The right to fair hearing in Cameroon: a myth or reality
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Protecting the human right to a fair trial is an all man issue reason why international, regional and national communities have developed laws ensuring the protection and promotion of hearing. This law is found in the following status when African Charter of Human and People Right (ACHPR), Universal Declaration of Human Right (UDHR) International Covenant for Civil and Political Right (ICCPR) this laws apply in Cameroon and other countries.
Cameroon on it part has also created a law to ensure the enjoyment of the human right and the right to fair hearing in Cameroon. This law are contained in the following statues the Cameroon Constitution of 1996 (as amended on the 14th April 2008), the Cameroon Penal Code, the Cameroon Criminal Procedure, and the Cameroon Judicial Organisation.
This not withstanding, national realities on fair hearing still routinely lack human rights aspirations. Cameroon has in recent year attempt to ensure the actual implementation of fair hearing as could be rightly construed from its laws. Notwithstanding the impressive structures of these laws,
the Cameroonian judiciary is still being criticized for the numerous lacunas visualized in its litigation due to the following reason absence of separation of powers and the decentralization of power in the executive, lack of supervision of judicial powers, lack of political will on the part of political leadership, lack of finance and poverty, corruption and embezzlement.
And socio-cultural considerations absence of a human rights culture in the country, the influence of cultural practices and stereotypes which negatively conditioned the relationship between the spouses, illiteracy in the society in rural areas accompanied by poverty. This factor has had caused the Cameroon judiciary to lack behind. For this reason, many have doubt if the right to fair hearing exists in Cameroon.
1.1 Background to the study
Before examining the origin of the right to a fair hearing, it is worthy to explain in brief the concepts of fairness. What fairness does not require is perfection; indeed, perfection is something more for the province of gods.
As rightly intimated by his celebrate dictum “the fundamental human right human right is not a system that is infallible but one that is fair.’’1Indeed, perfection is farfetched when it comes to litigations. As could be rightly interpreted from Diplocks dictum, fairness demands not perfection but for reasonable, average, honest, just and comely litigations.
The right to fair hearing mean a judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality. During a fair hearing, authority is exercised according to the principle of due process of law. Fair hearing means that an individual will have an opportunity to present evidence to support his or her case and discover what evidence exists against him or her.
In criminal law, when an individual is arrested a fair hearing means the right to be notified of the charge brought against him or her and the chance to meet that charge.2
In order for a hearing to be fair and comply with due process requirements, it must be held before an impartial tribunal; however, a hearing can be unfair without any intention that an individual that it is away.
A fair hearing must provide a reasonable opportunity for an individual to present at the designated time and place, during which time he or she may offer evidence, cross-examine opposition witnesses, and offer a defence.Formalities of a court action need not strictly complied with in order for the proceeding to be considered a fair hearing.
The right to a fair hearing is indeed a basic human right and its protection is of enormous essence and hence a fundamental obligation of government. International treaties such as the Universal declaration of human right make it incumbent on the state to ensure the promotion and protection of human rights in litigations States, therefore, has obligation to ensure the protection of the right to a fair hearing on their nationals and others by taking measures to protect them.
Fair trial stands under ICCPR are found principal within article 14. They are supplemented by procedural guarantee applicable to proceedings concerning the expulsion of the alien (article 13 of ICCPR) and the principle of non-retro-activity of criminal/penal law(article 15 of the ICCPR).
The various elements of the right to fair trial codified in the ICCPR and also be found within the Universal Declaration of human rights, customary international law norms and other treaties, pertaining to international humanitarian law international criminal law or to countering terrorism.
In similar terms article 14 of the American convention on human rights and, in somewhere lesser detail, article 7 of the African chart on human and people rights, article 13 of the revised Arab chart on human rights and article 20 of the ASEAN Human Right Declaration.
Under international humanitarian law, the third and fourth Geneva Convention 1949 provide judicial guarantees of prisoners of war and civilians detain for criminal offences related to international armed conflict. Common article 3(1)(d) of the Geneva conventions governing non-international armed conflicts prohibits the passing of the sentences and carrying out of executions ‘’Without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are recognized as indispensable by civilized people..’’, considered to reflect customary international law.
Specific additional fair trial guarantee relevant to non-international armed conflicts are to be found in article 6 Additional Protocol II.
Fair trial guarantees under human rights treaties in question. Denial of the right to a fair trial can constitute a war crime in certain circumstances. Rome statute of the international criminal court also includes the basic requirements for a fair trial in the context of an international criminal.
The right to a fair hearing is an international law principle that is being observed in Cameroon and many other countries in the world. The right to fairing is a municipal law in Cameroon. Municipal law is a law that governs the relationship of persons in a country.
The preamble 1996 constitution of the Republic of Cameroon provides that the law shall ensure the right of everyone to a fair hearing before the courts and section 4 of the judicial organisation ordinance corroborates the same that ‘’ all judgements shall be pronounced in open court’’. This is an aspect of judicial neutrality and impartiality and independence. Justice must not only be done; it must be seen done.
According to justice Patrick Robinson the right to a fair trial can be traced all the way back to the Lex Duodecin Tabularum also known as the twelve tables which was the first written code of laws in the Roman republic around 455 B.C.2 contained within these laws was the right to have all parties present at a hearing, the principle of equality amongst citizens and the prohibition.
The first ten tables published around 445 B.C with the last two published around 449 B.C. Another important historical event of the right to a fair trial can still see under the work of judge Patrick Robinson. Which is the Magna Carta. In forcing King John to sign the Magna Carta Libertatum in 1215, the English nobles ratified the principle that even a king will be circumscribed by law .
In doing so, the Magna Carta paved the way for later developments during the age of enlightenment that would seek to subject governments to the will of the people. The Magna Carta proclaimed that: No freeman shall be taken , prisoned, disseized, outlawed, exile, or any way harmed nor will go upon him save by the unlawful judgement of his peers or by the law of the land.
Thus, the Magna Carta like the twelve tables recorded in writing a set of clearly formulated rights. Subsequently, the court has looked to the Magna Carta in articulating rights such as trial by jury, habeas corpus, the abolition of arbitrary imprisonment and equality before the law.
The right to a fair trial can also be traced from the very origin of the event of the garden of Eden following the wrong of Adam and Eve GOD before punishing them tried thereby granting the right of fair trial. The guilty parties Adam and eve were innocent by an omniscient being as supported by the question put to them ‘’Did you eat of from that tree that I told you not to eat from’’ As could rightly be interpreted, a fugitive even if caught flagrante delicto should be presumed innocent.
If the right to a fair hearing is been observe a fully setting benefit will be obtained. Benefit not only to the state but to it citizenry.
An innocent person will be set free, in the sense that innocent person arrest will be trial and their own part of the event will be heard by observing the right to fair trial. And nobody is will be held liable for what he has not done.
Quick and fast justice will be obtained in the sense that setting long procedure which is not part of the law of the right to a fair hearing will be kept aside,.that is the right to a fair trial will be followed according to the law to a fair trial, that is in its isolation.
1.2 Statement of the problem
The term “fair hearing” is a problem in itself in terms of the definition. Several attempts by legal scholars to give an adequate definition that encompasses this human right principle has most often than not be in futility. Existing declarations, resolution and universal “sectorial” treaties relate just too specific aspects to the “fact in issue.”
Treaties such as the Universal Declaration on Human Rights (UDHR), the International Convention of Civil and Political Rights (ICCPR), the African Charter for Civil and Political Rights (ACCPR), the Cameroonian constitution of 1996 (as amended in 2008) only instigates for the protection and promotion of the right but failing to define. The same is indeed a lacuna in the law that needs to be solved.
However, another problem emanates from the actual implementation of the right to fair hearing in Cameroon.It is indeed no “news” of fact that Cameroon has wonderful laws ensuring the protection and promotion of the right to fair hearing9.
Regional commissions such as the African Commission has in the past entertained cases like that of Emdga Mekong v. Cameroon10. Here, the government was accused of dictatorship on the plaintiff and was held liable for unjustly arresting and detaining Mr Mekong for 12 years without trial within reasonable time thereby refusing g his right to a fair hearing.
It is, of course, recognized that the right to a fair hearing is stated in the Cameroon constitution, judicial organisation of Cameroon, Cameroon criminal procedure code. It is rarely put in to practice as stated by the law. Based on the problems identified above a number of inescapable questions arises including.
1.3 Research questions
Based on the problems identified above a number of inescapable questions arises including.
- What accounts for the fact that despite its provision under municipal law the principle is rarely observed?
- What are the best measures aimed at improving the observance of the right in Cameroon? These are some of the questions my research will attempt to answer.
1.4 Aims and objectives
The objective of this research shall be divided into two. Specific and general object. The specific will look at the extent to which Cameroon adheres to the principles and laws governing the much-heralded human rights doctrine of fair hearing
Whereas the specific will be looking at the following.
- My essay will provide a practical tool for practitioners charged with the implementation of human rights in the judicial domain in Cameroon.
- My essay will examine the laws governing the right to hear.
- My essay will depict hearing norms provided in Cameroonian laws
- My essay will examine specific challenges to the actual implementation of a fair hearing in Cameroon
- My essay will propose measures that could be taken to curb the unfairness in litigations