By Barrister Jean AtabongFomeni
Barrister Jean AtabongFomeni |
The Consortium leaders (Barrister
AgborBalla Felix Nkongho, Dr. Fontem N. Neba and ManchoBibixy) are standing
trial before the Yaoundé Military Tribunal for having allegedly committed the
following offences—acts of terrorism, hostility to the fatherland, secession,
revolution, group rebellion, incitation of civil war, contempt on public bodies
and public servants, spreading of false information.
However,
it should be noted that competence of the Yaoundé Military Tribunal in trying
the matter rests within the ambit of Section 3(4) of the law organizing the
Military Justice in Cameroon (Law No. 2008/015 of 29 December 2008). Section
3(4) provides that, “the Yaoundé Military Tribunal may in the event of
exceptional circumstances …which constitute serious threat to public order,
state security or terrorism, exercise its powers throughout the national
territory.”
Sadly,
most of the above offences attract the death penalty. They are embedded in
Sections 102 (Hostility against the fatherland), 103 (Other felonies punishable
with death), 111 (Secession), 112 (incitement of Civil War) of the Cameroon
Penal Code, and Section 2 (Acts of terrorism) of the Law on the Suppression of Acts
of Terrorism. In summary, the above provisions condemn to death whoever commits
the above offences.
Conversely,
the Constitution of Cameroon is against the death penalty. Cameroon is one of
the countries with a Constitution that protects, promotes, and guarantees the
rights and freedoms of every citizen. It is not an exaggeration, therefore, to
say that this Constitution, uprooted from a sound moral background, meets with
the universally acceptable standards of Constitutions, particularly in the domain
of Human Rights.
In
fact, its preamble states that, “every person has the right to life, to
physical and moral integrity and to humane treatment in all circumstances.
Under no circumstances shall any person be subjected to torture, to cruel,
inhuman or degrading treatment”.
Interestingly,
the Constitution has not provided for any “subject” clause or “frontiers” with
respect to the right to life—it implies, therefore, that the right to live has
a moral foundation, and that it cannot be taken by another human being or
government for any reason whatsoever.
In
constitutional law, the cardinal principle is that any national law (e.g.
Cameroon Law on Terrorism) of a State which is not in conformity with the
Constitution of that State is unconstitutional. This is to say, therefore, that
the Cameroon Law on the Suppression of Acts of Terrorism which subscribes to
death penalty as opposed to the Constitution is unconstitutional. Meaning that,
all the above provisions of both the Penal Code (Sections 102, 103,111,112) and
the Law on the Suppression of Acts of Terrorism (Section 2) are illegal.
Cameroon
has approved or ratified a plethora of international human rights laws which
frown at lawful killing (for example, the death penalty) of a human being by
the State. Meanwhile, it should be remembered that ratification means ‘the
action of signing or giving formal consent to a treaty, contract, or agreement,
making it officially valid”.
In
1986, Cameroon ratified the United Nations Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment. This text, in its
entirety, condemns any form of torture on any human being. Meanwhile, Article 3
of the Universal Declaration of Human Rights provides that “everyone has the
right to life….” In Article 5, it says “no one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment”. This is to say that
the death penalty is cruel, inhuman and degrading, and that it deprives the
person of the right to life. Also, Article 4 of the African Charter says “every
human being shall be entitled to respect for his life….”
In
summary, the doctrine of supremacy is equally very important here. It
emphasizes the overriding character of international law over those of domestic
origin. Conscious of this, the Constitution of Cameroon has provided in Article
45 that, “duly approved or ratified treatise and international agreements
shall, following their publication, override national laws, provided the other
party implements the said treaty or agreement”. Implying that, since Cameroon
has approved or ratified the many international laws here above cited, their
provisions become applicable in Cameroon as of the time they were approved or
ratified.
If
we agree to the above analysis, then it is no longer a debate that the
provisions of the above international laws together with the Constitution of
Cameroon override the Cameroon Penal Code, and the Law on the Suppression of
Acts of Terrorism. Therefore, rational
thinking holds that the five provisions cited herein above are not law. And in
line with Article 11(2) of the Universal Declaration of Human rights, “no one
shall be held guilty of any penal offence on account of any act or omission
which did not constitute a penal offence”. The Constitution and the above cited
human rights laws are not in variance with this.
On
the basis of the foregoing, I therefore make bold to state that the above five
offences for which the Consortium leaders are being prosecuted are unfounded at
law, and consequently illegal.
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