By Dibussi Tande
President Paul Biya has signed into law, the bill relating to the (new) penal Code (Law No. 2016/007 of 12 July 2016).
Prior to its adoption by Parliament last June, the penal code bill was the target of widespread criticism from legal scholars, the Bar Council, civil society organizations and the general public because of a number of controversial provisions. Specifically targeted was the provision granting government ministers immunity from prosecution, along with other provisions punishing rent defaulters, criminalizing begging and adultery, and maintaining the death penalty.
Uproar over Immunity for Ministers
The main point of contention in the bill relating to the penal code was the provision which stipulated that:
“Any judicial, legal or investigating police officer who in violation of any law conferring immunity, by prosecution, arrests or tries a member of Government or of Parliament, shall be punished with imprisonment from one to five years.’’
Critics argued that this provision was “contrary to good governance and the transparency of public finances.” Others insisted that the provision was illegal because the country’s constitution granted immunity only to Members of Parliament and the President. The Minister of Justice, however, argued that the immunity of Members of Government was derived, by delegation, from the President’s immunity:
“The President of the Republic embodies an institution. He may delegate some of his authority to people known as Members of Government. Where there is delegation of authority to a Member of Government, only the President may suspend action taken in that capacity. Such immunity does not cover [criminal] offences. Actions that are separate from the office are not covered. Only actions in the exercise of that office are covered.”
Faced with mounting outrage particularly from lawyers who threatened to go on strike, the Senate (on the recommendation of Government) amended the controversial provision, stripping it of the reference to Members of Government. According to the amended text which is now in the new penal code (Article 127 on judicial or particular immunities),
Any judicial, legal or investigating police officer who prosecutes, arrests or tries anyone in violation of any law conferring immunity shall be punished with imprisonment from one to five years.
Other controversial Provisions Maintained
Although the government caved in on the issue of immunity for Members of Government, it maintained other controversial provisions that criminalize the non-payment of rents, adultery, and begging and maintain the death penalty.
According to Section 322-1: Renting Fraud
Whoever rents a built or un-built property on the basis of a duly registered contract, owing two months rents, and who has not paid such rents or vacated the said property, one month after service of a notice to pay or quit, shall be punished with imprisonment from six months to three years or with a fine of from CFAF 100,000 to CFAF 300,000, or with both such imprisonment and fine.
According to Maurice Kamto, a former Minister Delegate of Justice familiar with the drafting process, this provision was specifically included in the penal code to address the difficulties that the state-owned Cameroon Real Estate Corporation (SIC) was having with collecting rents, with some tenants falling behind on their rents for as long as a decade.
Gender Parity Regarding Adultery
Unlike the 1967 penal code which punished women simply for having sex with individuals other than their spouses but punished men only if they had sex at home or habitually elsewhere with someone other than their wives, the new law punishes both men and women equally for sex with third parties irrespective of where or how often.
According to Section 361 of the new penal code.
(1) A woman who, being married, has sexual intercourse with a man other than her husband shall be punished with imprisonment for from two to six months or with fine from CFAF 25 000 to CFAF 100 000.
(2) A husband who has sexual intercourse with a woman other than his wife or wives shall be punished as provided by Subsection 1 above.
However, the burden of proof of the existence of a polygamous union shall lie with the husband.
(3) No prosecution may be commenced without the complaint of the wronged spouse.
4) Consent by wronged spouse to resume cohabitation shall put an end to the effects of conviction.
Death Penalty Maintained
The new penal code prescribes the death penalty for a number of offences in spite of repeated calls from Cameroon’s Human Rights Commission and the United Nations for Cameroon to abolish the death penalty, and claims by the Cameroon Bar Council that maintaining the death penalty is contrary to Cameroon’s international treaty obligations.
According to Section 23, “Execution of a death sentence shall be by shooting or hanging... and shall be public unless otherwise ordered in the decision not to commute.”
According to Section 245:
Whoever, having means of subsistence, or being able to earn such by working, begs in any place for alms shall be punished with imprisonment for from three months to three years and with a fine of from CFAF 50 000 to CFAF 500 000.
In the opinion of the Bar Council, the criminalization of begging is proof that the penal code has established a discriminatory system of justice that favors the rich at the expense of the poor.
One of the innovations is the institution of alternative penalties for crimes punishable with imprisonment of less than two years or with fine only. These are Community Service (Section 26) and Reparatory Sentences (Section 26-1) which entail “the obligation, for the offender, to indemnify the victim within the period and under the conditions laid down by the court.”
The penal code includes a number of chapters with provisions that deal with what may be termed political crimes. These include offences against public peace, contempt of president, public bodies and public servants, corruption and violence in election matters, etc. The code also has sections that harmonize the code with key provisions of the 2014 law on terrorism or focus on malpractices during elections.
Some of the political crimes include the following:
Section 111: Secession
(1) Whoever undertakes in whatever manner to infringe the territorial integrity of the Republic shall be punished with imprisonment for life.
(2) In time of war, or in a state of emergency or siege, the penalty shall be death.
Note: Members of the Southern Cameroons National Council (SCNC) are routinely arrested and charged with secession.
Section 107: Failure to Report
Any citizen who in time of peace fails to inform the defence, administrative or legal authorities, so soon as he comes to know of it, of any activity liable to injure the defence of the nation shall be punished as under the last foregoing section. [1 to 5 years or a fine of from 50,000 CFA to 5,000, 000 or with both such imprisonment and fine whoever in the of peace.
Note: Three journalists are currently being tried by a military tribunal in Yaounde for what Cameroon Tribune describes as “non-denunciation” or concealing dangerous information concerning State security.”
Section 123-3: Misappropriation of Public Funds in Election Matters
Whoever, acting on his personal behalf or on behalf of a political party, uses funds received in the context of public funding for purposes other than those provided under the Law relating to the Electoral Code, shall be liable to with the punishment provided for in Section 184 [Misappropriation of public property] of the Penal Code. [i.e., imprisonment for life (if amount exceeds CFAF 500 000); 15 to 20 years for amounts above CFAF 100 000 but below or equal to CFAF 500 000; 5 to 10 years for amounts less than or equal to CFAF 100 000].
For background information on the (mis)use of state funds allocated to political parties during elections check out this article which I wrote nearly a decade ago.
Section 187: Damage to public or protected property
Whoever destroys or defaces any monument, statue or other property dedicated to public use or adornment and erected by public authority or by leave of said public authority, or any protected immovable or movable object or natural feature or site, shall be punished with imprisonment for from one month to two years and with fine of from 20,000 to CFAF 120 000.
Note: Last month, political activist Andre Blaise Essama was handed a six-month sentence for destroying the monument of General Leclerc in Douala. He previously served a three-month sentence for the same crime. About a decade ago, it was another activist, Mboua Massok, who was tried for defacing the same monument which has become a focal point for Cameroonian nationalists who insist that Cameroonian public spaces should be occupied by statues of Cameroonian national heroes and not by individuals who subjugated the country during the colonial era.
Active and Inactive Corruption
The penal code makes an interesting distinction between active and passive corruption, both of which are sanctioned.
Section 134: Active corruption
(1) Any national, foreign or international civil servant or public employee who, for himself or for a third party, solicits, accepts or receives any offer, promise, gift or present in order to perform, refrain from performing or postpone any act of his office shall be punished with imprisonment of from 5 to 10 years or with a fine from CFA 200, 000 to CFAF 2 000 000.
Section 134-1: Passive corruption
(1) Whoever makes promises, offers, gifts and presents or yields to requests liable to result in corruption in order to obtain either the performance, postponement or abstention from an act or one of the favours or benefits defined in Section 134 above, shall be punished in like manner as under Section (1) above, whether the corruption produced its effects or not.
The penal code tackles issues of public morality and prescribes sanctions for immoral speech in public. According to Section 264,
Whoever publicly utters any immoral song, cry or speech shall be punished with imprisonment for from 15 days to two years or with fine from CFAF 10 000 to CFAF 100 000, or with both such imprisonment and fine.
Note: In November 2015, Coller la Petite, a song by Cameroonian rapper Franko was banned for promoting indecency. The ban was subsequently lifted because there was no law specifically banning songs with supposedly obscene or suggestive lyrics.
Section 305: Defamation
(1) Whoever by any of the means described in Section 152 [contempt] injures the honour or reputation of another by imputations, direct or indirect, of facts which he is unable to prove, shall be punished with imprisonment for from six days to six months and with a fine of from CFAF 5 000 to CFAF 2 000 000, or with only one of the penalties.
(2) These penalties shall equally apply to persons guilty of defamation in the print and audio-visual media without prejudice to the right of reply and to the obligation to publish corrections.
Interestingly, subsection 3 stipulates that no proof may be offered of the truth of the defamatory statement if it concerns the private life of the person it defames, refers to a fact which is more than 10 years old or refers to an offence which has been amnestied or a conviction which has been expunged.
Finally, no prosecution may be commenced without the complain of the injured party or of his representative by law or by custom, or continued after withdrawal of the complaint.
It worth noting that the criminal defamation provision in the penal code has been used primarily against journalists and is therefore considered as being primarily a tool to muzzle the press in Cameroon.
Inconsistencies between the French and English Versions
One of the main issues that the Cameroon Bar Association had with the bill that was debated in parliament was that there was a potential for "different interpretations of the same law” because the English version was poorly translated from the French original. Although the English version of the final version of the law is an improvement, there are still significant inconsistencies between both versions with serious consequences regarding the equal application of the law. One of the most glaring incongruities between both versions is in Section 344. The English version defines a minor as someone under the age of 18, while in the French version defines a minor as someone under the age of 21:
Section 344: Corruption of Youth
(1) Whoever, in order to satisfy the desires of another person, habitually excites, encourages or facilitates the debauch or corruption of any person under 18 (eighteen) years of age shall be punished with imprisonment for from 1 (one) to 5 (five) and with fine of from CFAF 20 000 (twenty thousand) to CFAF 1 000 000 (one million).
Article 344 : Corruption de la jeunesse
(1) Est puni d'un emprisonnement de un (01) à cinq (05) ans et d'une amende de vingt mille (20 000) à un million (1 000 000) de francs, celui qui excite, favorise ou facilite la débauchée ou la corruption d'une personne mineure de vingt et un (21) ans.
The penal code also prescribes sanctions for female genital mutilation, sexual harassment. forced and underage marriage, etc.