The Rule Of Law And Constitutional Amendment In Cameroon

By Eyambe Elias Ebai Barrister-At-Law

The Rule of Law does not have a precise definition. It has been viewed in very diverse ways. One central theme comes out clearly from all the definitions attempted by legal luminaries.

The rule of Law in its most basic form is the principle that no one is above the law. Thomas Paine in his pamphlet - "Common Sense" (1776) stated: "For as in absolute governments, the King is Law, so in free countries the law ought to be the King, and there ought to be no other."

One of the major legacies of the Constitutional System is that the rule of law is viewed as a doctrine that no individual stands above the law, and that all rulers are answerable to the law. The rule of law follows logically from the idea of truth and therefore the law is based on fundamental principles which can be discovered but which cannot be created through an act of will. Indeed no individual is above the law and everyone must answer to it.

The term rule of law is often used to characterise a certain type of political regime. With the advent of globalisation, developing countries like Cameroon are expected to prioritise their policy agenda to promote the rule of law.

The rule of law is a theory of governance relying upon a series of legal and social constraints designed to encourage order and to prevent arbitrary and unreasonable exercise of government powers. It equally suggests that the Constitution (which is the Supreme Law of the land) is expected to be sovereign.

The dust hovering over the controversial constitutional amendment by the National Assembly on April 10, 2008, has finally settled. MPs, during a plenary sitting, adopted the government bill to amend and supplement some provisions of law no. 96/6 of January 18, 1996, to amend the Constitution of June 2, 1972. Article 37 of the said Constitution states:

"Justice shall be administered in the territory of the Republic in the name of the people of Cameroon"The above article of the Constitution, coupled with its preamble, gives one the impression that the rule of law reigns in Cameroon. Article 53 (3) (new) of the Constitution states:
    

"Acts committed by the President of the Republic in pursuance of Article 5,8, 9 and 10 above shall be covered by immunity and he shall not be accountable for them after the exercise of his functions."

The rule of law means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law - not the President, not the Prime Minister. If anyone were above the law, none of our liberties would be safe.

There are several pieces of legislations in Cameroon prescribing prosecution and punishment in respect of various offences committed by individuals. Above all, there is the International Criminal Law which punishes crimes such as genocide, war crimes, crimes against humanity and crimes of aggression.

Where one has to go by the provisions of Article 53(3) (new) of the Constitution, it is abundantly clear that in the event where the President of the Republic commits offence(s) proscribed by local legislations or international law in the course of his duties, article 53(3) (new) would be invoked, thus barring prosecution. The said constitutional amendment gives the President immunity, making him not to be accountable for any offences committed during his term of office.

An American legal scholar - Lon Fuller in his book "The Morality of Law" brought out eight elements of law which have been recognised as necessary for a society aspiring to institute the rule of law. One of the elements is that "Law must not command the impossible." One can rightly conclude without any iota of doubt that Article 53(3) (new) of the Constitution is commanding the impossible.

By granting immunity to the President for acts committed during his term of office is tantamount to hindering the development of the Cameroonian society and a refusal to minimise the abuse of the legal process and political power. As a matter of fact, the rule of law stands for the proposition that no person or particular branch of government may rise above the rules of the land.

The amendment reflects the moral decay of our society vis-à-vis the rule of law. The rule of law is supposed to promote equality under the law. The amendment has been made to enable the shrewd, the calculating and the wealthy to manipulate the forms of procedural justice to his own advantage. Such an amendment cannot possibly serve as an effective barrier to the President's abuse of power, thus the absence of the rule of law.

Article 65 of the Constitution states:  "The Preamble shall be part and parcel of the Constitution." In the preamble of the constitution, we the people of Cameroon affirm our attachment to the fundamental freedom attached amongst others, in the charter of the United Nations.

Curiously, the rule of law has been widely acclaimed in the United Nations circles, (United Nations office on Drugs and Crime - UNODC) as one of the keys to achieving the Millennium Development Goals by 2015. Antonio Maria Costa - UNODC Executive Director declares, "Where the rule of law is weak or absent, crime and corruption hold back development and democracy.

This can cause conflicts, mass poverty and environmental degradation." It is a universally acknowledged fact that the rule of law promotes economic development.The elected political officials of the Cameroon National Assembly, in amending the Constitution, violated the principle of the rule of law, a tool necessary in the structural set up of every society.