By Charles Ekema, August 29, 2016
Cameroon Journal, Buea – Before a College of three Judges – Magistrates Beatrice Nambangi, Eno Mbi Ashutangtang, and
Njonjo John, the Defence Team led by Barrister Nkea Emmanuel, Kemende Henry and Tangunyi Gilbert consisted of over sixty (60) lawyers drawn from the South West and Northwest Regions to represent the fifteen accused persons described by the Court as SCNC activists. That was Thursday, August 25.
When proceedings started, the Presiding Judge requested that the charge be read out to the accused persons. But before the court could get there, Barrister Nkea, the lead counsel rose up and made preliminary objection on what he called the incurably defective nature of the charge.
In a very emotional submission that lasted for well over an hour, Barrister
Nkea argued that the charge before the Court was laid in terms of section 231(a) of the old Penal Code whereas the new Penal
Code does not have any such section.
He pointed out that section 231(a) of the old Penal Code under which the accused persons are charged relates to the provisions of the extant Penal Code and that under the new Penal Code the old section 231 now has a subsection (1). That going by the new Penal Code “the accused persons ought to have been charged in terms of section 231(1)(a).” He concluded that since the coming into force of the New Penal Code on the 12 of July, 2016, the provisions of section 231(a) of the Old Penal Code ceased to exist.
He argued that under the principle of legality of offence encapsulated under in section 17 of the Penal Code, a person can only be charged for an offence that is created by statute. He added that “any none compliance with this principle is a violation of public policy,” and thus urged the Court to declare the charge and the entire proceedings “as a nullity and proceed to discharge the accused persons.”
The second part of Barrister Nkea’s objection, focused on the fact that the parties in suit were improperly constituted which he said was in gross violation of section 128 of the Criminal Procedure code. He read aloud the provisions of this section to the Court which states that “the Legal Department shall be the Principal Party in all Criminal proceedings.” He submitted that it was therefore wrong for the prosecution to be referred to as THE PEOPLE Of CAMEROON.
The Lead State Counsel for the state, Magistrate Ekane Kenneth conceded that the charged was erroneously laid under the old Penal Code because at the time of drafting the charge the new Penal Code was not available to them he urged the Court to proceed to amend the charge to reflect the new law.He argued that this defect was equally incurably bad and urged the Court to treat it as a violation of public policy and thus a nullity. By section 3 (2) of the Criminal Procedure Code Kea said, “The court should treat this defect and the ensuing charge as a nullity and to proceed to discharge the accused persons.
On Nkea’s second objection Ekane argued that although the Criminal Procedure Code talks of the Legal Department as the principal party, practice in the Courts in Buea have permitted the Principal Party to be referred to as THE PEOPLE OF CAMEROON. He urged the court to discountenance the objections.
Replying on points of law, Barrister Nkea rebuffed the State Counsel’s argument, advancing that by publishing the new Penal Code in the Official Gazette on July 12, 2016, notice was given to the whole world of the existence of the new Penal Code and that since the accused were arrested on the 17 of July, 2016, they ought to have been charged only in terms of the new Penal Code. He submitted that it was mischievous for the State Counsel to claim that the laws were unavailable at the time the charge was drafted.
Nkea stated that any Practice which is inconsistent with the express provisions of the law is repugnant to the said law and therefore ought not to be entertained and encouraged by the Court.
After Nkea, Barrister Kemende, another defense lawyer stood up and complimented the submissions from another perspective. To him, if indeed the accused persons are SCNC activists as alleged, then they cannot be punished for merely holding a contrary opinion on how they should be governed. He indicated that by arresting the accused persons all the time, the State was rather popularizing their cause.
The Presiding Judge was about to adjourn for a ruling on the Preliminary Objection when Barrister Nkea once more rose up and indicated they have a second application to make pending the determination of the earlier objection.
He pleaded with the Court to hear him as this was an application in equity.
His application was that the Court admits the accused persons to bail pending the determination of the preliminary objection. Citing the provisions of section 225, 224, and 218 of the Criminal Procedure Code, NKea argued that the offence with which the accused are charged is a bailable offence which attracts a maximum sentence of 6 months if they are found guilty, but that the accused persons have already been held in custody for over 40 days.
He argued that while some of the accused persons are respectable people in society, others are very vulnerable persons who need the protection of the court. In this regard he submitted that one of the accused persons a Gazetted 3rd Class Chief, another, a blind man, whose blind wife was in court in solidarity. Some of the accused persons are students who stand the risk of missing out from school if not admitted to bail.
Citing the Preamble section of the Constitution as read with section 65 thereof, section 8 of the Criminal Procedure, Article 7(1)(b)of the African Charter on Human and Peoples Rights,Article 14(2) of the International Covenant on Civil and Political Rights, and Article 11(1) Universal Declaration of Human Rights 1948, Barrister Nkea argued that accused persons are the cardinal principle in the administration of criminal justice.
He said that according to this principle everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. He submitted that this presumption of innocence is fundamental to the fair trial rights of the accused persons in that; it imposes on the prosecution the burden of proving the charge; it guarantees that no guilt can be presumed until the charge has been proven beyond reasonable doubt; it ensures that the accused have the benefit of doubt; it requires that the accused persons must be treated in accordance with this principle.
In spite of all these lapses, the Application was opposed by the state Counsel on grounds of public order.
Barrister Tanguiyi Gilbert replied on points of law urging the Court to uphold the submissions of the Defence and admit the accused persons to bail.
The matter was adjourned to Tuesday, August 30th, for Ruling on both the Preliminary Objection and Application to bail. The accused were in the interim remanded to custody till August 30th.