Victor Arthur Max Tamko
It is absolutely necessary to introduce and to develop comparative law studies in our universities, if we hope to harmonise our laws one day. On February 29, 1964, two commissions were created for this purpose. Alas! Forty years have gone by and we are still on the runway just preparing for a take-off.
The absence of comparative law studies has created a situation that has made Cameroon jurists of the two legal cultures to camp on their respective positions.
The Romanist who constitute the majority dream of an eventual victory of their system, over the common law, while the common law jurist on the defensive because they are in the minority, put up a stiff defence to enable their system, continue to exist.
The consequence is that no one cares about customary law and nobody bothers to see harmonisation materialise. Customary law is therefore, left to decay making us look like people who never had their own legal system. This abandon is encouraged by the existence of a certain theory, which holds that Cameroon with more than 250 tribes also has 250 customary laws.
The weakness of this theory lies in its failure to realise that these 250 tribes have specific customary law rules or norms, but that they all belong to the same "African legal system".
Despite their multiples differences, notably their ethnic differences, their way of life and their social organisations, they have common characteristics, which make these different customary law norms of our people of the North, the South, the West and the East firmly united.
This is very clear if we analyse the characteristics of African law elaborated by Professor Bonidec, that African Law is the product of an agrarian civilisation, which has a collectivist or communal character" that reflects "inequality", is impregnated with "religion" and is "oral".
These peasant legal rules are more or less marked by the necessity of the "agrarian civilisation". They were established and developed in the framework of "agricultural activities". It is, therefore, evident that customary law in Cameroon is part and parcel of the "African legal system".
Professor Alliot rightly said that globally, "one can easily remark the great resemblance of the procedure, the technique," the institutions and the principles of African law, which shows that these different laws constitute one family, although unlike common law and Romanist law, they have no common ancestor.
It is interesting to note that customary law is not taught in Cameroon universities but that jurists trained in these universities are called to try customary law litigation after their professional training. This situation is not different from that of French and English judges during the colonial period.
If we now turn to the problem of harmonising the Romanist and common laws inherited from the French and the English colonists, a situation which baffles us for over 40 years now, we can say with certainty that the absence of comparative law in the programme of our law faculties has a lot to do with this failure.
It is not difficult to understand that one cannot harmonise two laws if he/she only knows one of them. In order to succeed in harmonizing our laws in Cameroon, it will be absolutely necessary to proceed with a comparative analysis of the legal systems that existed before one can proceed with any harmonisation of our laws.
Without this crucial information, it would be impossible to identify the similarities and divergences of these systems, elements, which are indispensable before one can proceed with any harmonisation or integration of our laws.
It should be remembered that the organisation of judiciary in the two parts of our country, which was under British and French colonisation had two separate types of courts; one reserved for whites, and the other reserved for Cameroonians, applying customary laws.
This dual jurisdiction was put to question when Cameroon became independent. The reform, which followed created a unitary form of administration of justice. This is proof that we have an obligation to reform Cameroon law by retouching our modern laws (Romanist and common law) and rehabilitate our traditional values.
Some African countries have started work destined to rehabilitate traditional laws, which were belittled during the colonial days but which in reality, represent some essential elements of our tradition and our culture.
Senegal, Tanzania, Malawi, Botswana among others, has proceeded with the codification of their customary laws. In reality, all African countries, which have thrown away the colonial yoke have this problem of trying to harmonise or integrate their customary laws, if they really want to preserve their personality and portray their national identities.
If it has been impossible for us to harmonise our law in forty years, it is partly because we did not take it seriously. There was no serious study before hand to enable the members of the commissions to have a notion of the other system they did not know, since members of these commission were made up of people who knew only one system; Romanist or common law, and who had no knowledge of comparative law.
It is probably for this reason that some members of these commissions saw law reform (harmonisation) as a confrontation between the two systems, which had to end up with one system crushing the other.
It is clear that these commissions had only one option that was to look for a political solution based on a compromise, not for a scientific solution. To harmonise or integrate our law inherited from triple colonisation, one should not be contented just to observe the present
state of our laws, it is extremely necessary to have an idea of the origin of these laws, to understand their nature, their evolution, the essential concepts that guide them and especially, the distinctive elements they contain, which could be useful and rational in a truly Cameroon law system.
This should lead us to study the organisation of the judiciary of Cameroon before and after colonisation; that is 1884-2004 and analyse the legal system in Cameroon - customary law, Romanist and common law.
The social organisation of this territory before the Germans arrived was divided into three group; portraying their social organisations. The South occupied by the Bantus with a tribal structure, the Grass Landers of the centre with a feudal structure, whereas the north was in the highest stage of feudalism-absolutism.
The analysis of this pre-colonial situation helps to appreciate the changes brought about by the Germans during the period 1884-1916 and those that followed when Cameroon was divided into British and French territories, up to the attainment of independence.
Finally, this procedure will help us discover the various options susceptible to help us harmonise common law and Romanist with customary law in the background.
On the 3rd of February we triumphantly celebrated bilingualism in Cameroon. This was important and marvellous, but how do we feel when we realise that after 40 years of unification, in Bamenda, Buea, we still apply the Nigerian criminal and civil procedure laws and emanation of Common law.
Worse still, in Dschang, Douala, Yaounde, etc, we still apply the "French code d'instruction criminel" of February 1838, which the French have long abandoned and the French civil procedure.
If one observes what happens around us, one easily discovers that this unpleasant situation does not disturb anyone. The faculties of law in Dschang and Yaounde train common law and Romanist Jurists separately.
Buea trains exclusively common law Jurists, while Ngaoundere train exclusively Romanist Jurist. If every system sticks to its guns and one does not know the other system, how on earth can we harmonise our laws in Cameroon?
To be continued
biya must go,
Posted by: TOM CRUISE | Friday, 01 July 2005 at 01:02 AM
no to harmonising the two legal systems, you dont put
together things that naturally are made to be apart
thats treason. the french law sytem and the common law
system are not compartible just as the two cultures are
not its just a grand plan to frenchify all the anglophones and make their territory a wholly french
people. the common law is the superior legal system that rule the civilize world today ,in america, in uk etc
the francophone can keep theirs , we keep ours, bet thats the fact, my respond wont change anything since i
am not the president, who is the supreme judge, but most cameroonians anglophone are edging closer to illetracy, they dony know any more they fate neither
their rights and heritage and culture, they accepts just about anything from foreign francophones appointees.
Posted by: lantum | Friday, 01 July 2005 at 01:10 AM
cameroon didnt became
independent, but the two
independent states of
cameroons became independent seperatelly
with twi distinct legal
inheritance, soo why on earth is this fool talking about harmony? this is pure
and simple lies, and illetracy in its highest form.please read your historysir, victor before
talking nonesense
Posted by: lantum | Saturday, 02 July 2005 at 08:01 AM
max tamko, you got to be my student sir, do you know
where common came from?
do you know where the napoleonic law system came from?
the common law is a direct
descedent of natural law ie
ie the king james law or the bible it self, the law as god wants man to live on earth, the french laws is a dictatorial laws of the state of the king louis which transcend napoleon bonaprte era, its places, man ie the head of state and the state above all. at the center of creation. which is right? the common law or the french law? please
you are not ambazonian, stopped narating rubbish you know nothing about, what is customary law got to do for today and tomorrow? in africa where
emphasises is the uplifiting and advancement of the miserables, from the jungle life to a civilize one? where nature. science and technology and philosophy take the center stage.
Posted by: latum | Sunday, 03 July 2005 at 12:23 AM
I understand why these two profanes should not be able to understand Dr Tamko who is a comparative law lecturer.Law is hard to understand mostly when you are not a jurist and all jurist will easily understand where Dr Tamko is heading to.For the understanding of non jurist(profanes),Dr Tamko is simply talking of bringing like terms together and talking out on the differences that exist in the two legal systems in Cameroon.It is only after this has been done that we can actually sit to talk of a law proper to Cameroon based on its diversity.For this to be effective, we need to train our jusrists in comparative law so that they can better understand the two systems and customary law so as to be able to come out with reasonable proposals as a new law for Cameroon and not being in a winer or loser position when a Cameroon law is made.Even if you were to talk about being from the southern Cameroon,I will like to tell you that comparative law jurists are needed there too,to be able to make laws that will be proper to southern Cameroon in order to differ it from their colonial Bristish given that they do not have thesame setting and can not share the same law entirely.When some one talks of U.S using the common law,you must not forget that they had the English as colonial masters just like Southern Cameroon,but they went further to tailor their own common law to suit the American culture.We must always avoid to write on a topic which we don't know.Writing is good but do well to make a postive contribution.I know Dr Tamko and as a Lawyer understand what he means and consider it worth talking about the need for comparative law teaching in Cameroonian universities which had only been experimented in the Maitrise program in the University of Dschang.I believe the result was good.
Posted by: Pascal | Sunday, 03 July 2005 at 11:16 AM
LAW LECTURER WHERE?
AT SOME MUSHROOM SCHOOL
CALL UNIVERSITY OF YAONDE?
LAW IS SUPPOSE TO DESCEND
FROM ABOVE , FROM GOD , TO
COVER ALL. NOT THIS THING YOU INVENT OVERNIGHT AND
CALL UN COMPARATIVE -SHIT
YOU DONT KNOW THAT THE LAWS OF EVERY LAND ARE
CONNECTED TO INTERNATIONAL
AND NATURAL LAW.
BUSH PEOPLE, MAKE WUNA CONTINUE DEE CHOP WUNA
SHIT
Posted by: LANTUM | Monday, 04 July 2005 at 11:01 PM