The recent decision of the Supreme Court of Cameroon ordering a retrial in the “Nera Ten” case is not merely controversial, it is, with respect, a profound departure from settled principles of criminal law and a dangerous affront to the guarantees of personal liberty. This matter must be called what it is: a judicial endorsement of repeated prosecution in circumstances where the law demands finality. Notedly, Section 359 of the Criminal Procedure Code is clear in its spirit and effect: where a conviction cannot stand, the Court must confront the evidence and pronounce accordingly. It does not license the Court to return an accused person to the uncertainty of a fresh prosecution simply because the initial case has collapsed. To interpret it otherwise is to stretch the law beyond recognition and to weaponize procedure against the citizen.
Even more fundamental is the violation of the time-honoured principle of non bis in idem. This is not a technicality, it is a constitutional shield. It exists to prevent exactly this situation: where the State, dissatisfied with its own failure, seeks another opportunity to secure a conviction against the same individuals on the same facts. At the heart of this controversy lies a fundamental question: can justice permit the State a second bite at the cherry after it has failed to prove its case? The answer, grounded in law and reason, is an unequivocal no. The principle of non bis in idem, a cornerstone of criminal justice, specifically, prohibits trying an individual twice for the same offence. It is not a technical rule, as earlier noted, yet, for emphasis; it is a shield against oppression, designed to protect citizens from the immense power of the State. By ordering a retrial in circumstances where the prosecution’s case has already been tested and found wanting, the Court, (Supreme Court) risks undermining this sacred safeguard.
Unarguably, it would have appeared, a retrial is not a mechanism for the prosecution to regroup, re-strategize, and attempt to cure the fatal weaknesses of its case. It is reserved for exceptional situations where the initial trial was fundamentally flawed by grave procedural irregularities. Where no such irregularity exists, justice demands finality, not repetition
For the accused persons, the “Nera Ten”, this decision translates into prolonged uncertainty, psychological distress, and an extended ordeal within the criminal justice system. Justice delayed in this manner is, undeniably, justice denied.
Incontrovertibly, courts exist not merely to adjudicate, but to protect. They are the last line of defence against arbitrariness. When judicial discretion is exercised in a manner that appears to tilt the scales against the accused, public confidence in the administration of justice is unavoidably or inescapably shaken. Remarkably, this is not merely about one case. It is about the integrity of the legal system, the protection of fundamental rights, and the enduring principle that no person should be harassed by repeated prosecutions for the same alleged offence.
The law must remain firm: where the prosecution fails, the citizen walks free, not back into the dock.
Better still, this is not a matter of discretion; it is a command of the law. Under Section 359 of the Cameroon Criminal Procedure Code, an appellate court that finds the prosecution’s case wanting is bound, in law and in principle, to enter an acquittal. It is not permitted to cure the prosecution’s failure by ordering a retrial, thereby granting the State a second opportunity to mend a broken case. Such a course of action stands in direct violation of the principle of non bis in idem, mentioned earlier. Notedly, once the prosecution has had its day in court and failed to discharge the burden of proof, the matter is, in law, at an end. Thus, to order a retrial in those circumstances is not a neutral procedural step; it is a grave affront to the liberty of the citizen. It transforms the criminal process into a tool of persecution, allowing the State repeated bites at the cherry until it secures a conviction. That is precisely what the law guards against.
Justice must not only be done; it must be seen to be done, fairly, finally, and without compromise.
Let it be stated without equivocation: a retrial is not a remedy for a weak case. Where the prosecution has had a full and fair opportunity to present its evidence, and that evidence fails to meet the required standard, the law commands one outcome—an acquittal. Anything short of that transforms the criminal process into a revolving door, where the accused is trapped until the State eventually “gets it right.”
The implications of this decision (RETRIAL ORDER IN THE “NERA TEN” CASE) are deeply troubling or worrying:
1) It erodes the finality of judicial proceedings, leaving every acquittal vulnerable to resurrection in another form;
2) It encourages prosecutorial complacency, knowing that failure at first instance is no longer fatal;
3) It subjects the accused to perpetual jeopardy, in direct conflict with the most basic tenets of justice;
4) It undermines public confidence in the impartiality and predictability of the courts.
For the “Nera Ten,” this is not an abstract legal debate. It is a lived reality of prolonged anxiety, reputational damage, and the crushing weight of an unending prosecution. Justice cannot mean that a citizen remains indefinitely at the mercy of the State’s persistence.
Retrials are exceptional. They are justified only where the original trial was fundamentally vitiated, where there was no real trial in the eyes of the law. That is not the case here. What is evident instead is an attempt to salvage a prosecution that has already run its lawful course.
The law does not permit this. The Constitution does not permit this. Justice does not permit this.
The message must be clear:
When the State fails to prove its case, it must accept that failure. It cannot return, again and again, until it secures a conviction. To hold otherwise is to abandon the rule of law in favor of prosecutorial endurance. This retrial order, of the Supreme Court, relating to the “Nera Ten,” must be seen for what it is, an unlawful encroachment on liberty, and it must not stand.
Barrister ATOH WALTER M. TCHEMI
THE TIME LAW FIRM
P.O.BOX 244 KUMBA
Email:atoh@thetimelawfirm.com
Tel: 651 44 04 40