Legal Conflicts 3:

Justice Ayah Paul Abine

 One state counsel for two courts is inconsistent with the law
 -Justice Ayah Paul Abine, Supreme Court of Cameroon
We did hold in the previous write-up that one president for two courts is inconsistent with the law. The same position is applicable to the situation of the state counsel by analogy.
    The President of the Republic does appoint one magistrate « Procureur de la République près les tribunaux de grande et première instance de… » We submit that the law does not permit this. The High Court and the Court of First Instance are two separate courts created by the law in the technical sense. A decree appointing magistrates to the two courts may not be at variance with the provisions of the law.
    As per the law, the High Court has exclusive jurisdiction over felonies – offences where the maximum prison term is above ten years. We spare the reader the burden of having to contend with the civil jurisdiction of that court since the presence of the state counsel in civil matters is discretionary.
    The law then creates the Court of First Instance, having exclusive jurisdiction over misdemeanours and simple offences (less serious offences than felonies). The law specifies the limited cases where the high court has jurisdiction over these offences. It is unimportant to delve into those exceptions here…

    As regards the composition of each court, the law provides, inter alia, that there will be one state counsel and his deputies per each court. Nowhere in the law is there any allusion to one state counsel assuming the two functions simultaneously. This is good judgment because the two jurisdictions do not coincide: the one is higher than the other.
    The law cannot provide that, if you are appointed to the Court of First Instance, you do not have jurisdiction to hear felonies; but a decree would appoint you to that court and at the same time to the higher court having jurisdiction over felonies. Even in commonsense, few would hold that a young magistrate from ENAM is mature enough to be entrusted with the right to submit in favour of capital punishment for another citizen.
    Pragmatically, as the law provides that there are two chambers of parliament, we do have the President of the Senate; and the President of the National assembly. That is a sane application of the law. It would offend the law otherwise …
    Furthermore, as the law provided that, one high court may cover more divisions than one; and that one court of first instance can cover more subdivisions than one, it is abundantly clear that, if the law intended that the legal departments of the two courts could be fused, the law would have similarly so provided. In the absence of such exception, and in the face of the unambiguous provisions of the law for two separate legal departments, having different exclusive jurisdictions, it is submitted that Mr. President’s appointing personnel to the two courts as if they were one is inconsistent with the law; and therefore bad at law.

Communications & Public Relations,
People's Action Party, PAP
National Working Secretariat,
Buea, South West Region,
Cameroon.

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