Legal and Institutional framework to Fight against Corruption and misappropriation of public funds in Cameroon
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The fight against the misappropriation of public funds perpetrated by individuals, especially public servants, for private gain, enjoys different degrees of commitment by different countries. The enactment of laws and establishment of institutional mechanisms towards this end is partly a reflection of the attainment of such a mission and can also be the measure by which such a commitment can be assessed.
Rated as one of the most corrupt countries in Africa by Transparency International, the global anti-corruption watchdog, the Republic of Cameroon recently enacted a law that created a Special Criminal Court.
This comes as one of the most robust and significant legislative developments in the fight against the misappropriation of public funds. The mandate of the Special Criminal Court is to bring to justice persons who “cause loss of at least 50.000.000 CFA Francs (equivalent to about USD 100.000) relating to misappropriation of public funds and other related offences provided for in the Cameroon Penal Code and International Conventions ratified by Cameroon”.
This paper examines the offence of the misappropriation of public funds. It looks at aspects of the Special Criminal Court as provided by the Law that established it as well as supplementary legislation enacted to address specific issues related to the Special Criminal Court.
The paper also examines the offence for which individuals are prosecuted in the Special Criminal Court. As a bold step in fighting and defeating the “invisible enemy amongst us” (that is, corruption), this paper argues that an institutional mechanism like the Special Criminal Court that has docked several top-notch politicians and former cabinet members for trial is an example to emulate and confirms that corruption can be fought if and only if the political will to do so is present.
1.1 BACKGROUND TO THE STUDY
Corruption is a phenomenon with serious consequences that affects all communities in the world. The government has put several structures in place to fight this ill. There is equally the fight against corruption in Cameroon. The fight against misappropriation of public funds perpetrated by individuals, especially public servants, for private gain, enjoys different degrees of commitment by different countries.
The enactment of laws and establishment of institutional mechanisms towards this end is partly a reflection of the attainment of such a mission and can also be measured by which such a commitment can address. Rated as one of the most corrupt countries in Africa by Transparency International, the global anti-corruption Watchdog, the Republic of Cameroon recently enacted a law that created a special criminal court.
This comes as one of the most robust and significant legislative development in the fight against the misappropriation of public funds. The mandate of the Special Criminal Court is to bring to justice a person who “Cause loss of at least 50.000.000 FCFArelating to misappropriation of public funds and other related offences provided for in the Cameroon penal code and international conventions ratified by Cameroon.”
On the 14th of December, 2011, Cameroon enacted a law that established the special criminal court.The court exercises exclusive jurisdiction over a specific class of offences committed across the national territory. The law does not make use of the word “corruption” rather; it uses the formulation “misappropriation of public property” which is very similar in content with section 184 of the Cameroon Penal Code.
The creation of this court was aimed at fighting against the embezzlement of public property, to ensure speed in judicial proceedings and the restitution of the property. It has changed the Penal Code punishment for misappropriation of public property.
The Penal code in its section 184 and 35 calls for punishment and confiscation of offence related property and the Special Criminal Court’s creation in section 18 call for restitution and nolleprosequi. A court with special jurisdiction is one, which either deal with a particular class of persons only or deals with specific matters formally provided for by statute.
Formerly, misappropriation of public funds was triable before the ordinary criminal law court. The Cameroon Penal Code in its section 184 condemns this ill. A special criminal court is now created to hasten the proceedings against the embezzlement of public fund. However, it seems to have compromised the penal code’s severe punishment against the misappropriation of public property. The role of this Special Criminal Court in the fight against the embezzlement of public funds in Cameroon is the subject matter of our work.
1.2 STATEMENT OF THE RESEARCH PROBLEM
Shockingly, despite fascinating evidence that has given the country an excellent scorecard on corruption, the jurisprudence from the courts indicates that the offence of corruption is highly under-reported, under-investigated and under-prosecuted.
A few questions have to be asked: first, has the offence of the corruption and misappropriation of public funds been normalized into the national social fabric to the extent that even when it is committed en flagrante, it is trivialized, and consequently, becomes under-reported, under-investigated and under-prosecuted?
Secondly, is it really a question of political will that is needed to stop, prosecute and convict persons who misappropriate public funds? Or is the legal system too fragile, dilapidated, broken, or too consumed by the very ailment (corruption) it is supposed to be immune to so that the laws and institutional mechanisms are now too ineffective in preventing corruption within State-owned and run institutions?
One can see that the Special Criminal Court was put in place to fight against embezzlement and corruption yet are still very rampant in the country as state officials continue to embezzle state money for their personal gains and the Special Criminal Court seems to be prosecuting only those who are referred to it by the President of the Republic or by the ruling class in Yaoundé.
1.3 RESEARCH QUESTIONS
1.3.1 Main research question
- What is the legal and institutional framework for the fight against corruption in Cameroon?
1.3.2 Specific Research question
- What is the raison d’etre of the Special Criminal Court in the criminal law system in Cameroon?
- What is the procedure in prosecuting corrupt acts like the embezzlement of public funds before the Special Criminal Court?
Are they policy recommendations for an effective fight against Corruption in Cameroon?
1.4 RESEARCH OBJECTIVE
This research has both general and specific objectives;
1.4.1 General objective
- To bring out the legal and institutional framework for the fight against corruption in Cameroon
1.4.2 Specific objectives
- To know the raison d’être of the Special Criminal Court in the criminal law system in Cameroon.
- To examine the procedure in prosecuting corruption cases such as the embezzlement of public funds before the Special Criminal Court in Cameroon.
- To make some recommendations on how corruption can be eradicated in Cameroon by the Special Criminal Court.
That is 1998 and 1999 as per Transparency International Indices.
Bechem Emmanuel Egbeyongexplains in his article “Corruption in Cameroon: Public Perception of the Role and Effectiveness of the Different Anti-Corruption Agencies” that corruption is a “Virus” that poses a threat to global socio-economic and political advancement, thus a universal antidote would be most suitable to counteract its propagation. He went further by saying that corruption is a canker worm that has invaded the Cameroon society. It cuts across all sectors in Cameroon, be they the public or private sector and not even the church is free of corruption. He said that corruption is manifested in several forms including bribery, nepotism, graft, fraud, speed money, theft, pilferage, embezzlement, falsification of records and influence peddling. He explained that the classification of Cameron as the most corrupt nation in the world in 1998 and 1999, made the government more willing than ever to fight the ill. The slogan “corruption kills the nation” was adopted by the government in its fight against corruption.According to him, the selective nature exhibited by the Special Criminal Court in prosecuting those indicted by reports of the Supreme State Audit Office, CONAC and the Audit Bench has led across-section of the Cameroonian public to consider it as a means ofsettling political scores.
Avitus A. Agbor in his article‘‘Prosecuting the office of Misappropriation of Public Funds: An Insight into/PELJ Cameroon’s Special Criminal Court’’, PER2017 (20)-D01 http://dx/doi.org/10.1759/1727-3781/2017/v20n Oa 770states that “it is important to note that the law creating the Special Criminal Court neither establishes nor introduces any new offence into Cameroonian criminal law. Rather, it sets up the Special Criminal Court as a special court that would try only individuals who ordinarily would be prosecuted for the misappropriation of public funds by the Court of First Instance (in cases of misdemeanours) or High Court (in cases of felonies). He went further to state that “in creating the offence of the misappropriation of public funds, the Lawmaker stipulates in section 184(1) of the Penal code that “Whoever by any means takes or keeps dishonestly any property” is guilty of the offence. The words “by any means takes or keeps”, when construed according to their natural, plain and ordinary meaning, would mean that the mode through which the property was taken is irrelevant and immaterial”.
Avitus A. Agbor, ‘‘Prosecuting the office of Misappropriation of Public Funds: An Insight into Cameroon’s Special Criminal Court’’, PER/PELJ 2017 (20)-D01 http://dx/doi.org/10.1759/1727-3781/2017/v20n Oa 770.
Law N° 2011/028 of 14th December 2011, creating the Special Criminal Court which was subsequently amended by Law No.2012/011 of 06 July 2012.
 Law No.2011/28 of 14 December 2011to set up a Special Criminal Court, Section 2.
 The Cameroon Penal Code in section184 (1) states that; “Whoever by any means takes or keeps dishonestly any property, movable or immovable, belonging to, in transmission to or entrusted to the state …or to any authority or corporation either public or subject to the administrative control of the state, or in which the state holds directly or indirectly the majority of the shares, shall be punished: a) where the value of the property is more than half a million francs with imprisonment for life; and b) where the said value is half a million francs or less, but over one hundred thousand francs with imprisonment for from fifteen to twenty years; c) Where the said value is one hundred thousand francs or less with imprisonment for from five to ten years and with fine of from fifty thousand to five hundred thousand francs”.