OPINION: The Illegality of the Law to Which Consortium Leaders are Charged

By Barrister Jean Atabong Fomeni


Barrister Jean Atabong Fomeni
Barrister Jean Atabong Fomeni

 

Monday, February 20, 2017

The Consortium leaders (Barrister Agbor Balla Felix Nkongho, Dr. Fontem N. Neba and Mancho Bibixy) are standing trial before the Yaoundé Military Tribunal for having allegedly committed the following offences—acts of terrorism, hostility to the fatherland, secession, revolution, group rebellion, incitation of civil war, contempt on public bodies and public servants, spreading of false information. However, it should be noted that competence of the Yaoundé Military Tribunal in trying the matter rests within the ambit of Section 3(4) of the law organizing the Military Justice in Cameroon (Law No. 2008/015 of 29 December 2008). Section 3(4) provides that, “the Yaoundé Military Tribunal may in the event of exceptional circumstances …which constitute serious threat to public order, state security or terrorism, exercise its powers throughout the national territory.”

Sadly, most of the above offences attract the death penalty. They are embedded in Sections 102 (Hostility against the fatherland), 103 (Other felonies punishable with death), 111 (Secession), 112 (incitement of Civil War) of the Cameroon Penal Code, and Section 2 (Acts of terrorism) of the Law on the Suppression of Acts of Terrorism. In summary, the above provisions condemn to death whoever commits the above offences.

Conversely, the Constitution of Cameroon is against the death penalty. Cameroon is one of the countries with a Constitution that protects, promotes, and guarantees the rights and freedoms of every citizen. It is not an exaggeration, therefore, to say that this Constitution, uprooted from a sound moral background, meets with the universally acceptable standards of Constitutions, particularly in the domain of Human Rights. In fact, its preamble states that, “every person has the right to life, to physical and moral integrity and to humane treatment in all circumstances. Under no circumstances shall any person be subjected to torture, to cruel, inhuman or degrading treatment”. Interestingly, the Constitution has not provided for any “subject” clause or “frontiers” with respect to the right to life—it implies, therefore, that the right to live has a moral foundation, and that it cannot be taken by another human being or government for any reason whatsoever.

In constitutional law, the cardinal principle is that any national law (e.g. Cameroon Law on Terrorism) of a State which is not in conformity with the Constitution of that State is unconstitutional. This is to say, therefore, that the Cameroon Law on the Suppression of Acts of Terrorism which subscribes to death penalty as opposed to the Constitution is unconstitutional. Meaning that, all the above provisions of both the Penal Code (Sections 102, 103,111,112) and the Law on the Suppression of Acts of Terrorism (Section 2) are illegal.

Cameroon has approved or ratified a plethora of international human rights laws which frown at lawful killing (for example, the death penalty) of a human being by the State. Meanwhile, it should be remembered that ratification means ‘the action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid”.

In 1986, Cameroon ratified the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. This text, in its entirety, condemns any form of torture on any human being. Meanwhile, Article 3 of the Universal Declaration of Human Rights provides that “everyone has the right to life….” In Article 5, it says “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. This is to say that the death penalty is cruel, inhuman and degrading, and that it deprives the person of the right to life. Also, Article 4 of the African Charter says “every human being shall be entitled to respect for his life….”


In summary, the doctrine of supremacy is equally very important here. It emphasizes the overriding character of international law over those of domestic origin. Conscious of this, the Constitution of Cameroon has provided in Article 45 that, “duly approved or ratified treatise and international agreements shall, following their publication, override national laws, provided the other party implements the said treaty or agreement”. Implying that, since Cameroon has approved or ratified the many international laws here above cited, their provisions become applicable in Cameroon as of the time they were approved or ratified.

If we agree to the above analysis, then it is no longer a debate that the provisions of the above international laws together with the Constitution of Cameroon override the Cameroon Penal Code, and the Law on the Suppression of Acts of Terrorism.  Therefore, rational thinking holds that the five provisions cited herein above are not law. And in line with Article 11(2) of the Universal Declaration of Human rights, “no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence”. The Constitution and the above cited human rights laws are not in variance with this.

On the basis of the foregoing, I therefore make bold to state that the above five offences for which the Consortium leaders are being prosecuted are unfounded at law, and consequently illegal.



Barrister Jean Atabong Fomeni, is a practicing Lawyer and a member of the Common Law, based in Limbe

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