BY ATIA TILARIOUS AZOHNWI
Constitutional Laws Lawyer and Professor, Ndiva Kofele Kale has welcomed the creation of the Constitutional Council. The SDF Legal Adviser and Shadow Minister of Justice says he had such hard times with the Supreme Court sitting in lieu of the Constitutional Council.
The following is the reaction of the learned Professor of Law:
The first time I appeared before the Supreme Court sitting in for the constitutional council, I came out in tears. I was given four minutes to argue a constitutional infraction. They call out a case and before you know it, they are calling the other case. They do it with such rapidity. I was simply bewildered. CRTV came to interview me and I said with tears in my eyes that ‘it would be very difficult for me to explain this to my law students in the United States that I was in the Supreme Court of Cameroon to argue a case of voter fraud for less than four minutes. And that the court was able to evacuate hundreds of cases non-stop in 24 hours. If told them that, they will tell me that I am lying.
The SDF cannot challenge the creation of the constitutional council because the SDF has been asking since 1996 why this institution has not been put in place. We are happy that 22 years later, the constitutional council is now in place. We say better late than never. One of our members, Prof. Paul Nkwi is a judge of the constitutional council. We have to wait and see that the constitutional council functions independent of the executive. The tragic history of Cameroon has always been that even though the constitution talks about separation of powers, the judiciary is effectively under the control of the executive.
I hope the constitution al council whose primary role is to serve as an oversight on the constitutionality of laws passed in by parliament will do its job diligently. For example, the law on the suppression of acts of terrorism cuts into fundamental rights and freedoms. If that law is challenged, one will hope that the constitutional council will render a judgement that takes individual rights over state’s interest in “suppressing terrorism” because it is a delicate balance. You find that there are certain human rights that cannot be derogated. The right to free speech is a protected right. And even in a state of emergency, when you derogate such a right, you do so with caution because they are restrictions and constraints. We hope that the Constitutional Council will be able to find such a delicate balance to favour the rights of individuals.
Our constitutional council is different from that of other countries like South Africa where judges are all lawyers. The law doesn’t exist in a vacuum. It is surrounded by culture, and politics. While you try to ensure extraneous factors don’t influence judicial decisions, these extraneous factors also help the judge to arrive at justice. It should be able to do well.
One of the charges the constitution vests in the constitutional council is that of pronouncing on elections results, examining electoral disputes and so on and so forth.
So far, no Cameroon court has been able to develop a clear jurisprudence on what really is a very important right, the right to political participation.
You find it in the charter of the United Nations as a fundamental principle. You find it in the universal declaration of human rights and in the international covenant on civil and political rights. These are international instruments that Cameroon is a part to. For example, when we appear before the constitutional court, they count the ballots and say there is fraud here and there. They really don’t address the fundamental question: what is the cumulative effect of all these flaws and irregularities on the right of Cameroonians to enjoy the right to political emancipation.
For example, the covenant on civil and political rights to which Cameroon is a signatory and a party guarantees every citizen the right and the opportunity to take part in the conduct of public affairs directly or through freely chosen representatives, to vote and to be elected at genuine periodic elections which shall be universal and equal suffrage and shall be held by secret ballot guarantee the free expression of the will of the electors. That is a fundamental right that all Cameroonians enjoy.
We expect that the Constitutional Council will begin to develop jurisprudence on the extent to which this right is being enjoyed by Cameroonians. For example, it touches on the constituencies. We have these anomalies where a division or region or a town like Douala with two million plus inhabitants have five parliamentary seats. Then you have a region or a division with less than sixty thousand people and they have parliamentarians almost doubled that of Douala.
Take the South West Region for example with almost a million people with only 15 parliamentary seats. How do you explain these differences in constituency size? It affects the rights of Cameroonians to choose their leaders. If we are limited to 15 leaders out of a population of one million, then there is a problem. So we are expecting that the constitutional council will begin to develop jurisprudence and not limiting itself to counting votes and declaring the one who gets the majority of the votes as the winner. It has no go beyond that. It must begin to give relief to Cameroonians on the rights that the constitution guarantees them.