Acts of State and Judicial Independence in Cameroon

The recent appointment of Raymond Zondo as the new Chief Justice of South Africa’s Constitutional Court generated much debate centred on his qualifications, experience and suitability. Against this background, it is opportune to review the selection procedure of superior court judges, particularly in the African context.

The mechanism for selecting judges is important for ensuring judicial independence, whilst demonstrating a country’s commitment to upholding the rule of law and democracy. This mechanism should secure and promote independent judges with unquestionable integrity and impartiality. Judicial independence of a country’s superior court is particularly important because the more independent the superior courts, the greater the likelihood of an independent judiciary.

In most countries, including democracies, executive influence in the selection of judges is ineluctable. In South Africa, appointments to the Constitutional Court are regulated by section 174(4) of the Constitution which mandates the Judicial Service Commission (JSC) to draw up a list of nominees, but the final decision lies with the President. Cameroon has a similar procedure where the Higher Judicial Council (HJC) prepares a list of nominees and the President makes the appointment to the Supreme Court.

However, while the president of South Africa is not a member of the JSC, the president of Cameroon is the head of the HJC. Thus, in Cameroon, the individual who makes final judicial appointments is also the leader of the body that draws up the nomination list. Review of this procedure and the implementation of additional safeguards to ensure the integrity of the selection process is needed.

Given the influential roles played by presidents in selecting the judges who preside over apex courts and set a country’s standards of judicial independence, it is imperative their influence is not left unfettered and exposed to abuse. Calls for presidential judicial appointment decisions to be subject to challenge in the courts are foreseeable as this allows for effective judicial control.

These decisions should be open to challenge on the basis of transparency, merit, equity and fairness. In Cameroon, however, presidential acts (including the appointment of judges) are not subject to judicial review and are considered Acts of State. Justin Ngambu Wanki defines Acts of State as: ‘‘proclamations issued by the State president or executive against which no court is competent to inquire and give judgment on their validity’’.  This article reviews the impact acts of state have on judicial independence in Cameroon to argue that judicial review should act as an additional mechanism aimed at enhancing the integrity of judicial appointment decisions.

“ Given the President’s unbridled power to influence the appointment of judges in the apex court, judicial independence in Cameroon is a myth.”

Section 22 of Ordinance No.72/6 of 26 August 1972 on the organisation of the Supreme Court and section 4 of law No 2006/022 of 29 December 2006 make clear that courts may not rule on acts of state. Furthermore, article 53(3) of the Constitution provides that: ‘‘Acts committed by the President of the Republic in pursuance of Articles 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’’. Article 5 empowers the President to define the national policy, which includes judicial policy. This limits judicial functions by shielding executive acts from judicial review. Consequently, the courts are unable to rule on the constitutionality of judicial appointments, and once made, these decisions are shoved down the judiciary’s throat.

The implications of a presidential act, manifesting as an act of state, are evident in the case of Social Democratic Front v State of Cameroon, Ministry of Territorial Administration. In this matter the plaintiff, an opposition party, asked that the provisions of decree pursuant to Law No.92/194 of 17 September 1992 be declared null and void on the grounds of the act’s illegality. The plaintiff argued the decree was unconstitutional because section 51(2) of Law No. 92/10 of 17 September 1992 requires the publication of the decree convening the elections and the eventual polling be at least 30 days apart. In what was a clear contravention of this rule, the date of publication of the decree (September 17) and the date of polling (October 11) were 24 days apart. Giving opposition parties limited time to prepare and restricting voter registration. The court adopted a deferential stance by declaring itself incompetent to hear the matter and citing the presidential act as an act of state.

Article 37 of the Constitution states that the judiciary is independent from the legislature and executive, and requires judges to rule based on the law and their conscience. This implies no other branch of government should interfere with the judicial process or influence judges’ rulings. The same provision also empowers the President to appoint judges to all courts in the country. Judges’ independence and impartiality are severely compromised as there is an innate motivation to exercise executive deference where a judge’s career trajectory is controlled by the executive. When judges rule against the executive, there is almost always backlash and promotion to the superior courts becomes nearly impossible.

The case of The People of Cameroon v Nya Henry demonstrates the difficulties that arise from unfettered presidential powers in judicial appointment. In this case, the judge defied administrative pressure and granted bail to the defendants (members of a secessionist organisation accused of orchestrating uprisings). In what appeared to be an incident of executive retaliation, he was removed from his position as a judge and re-assigned to a lower-level position as a legal officer in a remote area of the South-West Region. The implication of this is that judicial officers must align with the regime’s ideologies or face persecution.

Michael Yanou contends that the Supreme Court in Cameroon is used as a tool used by the President to maintain his grip on power. Yanou further submits that the President used the Supreme Court to rig the 2011 elections and later rewarded the judges of this court. This was done by issuing a decree that extended the terms of two retiring judges “who over the years have kept him in power despite admitting fraud but justifying it on the grounds that their hands were tied’’.

While I disagree with the first part of this claim, which is not supported by any substantial empirical evidence, I agree with the rest. In 1992, then Supreme Court President, Justice Alexis Dipanda Mouelle, admitted that the presidential elections that year were marred by irregularities but famously declared ‘‘my hands are tied’’. Moreover, Justice Mouelle, was scheduled to retire in 2008, but had his term extended twice before retiring in 2014.  The extension of a Supreme Court judge’s mandate is considered an act of state and cannot be challenged. Given the President’s unbridled power to influence the appointment of judges in the apex court, judicial independence in Cameroon is a myth.