CRIMINAL PROCEEDINGS AND THE RIGHTS TO FAIR HEARING CAMEROON

ABSTRACT

Criminal proceeding is the adjustical  process of criminal law and focus is on person being tried then burden of proof rest on  prove beyond doubt this work has examine criminal proceeding, right to fair hearing burden of proof and presumption of Innocent.  It has further expatriated  on  the various stage of criminal proceeding which include investigation, arrest  preliminary hearing, arraignment and trial which is the final stage

The main text used is a nation text lead  down by law no 2005 of July 2005 on the criminal procedure code, Beside case law  has  also  been used to expatriated more on  the  concepts right the work has also established how the objectives that can  be implemented to  ensure observation of criminal procedure and right to fair hearing . The  work has also show how challenging it is to  implement the right to fair hearing some of which include executives power over the judiciary. The influential , corrupt nature of some executives over judicial function  as seen in the Constitution.

CHAPTER ONE

GENERAL INTRODUCTION

BACKGROUND TO THE STUDY

Criminal proceeding is the adjudication process of the criminal law. Criminal proceeding changes dramatically by jurisdiction, the process begins generally with the person on trial being free on bail and results in the conviction or acquittal of the defendant. Criminal proceeding can be either in form of acquisition or adversarial criminal procedure.

            In many countries with the demand system and rule of law. The burden of proof rest on the prosecutor that is the prosecution has to proof that the defendant is quilty beyond any reasonable doubt, as opposed to having the defendant prove that they are innocent and any doubt resolved in favor of the defendant. This provision is known as presumption of innocent.

          The presumption of innocent is required in the 46 countries that are members of the European council under the European convention on Human Rights and it is included in many other Human Rights documents[1]. Although it operates that way in other countries, it operates differently in some countries. Some basic Rights include the right for the defendant to know the offense in which he is being arrested for, and also the time in which he has to appear before the judicial official within a certain time of being arrested in some jurisdictions, the defendant is being to get a counsel and if he or she cannot afford one then the court will provide one.

          Within the Cameroonian context, there exist five stages of criminal proceedings. They include; Arrest, preliminary hearing, investigation, arraignment and trail[2]. The criminal procedure Act 2011 in New Zealand came into force on 1 July 2013. It changed the landscape for criminal cases[3]

            The brief concepts of fair hearing. What has fairness does not require perfection; indeed, perfection is something more for the province of gods. “The fundamental Human Rights is not a system that is infallible but one that is fair”[4] As right to fair hearing is interpreted from Diplock Dictum, fairness demand not perfection but for reasonable honesty, just and commonly litigation.

           The right to fair hearing means a judicial proceeding that is conducted in such a manner of a fundamental concepts of Justice and equality. Authority exercise fair hearing, according to the principle of law, fair hearing means individual will be able to present evidence to support his or her case in criminal law when is arrested is fair hearing right to be notified charge brought against him.

      In other for hearing to be fair and complied with due process requirement, it must be held in the in partial tribunal. Fair   hearing must provide a reasonable opportunity for an individual to present at design time and place during which he provides evidence, cross examination and offer defense.

        The right to fair hearing is indeed Human Rights and its obligation for the government and international treaties such as Universal Declaration of Human Rights. The State therefore have obligation to ensure the right of fair hearing and taking measures to protect them.

         Fair trial stand under the International Covenant on Civil and Political Right (ICCPR) as a fundamental principle within it’s article 14[5]. There are supplemented by procedural guarantee applicable proceeding concerning the expulsion of Alien and the principle of non retroactivity of criminal or penal law. Under international humanitarian law the third and forth Geneva convention of 1949 provided judicial guarantee of prisoners of war and civilian detain for criminal offenses related to international conflict. The Geneva convention in it article 3(1)(d) prohibit the passing of sentences and carrying out of execution “ without previous judgement pronounced by regularly constituted court affording all judicial guarantee which are recognized as indispensable by civilized people”. Refusal of right to fair trial can constitute crime in certain circumstances[6].

        The right to fair trial is an international law principle that is being observe in Cameroon and many other countries in the world. It’s a municipal law in Cameroon. The preamble of 1996 Constitution of Cameroon provide that everyone has the right to fair hearing and section 4 of judicial organization corroborate that “all judgement shall be pronounced in open court. [7]

            Justice Patrick state that fair trial can be trace back to the Lex Doudecin Tabularum also known as 12tablet which was the first written quote of law talking about the principle of equality amount citizens and the prohibition. Another important historical event of right to fair trial can still be seen under the work of Judge Patrick Robinson which is Magna Carta. The Magna Carta proclaim that; no free man shall be taken, imprisoned, disseized, out lorded, exile or anyway harm non will go upon himself by unlawful judgement of his peers or law of the law. The right to fair trial can be trace from the very origin of the garden of Eden. Regarding the wrong of Adam and Eve God therefore punishing them trial them, thereby granting the right of fair trial. If the right to fair hearing is critical observe certain benefits will be obtained, benefits not only to state but to citizens.

         1.2 STATEMENT OF A PROBLEM

  In terms of the definition, the term fair hearing is a problem itself, several attempt from scholars to adequately define this Human Rights principle has not often than not been in futility. Existing declaration, resolution and universal sectorial treaties relating just to specific aspect of fact in issue, treaties such as Universal Declaration of Human Rights 1948. The international convention of civil and political right, African charter, Cameroonian Constitution 1996 as amended in 2008 only protect and promote the right but fail to define it.

Another problem emanated from the implementation of right of fair hearing in Cameroon ever thought Cameroon Wanda full ensuring the protection and promotion of the right to fair hearing. In the case of Emdga Mekong v. Cameroon was accuse of dictatorship of the plaintiff and was held liable for unjustly arresting and detaining Mr. Mekong for 12years without trial within reasonable time thereby refusing his right to fair hearing[8]. Though the right to fair hearing is stated in the Cameroon Constitution it is rarely put into practice base on problem.

1.3RESEARCH QUESTION

         There are two category of research questions which are general and specific questions.

1.3.1 GENERAL RESEARCH QUESTIONS

To what extent does criminal proceedings ensure the right to fair hearing in Cameroon?

1.3.2 SPECIFIC RESEARCH QUESTIONS

1. What are the measures aimed at improving the observance of the right to fair hearing in Cameroon?
2. What account for the fact the fact that despite the provide of Fair hearing in Cameroon Constitution, the principles are not sometimes not observed?
3. What are the policy recommendation to be made regarding fair hearing?