Strive in the Common Law

Ashu Nyenty

Where the shoe pinches
By Ashu Nyenty (Ph.D candidate in petroleum law, UNIYAO 2)
Issues that put the Anglophone and Francophone components of Cameroon, in contention, usually generate a lot of passions. And this is exactly why such issues far from being avoided, should rather be discussed in a dispassionate manner, especially on the eve of the feast of National Unity.

The bone of contention
    In the last couple of months, Lawyers of common law extraction, that is, those who practice in the North West and South West regions have been protesting over what they consider as an intrusion of, or a surreptitious attempt to introduce French language, into the court system in Anglophone Cameroon. This is because some judges, especially of the Legal Department in the Court of Appeal of the North West sitting in Bamenda actually made submissions in the French language; whereas the language of the courts in that part of the country is English.
    This triggered bad blood between the lawyers, who threatened to down their robes and the members of the legal department who allegedly perpetrated this politically insensitive act.  A delegation from the Bar Association was forced to wade in, and broker a truce or an entente between the belligerent parties. The outcome was that henceforth, the English language should be the language of the courts, irrespective of the linguistic origin of the judge.
 
    It should be noted that the core common law principles of rule of law, due process and fair trial are all intended to protect the interests of litigants who must be dispensed justice in a language which they understand best. The idea of protecting the interest of litigants would be defeated, if submissions are made in a language which they don’t understand. For, according to the celebrated  legal dictum, formulated by Lord Hewart,  in a  case called  R v Sussex ex parte McCarthy [ [1923, All England Report at P.233] , “justice must not only be done, but must manifestly and undoubtedly be seen to be done”. - A litigant who listens to a judge in an unfamiliar language will think that justice has not been rendered to him, even if the judge has rendered his best judgment.  
    Even more, these legal practitioners argue that the problem is not simply that of language, but also of equal importance is the practice of transferring judges to English speaking parts of the country who are not grounded in the practice and procedure of the common law.
    The essence of this resentment stems from the fact that Cameroon is a bi-jural state. That is two legal systems co-existing within the same country. That means the English common law operates in the Anglophone regions of North West and South west, while the French civil law operates in the rest of the eight Francophone regions.  In fact, this is a vestige of Cameroon’s colonial history.
    Apart from the fact that the penal code, the criminal procedure code or the labour code are the same for the whole country, and to a lesser extent the OHADA law, which itself is not a comprehensive legal instrument, most aspects of private law, which regulates the relationship between citizens in their private relationships are separate for the two parts of the country.
In the law faculties in this country, common law is taught separate from civil law. In the second year of university, francophone and Anglophone students go their separate ways, while the first group goes on to study francophone private law, the second group settles for Anglophone private law.  For example, francophone students don’t take courses in law of torts, law of evidence, or equity and jurisprudence, which are core courses in English law. In the same way, there are courses that are taken by francophone jurists to the exclusion of their Anglophone counterparts. Apart from that, the legal traditions which are acquired as a matter of practice and legal socialisation are distinct. 
    The 1996 constitution gives a further recognition of the fact that Cameroon is not a homogenous legal entity.  It stipulates in its article 68, that , legislation applicable in the federated states (that is former west and East Cameroon) shall remain in force, in so far as it is not repugnant to the constitution and not amended by subsequent laws. this is a restatement of article 38 of the 1972 constitution and article 11 of Ordinance no. 9 of 16 October 1961, For example, the Southern Cameroon High Court law 1955, which allows for the application of English law in Cameroon or in matters of divorce, the Matrimonial causes Act 1973, are applicable in the Anglophone regions and not in the Francophone regions. So in order to practice in the North West and south west, the jurist must have a mastery of these legal instruments.
    It is this distinctiveness, that common law lawyers want Cameroon to preserve. It is this diversity that makes the uniqueness of Cameroon. The constitution states in its preamble that Cameroon is proud of its linguistic and cultural diversity. The provisions of the preamble are of a constitutional value because article 65 of the document stipulates that, “The preamble shall be part and parcel of [the] constitution” Common law lawyers want the common law to have its voice in Cameroon; they want it to exist without being infiltrated or adulterated. 
    It is possible that with dialogue this goal can be achieved. A few years ago an attempt was made to appoint notaries public in the whole country. Anglophone lawyers protested, because in the common law system, lawyers are by the fact of being lawyers automatically notaries public, so it would have been redundant appointing other legal practitioners as notaries public. That ominous move did not prosper because reason was brought to bear through dialogue.  It is possible the same modus operandi will attain similar results in the present case.