million (50,000,000 XAF), the jurisdiction is shifted to the ordinary courts (High Court and Court of First Instance).[347] In like manner, if the court ascertains that the amount is equal to or above fifty million FCFA, which complies with the jurisdictional requirement of the court, the Court will hear and determine the matter.
Concerning this jurisdictional requirement, the court is said to have complied with it in many instances. In the case of The people of Cameroon and the state of Cameroon (MINJUSTICE) V. Tambang Victor Mbang Menj,[348]the accused was alleged to have misappropriated the sum of sixty-seven million five hundred and seventy-nine thousands seven hundred and thirty-five (XAF 67,579737). In this case, the competent court is the Special Criminal Court. However, after a proper examination of the facts, the court found out that the money misappropriated was only XAF 31,892,532. This amount is below the amount that attracts the competence of the special criminal court and according to section 8 of the law creating the Special Criminal Court, the court has to decline its jurisdiction on the matter. In this regard, the SCC declined jurisdiction and remitted the matter to the competent Court, which in this case is the Mezam High Court. In like manner, in the case of The Public Ministry and the state of Cameroon V. Haman Adama nee Halimatou Kangue Maonde and Co[349], the case of The public ministry and The state of Cameroon, The CAMAIR liquidation V. Fotso Yves Michel[350]the state of Cameroon and CAMPOST V. Abakar Mansale[351]the court found that the amount misappropriated meets with the requirement for the exercise of jurisdiction by the court. So regarding the law, the court entertained and heard the matter.
With regards to the requirement of the law creating the SCC for the transmission of cases by the trial courts to the SCC, and from SCC to the trial court, many cases have been transferred to the SCC already from trial courts. For instance, the case of the people of Cameroon (represented by the ministry of finance) V. Bongam Isa and Boniako Nasako Peter,[352] The people of Cameroon V. Tang nee N. Rebecca,[353]which were transferred from the Fako High Court to the SCC and that ofThe people of Cameroon and the state of Cameroon (MINJUSTICE) V. Tambang Victor Mbang Menji[354], remitted to the Mezam High Court for trial.[355]
Despite the strides the court is making in the fight against corruption, there is still doubt in the extent to which it can go as concerns the jurisdiction of the court. Since the court only hears matters where the quantum of claim amounts to or above 50 million francs XFA, where the official accused of corruption, misappropriates less than 50 million and is one which cannot be brought to ordinary trial courts such as the president of the republic, who can only be heard in the court of impeachment, military and supreme court, it therefore lives a lacuna in the authority of the court to eradicate corruption in Cameroon.
· The Usefulness of its Imposition of Imprisonment to Those It Finds Guilty of Corruption
In the application of the laws and provisions regulating the imposition of sanctions on persons charged with the misappropriation of public funds, based on the number of cases heard and determined by the court, the decisions of the court with regards to the imposition of sanctions are said not to comply with the legal requirement. Thus the decisions of the court may be considered to be discriminatory, baseless and bias. This view is held by Shing Praise,[356] and he opines that in some cases, the court applied the law strictly by imposing the appropriate punishment while in other cases, though with the proof of the commission of the offence and it meeting with the requirement for the imposition of the principal penalty, the court did not do so. He based his argument on some decided cases;
For instance, in the Abakar Mansale Case[357], the court found the offender guilty of misappropriating state funds amounting to XAF 137698105 million and thus sentenced him to life imprisonment. While in the Alioum Bappa Issa Case[358] and Satock Elizabeth And Co Case[359], the SCC found Alioum Bappa Issa guilty of misappropriating the sum of XAF 62576478 million and Satock Elizabeth And Co of misappropriating the sum of XAF181383000 million. In these two cases, the offenders were sentenced to ten (10) years and fifteen (15) years imprisonment respectively. By analogical reasoning, the provision of section 184 of the Penal Code, and in accordance with the principle of binding precedent, (for like cases to be treated alike) the offenders in these cases were all supposed to be sentenced to life imprisonment though this was not the case. The discriminate application of the law in these instant cases by the court cast doubt on the credibility of the decision of the court. This makes one question if the mission of the court which is to deter others from engaging in corruption can be attended with this kind of biased and discriminatory verdicts taken by the court.
The law creating the SCC does not provide for any mitigating circumstances. But rather, according to the Penal Code, the fact of being a public servant is an aggravating circumstance. In this regard, the Penal Code in its section 89, clearly provides that “(1) Subject to any special penalties provided for felonies or misdemeanours committed by, national, foreign or international public servant, national, foreign or international public officers or national, foreign or international officials, the fact of being a public servant established or otherwise shall aggravate the responsibility of any such person guilty of any other felony or misdemeanor against which it is his duty to guard or take action. (2) In case of aggravating circumstances, the maximum penalty provided for shall be doubled.” Given that all offenders of the Special Criminal Court by this provision and per section 90 of the Penal Code[360] are excluded from benefiting from the mitigating circumstances that may avoid the imposition of the maximum punishment are supposed to be given a life imprisonment sentence, given that the amount is above the maximum stated by the Penal Code. On this premise, if fairness is not respected in the court, then the mission of the court to curb the misappropriation of public funds cannot be accomplished. Corruption and misappropriation of public funds will still strife as offenders assume that if they are brought before they court, they may serve just a limited number of years in jailed and would be set free to come out and start enjoying their stolen wealth.
· The Influence of the Executive over Proceedings in the Court
The special criminal court is a court not like any other court in Cameroon. For this reason, not everybody can seize the court of a matter. Although the law creating the court does not specify who can refer a matter before the special criminal court; of the number of cases adjudicated in the court and based on statements of some officials of the court and that of the Supreme State Control charged with the investigation of the misappropriation of state funds, it can be said that as concerns who can sue a person before the SCC, only the state, either through the president of the republic or the minister of justice acting on the authorization of the president can sue an individual before the special criminal court.[361] This is so because most of the investigations (through controls) are done by the supreme state control which is directly under the control of the president of the republic. Therefore, when the supreme state control investigates a matter, they immediately draw up a report and send it to the president of the republic who then on his motion decides whether or not to refer the person for trial before the special criminal court. This is contained in a decree that regulates the functioning of the supreme state control.[362]This decree states that ‘’the State Supreme Control services are under the direct authority of the President of the Republic, from whom they receive instructions and to whom they are accountable. They are headed by a minister delegate to the presidency of the Republic.[363] It goes further to state that “the State Supreme Control services constituting the Supreme Public Financial Control Institution of Cameroon are also responsible for the external audit.
As such, their missions include: Verification at the highest level of public services, public establishments, decentralized local authorities, and their establishments, public and Para public enterprises, administrative and judicial liquidations, as well as confessional or lay organizations, establishments, and associations benefiting financial assistance, endorsements or guarantees from the State or other public legal entities, on administrative, financial and strategic levels. Because only the President of the Republic or Minister of Justice under his command can seize the Jurisdiction of the Special criminal court to sue for any case of corruption, it therefore makes the anti-corruption measures partially ineffective as they turn to keep a blind eye on allies even when there is evidence against them presented through the reports of CONAC, and only turn to prosecute but political rivals and rendering the anti-corruption measures through the court ineffective.
The constitution of Cameroon in its article 37 provides for the separation of power between the three arms of government (the executive, judiciary, and the legislation). The Special Criminal Court being an institution under the judiciary has to carry out its functions without any influence from the other arms of government. This means that neither the executive nor the legislative has to influence the decisions of the SCC. With the creation of the court in 2011, although, not accompanied by the institution of new crimes[364] nor a new procedure[365], some supplementary decrees have been put in place to regulate proceedings in the SCC. Some of these decrees such as the Decree on the Organization and Functioning Of the Specialized Corps Of Judicial Police Officers Of The SCC[366], Decree on the Administrative Organization of the SCC,[367] and theDecree setting up the organization and functioning of the specialized corps of judicial police officers[368] and their method of enforcement has greatly been debated upon by opinion leaders over the years. This is because particular decrees demonstrate the degree of influence the executive arm of government has on the Court.
The decree of September 2013 fixing modalities for the restitution of corpus delicti is a glaring example. This decree is to the effect that where an offender is found guilty and he/she reimburses the funds misappropriated, the charge, or proceedings against him/her may be terminated. The decree on restitution demonstrates the influence of the other arms of government (executive) on the court. According to the decree on restitution, it is the minister of justice that has the mandate to authorize and approve the restitution of the corpus delicti by the party concern. This is written in section 3 (1) of the decree on restitution which provides that “In the case of restitution of corpus delicti before the seizure of the court by a committal order of the examining magistrate or the by a judgment of the Inquiry Control Chamber of the Supreme Court, the Procureur-General of the SCC may, upon a written authorization by the minister of justice, enter a nolle prosequi.” This means that restitution is done only through the authorization of the minister (executive) arm of government which violates the notion of separation of powers within the constitution. Restitution of the corpus delicti does not automatically translate into the termination of a criminal investigation or the entering of a nolle prosequi. It is merely a factor that may be adjudged by the competent authorities as to whether it suffices to discontinue criminal investigations.
With the influence of the minister of justice (who is from the executive arm of government) in the restitution of the corpus delicti in the SCC, many pundits have referred to the SCC as an extension of the executive arm of government functioning as a judicial institution. This therefore renders the judiciary impartial, non-independent and cannot effectively check the executive against corruption.
4.5 CRITICAL APPRAISAL OF THE FRAMEWORKS
a) Uniformity of the Standards
An assessment of the international, regional and domestic anti-corruption legal frameworks divulges a uniformity of standards in the anti-corruption strategies at both levels. They all contain aspects of prevention, criminalization, and reclamation of stolen assets. The special criminal court of Cameroon in line with asset recovery as provided in the UNCAC and the AU-anti-Corruption convention provides for the restitution of corpus delicti. The constitution of Cameroon with other supporting instruments provides for the declaration of assets by senior state officials and vote holders. This strategy is also found in the UNCAC and AU anti-corruption convention. All the anti-corruption measures also provide for education on the ills of corruption, and obliges duty bearers (the government) to implement same in the fight against corruption. The UNCAC and the AU anti-corruption convention go further to talk about international cooperation and mutual legal assistance. However, the anti-corruption instruments are not uniform in their conception of “acts of corruption” and full of optional provisions with lots of claw-back clauses. This creates problems in international cooperation and uniform implementation. Besides, the weak design of their monitoring mechanisms in the implementation of the anti-corruption strategies creates more chances for the persistence of corruption in Cameroon. The frameworks do not address the situation of the victims of corruption,
b) Inadequacy of compliance and implementation of Measures
The anti- corruption frameworks all proclaim the need for declaration of assets for government authorities and vote holders at the start and end of their mandates, yet there is inadequate or no compliance with this strategy. The duty bearers in the fight against corruption have failed to implement the asset declaration measure as stipulated in article 66 of the Cameroon Constitution, and this accounts for the persistence and prevalence of corruption in Cameroon. The frameworks put in place against corruption are inadequately implemented. The National Anti-Corruption Commission, as well as the Supreme State Audit is placed under the supervision of the ministry of justice and the presidency and this has an implication on the independence of the institutions. These institutions have only the power of investigation, and their reports are submitted to the president of the republic and he uses his own discretion to either call for prosecution of the individual concerned or to dismiss the allegations. In most cases, only political rivals have been sent to the SCC for prosecution. Even at the level of the SCC, the minister of Justice and Keeper of the Seals can give an order for the entry of a nolle prosequo and proceedings against a corrupt official would be discontinued and he is set free and the victims of corruption left with no remedy. For government structures to be effective in the fight against corruption, they need to be organized in the various arms (executive, legislative and judiciary) to ensure the effective control and running of affairs. This will go a long way to fight corruption within these arms with little or no interference from the executive body. The independence of the anti-corruption structures needs to be guaranteed.
CHAPTER FIVE
EFFECTS OF CORRUPTION ON THE RIGHT TO DEVELOPMENT IN CAMEROON
5.0 INTRODUCTION
Corruption is an enormous obstacle to the realization of all human rights; civil, political, economic, social and cultural, as well as the righttodevelopment. Corruption violates the core human rights principles of transparency, accountability, non-discrimination and meaningful participation in every aspect of life of the community. This chapter therefore sets out to examine the effects of corruption on the realization of human rights especially the right to development. It also looks at challenges in combatting corruption in Cameroon. This chapter thus sets to answer research question four and achieve objective four. It is underpinned by the triple pronged theory.
5.1. EFFECTS OF CORRUPTION ON HUMAN RIGHTS
Corruption is something that we talk about, it’s something that we complaint about, it’s something whose negative impact we recognize, it is something that even the corrupt acknowledges. But the irony and the tragedy at hand is that those who engage in corruption love it, those of who do not engage in it directly, accommodate it. Our levels of tolerance of corruption in Africa is amazing, corruption affects the recognized human rights as they have been codified by the UN human rights covenants. In practice, the human rights most often affected are social rights, especially by petty corruption. For example, corruption in the health sector affects the right of everyone to the highest attainable standard of health[369] in the education sector; the right to education is the issue.[370] But also the classical liberal human rights may be undermined by corruption: If a prisoner has to give the guard something in return for a blanket or better food, then the prisoner’s basic right to humane conditions of detention is affected.[371] If as most observers tend to think the current surge in human trafficking is made possible and facilitated primarily by corruption that induces police and border guards to look the other way, then this affects the human right to protection from slavery and servitude obviously,[372] corruption in the administration of justice endangers the basic rights to judicial protection, including the right to a fair trial without undue delay[373]. In the case of grand corruption and foreign bribery, however, the implications for human rights such as the effect of nepotism on the right to equal access to public offices are less clear.[374]
What is clear, however, is that when corruption becomes endemic in a society, it benefits the well-connected and wealthy, debases the marginalized to lives of poverty and impoverishment. Inevitably, this leads to the weakening of the very accountability structures which are cardinal for protecting human rights. Traditionally therefore, it is imperative to view corruption as impacting on, or contributing to human rights violations but not seeing it as a rights violation per se. Using the right to development as provided in the Declaration on the Right to Development and given legal impetus under the African Charter on Human and Peoples’ Rights, as an entry point, this research thus argues that corruption is not only an obstacle to the realization of the right to development, but a violation of human rights. Linking corruption and human rights, in particular, the right to development, as this research seeks to do, serves mostly to add a new perspective by deploying human rights norms and institutions in fighting the deleterious effects of corruption on the realization of human rights.[375] These sub topics therefore seeks to look at the effects of corruption on the right to development:
5.1.1 Effects of Corruption on the Management of Micro Project Grants by Members of Parliament in Their Respective Constituencies in Cameroon.
The members of parliament are among those mandated by article 66 of the Cameroon constitution to declare their wealth and assets at the beginning and end of their mandates. In addition to making laws and representing their people in parliament, they are also charged with the development of their various constituencies.[376]The development of their constituencies is achieved through a micro projects scheme granted by Parliament. The Parliamentary Micro Project Grants (PMPGs) in Cameroon are funds that the government provides annually to members of parliament to disburse to their constituents in enabling them carry out micro projects of their own.[377] The funds are non-refundable. This is one of the several methods that the government of Cameroon attempts to improve on the welfare of its citizens and the development of the country. The total amount disbursed to parliament is 1,440,000,000 XAF, for the 180 Members of Parliament and each MP receives a sum of 8,000,000 XAF for his constituency annually.[378]
According to Jackson Nanje,[379] the 8,000,000XAF which is given to each MP usually should be used in the repair of bridges, pipe-borne water installations, purchase of classroom furniture and small allowances to indigenes to finance some of their small business initiatives in their respective constituency. This is in a bit to fulfill the rights of citizens to a develop society, and where the MP fails to use the funds for its intended purpose, this therefore violates the citizens right to development. He further recounts that; “the MPs are not accountable to any one in particular, and hardly do they present any report to parliament detailing how the funds were judiciously used in their respective jurisdictions. Also, no supervision of any project executed by the MPs has ever been done by a third party and all what is known of the fund is based on the ‘false report’ they submit to ‘Aux Cabinets des Questeurs de l’Assembée Nationale,’ of ‘ghost projects’, if any, that they claimed to have accomplished’ at the beginning of the parliamentary year in March.”[380] He further opines that it is completely unacceptable that the receiver of the fund is also the one that distributes the fund and audits the fund’s use as well.
According to an Ayah Paul Abine,[381] there is no data that shows a parliamentarian has ever been prosecuted or indicted for corruption, for misappropriation of the Micro Project Funds in Cameroon. The absence of parliamentary data to provide explanations on how these funds have been used in the past in each of the 180 constituencies also explains why a re-examination of its use is of absolute necessity. The lack of data does not only explain the carelessness of the fund’s execution by Members of Parliament but it explains the adamant nature of the government in the fight against corruption in Cameroon. Where an MP embezzles the funds or uses it for his private benefit, other than the purpose for which they funds were granted for, without being checked by the government, the rights of the population to a develop society are violated. This is the same case for ministers who execute state budget. A case in point is that of the Former minister of water and Energy Resources, Basil Atangana Kouna, who was arrested and charged for misappropriation and embezzlement of state funds in cash 1.2 billion XFA and assets worth 825 million XFA recovered from his home.[382] He embezzled money meant for the supply of water and energy resources, much needed for the betterment of the lives of Cameroonians.
5.1.2 Effects of Corruption on the Economic and Socio-Cultural Development of Cameroon
Section 2 above demonstrated that the full realization of the right to development encompasses the enjoyment of all human rights, be it civil and political rights or economic, social and cultural rights.[383] It follows that, depending on the circumstances of a case, civil, political, economic, social and cultural rights can be violated by acts of corruption thereby violating the right to development. However, the deleterious effects of corruption on the enjoyment of socio-economic rights protected under the Covenant cannot be undermined. The focus of this analysis is on corruption by public officials as the Covenant primarily imposes obligations on states. However, the definition of corruption clearly shows that corrupt practices involve both the public and private spheres. Considering the Covenant is important in that the instrument is the core international legal document on economic, social and cultural rights and affords protection to the most extensive range of these rights. The major socio-economic rights recognized in the Covenant are the right to work,[384] trade union rights,[385] right to social security,[386] rights to food, water, housing[387] and the right to health.[388] The other protected socio-economic rights include the right to education[389] and the right to participate in cultural life.[390] Second, the nature of state obligations provided in article 2(1) of the Covenant applies to all socio-economic rights. Third, socio-economic rights are particularly important in the realization of the right to development and this is affirmed in article 8(1) of the Declaration which explicitly states that: States should undertake, at a national level, all necessary measures for the realization of the right to development and shall ensure equality of opportunities for all in their access to basic resources, education, health services, food, housing, employment and fair distribution of income.[391] The Committee on Economic, Social and Cultural Rights (CESCR) has also recently noted in a statement to the UN Human Rights Council that: nearly all of the substantive articles 1-15 of the Covenant on Economic, Social and Cultural Rights touch upon the substance of the right to development, most notably article 11 on the right to an adequate living standard.[392]
5.1.3 The Effects of Corruption on the Realization of the Right to Development in Cameroon
Petty corruption as discussed in chapter two is the situations where by public servants that may be grossly underpaid depend on small kickbacks from the public to feed their families and pay school fees. Grand corruption on its part as analyzed in the same chapter, particularly on the forms of corruption, involves high profile officials who make decisions on large public contracts. This forms of corruption thus has a direct negative impact on the poor as they cannot afford to provide any gains to public officials, or if they do, it constitutes a great part of their earnings which they could have otherwise used for their own subsistence or development. This therefore prevents the Cameroonian citizens from actually enjoying their right to development especially, the creation of favourable conditions for the enjoyment of other civil, political, economic, social and cultural rights. A number of cases clearly demonstrate how corruption has impacted the lives of people in Cameroon. In this regard, the case of Haman Adama and 12 others is illustrative.[393]In this case, money meant for the betterment of the lives of students and the general public was used by the officials in charged for their personal gains. This act negatively impacted on the enjoyment of all human rights by the citizens of Cameroon. In a bid to remedy this situation, the government which has the primary duty to ensure the enjoyment of this rights by its citizens, charged the officials to court and the money was thus reimburse in to the state treasury. This move is not actually effective given that no measures are usually put in place to ensure that the reimbursed money is used for the initial purpose. This therefore shows that a lot still has to be done to curb corruption and thus limit its impact on the right to development.
5.1.4 The Effects of Corruption on the Supply of Social Amenities
The state according to the triple prong theory is the guarantor of the enjoyment of all human rights by its citizens. Corruption being a stumbling block economic growth and development is the main aspect that makes the enjoyment of the right to development impossible. This act is perpetrated through bribery, extortion, influence peddling, nepotism, fraud, speed money or embezzlement. The supply of social amenities is not an exception when it comes to corruption. In this light, a number of officials have been accused and some sent to jail because of corruption charges which have had a significant impact on the enjoyment of human rights by the suppose beneficiaries.[394] Although some of these persons have restituted the embezzled money, the negative impact of their actions on the right to development is still being felt. This is so because even when the money is restituted, it is not often used for the original purpose, thus posing as a big blow to the realization of the right to development.
5.1.5 Effects of Corruption on Foreign Investment and Inability to Secure Loans and Donations from Foreign Donors
Taking into consideration the fact that African leaders have the right to refuse any investment that do not seek to benefit its people, in advancing their human rights, their greediness and selfishness have let so many of them to condone corrupt nature of investment from international actors at the detriment of the masses. such corrupt landscapes are cultivated by providing loans with tough conditions disregarding the consequences on the receiver, grants and aid provided with the aim of protecting their economic or and strategic interest, the reward of contracts and the acquisition of business licenses by avoiding the laws and taxes. These practices turn to undermine the interest of the people and thus a violation of the right to development.
5.1.6 The Effects of Corruption on the right to self-determination
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development[395]. Essentially, the right to self-determination is the right of a people to determine its own destiny. In particular, the principle allows a people to choose its own political status and to determine its own form of economic, cultural and social development. Exercise of this right can result in a variety of different outcomes ranging from political independence through to full integration within a state. The importance lies in the right of choice, so that the outcome of a people’s choice should not affect the existence of the right to make a choice. In practice, however, the possible outcome of an exercise of self-determination will often determine the attitude of governments towards the actual claim by a people or nation. Thus, while claims to cultural autonomy may be more readily is recognized by states, claims to independence are more likely to be rejected by them. Nevertheless, the right to self-determination is recognized in international law as a right of process (not of outcome) belonging to peoples and not to states or governments. The preferred outcome of an exercise of the right to self-determination varies greatly among the members of UNPO. For some of our members, the only acceptable outcome is full political independence. This is particularly true of occupied or colonized nations. For others, the goal is a degree of political, cultural and economic autonomy, sometimes in the form of a federal relationship. For others yet, the right to live on and manage a people’s traditional lands free of external interference and incursion is the essential aim of a struggle for self-determination. Other members, such as Taiwan and Somaliland have already achieved a high-level or full self-determination, but are yet to be recognized as independent states by the international community.[396] Corruption is the dishonest or fraudulent conduct by those in power, typically involving bribery.[397] Based on the names accorded to corruption such as Ngombo’, ‘Choko’, ‘Beer’, ‘Transport’,‘Kolanut’,‘petrol’, ‘Brown-envelop’, ‘Soya’, ‘pepper’, ‘backdoor’, ‘pushing of files’, ‘oiling of palms’, and in French ‘Dossier bien habille’, ‘Dossier cravate’, due to its frequent use in both the public and private sector to deprive people of certaint opportunities, one would say that corruption justifies the quest for self-determination. Most often, corruption most results in chaos, secession, and political instability which are very detrimental to a state.
When people are deprived of their right on some particular opportunities which they see as important to them, they may start thinking of ways to be able to create these opportunities which may result to them questing for self-determination. Based on the circumstances surrounding the crisis in the North West and South West Regions of Cameroon,[398] one can say that one of the causes of the crisis is corruption. This is so based on the fact that, before the outbreak of the crisis, many Anglophones were of the fact that; the system of government, the nature of recruitment of persons into public service(through concurs) was corrupt and as a result, when the lawyers and teachers started the strike action in 2016, they saw it as an opportunity to express their intention to be liberated from the system by making it possible for them to be able to decide for themselves and thus the quest for self-determination. Based on this aforementioned, one can say that the absence of corruption and equal opportunities for all can prevent division and disintegration. In this light, one will say that corruption is a big blow to the realization of the right to development.
5.1.7 The Effects of Corruption on the Justice System in Cameroon
The respect for human right can only be achieved in a just society. Thus, without the impartial administration of justice, the enjoyment of human rights, especially the right to development can be really achieved. In a bid to crackdown corruption in Cameroon in an attempt to enhance the realization of the right to development, the government put in place anti-corruption agencies and more specifically, a special criminal court (SCC) that prosecutes the offenders of corruption (misappropriation of public funds). This court being of the judicial branch is to function independently from the executive arm of government as per the constitution of Cameroon. The constitution of Cameroon in its article 37 provides for the separation of power between the three arms of government (the executive, judiciary, and the legislative). The Special Criminal Court being an institution under the judiciary has to carry out its functions without any influence from the other arms of government. This means that neither the executive nor the legislative has to influence the decisions of the SCC. With the creation of the court in 2011, although, not accompanied by the institution of new crimes,[399] nor a new procedure,[400] some supplementary decrees have been put in place to regulate proceedings in the SCC. Some of these decrees such as the Decree on the Organization and Functioning Of the Specialized Corps Of Judicial Police Officers Of The SCC,[401] Decree on the Administrative Organization of the SCC,[402]and theDecree setting up the organization and functioning of the specialized corps of judicial police officers,[403] and their method of enforcement has greatly been debated upon by opinion leaders over the years. This is because particular decrees demonstrate the degree of influence the executive arm of government has on the Court.
The decree of September 2013 fixing modalities for the restitution of corpus delicti is a glaring example. This decree is to the effect that where an offender is found guilty and he/she reimburses the funds misappropriated, the charge, or proceedings against him/her may be terminated. The decree on restitution demonstrates the influence of the other arms of government (executive) on the court. This is so given that, according to the decree on restitution, it is the minister of justice that has the mandate to authorize and approve the restitution of the corpus delicti by the party concern. This is written in section 3 (1) of the decree on restitution which provides that “In the case of restitution of corpus delicti before the seizure of the court by a committal order of the examining magistrate or by a judgment of the Inquiry Control Chamber of the Supreme Court, the Procureur-General of the SCC may, upon a written authorization by the minister of justice, enter a nolle prosequi.” This means that restitution is done only through the authorization of the minister (executive) arm of government which violates the notion of separation of powers within the constitution. Restitution of the corpus delicti does not automatically translate into the termination of a criminal investigation or the entering of a nolle prosequi. It is merely a factor that may be adjudged by the competent authorities as to whether it suffices to discontinue criminal investigations.
With the influence of the minister of justice (who is from the executive arm of government) in the restitution of the corpus delicti in the SCC, many pundits have referred to the SCC as an extension of the executive arm of government functioning as a judicial institution. Some, even without looking at the basis of the decisions of the SCC have praised the court for bringing high profile politicians to justice.
Given the nature of influence of the executive on the judiciary, given that most corrupt practices in the administration is perpetrated by government officials,[404] who are part of the executive, the fight against corruption and the realization of the right to development has been made difficult, if not impossible. In this light, based on a research conducted at the supreme state Audit, it thus show that many reports of corruption have been sent to the presidency for him to forward to the SCC but not all have been sent to the SCC for trial. This thus shows to an extent, the lack of political will to curb corruption in Cameroon and as a result enhance the realization of the right to development.
Also, the decree on the restitution of corpus delicti negatively impacts on the right to development and thus promotes corruption in that, it gives the perpetrators the green light to do the act having it in mind that if they are caught and they restitutes, the will be set free. To this effect, the researcher believes that corruption can only be curbed and the right to development realized if the political will to do so is made paramount.
All in all, as concerns the impact of corruption on the justice system, one would say that a Corrupt judicial system gives a free ride to debtors to escape at will, because they are rest assured the creditors can never fight them through the courts. It therefore forces credit unions and banks to lent money at very high interest just to foreclose on debt. more disturbing, vital investment are stalled or scare away because investors are not guaranteed their basic rights can be uphold by the judiciary.
5.1.8 The Effects of Political Corruption on the Right to Development
The growth of corruption in Cameroon is relative to the country’s politics. As discussed in chapter 2 supra, the electoral process in Cameroon for example is famous in its open corrupt practices; Elections rigging, fake voter’s cards, buying of voters, etc. Members of the electoral commission, who are themselves appointed by the president, engage in changing electoral results in favor of their boss. This is so more especially with the 1992 presidential elections which many are of the opinion that the opposition won the election. The constitution of Cameroon is constantly changed to favor the ruling class. The separation of power by the executive, judiciary and the legislatives are only on paper. Where the political structure is adamantly corrupt, accountability becomes impossible, national and local administration becomes weak and incapable of delivering services based on merits and fairness especially to the poor and vulnerable. This may led to the disruption of peace and security of the state manifested through protest, thus, making the realization of the right to development practically impossible. So therefore, it can be said that political corruption has a significant negative effect on the attainment of the right to development. The realization of the right to development goes with good governance.
5.2 CHALLENGES IN COMBATING CORRUPTION IN CAMEROON
i. Lack of Political Will
There has been a crucial lack of political will to fight against corruption in Cameroon under the current administration. Political will can be defined as “the demonstrated credible intent of political leaders (elected or appointed leaders, civil society watchdogs, stakeholder groups, etc.) to attack the perceived causes or effects of corruption at a systemic level”. Political will is crucial in the fight against corruption as it sets the tone, creates the mood and exudes the degree of seriousness that is needed to engage everyone. Political will is equally important in order to punish corruption committed by top government officials and it will equally promote a good way of preaching by example. In addition, the fight against corruption is not affected by the availability of economic resources or lack thereof. Therefore, it is safe to say that the lack of political will demonstrated by current regime is not due to a lack of funds. President himself, after about 4 decades in power has never fulfilled article 66 of the constitution of 1996 by declaring all his property and sources of income. This article 66 demands all government officials to declare their assets and sources of income before assuming a position in government so that it will be possible to measure what they have gained or lost during their tenancy. This is a credible means to fight against embezzlement, but the president himself has never declared any of his assets, under the helpless gaze of Cameroonians.
The lack of political greatly manifested in the action against Garga Haman Adji in the 1990s. In the early 1990s, Garga Haman Adjithe then Minister in charge of Supreme State Audit and Public Service waged a war against embezzlers of state funds. He went as far as submitting names of corrupt officials to the Presidency, requesting that they be brought to justice and punished. Between 1990 and 1992, the sum of funds misappropriated totaled to about three hundred and fifty-seven million (XAF 357,000,000). The response he got was rather discouraging. His Ministerial portfolio was modified, limiting his competence to civil service and administrative reforms.[405] He thus lost his authority over the Supreme State Audit. He resigned from the government believing that the modification was due to his hardline stance against corruption. So therefore, if the political will to curb corruption was there, the appropriate actions would have been taken to bring the perpetrators identified by Garga Haman Adji to book.
ii. Lack of Accountability and Transparency
Government officials who seek to use their public position for private gain violate public trust as well as anticorruption law. Preventing public officials from accepting bribes or otherwise misusing their positions is a key challenge for anticorruption initiatives. Accountability and transparency goes with good governance. Governance involves all those activities which are associated with administering a country or an institution. It is related to decision making that defines expectations of citizens, dispensation of power, verification of performance as well as leadership processes.[406] The aim of governance is ultimately to articulate and align the needs and interests of citizens and establish a social contract that binds different segments together for development of the entire society.[407] Governance is based on authority, responsibility, influence, and accountability. Responsibility requires that decisions will be owned and vouched for, while Accountability holds the official answerable for their decisions and actions.
The International Momentary Fund in partnership with Transparency International and Human Rights Watch published a report in March 2021,[408] accusing Cameroon of scant transparency and lack of accountability in the management of covid-19 emergency funds. This was after the IMF approved two emergency loans of 256 million US Dollar and 156 million US Dollar respectively, in addition to 56 Billion XAF announced by the health minister to be used in the fight against the covid-19 pandemic in Cameroon.[409] The government agreed on the terms of the contract to be publishing reports for the interest of the public on how the covid-19 emergency funds were being managed but did to comply with the terms, and no information was made available to the public on government expenditure and procurement. This action made the IMF to request for an independent audit into the managemenf the covid-19 emergency funds.[410]In reaction to the accusations, the president of the Republic gave an order through the Secretary General at the Presidency to the Vice Prime Minister, who is in charge of “operation sparrow hawk”[411] for an investigation into how the funds were used.[412] 22 cabinet ministers and the Director General for National Security as well as the Supreme Court Justice were enlisted among those to be investigated for allegedly misappropriating covid-19 emergency funds.[413] In a follow up publication, Human Rights Watch called on Cameroon to ensure credibility, rule of law and transparency into the inquiry or investigation of the covid-19 alleged corruption.[414]Similarly, the president of Malawi in an anti-corruption measure in his country fired his Labour Minister and arrested 19 officials for prosecution; this was in reaction to the misappropriation of covid-19 emergency funds in Malawi. The arrest came after an audit revealed Malawian officials used millions of dollars in funds for their expenses.[415]
iii. Difficulty Recovering Stolen Assets and Mitigating the Consequences of Corruption
Punishing corrupt actors is a critical part of international anti-corruption strategies, but punishment does not always repair the damage that the corrupt behavior has caused. Corrupt officials who embezzle government funds have stolen public money that could otherwise have paid for public services or national defense; companies who pay bribes to avoid health inspections, pollute, or violate safety regulations imperil their workers and the communities surrounding their operations. The international community is devoting more resources to the problem of recovering stolen assets and compensating victims of corruption, but theoretical solutions have rarely been tested in practice. In Cameroon equally Law No 2017/012 12th July 2017 establishing the Special Criminal Court was enacted to handle misappropriation and to discontinue proceedings wherein the public official refunds the money stolen.
CHAPTER SIX
SUMARRY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS
6.0 INTRODUCTION
This last chapter of the research presents the findings arrived at by the researcher, conclusion and the possible recommendations that can be made to overcome the challenges faced in eradicating corruption in Cameroon. The researcher in this chapter, therefore, sets out to answer research question five and achieve specific objective five of the research work.
6.1 SUMMARY OF FINDINGS
The research was aimed at critically assessing corruption and its effect on the right to development in Cameroon. In the course of the research, the following findings were arrived at:
Generally, the study revealed that state responsibility under the triple pronged theory to respect, protect and fulfill human rights has been greatly neglected. This is evident from the fact that despite the existence of a legal, institutional and policy frameworks against corruption in Cameroon, the virus still prevails as a result of the lack of political will exercised by the present government which has been in power since 1982, and the non-implementation of constitutional provisions, particularly section 66 of the Cameroonian constitution which provides for declaration of assets by top government officials and persons ranking as such, as provided by law.
Based on the specific objectives one of this studies, the research revealed that Grand corruption is mostly perpetrated by top government officials while minor corruption is committed by under paid civil servants to make up for their low wages. In this light, it also reveals that Grand corruption manifest itself in Cameroon through; Electoral financing and vote buying, Bureaucratic Corruption-Influence Peddling, Judicial Corruption, Corruption in the Budget Processes and Public Finance Management, Corruption in Tax administration as well as Public Procurement, which are the backbone of every state administration and distorts economic growth and development.
The non-respect of article 37(3), which makes provision for separation of power between the three arms of government (judiciary, executive, and legislature) greatly, distorts the smooth functioning of the SCC. This, therefore, makes it difficult for the SCC to effectively carry out its obligations as a judicial arm of government and in its fight against corruption. The National Anti-Corruption Commission (NACC) as well as the Supreme state audit can only exercise jurisdiction by investigating alleged acts of corruption, but the power of prosecution of the individual concern rest on the president of the Republic.
Equally, the study revealed that though the SCC is the main judicial anti-corruption institution, It however, deals with only one kind of corruption: misappropriation of public funds, which occurs only when the misappropriated funds amounts to 50000000 XAF and above. The different kinds of corruption that are stipulated in the Penal Code are therefore left to the jurisdiction of ordinary courts such as Court of First Instance and the High Court.
In addition, the study has revealed that most anti-corruption agencies such as CONAC, CONSUPE, has only a mandate to investigate alleged corruption offenses but has no power of prosecution. All their reports are sent to the president of the Republic who then vetoes whether the accused person should be prosecuted by the SCC or not.
The study has revealed that the UNCAC lacks a monitoring mechanism, and there is no mechanism which makes States parties accountable for their failure to fulfill their obligations under the convention. States parties that do not fulfill their obligations under the convention will be left unpunished. This therefore lives a lacuna in the fight against corruption through the objectives and purpose of the instrument.
Also, the study has revealed that there is no means of sanctioning States parties for their failure to report to the Board which monitors the implementation of the AU-convention against corruption unlike in the reporting process for the African Charter on human and Peoples’ Rights. The Board has no power of investigation and cannot denounce acts of corruption. The AU anti-corruption convention lacks serious and effective mechanism for holding States parties accountable for the obligations they assume under the convention.
In addition, the study reveals that anti-corruption instruments are not uniform in their conception of “acts of corruption” and full of optional provisions with lots of claw-back clauses. This creates problems in international cooperation and uniform implementation. Besides, the weak design of their monitoring mechanisms in the implementation of the anti-corruption strategies creates more chances for the persistence of corruption in Cameroon. The frameworks do not address the situation of the victims of corruption.
Furthermore, the study has revealed that the persistence of corruption in the public sector in Cameroon is caused by impunity and total lack of personal integrity. In this light, the principal-agent theory is not adhered to given that state agents usually crave for personal gains as opposed to the general interest of the population which is the principal. In like manner, the individuals involved in corrupt practices have no respect for their own oath and professional code of conduct or ethics. They rotate from one portfolio to another, following new appointments and promotion with the same bad conscience, shamelessness, greed and non-respect for oaths taken. Non-respect for oaths and lack of integrity breeds corruption and the impact on human rights is enormous as victims cannot avail themselves since they have no locus standi to bring an action against the perpetrator as it is the duty of the state to do so.
Moreover, the study has revealed that though the anti-corruption measures such as prevention criminalization and asset recovery are important in addressing the political and economic impacts of corruption, the human rights impact is left unaddressed (the situation of victims of corruption). It is argued that the assets or funds recovered usually do not benefit the victims of corruption as they are sent directly to the state coffers and may still be laundered or used for something else other than the project for which it was intended for.
Lastly, the study has revealed that corruption hampers the enjoyment of Human rights and economic growth. It leads to further indebtedness of the country, causes chaos and political instability, brain drain as skilled labour exits to seek greener pastures, and results in poverty and low living standards. These conditions have been made possible by the lack of a strong political will to curtail corruption in Cameroon.
Based on the above findings, looking at the theories (triple pronged theory, principal-agent theory and collective action theory) used in analyzing this work, a lot still has to be done to stamp out corruption and thus foster the right to development of the citizens of Cameroon.
6.2 CONCLUSION
Corruption in Cameroon whether grand or minor is bad and thus negatively affects government’s ability to guarantee the respect, protection and fulfillment of Human Rights, especially the right to development by citizens. It hampers economic growth, causes political instability and results in poverty and low living standards. Corruption manifests itself through several channels as revealed by the study in Chapter two. At the national, Regional and international level, numerous instruments as well as institutional mechanisms have been put in place to fight, prevent and end corruption in Cameroon.
Despite registering significant results in recent times, by bringing top government officials before the SCC for alleged corruption offenses, Cameroon’s fight against corruption remains an uphill and monumental task. The reason for this lies in the weaknesses that have plagued the anti-corruption strategies. The lack of political will which is visible in the non-implementation of Article 66 of the Cameroonian constitution demanding the declaration of assets by public authorities has contributed to the elasticity of this virus. Also, the lack of independence and the overshadowing role of the executive over anti-corruption units compromise the smooth functioning of these organs. This can be seen in the judicial organization of Cameroon wherein the President of the Republic is the head of the Higher Judicial Council (HJC), which is the organ in charge of nominating, promoting and sanctioning members of the judiciary. Bechem[416] posits that the executive in Cameroon has always had and still retains absolute control over the judiciary through the appointment of judges and allocation of the budget for the justice department. This mode of operation has often led to criticism of the sincerity of the fight against corruption, notably the ‘Operation Sparrow Hawk’. The selective nature exhibited by the SCC in prosecuting those indicted by reports of the Supreme State Audit Office, CONAC and the Audit Bench of the Supreme Court has led a cross-section of the Cameroonian public to consider it as a means of settling political scores and not a genuine fight against corruption. It is therefore necessary for the existence of the political will to curb corruption in Cameroon, for if all state authorities perform their duties as patriotic citizens, with transparency, accountability and good faith, then we can start talking or see and even be in a country free of corruption like Finland.
6.3 RECOMMENDATIONS
To begin with, corruption (misappropriation of public funds) can be greatly reduced and checked in Cameroon if Government officials would declare their assets before and after holding public office. This is in line with requirement of article 66 of the constitution. Most offenders of the offence of Corruption are high-ranking government officials and the strict application of article 66 will help curb the Corruption pandemic in Cameroon. This is because it will help the government and the Court to determine if an official of the state has misappropriated public funds or not. Therefore, to put an end to public sector corruption, government officials have to be accountable for their wealth and assets as provided in section 66 of the 1996 constitution of Cameroon.
Also, there is the need for committed leadership, accountability and transparency in Cameroon. When there is committed leadership, and where the leaders have the people at heart, corruption is minimized. This is because the leaders will take as priority to check vices such as corruption and thus enhance development within their territory and communities. With the successes recorded by the SCC and the national mood against corruption activated, the continuous prosecution of perpetrators of all kinds of corruption will be warmly welcomed by the Cameroonian people who, for so long, have been deprived of their resources, subjected to systemic deprivation of access to justice and remain the helpless victims of a system that ignores, and condone all kinds of corruption when perpetrated by top political figures.
In the same light, there is need for Separation of powerin Cameroon. Government structures should be organized in the various arms (executive, legislative and judiciary) to ensure the effective control and running of affairs. This will go a long way to fight corruption within these arms given that the will be checks and balances in the system void of any influence.This is contained in Article 37(3) of the 1996 constitution, and a strict implementation of it will go a long way to eradicate corruption in Cameroon.
To put an end to corruption or the misappropriation of public funds in Cameroon, there should be the strict implementation of section 184 alongside Sections 142 and 89 of the penal code. This is to ensure that the offenders are given the maximum punishment and thus deter them and others from committing the offence. In this light, the provision on the entering of a nolle prosequi needs to be repeal given that it rather encourages the commission of the offence rather than deterring offenders from committing it. This is because the offenders are aware of the fact that if they misappropriate public funds, and are caught, they will restitute and be set free.
In addition, the use of human rights implementation mechanisms such as human rights enforcement institutions in anti-corruption strategies will aid in combating corruption more effectively. When acts of corruption are linked to violation of human rights, there are various human rights institutions that could act to force accountability and hence create deterrents for corruption. Accepting the universality and indivisibility of human rights and ensuring equality and non-discrimination in society are some of the key elements of a right based approach to corruption. Expanding the jurisdiction of human rights enforcement institutions such as the national courts as b well as regional courts such as the African Court on Human and Peoples rights would indeed go a long way in curbing corruption. Human rights enforcement mechanisms have been very vigilant in guarding human rights and perhaps this vehemence could be shared by anti- corruption institutions.
Moreover, Ministries, Government institutions and anti-corruption agencies should endeavour to post on their websites all information on contracts, names of contractors, decisions of the procurement, bidders and tender outcomes and contractors’ performance. Majority of Ministries in Cameroon has little or no information available on their websites on their activities and this has left Cameroonians unaware of activities of such ministries.
Furthermore, the National Anti-Corruption Commission (NACC) as the main anti-corruption body in Cameroon needs to have the mandate to prosecute corruption offences. There is also need for this institution to work closely with the media, civil society, the judiciary as well as the Supreme State Audit in the fight against Corruption in Cameroon. A partnership of both anti- corruption institutions such and human rights enforcement institutions is indeed necessary.
Last but not the least, the establishment of a corruption tribunal in the international level will perhaps be necessary. A tribunal which has jurisdiction over corruption per se and entertains all acts of corruption without limit to quantum of claim or the personality of the offender involved. Such a tribunal should have international jurisdiction over all kinds of corruption. Also, grand corruption should be elevated to the status of an international crime. If the crime of corruption is ranked pari-pasu, other international crimes such as war crimes and crimes against humanity, genocide, torture and aggression, the international community will treat it with the seriousness it deserves and cooperate more to eradicate the canker warm in all countries, thereby promoting the respect and fulfillment of human rights around the world.
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NEWS PAPERS
The Guardian Post News Paper: Issue No 2092, Yaoundé, Thursday 11 March 2021.
The Guardian Post News Paper: Issue No. 2115, April 9, 2021
The Sun News Paper: Issue No. 0644, April 14, 2021.
The Star Newspaper Vol. 634 Monday May 24, 2021
Eden Newspaper Issue No. 1209 Monday 24 May 2021.
Le Gideon newspaper, Edition No 234 May 24, 2021.
INTERVIEWS
Unstructured interview with the Southwest Regional Secretary of the National Commission for Human Rights and Freedoms, Mr. Tambe Tiku, 27th of August 2020.
Unstructured interview with Reverend Dr Dieudonne Massi Gams: President of the National Anti-corruption Agency, CONAC. Yaounde, 25 of February, 2021.
Unstructured interview with Retired Justice Ayah Paul Abine: Former Member of Parliament for Akwaya constituency in the Southwest Region, Buea 30 June 2021.
ONLINE SOURCES
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[1] Khulekani Moyo, “An Analysis of The Impact of Corruption on the Realisation of the Right to Development,” South African Journal On Human Rights, (2017)33:2, 193-213, Doi:10.1080/02587203.2017.1357320 https://Doi.Org/10.1080/02587203.2017.1357320
[2] Ibid
[3] Crouch T. I, Cinna (The Poet) Oberon Books London, (2012) Uk
[4] Tanzi V. Corruption Around The World: Causes, Consequences, Scope, and Cures. Mf Staff Papers, (1998) 45:P. 559-594
[5] See Preamble of The United Nations Convention Against Corruption (UNCAC)
[6] Ibid., see Art 1
[7] Ibid., see Art 5
[8] African Union Convention on Preventing and Combatting Corruption Adopted In Maputo (Mozambique) On The 11th Of July 2003.
[9] Hervé Magloire Moneboulou Minkada (2012) Le Tribunal Criminel Spécial Au Cameroun Et Les Grands Principes De La Justice Criminelle: Étudecomparative Sur Les Lois De 1961 Et 2011. https://www.tribunajuridica.arhiva/An2v2/art12.pdf last accessed April 2020
[10] E.E, Bechem, “Corruption in Cameroon: Public Perception on the Role and Effectiveness of the Different Anti -Corruption Agencies.” Review Pub Administration Manag. (2018) pg.2. 6: 235 Doi: 10.4172/2315-7844.1000235
[11] Ibid.
[12] C. Raj Kumar, “Corruption, Human Rights and Development: Sovereignty and State Capacity to Promote Good Governance” American Society of International Law, Vol. 99 (2005), pp. 416-419
[13] Anne Peters, “Corruption As A Violation of Human Rights” The European Journal of International Law (2018), Vol. 29, No. 4 pp 1251-1287
[14] Human Rights Treaty Bodies – Sustainable Development Goals https://sustainabledevelopment.un.org pdf visited June 8, 2021
[15] Transparency International: Corruption perception Index Report 1999 on Cameroon, See Also Corruption in Cameroon by Fredrich –Ebert – Shifting Foundation.
[16] Ibid
[17] C. Raj Kumar, op cit.
[18] B. A., Olken, & R., Pande, ‘Corruption in Developing Countries’, Annu. Rev. Econ., 2012, 4(1), P.479.
[19] ibid
[20] Hervé Magloire Moneboulou Minkada (2012) op cit.
[21] Penal Code of Cameroon. retrieved at https://tobaccocontrollaws.org pdf (last accessed April 11 2020)
[22] Ibid4
[23] Gerddes-Cameroon “Corruption In Cameroon”, Friedrich-Ebert-Stiftung Germany.(1999)
[24] Ibid
[25] EE. Bechem, Op Cit pg 1
[26] H.K, Mohajan. “Qualitative Methodology in Social Sciences and Related Subjects,” Journal of Economics +Development, Environment and People, (2018) Vol-7, Issue O1, 2018, Pg 23-48
[27] ibid
[28] Qualitative and Quantitative Research: Objective or Subjective? https://exploration.com (accessed on June 12, 2021.)
[29] E.E, Bechem, “Corruption in Cameroon: Public Perception on the Role and Effectiveness of the Different Anti -Corruption Agencies.” Review Pub Administration Manag. (2018) pg.2. 6: 235 Doi: 10.4172/2315-7844.1000235
[30]A. A. Agbor, Prosecuting the Offence of Misappropriation of Public Funds: An Insight Into Cameroon’s Special Criminal Court” Per / Pelj 2017(20) – Doi https://Dx.Doi.Org/10.17159/17273781/2017/V20n0a770
[31] Law No 2011/028 Of 14th December 2011 To Set Up The Special Criminal Court
[32] See Law No. 003/2006 Of 25 April 2006 Relating To The Declaration Of Assets And Property; Art 66 Of The 1996 Constitution Stipulates As Follows: “The President Of The Republic, The Prime Minister, Members Of Government And Persons Ranking As Such, The President And Members Of The Bureau Of The National Assembly, The President And Members Of The Bureau Of The Senate, Members Of Parliament, Senators, All holders Of An Elective Office, Secretaries-General Of Ministries And Persons Ranking As Such, Directors of The Central Administration, General Managers Of Public And Semipublic Enterprises, Judicial And Legal Officers, Administrative Personnel In-Charge Of The Tax Base, Collection And Handling Of Public Funds, All Managers Of Public Votes And Property, Shall Declare Their Assets And Property At The Beginning And At The End Of Their Tenure Of Office. The Other Categories Of Persons To Whom The Provisions Of This Article Shall Apply And The Conditions Of Implementation Thereof Shall Be Determined By Law
[33] [33] Khulekani Moyo, “An Analysis of The Impact of Corruption on the Realisation of the Right to Development,” South African Journal On Human Rights, (2017)33:2, 193-213, Doi:10.1080/02587203.2017.1357320 https://Doi.Org/10.1080/02587203.2017.1357320
[34] Anaedozie, F. (2017) “A Critical Analysis of Grand Corruption With Reference To International Human Rights and International Criminal Law: The Case of Nigeria.” Doctoral Thesis, 2017. Doi:10.21427/D7v983
[35] Khulekani, Op Cit
[36] Anne. P, “Corruption as a Violation of International Human Rights,” op cit pg iv
[37] Nicolai. S, Anti-Corruption Agencies: Why Do Some Succeed and Most Fail? A Quantitative Political Settlement Analysis. International Dessertation (2015)
[38] Anti-corruption Modole 4 key Issues: Theories that explain Corruption. https://www.undc.org
[39] R. Klitgaard, Controling Corruption, University of California Press (1988)
[40] N. “A Groenendijk, Principal-Agent Model of Corruption. Crime, Law and Social Change, (2017) 27 (4) 207-229. https://doi.org/10.10.1023/A:1008267601329
[41] Groenendijk, N. op cit
[42] Ibid.,
[43] Persson, A., Rothstein, B., & Teorell,J “why Anti-Corruption Reforms Fail—Systematic Corruption as A collective action problem. Governance, (2013) 26 (3), 449-471
[44] H., Marquette, & C. Peiffer, “Grappling with the real politics of systemic corruption: Theoritical Debates verses Real-world Functions. Governance, (2018) 31,(3), 499-514.
[45] Person, A., Rothstein, B., & Teorell,J. Supra.
[46] Appolloni, Andrea, and Jean Marie Mushagalusa Nshombo. “Public Procurement and Corruption in Africa: a literature review. In Francesco Decarolis and Marco Fray, eds Public Procurement’s Place in the World: the Change towards Sustainability and Innovation, Palgrave McMillan, Basingstoke.(2018)
[47] Henry Shue, Basic Rights; Subsistence, Affluence And Us Foreign Policy (Prinston University Press 1980)
[48] Obligations Affirmed by the Maastricht Guidelines on the Violence of Economic, Social and Cultural Rights 1997.
[49] Speech Of The Chairman Of The National Anti-Corruption Commission On The Signing Ceremony Of: – A Cooperation Agreement Between The National Anti-Corruption Commission (NACC) And The Public Contracts Regulatory Board (Armp), On The One Hand And – A Memorandum Of Understanding And Cooperation Between The National Anti-Corruption Commission (NACC) And The Business Coalition Against Corruption (BCAC), Yaounde, July 2015.
[50] Some cases of Corruption that have been investigated by CONAC and which have been brought before the SCC include among others (1)The People of Cameroon V. NGWE Anastasie, AKOM TAWANI TEKU Calicious, NGO BIKAI Marthe marries, NDJIP ACHIDI FORBA Ernest, TANAYEN Anthony and CHO FORBA Edwin (judgment no- 201 / CRIM) (2) The state of Cameroon V. Alioum Bappa Issa ( ARRET No 028/CRIM/TCS DU 28 OCTOBRE 2014 Affaire Ministere Public Et La Cameroon Postal Services(Campost) V. Abakar Mansale (Arret No 011/Crim/Tcs Du 02 Avril 2014 (3) The Public Ministry and the state of Cameroon V. Haman Adama nee Halimatou Kangue and 12 Others, SUIT No. 026/CRIM/TCS of September 2013
[51] Economic Emergence Action Plan https://www.prc.com (accessed April 10 2021.)
[52] https://twitter.com/NkwainAkem/status/138029919601696770?s=19 (accessed April 10 2021.)
[53] Bechem , E.E, Op Cit, P.1.
[54] Transparency International Corruption Perception Index 1999 https://images.transparencycdn.org pdf last accessed May 1 2020
[55] See Art 66 Of The 1996 Constitution Which Stipulates As Follows: “The President Of The Republic, The Prime Minister, Members Of Government And Persons Ranking As Such, The President And Members Of The Bureau Of The National Assembly, The President And Members Of The Bureau Of The Senate, Members Of Parliament, Senators, All holders Of An Elective Office, Secretaries-General Of Ministries And Persons Ranking As Such, Directors of The Central Administration, General Managers Of Public And Semipublic Enterprises, Judicial And Legal Officers, Administrative Personnel In-Charge Of The Tax Base, Collection And Handling Of Public Funds, All Managers Of Public Votes And Property, Shall Declare Their Assets And Property At The Beginning And At The End Of Their Tenure Of Office. The Other Categories Of Persons To Whom The Provisions Of This Article Shall Apply And The Conditions Of Implementation Thereof Shall Be Determined By Law
[56] Henry Campbell, Black’s Law Dictionary, St. Paul, Minn. West Publishing Co, 6th Ed,1990, P.414
[57] See www.Nber.Org/Papers/W10952, last visited, 27/02/2020
[58] World Bank Development Report 1996:95
[59] Bayley David, “Effects Of Corruption In Developing Countries “,The Western Political Quarterly, Vol.19,1996,P.719
[60] Nye J.S, “Corruption And Political Development: A Cost Benefit Analysis”, American Political Science Review ,Vol. 61,1967,P. 566-56
[61] Garga Haman Adji Speaking In A Workshop On Corruption Organized By Gerddes-Cameroon On 24 March 1999
[62] See Gerddes-Cameroon, (1999) op cit,P.34
[63] M., Todaro, Economic Development In The Third World, London, Longman, 1977
[64] Heidenheimer, A Et Al., Political Corruption: A Handbook, Usa Transaction Publishers, 1989.
[65] Ibid.
[66] N, Jacobs., Modernization with Development: Thailand as an Asian Case Study (New York: Praegar, 1971).
[67]See Art 1.1, Declaration On The Right To Development
[68] See Art 22(1), African Charter On Human And People’s Right
[69] See Art 1.2, Declaration On The Right To Development, op.cit,
[70]Ibid., see Preamble
[71] W, Rebecca,. International Human Rights Text And Materials(Sweet And Maxwell Ltd, London 1997)
[72] Ibid
[73]Rio Declaration on Environment and Development – the United Nations: A/Conf.151/26 (Vol3) August 14, 1992.
https://www.un.org pdf Last Visited June 2 2020
[74]Thusitha, P. The Impact of Corruption on Human Rights Base Approach to Development, 2005 https://www.albacharia.ma0284_The_Impact_of_Corruption_on_Human_Rights_Base_Approach_to_Development(2005)r.pdf accessed August 8 2020.
[75] Lectric Law Library Lexicon www.lectlaw.com/def/c314.htm
[76] Transparency International Report 1999 https://www.transparency.org/en/cpi/1999#
[77]Democratic Governance-The United Nations https://www.un.org/ruleoflaw/files/11%20Presentation%20Corruption%20and%20Development_2008.ppt
[78] Opinion expressed by Madam Acha Rose Fomundam, Minister Delegate at the Presidency in charge of Supreme State Audit.
[79] Gerddes-Cameroon, “Corruption In Cameroon,” Friedrich-Ebert –Stiftung,1999,
[80] Ibid
[81] Unstructured interview with the Southwest Regional Secretary of the National Commission for Human Rights and Freedoms, Mr. Tambe Tiku on the 27th of August 2020.
[82] ibid
[83] ‘Sex for grades’: Undercover in West African Universities-What happened behind closed doors, BBC EYE ON AFRICA. https://www.bbc.com/news/av/world-africa-49907376 accessed on 03 August 2020.
[84] Gerddes-Cameroon, op cit.
[85]Michael K.L, “The Patterns of Corruption in Christian Churches of Cameroon: the Case of the Presbyterian Church in Cameroon”. Transformation An International Journal of Holistic Mission Studies 32(2):132-144 DOi:10.1177/0265378819724 (2014)
[86] The world Bank, Anticorruption in Transition; A contribution to the policy debate, 2000
[87]Thusitha. P, op cit
[88] Gerddes-Cameroon, op cit.
[89] Ibid
[90] Thusitha. P, Supra
[91] Soest, C. How does neopatrimonialism affect the African state’s revenues? The case of tax collection in Zambia. The Journal of Modern African Studies, (2007). 45(4), 621-645. doi:10.1017/S0022278X0700290X
[92] Lederman, D., Loayza, N.V. and Soares, R.R., 2005. Accountability and corruption: Political institutions matter. Economics & politics, 17(1), pp.1-35.
[93] Theron, P.M., 2013. Corruption in Sub-Saharan Africa: A practical-theological response. In die Skriflig, 47(1), pp.1-8
[94] Dassah, M.O., 2008. Is there a hole in the bucket? Identifying drivers of public sector corruption, effects and instituting effective combative measures. Journal of Public Administration, 43(Special issue 1), pp.37-62.
[95] 7 of Presidential Decree No 2013/131 of 03 May 2013
[96] M. Ohman, Funding of Political Parties and Election Campaigns: A Handbook on Political Finance, International Institute for Democracy and Electoral Assistance (2014). pg 11.
[97] US State Department Report on the human rights situation in Cameroon (2019) https://cm.usembassy.gov/official-reports/ pdf accessed august 29 2020.
[98] M. Ohman, supra
[99] Decree No, 77-245 0f July 1977, To Organize Chiefdoms.
[100] Live broadcast of Constitutional Council proceedings in Yaounde by CRTV: Presidential election hearing petitions. https://www.crtv.cm accessed 8 August 2020
[101] Agbor Balla: Talks about the Anglophone Crisis to the Constitutional Council. https://youtu.be/nltKUg6V0fk accessed 8 August 2020
[102] Inaugural address by H.E. Paul Biya: On the occasion of the Swearing-in ceremony of the President of the Republic. https://prc.cm/en/news/speeches-of-the-president-of-cameroon-on-the-occasion-of-the-swearing-in-ceremony-6-november-2018 accessed August 8 2020.
[103] Constitutional Council proclaims Biya Paul Winner with 71.28% of 2018 presidential elections. https://www.crtv.cm/2018/10/2018-presidential-election-constitutional-council-proclaims-biya-paul-winner-with-71/ accessed August 8 2020.
[104] Cameroon, Maurice Kamto: La resistance au hold-up electoral ne fait que commencer https://www.Camer.be April 27, 2021
[105]BBC News, Yaounde, retrieved at https://www.bbc.com (accessed 27 August 2020)
[106] Fonching, Tangie Nsoh. “Multipartysm and Democratisation in Cameroon.” Journal of Third World Studies, vol.15,no.2, 1998, pg 5. JSTOR, www.jstor.org/stable/45193767 (Accessed August 27 2020)
[107] M. Ohnan, Op, Cit. pg 11
[108] Ayah Paul Abine: Speaking at an event organized by Centre for Human Rights and Democracy in Africa (CHRDA), to commemorate World Democracy day in Buea-Cameroon, 15 September 2020. He is a retired Supreme Court Justice, and 2011 Presidential candidate and former Member of Parliament for Akwaya in Manyu Division of the South West Region.
[109] Political party and campaign financing is regulated by Law No. 2000/15 of 19 December 2000. The law
Establishes a national public financing regime in which political parties receive financing before elections as per their seats in the both houses of assembly and after elections as per their electoral performance. The law also funds candidates prior to elections and after elections as per their results. Cameroon does not regulate political financing to political parties or to candidates from private individuals.
[110] This is a strong argument raised by Prof Maurice Kamto of the MRC party who has unceasingly called for street protest to call on the government to reform the electoral code of Cameroon which they argue only favours the ruling party CPDM.
[111] Commercialized Electoral Processes in the Country: PLO Lumumba Speaks at the National Symposium in Uganda 2019. https://youtu.be/7CKMfDam7T4 accessed 8 August 2020
[112] See 1996 Constitution of Cameroon.
[113] Transparency International, ‘Cameroon:Overview of Corruption and Anti-Corruption. Retrieved at https://wwwtransparency.org pdf ( accessed 30 April 2021)
[114] ibid
[115] ibid
[116] ibid
[117] EcoMatin News Paper; Available online at https://ecomatin.net accessed on 29 of February 2020
[118] GCR 2016-2017 – Bihttps://unpo.org/article/4957ng, last accessed on 01/ 04/2021
[119] HRR https://unpo.org/article/49572016 – Bing, last accessed on 01/ 04/2021
[120] GCB Annual Report – 2015 – GCB Bank Limited
[121] Ibid 2
[122] Bertelsmann Stiftung. Transformation Index BTI 2016: Cameroon. Retrieved from
http://www.bti-project.org/en/reports/countryreports/detail/itc/CMR/ity/2016/ (accessed 30 April, 2021)
[123] Ibid.
[124] Transparency international, Topic_guide_on_judicial_corruption_.pdf (transparency.org)
[125] The former president of the Maldives, Mohamed Nasheed,
[126] In June 2016, New York State Supreme Court Judge John A. Michaelek pleaded guilty to receiving bribes and offering a false instrument for filing in a court case involving a political operative named G. Steven Pigeon (who was also indicted for nine charges including bribery, extortion and grand larceny). Prosecutors alleged that Michaelek reached an understanding with Pigeon that the judge would engage in “official misconduct which advanced Pigeon’s interests.” As part of the arrangement, Pigeon helped relatives of Michaelek find employment and provided Michaelek with tickets to hockey games and a political fundraiser. . In 2011, Munir Patel, a court clerk in the U.K., became the first person to be imprisoned under the U.K.’s Bribery Act. Patel took bribes from motorists charged with traffic violations to help them avoid prosecution by using his privileged access to the court system. He actively solicited bribes by telling individuals that if they appeared in court, magistrates would be racially prejudiced against them.
[127] Bribery on the Bench: A Look at Judicial Corruption https://unpo.org/article/4957cial Corruption (acfe.com)
[128] https://www.spm.gov.cm pdf, (accessed on 30 April, 2021)
[129] Transparency International, ‘Cameroon:Overview of Corruption and Anti-Corruption. Op cit
[130] Ibid
[131] https://www.cmi.no/publications/2559-the-budget-process-and-corruption, last accessed on 11/03/2021
[132] https://betterprogramming.pub/javascript-es2016, last accessed on 06/04/2021
[133] Ibid 1
[134]Ibid 2
[135] Transparency international
[136] GCB Annual Report – 2015 – GCB Bank Limited
[137] Tax Administration And Corruption Topic Guide Compiled By The Anti-Corruption Helpdesk http://www.cmi.no/publications/publication/?2558=revenue-administration-and-corruption (accessed May 6, 2021)
[138] https://www.oecd.org last accessed May 28 2021.
[139] Ibid
[140] African Development Bank, ‘Comprehensive Review of the AFDB’s Procurement Policies and Procedures: Summary of Literature on Fraud and Corruption in Public Procurement. March 2014. https://www.afdb.org pdf, last accessed May 28, 2021.
[141] Premier Rapport D’audit de la Chambre des Comptes: Sur L’utilisation des Resources du Fonds Special de Solidarite Nationale Pour la Lutte Contre le Corona Virus, March 2021.
[142] “Cameroon – United States Department of State” https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/cameroon/ Last accessed may 25, 2021.
[143] Arrest in Cameroon for Corruption, or Challenges to Biya? https://www-voanews-com.cdn.amproject.org/v/s/www.voanews.com/africa/arrests-cameroon-corruption-or-challenges-biya? Lass accessed 1 June 2021
[144] “Cameroon – United States Department of State” https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/cameroon/ (Last accessed may 25, 2021.
[145] Ibid
[146] https://www.hrw.org/news/2021/03/30/imf-scant-transparency-covid-19-emergency-loans (last accessed May 25, 2021)
[147] “Cameroon – United States Department of State” https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/cameroon/
[148] Ibid
[149] Le Gideon newspaper, Edition No 234 May 24, 2021, pg 3
[150] The Star Newspaper Vol. 634 Monday May 24, 2021
[151] Eden Newspaper Issue No. 1209 Monday 24 May 2021.
[152] Voice of America News
[153] Cameroon State Audit Questions Ministries’ Use of COVID-19 Funds, Says Report. https://mobile-reuters-com.cdn.amprproject.org/v/s/mobile.reuters.com/article/amp/idUSL3N2N83HQ?usqp=mq331AQTKAFQApgBoreb29ym4ISNAbABIA%3D%3D&-js=a6&am_gsa=1#referrer=https://www.google.com&csi=0
[154] OHCHR | Milestone events in the right to development https://www.ohchar.org (accessed march 14 2021)
[155] UN General Assembly resolution 1161 (XII), 1957
[156] International Conference on Human Rights, held in Tehran, Islamic Republic of Iran, 1968
[157] Declaration on Social Progress and Development, 1969 (in its resolution 2542(XXIV))
[158] UN Commission on Human Rights, resolution 4 (XXXIII), 1977
[159] Resolution 36 (XXXVII) of 11 March 1981,
[160] United Nations General Assembly resolution 41/128
[161] See article 1 of the Declaration on the Right to Development
[162] The Vienna Declaration and Program of Action, 1993
[163] The Millennium Declaration of 2000
[164] See the Declaration on the Right to Development, article 1
[165] See the Declaration on the Right to Development, article 2
[166]ibid, article 3
[167] Ibid article 4
[168] Ibid, see art. 5.
[169] Ibid, see art. 6.
[170] Ibid, art. 7.
[171] Ibid, see art. 8.
[172] Ibid., see art. 9.
[173] Ibid., see art. 10.
[174] Anaedozie, F. A Critical Analysis of Grand Corruption With Reference To International Human Rights and International Criminal Law: The Case of Nigeria. Doctor al Thesis, (2017)
[175] Ibid. pg ii
[176] Ibid.,
[177]Morten Kjaerum, “The Nexus between Corruption and Human Rights” A review of the Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund (2018)
[178] Ban Ki Moon, UNSG in his Statement at the launch of the Stolen Asset Recovery (StAR) initiative’ on 17 September 2007
[179] Khulekani Moyo, op cit
[180] Ibid.,
[181] Ibid.,
[182] C. Raj Kumar, op cit
[183] corruption – Search (bing.com) .
[184] In a panel discussion of the UN Human Rights Office on 13 March 2013, during the 22nd session of the Human Rights Council
[185] Ibid
[186] Ibid
[187] Supra
[188] The previous UN expert mechanisms on the right to development include the Working Group of Governmental Experts on the Right to Development (1981-1989); the open-ended Working Group of Governmental Experts on the Right to Development (1993-1995); the Intergovernmental Group of Experts on the Right to Development (1996-1997); and the independent expert on the right to development (1998-2004)
[189] See document A/HRC/15/WG.2/TF/2/Add.
[190] See article 2(1) of the Covenant on economic, social and cultural rights, 1966
[191] Rights monitoring and indicators; https://unpo.org/article/4957ors – GSDRC (accessed Mach 14 2021)
[192] The Committee on Economic Social and Cultural Rights; Adopted by the World Conference on Human Rights, Vienna, 25 June 1993 (A/CONF. 157/24(PART I), Chap III)
[193] The Committee Against Torture. The convention against torture and other cruel Inhumane or Degrading treatment or punishment was adopted on 10th December 1984 by the United Nations General Assembly. The committee against torture was established pursuant to article 17 of the convention and began to function on 1 January 1988.
[194] Law No. 2004/016 of 22 July 2004 to set up national commission on human rights and freedoms
[195] See art 1 of The UNCAC
[196] Ibid. See art. 5.
[197] Law No. 2008/001 of 14 April 2008 to amend and supplement some provisions of law no 96/6 of 18 January 1996 to Amend the Constitution.
[198] Council of Europe Criminal Law Convention ON Corruption, https://1997-2001.state.gov (pdf) last accessed, 3rd June 3, 2021.
[199] Ibid
[200] Ibid
[201] Ibid
[202] Ibid
[203] Preamble of the OECD Anti-Bribery Convention
[204] Ibid
[205] See art. 1 of the OECD Anti-Bribery Convention
[206] Art. 10 of the OECD Anti-Bribery Convention
[207] African Union Convention On Preventing And Combatting Corruption Adopted In Maputo (Mozambique) On The 11th Of July 2003.
[208] https://www.prc.cm/en/news/the-acts/decrees/4191-decree-no-2020-166-of-1-april-2020-to-ratify-the-african-union-convention-on-preventing-and-combating-corruption-adopted-in-maputo-mozambique-on-11-july-2003 ( Accessed 10 August 2020)
[209] Gerddes Cameroon, Op cit
[210] President Biya’s Speech,
[211] See Section 134 of law no 2016/007 of July 2016, relating to the penal code. Op. cit
[212] Ibid., see Sec 134(1)
[213] Ibid., see Sec 134(1)(2)
[214] Ibid., see Sec134(2)
[215] Ibid., see Sec 134 PC
[216] Ibid., see Sec 314 PC
[217] Ibid., see Sec 184 PC
[218] Section 2 of Law No. 2011/28 of 14 December 2011 states ‘’ the court shall be competent to hear and determine matters, where the loss amounts to at least fifty million (50.000.000) XAF relating to misappropriation of public funds and other related offences provided for in the penal code and international conventions ratified by Cameroon
[219] See Sec 137 of the PC, Op.Cit.,
[220] See Sec. 6 of Law No. 2011/b28 of 14 December 2011, Op. Cit
[221] See Sec.116 to 126 of the criminal procedure code relating to police investigation and remand in custody
[222] See Sec. 142 to 156 relating to the conduct of preliminary inquiry, and section 164 to 166 relating to the procedure during the preliminary inquiry
[223] See Art. 92 of Law No. 2005/007 of July 2005 Relating to the Criminal Procedure Code.
[224] United Nations Office on Drugs and Crimes: Frequently Asked Questions on International Law Aspects of Countering Terrorism, pg 45.
[225] National Anti-Corruption Commission/ Anti- Corruption Authorities Portal https://www.acauthorities.org (Accessed March 14 2020)
[226] Ibid
[227] Transparency International Corruption Perception Index 1999, Op. Cit
[228] Nguemegne JP (2011) ”Fighting corruption in Africa: The anticorruption system in Cameroon” Int. J Org Theor Behav 14:83-121
[229] Monde Afrique, Cameroun: L’impitoyable machine judiciaire de Paul Biya, Cameroon (2015)
[230] Afrique L, Cameroun: Quelle stratégie de lutte contre la corruption au sein de l’administration publique? (2011)
[231] Section 2, LAW No 2012/o11 of 16 July 2012 to amend and supplement certain provisions of Law No 2011/28 of 14 December 2011 to set up a special criminal court
[232] Art 1 of law No 2013/287 of 4 September 2013 to organize the Supreme State Audit.
[233] Art 2(1)
[234] art
[235] Article 3: (1) The State Superior Control services contribute to the sanction of the authorizing officers and managers of public funds, under the conditions provided for by the laws and regulations in force. As such, the Minister Delegate in charge of State Superior Control chairs the Council for Budgetary and Financial Discipline, the organization and operation of which are fixed by a specific text.
[236] See section 62,Law No 2019 of 19 July 2019 relating To the Establishment, Organization and Functioning of the Cameroon Human Rights Commission.
[237] Centre for Human Rights and Democracy in Africa (CHRDA) https://www.chrda.org (accessed February 2020)
[238] Ibid
[239] Symposium on Corruption and its Implications for Human Rights: Centre for Human Rights and Democracy in Africa, Alliance Franco-Camarounaise Center, Buea, 25 June 2009. https://fakoamerica.typepad-com/files/kofele-kale-keynote-address.pdf (accessed February 2020)
[240] Economic Crimes and International Justice: Elevating Corruption to the Status of a Crime in Positive International Law CHRDA 2009 https://fakoamerica.typepad-com/files/kofele-kale-keynote-address.pdf (accessed February 2020)
[241] ibid
[242] ibid
[243] https://www.chrda.org accessed August 2020)
[244] The Kilimanjaro Declaration –Africans Rising https://www.africans-rising.org/the-kilimanjaro-delcaration/ (accessed august 30 2020.)
[245] https://www.chrda.org (accessed February 2020)
[246] ibid
[247] Bechem, E,E, op cit.
[248] Tonga Benjamin https://www.chrda.org (Last access, February 20, 2020)
[249] Gerddes-Cameroon(1999) op. cit, pg 17-22
[250] Ibid
[251] Ibid
[252] Nguemegne JP (2011) ”Fighting corruption in Africa: The anticorruption system in Cameroon” Int. J Org Theor Behav 14:83-121
[253] Gerddes-Cameroon (1999) op cit
[254] Monde Afrique, Cameroun: L’impitoyable machine judiciaire de Paul Biya, Cameroon (2015)
[255] “Panic as Operation Sparrow Hark Claws ex-gov’t officials- The Sun Newspaper, Cameroon” https://thesuncameroon.cm/index.php/2018/03/27/panic-operation-sparrow-hawk-claws-ex-govt-officials/
[256] ibid
[257] ibid
[258] Fighting Corruption: “National Gendarmarie launches Tall Free number 1501”-Cameroon Radio Television https://www.crtv.cm/2019/04/fighting-corruption-gendarmerie-launches-tall-free-number-1501/
[259] ibid
[260] ibid
[261] Cameroon: “At least 100 Gendarmarie Officials Sanction” https://www.cameroon-info.net/article/Cameroon-fighting-corruption-at-least-100-gendarmarie-officals-sanctioned-343725.htnl
[262] ibid
[263] United Nations Sustainable Development Goals https://sdgs.un.org/goals last accessed June 3, 2021
[264] ibid
[265] ibid
[266] ibid
[267] Morten Kjaerum, “The Nexus between Corruption and Human Rights” op cit pg 16.
[268] UNDP Support to National Partners in Anti-Corruption https://www.un.org pdf. Last accessed June 3, 2021.
[269] ibid
[270] ibid
[271] Global Thematic Programme on Anti-Corruption for UNDP https//www.undp.org pdf, last accessed June 3, 2021
[272] UNDP Work on Anti-Corruption https://www.un.org pdf. Last accessed June 3, 2021.
[273] UNDP Support to National Partners in Anti-Corruption https://www.un.org pdf. Last accessed June 3, 2021.
[274] Ibid
[275] Ibid
[276] UNDP Global Programme on Anti-Corruption for Development Effectiveness (PACEDE)(2008-2013) https://www.undp.org pdf last accessed June 3, 2021
[277] Morten Kjaerum, “The Nexus between Corruption and Human Rights” op cit pg 16.
[278] see Art 1 UNCAC
[279] Gebeye B.A, Rethinking International Anti-corruption Conventions: Advancing corruption-Free Service as a Human Right. LLM thesis (2011) https://digitalcommons.wcl.american.edu (accessed on 25 April 2021) pdf
[280] see UNCAC art 60-62
[281] ibid., see art 44
[282] ibid., see art 46
[283] Guardian Post News Paper, Issue No. 2115, April 9, 2021. Pg. 3
[284] ibid., see art 54-56
[285] ibid., see art 51-59
[286] The Sun News Paper: Issue No. 0644, April 14, 2021. Pg 1
[287] see Gebeye B.A, (2011), op.cit.
[288] A. Argandona,‘The United Nations Convention Against Corruption and its Impact on International Companies, (2006), Working Paper WP No. 6 56, IESE Business School, University of Navarra, available at,http://www.iese.edu/research/pdfs/DI-0656E.pdf (accessed 4April2021).
[289] See art. 15. UNCAC, supra.
[290] Ibid, see art 16(1)
[291] See Art. 25.
[292] Ibid, see Art. 7.
[293] Ibid, see art. 8.
[294] Ibid, see art. 9.
[295] Ibid, see art. 11.
[296] Ibid, see art. 14
[297]Ibid, see art. 12.
[298] Ibid, see art. 32.
[299] Ibid., Art. 5 (1).
[300] Ibid., Art. 5(3).
[301] Ibid., Art.5 (8).
[302] see Gebeye B.A, (2011), op.cit. pg 61.
[303] See, AU anti-corruption convention, op.cit., Art. 7 (1).
[304] Ibid., Art.7 (5)
[305] Ibid., Art. 13.
[306] Ibid., Art. 15.
[307] Ibid., Art. 16.
[308] Ex- Cameroon minister arrested in Nigeria an extradited to Cameroon: Reuters report. https://www.reuters.com (accessed 30 april, 2021)
[309] French Cameroon Politics: Biya drops case against ex- minister. https://www.cameroonintelligencereport.com (accessed 30 April, 2021)
[310] See the AU anti-corruption convention, Art.16 (2)(3).
[311] see Gebeye B.A, (2011), supra. pg 63.
[312] See the AU anti-corruption convention, art 22, op.cit.,
[313] Ibid., Art. 22(5)
[314] Ibid., see Art. 22(7).
[315] see Gebeye B.A, (2011), op.cit. pg 65.
[316] ibid
[317] law no. 2008/001 of 14th April 2008 to amend and supplement some of the provisions of law no. 96/6 of 18th January 1996 to amend the Constitution of 2 June 1972.
[318] ibid.
[319] Henry Shue, op,cit.
[320] Obligations Affirmed By the Maastricht Guidelines on the Violence of Economic, Social and Cultural Rights 1997.
[321] See Art 66 of the Constitution of Cameroon. https://www.assnat.cm pdf. (Accessed April 19 2021)
[322]Art 6 of Law No. 2006/3 of 25 April 2006 on The Declaration of Assets and Properties,
[323] Corruption perceptions index 2020, Transparency international retrieved at https://images.transparencycnd.org pdf (access April 26 2021)
[324] Corruption Perceptions Index – Transparency International retrieved at https://www.transparency.org pdf
[325] IMF: Scant Transparency for Covid-19 emergency Loans. retrieved at https://www.hrw.org/news/2021/03/30/imf-scant-transparency-covid-19-emergency-loans (accessed April 26, 2021)
[326] Cameroon: Ensure Credible Inquiry in Covid-19 Funds. retrieved at https://www.hrw.org/news/2021/04/23/Cameroon-assure-credible-sur-la-gestion-des-fonds-des-lutte-contre-le (accessed on April 26, 2021)
[327] The Guardian Post News Paper: Issue No 2092, Yaoundé, Thursday 11 March 2021. Pg 3
[328] Ibid
[329] Unstructured interview with Reverend Dr. Dieudonne Massi Gams, President of the National Anti-corruption Agency, CONAC. Yaounde, 25 of February, 2021.
[330]See section 7 of Law No. 2012/001 of 19 April relating to the Electoral code. https://aceproject.org pdf (accessed on April 26, 2021)
[331] ibid, see section 12
[332] Center for Urban and Regional Analysis: A Division of the Douglas Wilder School of Government and Public Affairs. https://cuva.vcu.edu (accessed 27 April 2021)
[333] ibid
[334] ibid
[335] See sections 164 and 166 of Cameroon Penal Code. retrieved at https://tobaccocontrollaws.org pdf (accessed, 27 April 2021)
[336]Holy Bible, King James Version. retrieved at https://www.openbible.info (accessed, 27 April 2021)
[337] ibid
[338] ibid
[339] Gould DJ Administrative corruption: incidence, causes, and remedial strategies. (1991) In: Farazmand A (ed). Handb Comp Dev Public Admin 467-480
[340] UN Secretary-General Antonio Guterres, 15 October 2020.
[341] Randy Joe Sa’ ah, BBC News, Yaounde, retrieved at https://www.bbc.com (accessed 27 April 2021)
[342] ibid
[343] Eden News Paper online; https://www.edennewspaper.net (accessed 27 April 2021)
[344] ibid
[345] See generally the judgments delivered by the Special Criminal Court in cases involving the individuals named above.
[346] See law No2011/128 of 14 December 2011, section 2
[347] See law No2011/128 of 14 December 2011, section 7 (6)
[348] Charge No 012/RG-TCS/2014 AND Judgment No 13/TCS/2014
[349] The Public Ministry and the State of Cameroon v. Haman Adama Nee Halimatou Kangue Maonde Baoro Born Azo’o Nkoulou Christine, Malonga Isoa Nee Nnoukou Annick Joell e, Willayi Richard, Zega Stanislas, Mvondo Nyina Barthélemy, Mbeng Boniface Blaise, Besong John Besong, Ntsama Zoa Pierre, Ngo Um Deborah Angele, Fouda Francois, Matat Joseph, Mekougou Onoa Joseph, and Lebongo Blaise (Suit No. 026/Crim/Tcs Of September 2013)
[350] ARRET No 011/CRIM/TCS DU 29 Avril 2016
[351] Affaire Ministere Public Et La Cameroon Postal Services(Campost) V. Abakar Mansale (Arret No 011/Crim/Tcs Du 02 Avril 2014
[352] HCF/114c/05/2006 in the trial court list and suit No CASWR/41c/2010 for the appeal court
[353] Suit No HCK/94C/2005 for the trial court and suit No CASWR/3c/2008
[354] Charge No 012/RG-TCS/2014 AND Judgment No 13/TCS/2014
[355] In this case, the accused was committed for trial on five (5) counts charge; in count one he was charged with misappropriation of state property worth sixty-seven million five hundred and seventy-nine thousands seven hundred and thirty-five (XAF 67,579737), under section 184(1) (a) of the penal code, count II charged him with forgery of a Government stamp under section 203(1) of the penal code, count III has charged him with the alteration of judicial Acts under section 205(1) of the same code; count IV has charged him with the use of an act altered as in count III under section 205(2) of the penal code, and count V has charged him with the use of a title of honour under section 220 of the same code. The court declines its jurisdiction on all the counts given that count one which is the main concern of the court was not established.
[356] S.P. Wandia, An Appraisal of the Special Criminal Court of Cameroon; LL.M thesis, UB 2021, unpublished.
[357] Affaire Ministere Public Et La Cameroon Postal Service(CAMPOST) v. Abakar Mansale, Arret No 011/CRIM/TCS DU 02 April 2014
[358] The State Of Cameroon v. Alioum Bappa Issa, Arret No 028/CRIM/TCS Du 28 October 2014
[359] Affaire Ministere Public Et Etat Du Cameroon(Ministere Des Finance) v. Satock Elizabeth And Likund Yves Francois Thierry, Arret No 023/CRIM/TCS Du 08 October 2014
[360] Concerning circumstance that mitigates offences, see sections 91 and 92 of the Penal Code
[361] Researchers’ interview with the president of the National Anti- Corruption Agency, Dr Dieudonne Massi Gams.
[362] See Decree N ° 2013/287 of September 04, 2013.
[363] Ibid, see section 1.
[364] Section 2 of law No. 2011/28 of 14 December 2011, and section 184 of the penal code of Cameroon (on misappropriation of public funds or property.
[365] See Section 6 of law No. 2011/28 of 14 December 2011
[366] See Decree No 2013/131 of 03 May 2013
[367] See Decree No. 2012/223 of 15 May 2012
[368] See section 5 of Decree No2013/131 of 03 May 2013
[369] See Article 12 of ICESCR op cit
[370] Ibid., see art. 13.
[371] Ibid., see art. 10.
[372] See Article 18 of ICCPR
[373] Ibid., see art. 14.
[374] Ibid., see art. 25(a).
[375] Hulekani Moyo op cit
[376] Law No. 2014/016 of September 2014 on the Standing Orders of the Congress of Parliament.
[377] Reforming the Cameroon Parliamentary Fund, retrieved at https://nanjecreativithinking.blogspot.com (accessed on june 30, 2021.)
[378] Researchers interview with Honourable Ayah Paul Abine, Former MP for Akwaya Constituency in Manyu Division of the Southwest Region,
[379] Jackson W. Nanje; Reforming the Cameroon Parliamentary Fund, retrieved at https://nanjecreativithinking.blogspot.com (accessed on june 30, 2021.)
[381] Ayah Paul Abine, Supra.
[382] French Cameroon Politics: Biya drops case against ex- minister. https://www.cameroonintelligencereport.com (accessed 30 April, 2021)
[383] See article 1(1) of the Declaration (note 24 above).
[384] See article 6 of the International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI) 1966.
[385] Ibid., article 7.
[386] Ibid., article 9.
[387] Ibid., article 11.
[388] Ibid., article 12.
[389] Ibid., article 13.
[390] Ibid., article 15.
[391] See article 8(1) of the Declaration (note 24 above
[392] See United Nations Committee on the on Economic, Social and Cultural Rights Submission in follow-up to HRC
resolution 15/25 ‘The Right to Development’
[393] The Public Ministry and the state of Cameroon V. Haman Adama nee Halimatou Kangue and 12 Others, SUIT No. 026/CRIM/TCS of September 2013 , criminal charges against twelve of the accused persons were dropped: of the remaining two accused persons, the sum of 19.812.500 Frs CFA was to be paid by Mr Mekongou Ondoa Joseph. The remaining sum of 75.004.245 Frs CFA was to be paid by Mr Lebongo Blaise, who perished in the course of the trial.
[394] A case in point is that of the minister of water and energy, Baseil Atangana Kouna who embezzled state funds meant for execution of state projects, geared towards the realization of the right to development. This was the same concerning Haman Adaman and 12 others
[395] See The Declaration on the Right to Development, 1986
[396] UNPO: Self-determination. https://u(2015)npo.org/article/4957
[397]https://www.bing.com/search?q=corruption&cvid=be634057157243d3927b35612dacaa9f&aqs=edge..69i59j69i57j69i60l3.10496j0j4&FORM=ANAB01&PC=NMTS
[398] Cameroon’s Unfolding Catastrophe: Evidence of Crimes against Humanity and War Crimes Committed in the Northwest and Southwest Regions of Cameroon (2019) . https://www.chrda.org
[399]Section 2 of law No. 2011/28 of 14 December 2011, and section 184 of the penal code of Cameroon (on misappropriation of public funds or property.
[400] Section 6 of law No. 2011/28 of 14 December 2011
[401] Decree No 2013/131 of 03 May 2013
[402] Decree No. 2012/223 of 15 May 2012
[403] section 5 of Decree No 2013/131 of 03 May 2013
[404]High profile state official such as: Inoni Ephraim (the former Prime Minister and Assistant Secretary General at the Presidency); Jean-Marie Atangana Mebara (the former Secretary General at the Presidency and the former Minister of Higher Education); Polycarpe Abah Abah (the former National Director of Taxation and Minister of Economy and Finance); Etogo Mbezele Luc Evariste (the Chief Inspector of the National Treasury); Ambassa Zang Dieudonné Télesphore (the former Minister and former Deputy at the National Assembly); Iya Mohammed (the former General Manager, SODECOTON); Haman Adama née Halimatou Kangue Maonde (the former Minister of Basic Education); Nguini Effa Jean Baptiste de la Salle (the former General Manager, SCDP); Yves Michel Fotso (the former General Manager, CAMAIR); Ntongo Onguene Roger (the former General Manager, ADC); Endale Marthe (the Director, SOCANET); Eny Rosper (the Director, SOTRACAM); Obouh Fegue Clément (the former General Manager, SNEC); Olanguena Awono Urbain (the former Minister of Public Health); and Metouck Charles (the former General Manager, SONARA) op.cit
[405]Fonchingong, TN, Gemandze JB, Cameroon: The stakes and challenges of governance and development (2009)
[406] Farida Faisal and A.R. Jafri, Corruption as a Source of Failure of Good Governance and Management in Pakistan: Proposed Remedial Measures, JPUHS, Vol.30, No.1, 2017. p.66
[407]United Nations Economic and Social Council (UNESCO), Definition of basic concepts and terminologies in governance and public administration, 2006, E/C, 16(4)
[408] https://www.hrw.org/news/2021/03/30/imf-scant-transparency-covid-19-emergency-loans (last accessed May 7 2021)
[409] Ibid.
[410] Ibid.
[411] Monde Afrique, Cameroun: L’impitoyable machine judiciaire de Paul Biya, Cameroon (2015)
[412] https://twitter.com/NkwainAkem/status/138029919601696770?s=19 (accessed April 10 2021.)
[413] ibid
[414] https://www.hrw.org/news/2021/o4/23/cameroon-ensure-credibity-inquiry-covid-19-funds (last visited April 4 2021)
[415] https://www.voanews.com last visited (19 April 2021)
[416] Bechem EE, op cit, pg 6
Berinyuy Cajetan is the founder and publisher of Human Rights and Legal Research Centre (HRLRC) since 2017. He has intensive experience in strategic communications for Civil Society Organizations, campaign and advocacy, and social issues. He has an intensive experiencing in human rights monitoring, documentation and reporting.
