Developments in Cameroonian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Cameroonian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

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—Charles Manga Fombad, Professor of Law, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa

I. Introduction

The most significant constitutional event in Cameroon in 2016 was the peaceful protests, demonstrations, and sit-in strikes which were initiated by Common Law Lawyers and Teachers’ Trade Unions which has paralysed all official activities in the two Anglophone regions of Cameroon since October 2016 and led to a military intervention which has resulted in many deaths, injuries, and the detention of numerous citizens. The present crisis is no surprise to even the most casual observer of the Cameroonian political scene. In fact, Cameroon’s apparent political stability belies deep-seated centrifugal forces of fragmentation which have only been kept dormant by repressive authoritarian governmental structures and systems which successfully defied the so-called ‘third wave of democratisation’ that swept through Africa in the 1990s. Whilst almost all African countries underwent substantial constitutional reforms, the token reforms that took place in Cameroon in 1996 hardly provided any foundation for constitutionalism to take root.

This report mainly focuses on the political and constitutional crisis that exploded in 2016. However, to understand this crisis, it is necessary to briefly look at the complex constitutional history of Cameroon. In fact, the 1996 Constitution which operates today in Cameroon is a paradox that in many respects reflects the history of the country. The second part of this report will briefly provide a background constitutional history of the country, the third part will highlight the present constitutional crisis and the final part will reflect on how the present challenges can be overcome.

II. The Constitutional System

Although Cameroon is a German creation, it is the Portuguese who are considered to be the first Europeans who arrived on the country’s coast in the 1500s. Germany established a colony in Cameroon in July 1884 and this was confirmed at the Congress of Berlin in 1884–1885.[1]

Generally speaking, Cameroon’s constitutional history can be said to have gone through three main periods.

The first period is that of the German protectorate that lasted from 1884 until 1916. The German period ended when their military forces in Cameroon were finally defeated during the First World War by a combined British and French expeditionary force. The second period is marked by the French and British rule that lasted until independence in 1961. The third period covers all developments that have taken place since independence and the reunification of the British and French administered portions of the country to form what is now known as the Republic of Cameroon.

Germany practically lost its control over Cameroon during the First World War when its last stronghold on the territory at Mora fell on 20 February 1916. On 4 March 1916, the two victors finally initialled an agreement that formally partitioned Cameroon into two unequal parts, with the French taking almost four-fifths of the territory. This was confirmed in Article 119 of the Treaty of Versailles and under Articles 22 and 23 of the League of Nations Covenant. The division of Cameroon between Britain and France provided the basis for the establishment of two distinct and often conflicting cultural, political, and legal traditions that have had and continue to have a profound effect on the country today, particularly its constitutional law.

The British sector consisted of two narrow non-contiguous strips of territory (called Northern Cameroons and Southern Cameroons), which they administered as an integral part of its Nigerian colony. After the British Government announced in 1958 that Nigeria would become independent on 1 October 1960 and the French Government also announced that French Cameroon would become independent on 1 January 1960, it became necessary to determine the future of Southern Cameroons and Northern Cameroons. Under the supervision of the United Nations, plebiscites were organised in Southern and Northern Cameroons in which the people of both territories were given the option of gaining independence by either staying with Nigeria or re-uniting with the Republic of Cameroon. Northern Cameroons voted in favour of remaining with Nigeria whilst Southern Cameroons voted in favour of re-uniting with the Republic of Cameroon, which had already gained independence on 1 October 1960.

After the plebiscite in Southern Cameroons, its leaders tried to negotiate a new constitutional arrangement with President Ahidjo of the Republic of Cameroon, based on a relatively loose and decentralised federation in which they hoped to protect their language, culture, and legal and educational systems. However, since they were now fully committed to reunification with an already independent Republic of Cameroon, the negotiating position of the Southern Cameroons representatives was quite weak. Ahidjo was under no pressure to make anything more than token concessions and only felt obliged to amend the 1960 Constitution by an annexure called ‘transitional and special dispositions’. What became the Federal Constitution of the Federal Republic of Cameroon was nothing more than a law revising the Republic of Cameroon’s Constitution of 4 March 1960 and provided for a two state federation. However, it was a highly centralised system in which most of the powers were retained by the federal government. The seeds for a perception of a design to eliminate Anglophone peculiarities were sown.

The threats to the elimination of the Anglophone identity within the country were reinforced when on 2 June 1972 a new Constitution was introduced, and without regard to article 47 of the 1961 Federal Constitution which prohibited this, the federal system was abolished and replaced with a unitary system that was officially known as the ‘United Republic of Cameroon’. This marked the end of the highly centralised federal system of government that bore a resemblance to a federation only in name. When, in 1984, the President by Law No 84/001 abolished the appellation ‘United Republic of Cameroon’ and replaced it with ‘Republic of Cameroon’, this was seen by many Anglophone Cameroonians as removing one of the last symbolic vestiges of the 1961 reunification of the two distinct communities.

After pressure brought to bear by the Social Democratic Front (SDF), a party formed by an Anglophone, John Fru Ndi, the Cameroon Government reluctantly followed the post–1990 wave of constitutional renewals on the African continent by revising its 1972 Constitution in 1996. The expectation was that it would provide a solid foundation for promoting constitutionalism by enhancing democracy, good governance, and respect for human rights. Unlike most post-1990 African constitutions, the 1996 Constitution did nothing more than reinforce much of the underlying philosophy of the original 1972 Constitution as well as many of its underlying principles.[2] There are a number of factors that attest to this.

First, the pre-1996 highly centralised autocratic state system, under which the President had extensive powers, was reinforced while the normally limited powers of the legislature were further curtailed. The dominance of the President was strengthened, with extensive powers that enable him to appoint and dismiss at his pleasure the Prime Minister and cabinet members, judges, generals, provincial governors, prefects, and the heads of parastatals. He can also approve or veto newly enacted laws, declare a state of emergency, and authorise public expenditure. Although there were many innovations, these have been largely ineffective in promoting democratic and accountable governance. For example, the introduction of bicameralism, with a Senate to act as a second chamber to the National Assembly, is significantly compromised by the fact that these bodies are largely subservient to the executive and have little power to initiate or influence the content of legislation.

Second, although the amended Constitution purported to introduce, for the first time, what it terms ‘judicial power’, this is largely ineffective because of the President’s unlimited powers to appoint and dismiss judges. The contemplated Constitutional Council, which is supposed to have some powers of judicial review, has never been established and in any case can hardly operate effectively because it is supposed to be composed essentially of government nominees, has mainly powers of abstract review, and can only entertain matters referred to it by the government and other political elites.

Third, on the very critical issue of accommodating the diverse ethnic, language and cultural groups, a form of decentralisation was provided which essentially concentrates powers in the centre, with the possibility for some sort of de-concentration of powers through the creation of regional and local authorities, but the obscure language used leaves the implementation of these provisions entirely at the discretion of the President of the Republic. Not only does he have the right to decide when, if at all, the regional and local authorities will be created, but also has the power to determine their powers and can dissolve them and dismiss their officials when he deems it proper.

Cameroon’s bilingual and bi-cultural nature, one of its greatest sources of pride, has turned out to be its most enduring contradiction. The Anglophone community, who make up about 20 percent of the total population and occupy about 9 percent of the total land surface, have since reunification in 1961 been suspicious of Francophone domination. A perception of Anglophone marginalisation and a deliberate government policy of absorption and assimilation combined with the elimination of Anglophone particularities looms large and goes deep. To many of them, the straw that broke the camel’s back came in 1992 when a skeptical Supreme Court, whilst acknowledging gross irregularities in the presidential elections, still proceeded to declare Biya the winner in an election which many, including international observers, felt Ni Fru Ndi, an Anglophone, had won.  This, more than anything else, reinforced the long-standing Anglophone feelings that no matter their merits, they are destined to play second fiddle to Francophones. Many analysts agree that Anglophones have had a pretty hard time being both Anglophones and Cameroonians.

Most analysis summarises the so-called Anglophone communities’ grievances under three main themes.[3] The first is economic. Anglophones point to the relative economic underdevelopment of their two provinces as compared to the other eight since 1961. The case is particularly poignant for the Anglophone South West region, which in many respects is not only the country’s breadbasket in terms of agricultural produce but is the main source of the country’s oil wealth. This has led to a feeling that the two regions are a mere appendage, useful for their resources but not for its people.[4]

The second contentious issue centers around what is seen as a deliberate policy of “de-identification” of Anglophones from their separate and distinct heritage and “persona” through a careful process of “Gallicising” all aspects of social, economic, and educational life to conform to French models. Both President Ahidjo and his successor, Paul Biya (who has been in power since 1982) in resolutely pursuing their policies of “national unity and integration”, have seen the persistence of Anglophone “particularisms” as an obstacle to national unity and development. Thus, Biya has firmly rejected what he terms as the “collection and juxtaposition of our diversities”.[5] It has come as a shock to Anglophones that having agreed to join a bilingual union in which inherited colonial differences in language and institutions were to be respected and creatively integrated into a new collective national experience, their way of life has now been suppressed and they are being compelled to adopt the dominant Francophone way of life.[6] Thus, the cynical aphorism, “bilingualism in French”. The intensity of this “de-culturalisation” has made it hard for an Anglophone to confidently assert himself, especially because this has been marked by derogatory references to them as “les Biafrais” (that is, Biafrans, evoking memories of the Nigerian civil war) and “les ennémis dans la maison” (the enemies within the house),[7] and their demands for federalism has consistently been dismissed as evidence of lack of patriotism and a smokescreen for secession.

Finally, the loss of the very limited regional autonomy in 1972 has been followed by the relegation of Anglophone leaders to inferior and inconsequential roles in the national decision-making process (Kofele-Kale,1986). Various studies have shown that Anglophones have been consistently under-represented in ministerial as well as senior and middle level positions in the administration, the military, and parastatals. The elevation of an Anglophone to the essentially honorific position of Prime Minister in 1992 has been seen as a ploy to neutralise the popular SDF.

Analysts may well debate the extent of these grievances but their existence is a palpable fact. The uneasy co-existence of the Anglophones and Francophones has led one writer to posit that Cameroon is “two different countries in one”.[8] Frustrated by the intransigence of the regime and galvanised by the generalised hardship in which most analysts agree Anglophones have suffered more than any other group, an alarming number of pressure groups have sprang up since the First All Anglophone Conference (AAC 1) was held in Buea in 1993.  Moderate demands pursued by some of them, such as the Cameroon Anglophone Movement (CAM), now Southern Cameroons Restoration Movement (SCARM), and the Southern Cameroons National Council (SCNC), for a return to the federation have now been brushed aside by emerging radical factions such as the Ambazonia, the Southern Cameroons Liberation Front, and the Free West Cameroon Movement, which advocate outright secession by use of arms if necessary.

An opportunity was missed to lay this long festering Anglophone problem to rest during the 1996 constitutional amendment process. With rising agitation in the Anglophone community, President Paul Biya, in January 1999, for the first time admitted, albeit in dismissive fashion, that an Anglophone problem existed, and was only prepared to say that it was promoted by a handful of hotheads and vandals.

On the whole, the 1996 Constitution remains a controversial document, not only because of the perception that it was imposed, but also because it is technically an inferior document to the one it purports to amend, and is less liberal and progressive. There was lack of adequate consultation, especially of the Anglophone community. Even the limited form of decentralisation that it espouses has hardly been implemented with any conviction. It is against this background of years of frustration that the Anglophone communities in the North West and South West regions took to the streets in October 2016.

III. The Political and Constitutional Crisis of 2016

The protests started in mid-October 2016 when the lawyers in the two Anglophone regions started a protest action against the domination of the judiciary by Francophones whom they allege have little or no knowledge or training in the common law. In a document prepared by the SDF, which since the 1990s has been the main opposition party in the country, and was the party that initiated the street protests of the 1990s which forced the government to reintroduce multi-partyism, the extent of Francophone domination of the judiciary was laid bare.^[9] This was followed a few weeks later by a strike led by the Confederation of Anglophone Teachers’ Trade Unions and the Teachers’ Association of Cameroon. This has led to the closure of all schools in the two Anglophone regions. The teachers complain that French speaking and trained teachers had been deployed into the two Anglophone regions to teach subjects in French to children who do not understand the language. They also complain that competitive public examinations to gain admission into professional schools in the country are poorly translated from French to English and make it difficult for Anglophones to gain admission into these schools. They also allege that many of the lecturers and heads of departments in the two universities in the region were Francophones. The other population came out in support because most of the senior administrative positions in the two regions were held by Francophones.

By December 2016, daily activities in the Anglophone regions had come to a halt because of the general strike and demonstrations demanding a return to the two-state federation. The government’s response was to immediately deploy troops all over the two regions and in many places street demonstrations were violently suppressed resulting in the deaths of many demonstrators and the detention of many more. In his traditional 31 December New Year speech, President Biya, as in the past, pretended that there is no ‘Anglophone problem’, and argued that the strikes and demonstrations were promoted by the ‘acts of a group of manipulated and exploited extremist rioters’.^[10] He reiterated his determination to defend the unity of the country. The protests have continued into 2017 and the government’s reaction has been to send in more armed troops against the unarmed protesters. Many have lost their lives, and most of their leaders, including parliamentarians, have been arrested and transferred to detention centres outside the two regions. Many of those arrested are now being tried by a military tribunal for treason and a myriad of other offences against the state. The international media has been barred from reporting on the violence and in January 2017 telephone and internet links within and from the two regions were blocked.

IV. Looking Beyond the Crisis and Constitutionalism in Cameroon

It is clear from the preceding discussion that the constitutional and political crisis that started in Cameroon was predictable. In spite of the complex nature of the problem, and in the light of post-1990 constitutional developments in Africa, three observations can be made.

First, a return to a two-state federation or even secession, which most of the strikers and demonstrators are now advocating for, will not solve the deep-seated problems that Anglophones face in Cameroon. An effective asymmetrical decentralisation of powers which recognises and protects the special interests of the Anglophone community seems to be the only way forward. Second, the resort to violent suppression of unarmed demonstrators in order to impose the will of the ruling elites will certainly restore some order but can, at best, only provide an uneasy peace. As the number of unarmed demonstrators killed by the army increases and the government continues to deny that there is a problem, the real risk of anger and frustration forcing people to resort to terrorism will increase. A respected former Francophone minister, who had worked as a governor in the Anglophone regions, has warned of this turning into a ‘new Boko Haram.’^[11] Finally, the current crisis is an excellent illustration of a defective decentralisation design that has done nothing more than hand over absolute power to a small clique.

Cameroon has reached a critical cross-road. The bi-cultural character of the country is not only a historical fact but a daily reality that cannot be ignored or wished away. As Robert Robertson rightly points out, ‘the creation of effective strategies to handle the reality of human diversity is one of humanity’s most pressing challenges, as recent wars, ethnic cleansing, genocides and the restless tides of refugees and displaced persons demonstrate’.^[12] Solving Cameroon’s present predicament needs an urgent solution at the heart of which is a new credible decentralised framework in which all citizens of the country have a stake. There is the need to make the Anglophone community feel Anglophone and Cameroonian. There is no longer any sense in pretending that there is no Anglophone problem. Nor can it be simplified further as an Anglophone versus Francophone problem. It is more of a political problem created by the ruling elites with entrenched interest in preserving a ‘divide and rule’ policy.

It can be argued that a credible decentralisation design can address these problems. This will, however, need a fundamental revision of the present obsolete and dysfunctional Constitution. In doing this, a leaf can be borrowed from the Canadian experience where the French-speaking Quebec province that had been agitating for secession from the rest of Canada signed the Meech Lake Agreement, which could have paved the way for a major amendment to the Canadian constitution until it failed to be ratified. Section 2(1)(b) of this Constitutional Amendment Act proposed to recognise, inter alia, ‘that Quebec constitutes within Canada a distinct society’. This provision also proposed to recognise ‘that the existence of French-speaking Canadians…and English speaking Canadians…constitute a fundamental characteristic of Canada.’ An even closer example to emulate is the Nigerian ‘federal character’ principle, which was first constitutionally entrenched in the 1979 constitution and is backed by the Federal Character Commission (FCC). This Federal Executive body established by the Federal Character Establishment Act No 34 of 1996 implements and enforces the federal character principle which ensures fairness and equity in the distribution of public posts and socio-economic infrastructures among the various federating units of the Federal Republic of Nigeria. This body also ensures that appointments to public service institutions fairly reflect the linguistic, ethnic, religious, and geographic diversity of the country.

In the light of the above, it is contended that the only way to resolve the present political crisis in Cameroon in a peaceful and sustainable manner that addresses the perception of Anglophone marginalisation and exclusion from the benefits of the nations’ resources and accommodate the secessionist threats is to design an asymmetrical decentralised system which recognises the two distinct cultures in the country. One of the critical features of such a framework is the constitutional entrenchment and protection of a bi-cultural principle which recognises the two inherited cultures based on dynamic equity. A fundamental aspect of the bi-cultural principle must be a requirement that all institutions, laws, policies, practices, and appointments to public posts must comply with the bi-cultural character of the country. A national commission must be established under the Constitution to supervise the implementation and enforcement of this principle. There is thus need for a constitutionally entrenched and legally enforceable framework that recognises and protects the two distinct cultures on an equitable basis. A constitutionally entrenched ‘regional character principle’ is needed to ensure equity and prevent nepotism and any feelings of exclusion and marginalisation. Ultimately, as in many conflict situations, a carefully designed decentralisation framework offers the best way to deal with the Cameroonian crisis than the militarily imposed peace sought by the ruling political elites.

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[1] See generally, HR Rudin, Germans in the Cameroons 1884–1914: A Case Study in Modern Imperialism (New Haven, Yale University Press, 1938) and SG Ardener, Eye-Witnesses to the Annexation of Cameroon, 1883–1887 (Buea, Government Press, 1968).

[2] See, for example, Charles Manga Fombad, ‘Post 1990 Constitutional Reforms in Africa: A Preliminary Assessment of the Prospects for Constitutional Governance and Constitutionalism’, in AG Nhema and PT Zeleza, The Resolution of African Conflicts (OSSREA & James Currey, Oxford, 2008) 179–199; Charles Manga Fombad, ‘Cameroon’s Constitutional Conundrum: Reconciling Unity with Diversity’, in Kenyan Section of the International Commission of Jurists; and Konrad Adenauer Stiftung, Ethnicity, Human Rights and Constitutionalism in Africa (Kenyan Section of the International Commission of Jurists, Nairobi, 2008) 121–156.

[3] See generally, JF  Bayart, ‘The Neutralisation of Anglophone Cameroon,’ in R Joseph (ed.) Gaullist Africa: Cameroon under Ahmadou Ahidjo (1968); J Benjamin, Les Camerounais Occidentaux: La Minorité dans un état Bicommunitaire (1972); A Mukong (ed.), The Case for Southern Cameroons (1990); P Konings & B Nyamjoh, ‘The Anglophone Problem in Cameroon’ (1997) 35 Journal of Modern African Studies; E Lyombe, ‘The English-Language Press and the “Anglophone Problem” in Cameroon: Group Identity, Culture and the Politics of Nostalgia’, http://findarticles.com/p/articles/mi_qa3821/ai_n9173452/print

[4] J Derrick, ‘Cameroon: One Party, Many Parties and the State’ (1992) 22 African Insight 165.

[5] In his book, Communal Liberalism (1987) 26-30. VJ Ngoh, ‘The Origin of the Marginalization of Former Southern Cameroonians (Anglophones), 1961-1966: An Historical Analysis’ (1999) accessible at http://findarticles.com/p/articles/mi_qa3821/is_199904/ai_n8835936/print; FB Nyamnjoh, ‘Cameroon: A Country United by Ethnic Ambition and Difference’ (1999) 98 African Affairs 101.

[6] See, Kofele-Kale ‘Ethnicity, Regionalism, and Political Power: A Post-mortem of Ahidjo’s Cameroon’ in M Shatzberg & I Zartman (eds.), The Political Economy of Cameroon (1986).

[7] See generally, D Eyoh, ‘Conflicting Narratives of Anglophone Protest and the Politics of Identity in Cameroon’ (1998) 16 Journal of Contemporary African Studies 249; J Derrick “Cameroon: One Party, Many Parties and the State’ (1992) 22 African Insight 165; J Takougang, ‘The Post-Ahidjo Era in Cameroon: Continuity and Change’ (1996) 10 Journal of Third World Studies 268-302; and A Mbembe,  ‘Epilogue. Crise de Légitimité, Restoration Autoritaire et Déliquescence de L’Etat’ in P Geschière & P Konings (eds.) Pathways to Accumulation in Cameroon (1993).

[8] Azevedo (ed.), Cameroon and Chad in Historical Contemporary Perspectives (1988), at p. 48.

[9] A ‘Position statement of the SDF members of the National Assembly of Anglophone extraction,’ signed by 15 members of the SDF in Yaoundé on 16 November 2016, provided the following evidence of what it referred to as the flooding of the Common law system by magistrates trained in the Civil law system: i) 58 of the 148 magistrates (39.2%) are Francophones trained in the civil law, ii) 54 of the 89 lawyers (60.7%) in the legal department in the South West Region are Francophones, iii) 20 of the 50 magistrates (40%) working in the Buea bench and legal department are Francophones, iv) 28 of the 30 bailiffs (93.2%) appointed to the two regions are Francophones, 67 of the 128 magistrates (52.3%) working in the North West Region are Francophones, and 64 of the 97 (65.9%) magistrates working in the legal department of the North West Region are Francophones.

[10] The continuous refusal against all logic to recognise the so-called Angophone problem and the firm belief by the ruling clique that they can use force to suppress the demonstrations is driving many moderate Anglophones into the extremist camp of those who think the only way to solve the problem is by secession. Some of these pro-secession groups, such as the Southern Cameroons Youth League, the Southern Cameroons National Council, and the Ambazonia Movement, are gaining supporters and becoming more militant by the day.

[11] See, David Abouem à Tchoyi, ‘Cameroun – Opinion: Le problème Anglophone pourrait devenir le noveau Boko Haram,’ http://www.cameroon-info.net/article/cameroun-opinion-le-probleme-anglophone-pourrait-devenir-le-nouveau-boko-haram-278841.html (accessed in February 2017). In fact, the Boko Haram insurgency in the northern part of Cameroon and Nigeria is a reminder of the dangers of exclusion and marginalisation, whether perceived or actual.

[12] In, The Three Waves of Globalization: A History of a Developing Global Consciousness (Fernwood Publishing and Zed Books 2003), 13.