Cameroon’s much heralded new criminal procedure code went into effect today, January 1, 2007. Adopted by Parliament in July 2005, the new code is a hybrid system which merges key features of the French Civil law and English Common law systems, along with customary law.
Before the adoption of the new code, criminal procedure was governed in Francophone Cameroon by the French code d’instruction criminelle of February 14 1838 and its subsequent amendments, while in Anglophone Cameroon, it was governed by a variety of common law texts, primarily the Nigerian Criminal Procedure Ordinance of 1958.
Attempts to “cameroonize” the anachronistic systems began in the mid 1970s but the process stalled after Francophone jurists and legal practitioners balked at the preponderance of common law practices in the draft documents that resulted from those initial attempts.
Nonetheless, the criminal procedure code adopted in 2005 still draws extensively from common law practices, the most significant being the adoption of the Habeas Corpus, and the accusatory system of justice in place of the more widespread French / civil law inquisitorial system. [In very simplistic terms, the accusatory system is based on the presumption of innocence with the burden of proof on the accuser, while in the inquisitorial system there is a presumption of guilt with burden of proof on the accused].
According to Section 8 of the new code:
(1) Any person suspected of having committed an offence shall be presumed innocent until his guilt has been legally established in the course of a trial where he shall be given all necessary guarantees for his defence. (2) The presumption of innocence shall apply to every suspect, defendant and accused.
And in section 584, the code states that
(1) The President of the High Court of the place of arrest or detention of a person or any other judge of the said court shall be competent to hear applications for immediate release based on grounds of illegality of arrest or detention or failure to observe the formalities as provided by law.
In a bid to address the common practice of arbitrary arrests and secret detentions, the criminal procedure code lays down clear guidelines for arresting individuals. According to Section 31,
Except in the case of a felony or misdemeanour committed flagrante delicto, the person effecting the arrest shall disclose his identity and inform the person to be arrested of the reason for the said arrest, and where necessary, allow a third person to accompany the person arrested in order to ascertain the place to which he is being detained.
Furthermore, Section 23 states that “The judicial police officer charged with the execution of a warrant of arrest may not enter any place of abode before 6 a. m. or after 6 p. m. for the purpose of executing the warrant.”
Protection of the Individual in Custody
Some of the revolutionary changes (particularly for those trained in the Cameroonian civil law system) center around the treatment of individuals in police custody.
According to Section 30 (4) “No bodily or psychological harm shall be caused to the person arrested. However reasonable force may be used where necessary.”
Section 122 (2) adds that
The suspect shall not be subjected to any physical or mental constraints, or to torture, violence, threats or any pressure whatsoever, or to deceit, insidious manoeuvres, false proposals, prolonged questioning, hypnosis, the administration of drugs or to any other method which is likely to compromise or limit his freedom of action or decision, or his memory or sense of judgment.
Right to Visitation and Medical Treatment
The right of a defendant to visits, legal counsel and medical treatment is no longer a privilege but a right enshrined in the new law. According to Section 37:
Any person arrested shall be given reasonable facilities in particular to be in contact with his
family, obtain legal advice, make arrangements for his defence, consult a doctor and receive medical treatment and take necessary steps to obtain his release on bail.
Section 122(3) clarifies that
The person on remand may at anytime within the period of detention and during working hours, be visited by his counsel, members of his family, and by any other person following up his treatment while in detention.
The right to client / attorney confidentiality
According to section 239 a remanded defendant has the right to unrestricted correspondence with third parties subject to the said correspondent being read by the Superintendent of Prison. However, Section 242 specifically protects client / attorney confidentiality by stating that:
1) The provisions of section 239 (2) are not applicable to correspondences between the defendant and his counsel or those between the defendant and the judicial authorities. (2) Any information got in violation of subsection (1) above cannot be used against the defendant.
Search & Seizures
One of the areas where police abuse is most rampant is that of search and seizures. The new code tries to provide a legal framework for search and seizures more in line with international norms. According to Section 93(2),
“Any search or seizure shall be carried out in the presence of the occupant of the place and the person in possession of the objects to be seized, or in case of their absence, their representatives, as well as two witnesses chosen from among the persons or neighbours present.”
And in a clause that caused outrage and consternation particularly among security officers, individuals now have the right to search the police before they begin their search. According to Section 93(3),
“The occupant of the place and the person in possession of the objects to be seized, or in case of their absence, their representatives shall have the right to search the judicial police officer before the latter commences his search. He shall be informed of the said right and mention of it shall be made in the report of the fulfillment of this formality.”
This is ostensibly to prevent against planting evidence.
In cases where the police do not have a search warrant, searches may take place only with the explicit consent of the person being searched. In this regard, Section 94 states that
(1) In the absence of a search warrant, searches, and seizures of exhibits may be carried out only with the consent of the occupant or of the person in possession of the objects to be seized.
(2) The consent shall be a written declaration signed by the person concerned, and if he cannot
sign he shall make a thumb-print at the bottom of the declaration.
(3) The consent of the person concerned shall be valid only if he had been informed before hand by the judicial police officer of his right to object to the search.
A Step Forward
Although the new criminal code has numerous flaws, some which were identified even before the code became law (see for example the comments of the International Bar Association), it is still a landmark legislation which, at least on paper, seeks to promote what the official media has described as “justice with a human face”. As Buba Ndifiembeu has pointed out in A handbook on the criminal procedure code of the Republic of Cameroon, the new code "paves the way for a much more…. improved human rights practices and provides the possibility for a more humane treatment of accused persons in Cameroon."
But Old Habits Die Hard…
The million dollar question is whether there is an enabling environment to facilitate and promote the effective implementation of these new laws. In this regard, it should be noted that the criminal procedure code was initially supposed to go into effect on August 1, 2006, but this was postponed to January 1, 2007 apparently because of resistance some of those charged with implementing it. Many groups were uncomfortable with the “restrictions” placed on judicial and security forces and with the “liberties” given suspected criminals. It is also worth pointing out that even before the adoption of the new code, Cameroon had one of the most stringent laws against torture. However, it is still common place to see tortured suspects paraded on national TV, or to read about confessions obtained through torture in the official media.
So, can “justice with a human face” become a reality in an environment where the violation of rules is a national hobby; where the judiciary is still tethered to the executive branch; where police abuse generally goes unpunished; and where the entire incarceral culture is based on punishment of the accused? Only time will tell…