CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND OF THE STUDY

Access to justice refers to the substantive and procedural mechanisms existing in any particular society designed to ensure that citizens have the opportunity of seeking redress for the violation of their legal rights within the legal system. 

It focuses on the existing rule and procedures to be used by citizens to approach the courts for the determination of their civil rights and obligations.  It entails more.

It has been said that access to justice is not limited to the procedural mechanism for the resolution of disputes but includes other variables like the physical conditions of the premises where justice is dispensed, the time it takes for the delivering of justice, the moral quality of the dispenser of justice,

the observance of the general principles of the rule of law, the affordability of the cost of seeking justice in terms of time and money, the quality of the legal system, with particular attention to customary courts.

Access to justice so explained is therefore a core right essential for the protection and promotion of all other civil, cultural, economic, political and social rights.

  It is therefore apparent that access to justice is a charged concept that embraces the natural mechanism and even the quality of justice obtainable in society as well as the place of the individual within this judicial matrix. 

It is also important to underscore the fact that access to justice is undeniably an important barometer for assessing not only the rules of law in any society but also the quality of governance in that society.

While justice itself is an elusive concept, it can loosely be said that it implies equality and fairness; and for there to be meaningful access to justice, there must be some element of fairness and equity in a system to guarantee the realization of the basic fundamental rights.

Moreover, to enhance access to justice in any society, it is necessary for certain basic infrastructure to be put in place and the requisite number and quality of the personnel involved in the scheme. 

For instance, where the courts are not sufficiently manned, or manned by men and women who are morally depraved, then such a court can hardly guarantee social justice to its litigants. 

Indeed, corrupt judicial officers may very well act as serious impediment to the attainment of justice even where the infrastructures and legal instruments are well-wrought and structured.`

The political and Constitutional development of Cameroon has been intertwined with the quest for the promotion and protection of human rights in the country.  From the Constitution and other local legislation, human rights question have received merited attention in legal and political discourse even though it’s application leaves much to be desired. 

There have been sustained struggles for the protection of the human rights of individuals, groups and communities in Cameroon. The Supreme Court and the Court of Appeal decisions are eloquent testimonies of this concerted effort to promote and protect human rights and access to justice in the country. 

While the purpose of the former was to give a death blow on the customary practice embedded in patriarchy, which is implemented on the belief that women cannot administer or own property, the later examined instances of human rights abuses.

These decisions to a large extent signaled the concern of the government to correct the last mistakes of human right abuses. 

While these formalistic approaches can easily be mentioned, the same cannot be said of the actual Implementation of mechanisms designed to facilitate the realization of basic human rights. 

This is because there is a wide gulf between official pronouncements of respect of human right and their actual implementation. 

The explanation for this appears, to be that there still exist a number of substantive and procedural obstacles or impediments that not only inhibit the actual implementation of such measures but preclude the masses in general from having access to justice in Anglophone Cameroon.

  Access to justice can be looked at from two main perspectives:  The narrow and the wider senses. 

In the narrow sense of the terms, it can be said to be coextensive with access to the law courts while in the wider connotation it embraces access to the political order, and benefits accruing from the social and economic developments in the country.

One may therefore say that generally speaking, access to justice Implies access to social and distributive justice. 

It is however important to underscore the point that these perspectives are not necessarily disconnected since the extent to which one can have distributive justice in any system is largely determined by the level and effectiveness of social justice in the country. 

The consequence of this is that any discussion of one aspect of the concept will necessarily entail a reference to enjoy and ensure the realization of any other right, whether civil, political or economic.  Thus, while this thesis will emphasize the concept from the narrow perspective, the wider conception of the term will also be incorporated in the analysis.

Traditional courts still form an important part of the administration of justice in much of Africa, including Cameroon.

Some critics see them as conservative and unable to deliver justice in the modern social economic and political climate while others see them as prototypes of the kind of dispute resolution mechanisms that are desirable in modern society.

There are several reasons why customary courts should be retained in a modern democratic country like Cameroon, first it is argued this researcher that customary law, as the law of the majority of African people and customary courts that administer justice according to this law is part of the cultural heritage of African people.

Secondly, customary courts are a useful and desirable mechanism for the speedy resolution of disputes giving their nature as an easily accessible, inexpensive (virtually free), simple system of justice.

The Constitution of Cameroon, 1996 (as amended) has not made adequate provisions for the respect and observance of customary laws through the institutions of the respective state yet the judicial organization ordinance however regulates these courts.

The role of these courts in the Cameroon legal systems cannot be ignored granted that many of the population in Cameroon still leave in rural areas where these courts regulate some of their activities. In this regard therefore it becomes necessary to ascertain whether the right of fair hearing another arm of access to justice is respected in these courts.

 In Cameroon, the preamble and Article 37 of the Constitution of Cameroon, 1996 (as amended) as read with section 3 of the law on Judicial Organization provides for the independence, impartiality and integrity of the courts of law and easy accessibility thereto.

 It must be noted that one of the fundamental principles in the administration of justice in Cameroon is that justice is administered free of charge.

This is important to hear because it gives access to even the poor who may not have been able to afford the cost. The above-cited sections provide for the establishment of the various courts within the territory of Cameroon.

It has at the apex of the court system in Cameroon the Supreme Court, followed by the Court of Appeal, Lower Courts of Administrative Litigation, Lower Audit courts, Military Courts, the High Court, Court of First instance and the customary court. Of a truth, these courts could not be said to be grassroots courts.

The fact of the matter is that these courts are usually established and sited in urban cities and locations.

They are almost always approached by the elite of the society, proceedings before them being mostly understood by the elite.

Indeed, most often than not, it is the elite who can afford any of these courts not so much in terms of courts fees but as it relates to the cost of obtaining and retaining the services of Legal Practitioners.

The subjection of customary laws to Repugnancy tests in Cameroon courts during the colonial era has attracted the attention and criticisms of different stakeholders, such as Judges, Lawyers, and legal analysts depending on your point of view. The courts have set aside several Cameroon customs on grounds that such customs failed the repugnancy test.

In some instances, courts have made conflicting decisions on the same customs. Notwithstanding scholarly efforts and judges’ contributions in condemning every trace of some of the customs, those cultural practices have persisted in many Cameroonian societies. For instance, widow inheritance, genital mutilation, torture of women etc.

The judicial organization in its section 31 excludes criminal jurisdiction from customary and Akali courts, this is perhaps because of the cruel punishments usually associated with the sentencing of offenders

   Today in Cameroon almost every community has a customary court within the legal system. The court as a court of summary jurisdiction, and a court which reside in the heart and midst of the community they served, are closer to the people as against Courts of First Instance and the High Courts. 

1.1.2 THE RELATIONSHIP BETWEEN ACCESS TO JUSTICE AND HUMAN RIGHTS PROTECTION IN THE ENFORCEMENT OF CUSTOMARY LAW

The relationship between access to justice and human rights protection stems from the fact that it is only when individuals have access to the courts that they can espouse and seek the protection of their basic rights.

  In other words, the legal and institutional structures existing in a system may be such as to preclude the citizens from having access to the courts, who are therefore unable to seek the enforcement or protection of their basic rights. 

While some of these legal and institutional mechanisms may have been put in place to achieve particular objectives, they may indeed constitute formidable obstacles to the promotion and protection of human rights especially in the enforcement of customary law.  Yet other obstacles may be traceable to the structure and composition of the political and economic systems operative in a given country. 

In the case of Cameroon and Anglophone Cameroon in particular, it does appear that a combination of the obstacles in the first and second categories has led to a systemic, inability of the legal order to guarantee access to justice in the country. 

The importance of this second class of obstacles stems from the fact that for a third world country such as Cameroon, where the level of illiteracy in a rural community is unacceptably high despite the obligation imposed on the State in the Constitution, and the conditions of existence extremely difficult for people to take out a living, issues concerning human rights protection necessarily take a secondary position in the Scheme of things.

 Professor Claude Ake put the importance of these obstacles in their proper context and perspective when he observed them as follow. 

“For reasons which need not detain us here, some of the rights important in the West are of no interest and no value to most Africans.  For instance, freedom of speech and freedom of the press does not mean much for a largely illiterate rural community completely absorbed in the daily rigours of the struggle for survival …

If a Bill of Rights is to make sense, it must include, among others, a right to work and to a living wage, a right to shelter, to health, to education.  That is the least we can strive for if we are ever going to have a society that realizes basic human rights… in Africa, liberty rights, are to be meaningful in the context of a people struggling to stay afloat under very adverse economic and political conditions, they have to be concrete.  Concrete in the sense that their political import is visible and relevant to the conditions of existence of the people to whom they apply.  And most importantly, concrete in the sense that can be realized by their beneficiaries”.

 Indeed, to a large majority of persons, Issues of human rights protection appear to be luxuries that they can hardly afford.  The result is that it is often seen as an elitist past time designed to attract attention, even when the underlying objective is the promotion of corporate good.

1.2 STATEMENT OF THE PROBLEMS

Justice is a concept that begins from the pronouncement and substance of the law to the different stages and forms of its enforcement. There are operational problems associated with this phenomenon. Usually, claims involving financial compensation for rights violation attract 5% prospective tax on the claim of the plaintiff.

This practice in civil matters where the government has used exorbitant filing fees and prohibitive pre-filing tax of 5 per cent of claims to impede access to justice by the poor has created immense problems with regards to the enforcement of basic rights for victims of rights violations.

This is more so as the material jurisdiction of the customary court is limited to 69.200 frs creating an enabling atmosphere for litigants to approach the courts of the first instance and High courts(where exorbitant pre-filling fees are imposed) on customary law matters when the quantum is above 69.200 FRS.

In addition, relative to the economic situation in Cameroon, the cost of litigation in the country is so high that the ordinary Cameroonian can hardly afford adequate legal representation when he has a legal matter to pursue.   This is all the more so if one considers that the vast majority of Cameroonians are constantly preoccupied with how best to make a living for themselves and their extended family. 

Perhaps in order to enhance their own economic standing, legal practitioners in Cameroon and Anglophone Cameroon, in particular, have devised a method of collecting not only their professional fees but also transportation fees each time they go to court, thus invariable adding to the financial burden of litigants.  When this is considered against the background that a particular case could last up to four or five years, then the enormity of the financial burden on litigants can better be appreciated.

These problems are less encountered in customary court settings, but as the practice of law entails the problems are considered much alive as appeals from the customary Courts goes to the regular courts of Appeals for want of establishment of customary courts of appeals in the country.

This thesis acknowledges the apparent attempt to ease access to justice by the less privilege in the form of Legal Aids.  It however notes that the conditions stipulated for obtaining legal aid are by itself another problem because it is so cumbersome with members of the commission given the perfect pretext to disregard the law since they have voting powers as to whether the application should be granted or not. 

In Mms Bate Nkongho Regina Manyo v. Bate Oscar the plaintiff Mme Bate Nee Nkongho Regina Manyoh had on the 23^rd day of March 2012 applied for legal aid as she lacked the means to hire a lawyer and the cost of proceedings but for over six years has not gotten any reply from the commission. 

Quite apart from the fact that the composition of the commission gives its members the perfect opportunity to discriminatorily disregard applications, in this particular case, the application was motivated in view of pursuing a claim for which an advocate and magistrate who could influence the decision of the commission involved. 

Furthermore, the context of independence of the judiciary and the enforcement of human rights through the National Courts generally is weakened by the fact that all the members of the judiciary are appointed by the President of the Republic and the minister of justice in the case of customary courts who are all members of the executive arm of government. 

This creates problems of the perception that Magistrates takes instructions from the President who appoint them under the provision of Section 37(3) of the Constitution. Although the constitution in its article 37(2) states that judicial power shall be independent of the executive and legislative powers and that a magistrate of the bench shall, in the discharge of their duties, be governed only by the law and their conscience. 

There is apparently a problem as paragraph 3 of the cited law gives the President of the Republic who is the head of the Higher Judicial Council the sole rights to appoint magistrates of the bench and of the Legal Department.  The magistrate cannot under such dispensation independently decide on cases of rights violation where the state has an interest.

     The thesis analysis the problem associated with the absence of true judicial independence and note that one of the enduring and indeed imperishable attributes of the common law is the notion of judicial independence. So important is this notion that it has become entrenched not only in the English judicial system but in the most judicial system across the globe.

The term judicial officer should directly or indirectly, however remote be put to pressure by any person whatsoever, be it government, corporate body or an individual to decide any case in a particular way.  He should be free to make binding orders which must be respected by the legislature, the executive and the citizens, whatever their status …

The presiding officials as the customary court are a concern are appointed by the Minister of justice who is directly linked to the administrative arm of the government. This equally creates the perception that the chiefs who are appointed on a discriminatory basis usually in discharging their functions, turn to protect the interest of the state that appointed them.

 Judicial independence seemingly is far-fetched as the appointment and removal of judges are not insulated or isolated from politics, ethnicity favouritism, and other primordial consideration.  Apart from the problem of appointment and removal, which inevitably compromise its Independence and Impartiality, it is weighed down by the lack and financial autonomy.

  The delays in the administration of justice as an aspect of access to justice are becoming very worrisome.  That there is inordinate delay in the administration of justice in Anglophone Cameroon is a Pedestrian statement.  We see ordinary cases of trespass and other related dispute over land before the customary court lasting between three to five years only to discover at the appellate court that they lacked jurisdiction to entertain.

The courts of appeal have in all cases where customary courts act outside the scope of their jurisdiction, declares the entire proceedings null and void. A number of circumstances could give rise to this delay and persistent abuse of jurisdiction by the customary court:  None appearance of lawyers in the customary court and the inability of magistrates to deliver judgments on time.

It has almost become an accepted fact in Anglophone Cameroon that cases must last several years in court before they are concluded.  This thesis argues that under such circumstances, citizens would naturally be reluctant to initiate actions for the enforcement of their basic rights.

Undue reliance on technical rules in accessing the courts for the enforcement of fundamental rights is problematic.  It is noted that law is an inherently technical subject and this technicality is manifested in the various rules and procedures in place.  For a litigant to be able to approach the courts he has to retain the services of a legal practitioner who will initiate the appropriate action, on his behalf. 

The litigant, however well-educated he may be, is usually unable to understand the Intricate processes and rules applicable to his case.  The situation is certainly worse for an illiterate Cameroonian, and when one realizes that a vast majority of Cameroonians are illiterate then the actual picture can better be appreciated. This is hardly the case with actions conducted in customary courts as the litigants are familiar with the proceedings and customs of the people.

This thesis notes that one other facto used to preclude access to courts in Cameroon is the overused concept of locus standi.  This could indeed create a formidable obstacle in the quest for the protection of human rights and the observance of customary law.  Locus Standi is not an easy concept to define but one can say that it basically means the standing to sue. 

It refers to the right of a party to an action to be heard in litigation before a court of law tribunal or the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance.

  In other words, “For a person to have locus standi in an action he must be able to show that his civil rights and obligations have been or are in danger of being infringed.  Thus, the fact that a person may not succeed in an action does not have anything to do with whether or not he has the standing to bring the action”.

 The thesis addresses the problem linked with the interpretation of customary law as it remains deeply rooted in confusion. Those who preside over customary cases are caught between applying customary law (which arguably they were set up to do) and following the written law, most importantly the Constitution which applies to everyone, even to people subject to customary law.

The area in which this conflict is greatest surrounds provisions regarding the status of women as several constitutional provisions go against the grain of customary laws and norms.

  Despite the conceptual and rhetorical lip- service paid to the many concepts enshrined in the 1996 constitution as amended the breach in practice is striking, as is the absence of a well-grounded understanding of the precise manner in which these concepts shall be translated on the ground.

It should be noted that prior to colonialism customary law was presided over and adjudicated by traditional cultural leaders, who were often knowledgeable about it and vested with authorities to translate it. Transferring the adjudication of customary law to formal courts has in certain respects cause customary law to lose its original force although provisions were made for customary law “expert witnesses” to assist courts and for courts to take “judicial notice” of a particular fact that had been established by witnesses.

In fact, particularly in the case of Cameroon, it can be said that the customary system has been reduced into a supplementary or rather a secondary source of law for the formal courts.

Against the backdrop of this development, the formal system in general certainly views customary law as subordinate, if not so much in the same fashion as their colonial predecessors did. In addition to reconstructing the interpretation of customary law, the formal system has also effectively made it a supplementary source of law through the legal positivism of the judges who often exclude customary law in favour of writing law.

There are many numbers of explanations for this attitude, including the generational plus the increasing remoteness of the customer experience from daily life in urban Cameroon, where the courts are based. There is also the profound influence of the 1996 constitution, which albeit still in only nascent form, is causing judges and magistrates to become attuned to the demands of constitutional (as read with the Southern Cameroon High courts Law) fidelity. Because of these attitudes, customary law must be put to the strictest proof by the party seeking to secure its application.

A competent court must decide on the existence of a customary law after the party seeking to secure its application has adduced evidence of its existence. Formal courts have used these inherent powers to pronounce or reject customary law according to their whims.

This thesis looks at the importance of customary courts and notes that it still forms an important part of the administration of justice in much of rural Africa, including Cameroon and Anglophone Cameroon in particular. It however looks at the problems associated with the view of some critics who see customary courts as conservative and unable to deliver justice in the modern social economic and political climate.

In addressing this problem this thesis seeks to establish that there are several reasons why customary/traditional courts should be retained with the more challenging role (responsibilities) in a modern democratic country like Cameroon.   Although customary courts are tacitly recognized in most of the post-independent legislations, the competencies are hardly addressed as is the case with the modern courts.

Firstly, it is argued that customary law, as the law of the majority of African people and traditional courts that administer justice according to this law, are part of the cultural heritage of African people. This argument has been made particularly by traditional leaders themselves as well as some academics.

Secondly, traditional courts are a useful and desirable mechanism for the speedy resolution of disputes given their nature as an easily accessible, inexpensive(virtually free), a simple system of justice. This can be contrasted with what obtains when accessing statutory courts as 5% prospective tax on the value of the plaintiff’s case is usually imposed on the plaintiff. This can be contrasted with what operate with labour suits.

1.3 RESEARCH QUESTIONS

Base on the objectives of this research and the problems at stake, the following questions will serve as a guide in this research:

• What is the judicial and administrative organization of the Cameroon Legal system?
• Taking into account the repugnancy and incompatibility test together with the public policy test, to what extent are customary laws enforced in Anglophone Cameroon?
• How is the manner of proceedings conducted in the Customary Courts and whether there are any procedural rules laid down?
• Whether the enforcement of customs and traditions is based only on certain customary usages which have been the practice over a long period of time or are based believes?
• Whether the non-participation or exclusion of judicial officials in customary court does no frustrate the development and enforcement of customary laws in the country?
• Should customary courts of appeals be established to receive appeals from the customary courts? And as a follow up should a customary law chamber be created at the Supreme Court as the government recently created the common law chambers?

1.4 RESEARCH OBJECTIVES

We will consider under this head the general and specific objectives.

1.4.1 General objective

The general objective of this research is to examine the importance of access to justice as an essential instrument for the protection of customary law in Anglophone Cameroon. The research is aimed at examining the effectiveness of the courts in enforcing customary laws and to explore possible ways of making the court more effective in the enforcement of customary law.

1.4.2 Specific objectives

The specific objective of the study includes:

• Within the context of the application of customary laws and practices in the Anglophone Regions, the research is aimed at assessing the effectiveness of the judiciary and the administrative settings of the courts.
• To examine the extent to which customary laws are being applied in Anglophone Cameroon taking into consideration the status of the customary courts in the current constitutional dispensation and especially with the introduction of the repugnancy and incompatibility test as read with public policy test introduced by statutory laws.
• Since customary law is a living law as per its characteristics, the research critically assesses whether the enforcement of customs and traditions is based only on certain customary usages which have been the practice over a long period of time or believe of the people.
• To describe and evaluate the nature of customary justice in Anglophone Cameroon.
• To assess the status of the courts in the current constitutional dispensation.
• To propose policy recommendations that can be adopted by policymakers to enhance the promotion and protection of customary law.

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