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SUMMARY OF FACTS
1. The Complainants are 14 individuals who brought the communication on
their behalf and on behalf of the people of Southern Cameroon [FN1] against
the Republic of Cameroon, a State Party to the African Charter on Human and
Peoples' Rights.
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[FN1] The use of the term "Southern Cameroon" in this Communication is not
intended to confer any legal status or recognition. The words "Southern
Cameroon" describe the territory of the Respondent State where violations
are alleged to have occurred. Unless otherwise expressly stated, the terms,
"Southern Cameroonians," "Anglophones," or "Francophones" describe the
people said to occupy the two parts of the Republic of Cameroon, which were
prior to 1st January 1961 either English or French administered UN Trust
territories respectively, organised to determine the political future of
Southern Cameroon, and the failure by the Respondent State to abide by the
1961 federal constitutional.
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2. The Complaints allege violations which can be traced to the period
shortly after "La Republique du Cameroun" became independent on 1st January
1960. The Complainants state that Southern Cameroon was a United Nations
Trust Territory administered by the British, separately from the Francophone
part of the Republic of Cameroon, itself a French administered United
Nations Trust Territory. Both became UN Trust Territories at the end of the
2nd World War, on 13 December 1946 under the UN Trusteeship system.
3. The Complainants allege that during the 1961 UN plebiscite, Southern
Cameroonians were offered "two alternatives", namely: a choice to join
Nigeria or Cameroon. They voted for the later. Subsequently, Southern
Cameroon and La Republique du Cameroun, negotiated and adopted the September
1961 federal constitution, at Foumban, leading to the formation of the
Federal Republic of Cameroon on 1st October 1961. The Complainants allege
further that the UN plebiscite ignored a third alternative, namely the right
to independence and statehood for Southern Cameroon.
4. The Complainants allege that the overwhelming majority of Southern
Cameroonians preferred independence to the two alternatives offered during
the UN plebiscite. They favoured a prolonged period of trusteeship to allow
for further evaluation of a third alternative. They allege further that the
September 1961 federal constitution did not receive the endorsement of the
Southern Cameroon House of Assembly.
5. The Complainants allege that the violations suffered by the people of
Southern Cameroon emanate from the UN plebiscite of 11 February 1961
6. They allege that on 1st October 1961 La Republique du Cameroun, with the
tacit approval of the British government, drafted gendarmes, police and
soldiers from the Francophone side into Southern Cameroon, which amounted to
"forceful annexation" of Southern Cameroon. They allege that, "[a]t no time
was sovereignty over Southern Cameroon transferred to a new Federal United
Cameroons or any other entity." They argue that the failure to exercise the
third alternative, impacted negatively on the right of the people of
Southern Cameroon to self determination.
7. The Complainants allege further that "notwithstanding the forceful
annexation," the people of Southern Cameroon remained a separate and
distinct people. Their official working language is English, whereas the
people in La Republique du Cameroun are Francophones. The legal, educational
and cultural traditions of the two parts remained different, as was the
character of local administration. In spite of the foregoing, they allege
further that the Respondent State manipulate demographic data to deny the
people of Southern Cameroon equal rights to representation in government.
They allege that the people of Southern Cameroon have been denied powerful
positions within the national/federal government. They claim that the
September 1961 federal constitution was designed to respect those
differences.
8. The Complainants allege further that from the outset of unification in
1961, and the declaration of a unitary state in 1972, Southern Cameroonians
remain marginalised. They allege that Southern Cameroon was allocated 20%
instead of 22% of the seats in the Federal/National Assembly, as per the
population ratio, thus denying them equal representation. They allege that
in 1961 West Cameroon was allocated 20 representatives in the Federal
Assembly instead of 26. Later when representation to the Assembly was
expanded to 180 representatives, West Cameroon was allocated 35
representatives, instead of 40 representatives. The Complainants allege
further that the Francophones occupy local administrative positions in
Southern Cameroon, and abuse their positions to amass land, and access
economic resources, while the Southern Cameroonians play the minutest role
at the local or national level.
9. It is further alleged that several towns in Southern Cameroon were denied
basic infrastructure, hence denying them the right to development. It is
alleged that the Respondent State, relocated or located various economic
enterprises and projects, such as the Chad - Cameroon Oil Pipeline, the deep
seaport, and the oil refinery to towns and cities in Francophone Cameroon,
notwithstanding their lack of economic viability, thereby denying employment
opportunities and secondary economic benefits to the people of Southern
Cameroon.
10. The Complainants allege further that the Francophones have monopolistic
control of the Ministry of National Education. That the Respondent State has
under funded primary education in Southern Cameroon, it failed to build new
schools, understaffed primary schools, and it is closing all teacher
training colleges. They allege further that the Respondent State "Cameroonised" the GCE from the University of London, leading to mass
protests which forced government to create an independent GCE Board. That,
upon unification, diplomas awarded by the City & Guild, a technical
education institution based in England, were replaced by the Certificat
d'Aptitude Professionale (CAP) and the BAC Technique. These measure have
resulted in persistent high levels of illiteracy in many areas in Southern
Cameroon.
11. The Complainants allege that political unification and the application
of the civil law system resulted in the discrimination against Anglophones
in the legal and judicial system. Southern Cameroonian companies and
businesses were forced to operate under the civil law system. The Companies
Ordinance of the Federation of Nigeria, which was until then applicable in
Southern Cameroon was abolished. Many Southern Cameroonian businesses went
bankrupt, following the refusal by Francophone banks to lend them finances,
in some cases, unless their articles of association were drafted in French.
12. They allege that Anglophones facing criminal charges were transferred to
the Francophone zone for trial, under the Napoleonic Code, thereby adversely
affecting their civil rights. The Complainants state that the common law
presumption of innocence upon arrest is not recognised under the civil law
tradition, since guilt is presumed upon arrest and detention. The courts
conduct trial in the French language without interpreters. Furthermore, they
allege that Southern Cameroon court decisions are ignored by the Respondent
State.
13. The Complainants allege that the entry by the Respondent State as a
State Party to the Organisation pour l'Harmonisation des Droits d'Affaires
en Afrique (OHADA), a treaty for the harmonisation of business legislation
amongst Francophone countries in Africa, constituted discrimination against
the people of Southern Cameroon on the basis of language. OHADA stipulates
that the language of interpretation of the treaty shall be French. The
Complainants argue that the Constitution recognises English and French as
the official languages of Cameroon. They argue therefore that by signing the
OHADA treaty, Cameroon violated the language rights of the English speaking
people of Cameroon. They allege that any company not registered under the
OHADA law cannot open a bank account in Cameroon.
14. The Complainants allege further that,on 3rd April 1993, representatives
of the people of Anglophone Cameroon adopted the Buea Declaration, which
declared the preparedness of the Anglophones "... to participate in the
forthcoming Constitutional talks with their Francophone brothers...." The
Declaration stated that;
(i) "...the imposition of the Unitary State on Anglophone Cameroon in 1972 was
unconstitutional, illegal and a breach of faith,"
(ii) "That the only redress adequate to right the wrongs done to Anglophone
Cameroon and its people since the imposition of the Unitary state is a
return to the original form of government of the Reunified Cameroon,
(iii) That to this end, all Cameroonians of Anglophone heritage are
committed to working for the restoration of a federal Constitution and a
federal form of government, which takes cognizance of the bicultural nature
of Cameroon and under which citizens shall be protected against such
violations as have been enumerated.
(iv) That the survival of Cameroon in peace and harmony depends upon the
attainment of this objective towards which all patriotic Cameroonians,
Francophones as well as Anglophones, should relentlessly work."
15. Subsequent to the 1993 Buea Declaration, it is alleged that between 29th
April and 1sMay 1994, the Second Anglophone Conference convened in Bamenda
adopted the Bamenda Proclamation, which stated, inter alia, that:
"....one year since the Anglophone constitutional proposals were officially
submitted, the government had not reacted to them;
that all efforts to generate the interest and understanding of the
Francophone officials and Francophone public generally in the Anglophone
constitutional proposals had been greeted with responses ranging from
indifference through apathy to hostility..........."
IN THE LIGHT OF THE FOREGOING the Anglophone people of
Cameroon..................;reiterated the Resolution taken at its first session in April
1993......... It stated further in paragraph 6 of the Proclamation that;
"6. Should the Government either persist in its refusal to engage in
meaningful constitutional talks or fail to engage in such talks within a
reasonable time, the Anglophone Council shall inform the Anglophone people
by all suitable means. It shall, thereupon, proclaim the revival of the
independence and sovereignty of the Anglophone territory of Southern
Cameroon and take all measures necessary to secure, defend and preserve the
independence, sovereignty and integrity of the said territory." (emphasis
added)
16. The Complainants allege that the failure by the Respondent State to
address the concerns of the Southern Cameroon people for a new constitution,
coupled with the adoption of the 1995 December Constitution by the National
Assembly of La Republique du Cameroun without public debate, meant that the
door was being finally closed on any future constitutional links between the
Southern Cameroon and La Republique du Cameroun. Henceforth, the
Complainants decided to conduct a signature referendum, in view of "the
hostile atmosphere created by the occupying power.......which would not want to
allow any form of consultation which might reveal the true suppressed
aspirations of the people of Southern Cameroons."
17. The Complainants aver that between 1st and 30th September 1995, the
Southern Cameroons National Council (SCNC) conducted a signature referendum
which revealed that 99% of Southern Cameroonians favour full independence by
peaceful separation from the Respondent State.
18. Besides their claim for statehood, the Complainants allege further that
human rights of various individuals have been systematically violated by the
Respondent State. The Complainants compiled eye witness accounts and field
investigations relating to arbitrary arrests, detentions, torture,
punishment, maiming and killings of persons who have advocated for the self
determination of Southern Cameroon.
COMPLAINT
19. The Complainants allege that;
(i) Articles 2, 3, 4, 5, 6, 7(1), 9, 10, 11, 12, 13, 17(1), 19, 20, 21, 22,
23(1), 24 of the African Charter have been violated.
(ii) the Republic of Cameroon has violated its general duty under in Article
26 of the African Charter to guarantee the independence of the judiciary.
PROCEDURE
20. The complaint was received at the Secretariat of the African Commission
on 9th January2003.
21. On 10 January 2003, the Secretariat acknowledged receipt of the
complaint.
22. On 19 January 2003, the Secretariat wrote another letter to the
Complainants requesting for further information relating to the
communication.
23. On 21 April 2003, the Secretariat sent a reminder to the Complainants
requesting them to forward their clarifications. By a letter dated 8 May
2003, Counsel for the Complainants sent the clarifications sought by the
Secretariat.
24. At its 33rd Ordinary Session held from 15 - 29 May 2003 in Niamey,
Niger, the African Commission considered the communication and decided to be
seized of the matter.
25. On 9 June 2003, the Secretariat informed the parties that the African
Commission had been seized with the matter and requested them to forward
their submissions on admissibility within 3 months.
26. On 9 September 2003, the Complainants informed the Secretariat that they
would be forwarding their submissions on admissibility and requested to make
oral submissions at the 34th session of the African Commission.
27. On 22 September 2003, the Secretariat received the Complainant's
submissions on admissibility along with supplemental evidence. The
Secretariat acknowledged receipt thereof on the same day.
28. On 3 October 2003, the Respondent State informed the Secretariat that it
had not received a copy of the communication forwarded to it by DHL on 9th
June 2003.
29. On 6 October 2003, the Secretariat wrote to the Complainant requesting
for another copy of the supplemental evidence to be forwarded to the
Respondent State.
30. On 27 October 2003, the Secretariat transmitted a copy of the
Complainant's submissions on admissibility to the Respondent State and
informed the latter that the Secretariat would give the accompanying
documents to the delegation of Cameroon attending the 34th Ordinary Session.
The Secretariat also informed the Respondent State that the DHL office in
Cameroon had confirmed delivery of the communication.
31. On 27 October 2003, the Secretariat received another copy of the
supplemental evidence from the Complainant for onward transmission to the
Respondent State. The Secretariat acknowledged receipt of the same.
32. At its 34th Ordinary Session held from 6th to 20th November 2003 in
Banjul, The Gambia, the African Commission examined the matter and decided
to defer consideration on admissibility of the matter to the 35th Ordinary
Session because the Respondent State claimed that they were unaware of the
communication.
33. On 14 November 2003, the Secretariat furnished the delegates
representing the Respondent State at the 34th Ordinary Session with the
following documents:
i. A copy of communication 266/2003
ii. A copy of the Complainants' submissions on admissibility and the
accompanying documents
34. On 4 December 2003, both parties to the communication were informed of
the decision of the African Commission to defer consideration of the matter
on admissibility to the 35th Ordinary Session. The Respondent State was
reminded to forward its submissions on admissibility to the Secretariat of
the African Commission within 3 months.
35. On 5 March 2004, the Secretariat of the African Commission received the
Respondent State's submissions on admissibility and acknowledged receipt of
the same on 9 March 2004.
36. At its 35th Ordinary Session held in Banjul, The Gambia, from 21 May - 4
June 2004, the African Commission heard the oral submissions of the parties,
and declared the communication admissible.
37. On15 June 2004, the Secretariat informed the parties about the African
Commission's decision and requested them to submit their written submissions
on the merits within 3 months.
38. On 13 August 2004, the Secretariat of the African Commission received a
correspondence from the Respondent State, which was forwarded to the
complainant on 26 August 2004.
39. On 20 September 2004, the Secretariat received the written submissions
of the Respondent State on merits, which was transmitted to the Complainants
on 12 November 2004.
40. On 23 and 28 September 2004, the Secretariat received the written
submissions of the Complainants on the merits, which was transmitted to the
Respondent State on 12 November 2004.
41. At its 36th Ordinary Session held in Dakar, Senegal from 24 November - 7
December 2004, the African Commission decided to defer its consideration on
the merits to the next session. It also rejected an application to stay the
proceedings by third parties purporting to represent the applicants claiming
to have entered into negotiation with the Respondent State.
42. On 23 December 2004, the Secretariat wrote to the said third parties
informing them of this decision.
43. The Commission also decided to forward the decision on admissibility of
the communication to the Respondent State, upon its request.
44. On 30 March 2005, the Secretariat received further submissions from the
Complainants, who also requested to make oral presentation to the next
session.
45. On 31 March 2005, the Secretariat handed over copies of the decision on
admissibility and the various submissions from the Complainants to the
delegation of the Respondent State that visited the Secretariat on the same
date.
46. At the 37th Ordinary Session held in Banjul, The Gambia, from 27 April -
11 May 2005, the African Commission considered this communication and
decided to defer its decision to the 38th Ordinary Session.
47. On 7 May 2005, the Secretariat informed the Respondent State of this
decision.
48. The Complainants were notified of the decision on 13 May 2005.
49. On 7 June 2005, the Secretariat received submissions from the
complainant, which were sent to the Respondent State.
50. On 12 July 2005, the Secretariat received submissions from the
Respondent State, which were later sent to the complainant.
51. At the 38th Ordinary Session held from 21 November - 5 December 2005 in
Banjul, The Gambia, the African Commission considered the communication and
deferred its decision on the merits to the 39th Ordinary Session.
52. On 30 January 2006, the Secretariat informed the Respondent State of
this decision.
53. The Complainants were notified of this decision on 5th February 2006.
54. At the 39th Ordinary session held in Banjul, The Gambia, from 11 - 25
May 2006, the African Commission considered the communication and decided to
defer it for further consideration at the 40th Ordinary Session.
55. At the 40th Ordinary session held in Banjul, The Gambia from 14 - 28
November 2006, the African Commission considered the communication and
decided to defer its decision on the merits to the 41st Session.
56. At the 41st Ordinary Session held in Accra, Ghana, from 16 - 30 May 2007
the Commission considered the communication and deferred its decision to
allow more time for the Secretariat to conduct further research and finalise
the draft decision.
57. At the 42nd Ordinary session held in Brazzaville, Congo, from 14 - 28
November 2007, the African Commission considered the communication and
decided to defer it for further consideration at the 43rd Ordinary Session.
58. At the 43rd Ordinary Session held in Ezulwini, Swaziland, from 7 - 22
May 2008, the African Commission considered the communication and decided to
defer its decision on the merits to the 44th Ordinary Session.
59. At the 44th Ordinary Session held in Abuja, Nigeria, from 10 - 24
November 2008, the African Commission considered the communication and
decided to defer it to the 45th Ordinary Session in order to finalise the
draft decision on the merits.
60. During the 6th Extra Ordinary session held from 28 March - 3 April 2009
in Banjul, The Gambia, the Commission considered the communication and
resolved to finalise it during the 45th Ordinary Session.
61. At the 45th Ordinary Session held in Banjul, The Gambia, between 13 and
27 May 2009, the Commission adopted the decision on the merits of the
communication.
LAW
ADMISSIBILITY
62. The admissibility of communications brought pursuant to Article 55 of
the African Charter is governed by the conditions stipulated in Article 56
of the African Charter. This Article lays down seven (7) conditions, which
must be fulfilled by a Complainant for a communication to be declared
admissible.
63. Of the seven conditions, the Respondent State claims that the
Complainants have not fulfilled four, namely: Article 56(1), (2), (3) and
(4). From the submissions of the Respondent State, there is an inference
that Article 56(7) has not been fulfilled by the Complainant.
64. The Respondent State submits that contrary to Article 56(1) of the
African Charter, the victims of the alleged violations, indicated in the
communication have not been identified.
65. Article 56(1) of the African Charter provides that:
"Communications ... received by the Commission shall be considered if they:
(1) Indicate their authors even if the latter request anonymity."
66. In this particular matter, the African Commission notes that the authors
of the communication have been identified at page 1 of the communication and
they are 14 in number. Their ages and professions have also been given as
well as their addresses of service. Furthermore, the communication reveals
that the authors of the communication are members of the Southern Cameroons
National Council (SCNC) and the Southern Cameroons Peoples' Organization (SCAPO),
organisations that were established principally to protect and advance the
human and peoples' rights of Southern Cameroonians, including their right to
self-determination.
67. Article 56 (1) of the African Charter requires a communication to
indicate its authors and not the victims of the violations. Thus the present
communication cannot be declared inadmissible on the basis of Article 56(1).
In coming to this decision, the African Commission would like to refer to
its decision in consolidated communication – Malawi African Association et
al/ Mauritania [FN2] where it held that "Article 56(1) demands simply that
communications should indicate the names of those submitting and not those
of all the victims of the alleged violations".
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[FN2] Consolidated Communications 54/91, 61/91, 98/93, 164/97 & 196/97,
210/98 – Malawi African Association, Amnesty International, Ms Sarr Diop,
Union Interafricaine des Droits de l'Homme and RADDHO, Collectif des Veuves
et Ayants Droit, Association Mauritanienne des Droits de l'Homme/Mauritania.
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68. The Respondent State argues that this communication does not meet the
requirements of Article 56(2), because the Complainants are advocating for
secession under the pretext of allegations of violation of the provisions of
the African Charter and other universal human rights instruments. While
conceding that the right to self determination is an inalienable right, the
Respondent State argues that the UN has established that this right should
not "be interpreted as authorising or encouraging any measure that would
partly or wholly compromise the entire territory or the political unity of
sovereign and independent States". The Respondent State submits further that
it is established that the only entities likely as peoples to call for the
external right to self determination from pre-existing States are the "peoples under foreign subjugation, domination and exploitation".
69. The Complainants argue that the communication meets the requirements in
Article 56(2) because it alleges violations of the African Charter and other
international human rights instruments.
70. Article 56(2) provides that "Communications ... received by the African
Commission shall be considered if they:
(2) are compatible with the Charter of the Organisation of African Unity or
with the present Charter."
71. The condition relating to compatibility with the African Charter
basically requires that:
The communication should be brought against a State party to the African
Charter [FN3];
The communication must allege prima facie violations of rights protected by
the African Charter [FN4];
The communication should be brought in respect of violations that occurred
after State's ratification of the African Charter, or where violations began
before the State Party ratified the African Charter, have continued even
after such ratification.[FN5]
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[FN3] Communication 2/88 – Iheanyichukwu A. Ihebereme/United States of
America
[FN4] Communication 1/88 – Frederick Korvah/Liberia
[FN5] Communication 97/93 (2) – John K. Modise/Botswana
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72. It is apparent to the African Commission that the present communication
meets all the above requirements. The communication has been brought against
Cameroon, which is State party to the African Charter. It reveals prima
facie violations of the African Charter, all of which are alleged to have
continued to occur following Cameroon's ratification of the African Charter.
73. The Respondent State also submits that the communication has been
written in disparaging or insulting language. The Respondent State argues
that the Complainants' use of the phrases such as "forceful annexation" and
"State sponsored terrorism" to characterise violations by the government of
Cameroon against the people of Southern Cameroons, allegedly committed
between 1961 and 2002 and a report titled "Let My People Go Part II", are
disparaging and insulting language, contrary to Article 56 (3), of the
African Charter.
74. Article 56(3) of the African Charter provides that:
Communications ... received by the Commission shall be considered if they :
(3) Are not written in disparaging or insulting language directed against
the State concerned and its institutions or to the Organisation of African
Unity.
75. The African Commission acknowledges that the above-mentioned provision
is quite subjective because statements that could be disparaging or
insulting to one person may not be seen in the same light by another person.
Matters relating to human rights violations normally elicit strong language
from the victims of the said violations. Nonetheless Complainants should
endeavour to be respectful in the phrases they choose to use when presenting
their communications.
76. The Respondent State submits further that the Complainants are not the
sole authors of some of the documents and that the facts have been
distorted.
77. The Complainants submit that they did not author the offensive
publication, but rely on it to buttress their allegations. They argue
further that the communication is not based exclusively on news disseminated
through the media. They state that the evidence in support of their
allegations is based on eye-witness accounts and documents prepared by those
who have personal knowledge of the events and from official Records.
78. Article 56(4) of the African Charter provides that:
Communications ... received by the Commission shall be considered if they: (4)
are not based exclusively on news disseminated through the mass media
79. The African Commission has perused the appendices to the communication
and has observed that they contain the following documents :
a. Appendix II is a publication by SCNC/SCAPO – Let my People Go!
b. Appendix IV contains court documents, namely a motion on notice, 2
affidavits, originating summons, a ruling of the Federal High Court of
Nigeria in Abuja, terms agreed by the parties to be embodied in the order of
the court and an enrolment of order.
c. Exhibit SC contains among others numerous documents, declarations,
agreements between Germany and Great Britain, UN General Assembly
Resolutions, the Statute of the International Court of Justice and the UN
Charter, a Petition made by the Federal Republic of Southern Cameroons to
the United Nations etc.
80. Article 56(4) relates to communications brought before the African
Commission based exclusively on news disseminated through the mass media.
Looking at the nature of documents described herein above, it is quite clear
that the Complainants do not base their case on mass media news, but on
official records and documents, as well as international statutes. This
clearly falls outside the ambit of Article 56(4).
81. With respect to Article 56(5), which relates to exhaustion of local
remedies, the Complainants submits that there are no local remedies to
exhaust in respect of the claim for self-determination because this is a
matter for an international forum and not a domestic one. They argue that
the issue for determination in this communication is whether or not the
"union" of La République du Cameroun and Southern Cameroons was effected in
accordance with UN Resolutions, International Treaty obligations and indeed
International law. They assert that the right to self determination is a
matter that cannot be determined by a domestic court.
82. The Respondent State concedes that no local remedies exist with respect
to the claim for self determination. The Respondent State, however argues
that, the right to self determination for the people of Southern Cameroon
was solved when the British Trusteeship over British Cameroon ended
following the plebiscite of 11th and 12th February 1961. Furthermore, it
argues that the 1963 International Court of Justice (ICJ) decision in the
Northern Cameroon case found in favour of the Republic of Cameroon and put
the matter of Southern Cameroon to rest. The Respondent State believes that
the Complainants are seeking a similar declaratory decision which should not
be entertained by the African Commission.
83. The African Commission believes that this argument is an inference by
the Respondent State that the Complainants have not met the conditions laid
down in Article 56(7) of the African Charter. Article 56(7) provides :
Communications ... received by the African Commission shall be considered if
they:
(7) do not deal with cases which have been settled by these States involved
in accordance with the principles of the Charter of the United Nations, or
the Charter of the Organisation of African Unity or the provisions of the
present Charter.
84. Article 56(7) of the African Charter bars the African Commission from
entertaining cases that have been settled by another international
settlement procedure.[FN6] The issue that the African Commission needs to
examine is whether the abovementioned complaint has been settled by some
other international settlement procedure.
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[FN6] Communication 15/88 – Mpaka-Nsusu Andre Alphonse/Zaire.
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85. The African Commission has read the judgment of the ICJ in the Northern
Cameroons case [FN7]. In that case the Government of the Republic of
Cameroon asked the Court to declare whether, "in the application of the
Trusteeship Agreement for the Territory of the Cameroons under the British
Administration, the United Kingdom failed, with regard to the Northern
Cameroons, to respect certain obligations flowing from that Agreement."[FN8]
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[FN7] Cameroon v United Kingdom – judgement of 2nd December 1963
[FN8] Ibid
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86. It is the view of the African Commission that the matter before the ICJ
was unrelated to the issues before the African Commission. The African
Commission states that for a matter to fall within the scope of Article
56(7) of the African Charter it should have involved the same parties, the
same issues, raised by the complaint before the African Commission, and must
have been settled by an international or regional mechanism. The case before
the ICJ was between the Republic of Cameroon and the United Kingdom, and
involved the interpretation and application of the Trusteeship treaty. These
facts clearly differ from the complaint before the Commission. As such the
case falls outside the scope of Article 56(7) of the African Charter.
87. For the reasons outlined herein above, the African Commission declares
this communication admissible.
Preliminary issue raised by the Respondent State regarding the jurisdiction
of the African Commission;
88. Before dwelling on the substance of the allegations, the Commission
wishes to dispose of some preliminary legal issues raised by the Respondent
State. The Respondent State questions the Commission's jurisdiction rationae
temporis, and states the following:
"...the complaint by the complainants contains an impressive number of cases
of so called massive violations of human rights which alleged to have been
carried out between 1961 and 2002. In this regard, the State of Cameroon
refuses to acknowledge in limine litis the jurisdiction rationae temporis of
the Commission with regard to acts before 18 December 1989, the date of
entry into force of the Charter."
89. The Respondent State also challenged the notion, or the existence of a
territory known as "Southern Cameroon." It states as follows:
"....it should be pointed out that in spite of the fact that the
complainants refused to reveal their identities, they by no means
ascertained to have been victims[FN9] of violations imputed to the State of
Cameroon. And even when they act on behalf of a so called territory called
Southern Cameroon, the State of Cameroon will point out that no territory
exists called as such in the Republic of Cameroon...'
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[FN9] The issue whether or not a complainant needs to be a victim in order
to submit a communication before the Commission is addressed, in para 62
hereinabove, when discussing Article 56 (1) of the African Charter.
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90. The Respondent State, similarly, questions the existence of a "people"
known as "Southern Cameroonians" and as such states that,
"...[s]upposing that there are a people of Southern Cameroons, nevertheless,
it would have to be proven that it is entitled to claim its self
determination, under the specific form of "separate statehood"
91. The Commission proposes to deal, firstly, with the question of its
jurisdiction then the question whether the people of "Southern Cameroon"
exist as a "people," and whether the territory otherwise referred to as "Southern Cameroon" does exist, and if it does, can its
"people" exercise
their alleged "right to self-determination?"
DECISION ON THE PRELIMINARY ISSUE OF THE COMMISSION'S JURISDICTION RATIONAE
TEMPORIS
92. The Respondent State raises objection to the Commission's exercise of
jurisdiction rationae temporis. The Complainants responded that although
those violations were carried out before the African Charter came into force
for Cameroon, they did not stop even after 18 December 1989.
93. The Commission acknowledges the Respondent State's argument that its
jurisdiction rationae temporis is limited in limine, and as such it cannot
address violations retrospective the entry into force of the Charter. The
Commission is aware that the Africa Charter entered into force in respect of
the Respondent State on 18 December 1989. The Commission has been informed
by the Complainants that some of the alleged violations occurred before that
date.
94. The Commission stated its position on this principle in Communication
97/93, John K. Modise v. Botswana. In that communication the complainant was
arrested by the Botswana authorities in 1978 and deported to apartheid South
Africa, in violation of his citizenship rights. The communication was filed
in 1993. The Commission held that:
"The Republic of Botswana ratified the African Charter on 17 July 1986.
Although some of the events described in the communication took place before
ratification, their effects continue to the present day. The current
circumstances of the complainant are a result of a present policy decision
taken by the Botswana government against him."
95. The Commission expanded the principle further in its decision on the
Consolidated Communications Nos 54/91 Malawi African Association, et al v.
Mauritania, where it, inter alia, considered an allegation of violations of
the right to a fair trial. The Commission held that:
"Mauritania ratified the Charter on 14 June 1986, and it came into force on
21 October 1986. The September trials, thus took place prior to the entry
into force of the Charter. These trials led to the imprisonment of various
persons. The Commission can only consider a violation that took place prior
to the entry into force of the Charter if such a violation continues or has
effects which themselves constitute violations after the entry into force of
the Charter..." [FN10]
--------------------------------------------------------------------------------
[FN10] § See Paragraph 91 of the decision.
--------------------------------------------------------------------------------
96. The Commission has through its jurisprudence established the principle
that violations that occurred prior to the entry into force of the Charter,
in respect of a State party, shall be deemed to be within the jurisdiction
rationae temporis of the Commission, if they continue, after the entry into
force of the Charter. The effects of such violations may themselves
constitute violations under the Charter. In other words, this principle
presupposes the failure by the State party to adopt measures, as required by
Article 1 of the Africa Charter to redress the violations and their effects,
hence failing to respect, and guarantee the rights
97. The Commission therefore decides that it has the competence to consider
this complaint against the Respondent State, in relation to violations which
emanated prior to 18 December 1989, the date the African Charter entered
into force for the Republic of Cameroon, if such violations or their
residual effects continued after that date.
CONSIDERATION OF THE MERITS
98. The communication alleges that the Respondent State violated Articles 2,
3, 4, 5, 6, 7(1), 9, 10, 11, 12, 13, and 17(1) in respect of individual
Southern Cameroonians; and Articles19, 20, 21, 22, 23(1), and 24 in respect
of the Peoples of Southern Cameroons; and the general obligation under
article 26 of the African Charter.
DECISION ON THE MERITS
ALLEGED VIOLATION OF ARTICLE 2
99. The Complainants allege that there have been various cases of
discrimination against the people of Southern Cameroon contrary to Article 2
of the African Charter. Article 2 states that:
"Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin,
fortune, birth or any status".
100. The Complainants submit that Southern Cameroonians are discriminated
against by the Respondent State, in various forms.These include
under-representation of Southern Cameroonians in national institutions,
economic marginalisation through the denial of basic infrastructure; such as
roads, persistence high levels of unemployment and illiteracy in Southern
Cameroon. It is submitted that Southern Cameroonians are discriminated
against in the legal and judicial system.
101. The Complainants submitted further that the company law applied in
Southern Cameroon was abolished in favour of the Napoleonic Code upon
unification in 1972. They argued that Southern Cameroonians could not
register companies whose articles of association were in the English
language.
102. The issue for determination is whether the refusal to register the said
companies was directly related to the unification of the legal system in
1972, and if it constituted discrimination? Could the 1972 unification
prejudice registration of companies after ratification on 18 December 1989?
This would be the case only if the unification impacted negatively on the
registration of companies after December 1989. The Complainants argue that
the refusal to register companies had such an effect. In order for the
Southern Cameroonian companies to do business they had to register under the
Francophone civil law system. The Respondent State did not dispute this
allegation. English is one of the official languages in Cameroon. Southern
Cameroonians had a legitimate expectation that the English language could be
used to conduct official business, including the registration of companies.
The Commission makes a finding that the refusal to register companies
established by Southern Cameroonians on account of language amounted to a
violation of Article 2 of the African Charter.
103. The Complainants submit further that the ratification of the Treaty for
the Harmonisation of Business Law in Africa, otherwise known as
"Organisation pour l'Hamonisation des Droits d'Affaires en Afrique" (OHADA),
has discriminated against the people of Southern Cameroon on the basis of
language. OHADA is an instrument harmonising business law amongst
French-speaking countries in Africa. It states that the language of
interpretation and settlement of disputes arising under OHADA shall be
French.
104. The Complainants alleged that the ratification of OHADA was
discriminatory to individual businesses and business people from Southern
Cameroon. At this point we adopt the legal principle that businesses or
corporate bodies are legal persons. The Complainants submit that objections
against OHADA were ignored, and that companies not registered under OHADA
could not open bank accounts in Cameroon.
105. The Respondent State argued that OHADA is not aimed at promoting the
superiority of one legal system over the other, but rather to harmonise
business law in the contracting states by elaborating simple, modern, common
rules aimed at encouraging regional development and growth, setting up
appropriate judicial procedures and encouraging arbitration for the
settlement of contractual disputes.
106. It states further that other non French speaking countries including
Ghana and Nigeria, were undergoing the process of acceding to the OHADA
treaty. The Respondent State submitted that it had taken several measures,
such as the translation of the OHADA laws into English, with the support of
the OHADA Permanent Secretariat and the African Development Bank, and the
training of Anglophone and Francophone magistrates at the Ecole regionale
Superieure de magistature in Porto Novo, Republic of Benin. It stated
further that the apprehension by the Anglophones was merely a transitory
situation.
107. The Commission takes note of the fact that the Respondent State had
taken measures to address the discriminatory effects of the ratification of
OHADA. Had such measures not been taken upon the ratification of OHADA in
1996, the Commission would not have hesitated to find a violation. The
Commission is cognisant of the bilingual nature of the Respondent State and
the Western African region, in which the Respondent State finds itself. The
Respondent State is from time to time being expected to interact with its
neighbours in ECOWAS, or any other sub regional group, where both the French
and the English language continue to be lingua franca.
108. The mere accession or ratification of OHADA, should not be deemed a
violation of Article 2, unless the Respondent State had manifestly failed to
take any steps to ameliorate the effects of the linguistic differences. The
Respondent State has shown that it took measures, such as the training of
magistrates, and translation of texts to address the discriminatory
concerns. The OHADA ratification, however, resulted in the discrimination of
Anglophone based companies and businesses, which could not open bank
accounts unless they registered under OHADA. There was no response from the
Respondent State on this issue. Nor were any measures taken to address this
complaint. Notwithstanding the translation of OHADA into English, it was
wrong for institutions, such as banks to force Southern Cameroon based
companies to change their basic documents into French. The banks and other
institutions could have dealt with the companies without imposing the
language conditionality. Banking documents should have been translated into
English. The Commission finds that the Respondent State failed to address
the concerns of Southern Cameroonian businesses, which were forced to
re-register under OHADA, and as such violated Article 2 of the African
Charter.
ALLEGATION OF VIOLATION OF ARTICLE 3
109. The Complainants alleged violation of Article 3, which protects the
individual's right to equality before the law and equal protection of the
law. African Commission notes that although the communication alleges
violation of Article 3 of the African Charter, the Complainants did not
specifically argue or bring evidence of any instance against the Respondent
State. In the absence of such evidence, the African Commission cannot find
violation of Article 3 of the Charter.
ALLEGED VIOLATION OF ARTICLE 4
110. The Complainants allege violations of Article 4, the right to life,
inviolability of the human being, and the integrity of the person. They
submit that the Respondent State committed violations against individuals in
Southern Cameroon. The communication gives account of people who were killed
by the police during violent suppressions of peaceful demonstrations, or
died in detention as a result of the bad conditions and the ill-treatment in
prison.
111. The Respondent State contends that the allegations are not
substantiated by documentary evidence. No certificates to ascertain the
cause of death, no forensic medical certificates, no investigation reports
by human rights organisation were produced. It states further that "the
catalogue published by the press organs of the SCNC and SCAPO cannot be
considered as a reliable source".[FN11] The Respondent State however,
admitted to the death of six people on the 26th March 1990, which occurred
after a confrontation between security forces and demonstrators, whom it
argued, were involved in an illegal political rally in Bamenda.
--------------------------------------------------------------------------------
[FN11] The SCNC (Southern Cameroons National Council) and the SCAPO
(Southern Cameroons People's Organisation) are two political organisations
defending the rights of the people of Southern Cameroons, including their
right to self-determination.
--------------------------------------------------------------------------------
112. The African Commission observes that the parties do not have equal
access to official evidences such as police reports, death certificates and
forensic medical certificates. The Complainants endeavoured to inquire into
the alleged violations, and gave names of the alleged victims. The
Respondent State restricted itself to questioning the reliability of the
evidence presented by the Complainants. It did not deny the alleged
violations. The Respondent State had the opportunity to inquire into the
alleged violations. The Respondent State did not conduct such investigation
and redress the victims, it thus failed to protect the rights of the alleged
victims. The Commission finds that it violated Article 4 of the African
Charter.
ALLEGED VIOLATION OF ARTICLE 5
113. The communication gives details of victims who were subjected to
torture, amputations, and denial of medical treatment by the Respondent
State's law enforcement officers, in violation of Article 5 of the African
Charter. The Respondent State responded by stating that some SCNC and SCAPO
members had perpetrated terrorist acts in the country, killing law
enforcement officers, vandalising State properties, stealing weapons and
ammunitions.
114. The Commission holds the view that even if the State was fighting
alleged terrorist activities, it was not justified to subject victims to
torture, cruel, inhuman and degrading punishment and treatment. It therefore
finds that the Respondent State violated Article 5 of the African Charter.
ALLEGED VIOLATION OF ARTICLE 6
115. The communication further gives details of victims who were arrested,
detained for days, sometimes for months without trial before being released
in violation of Article 6 of the Charter.
116. The Respondent State did not deny the allegations, instead it tried to
justify them. For instance, it states that:
"...concerning citizens who had been arrested for committing various ordinary
law offences since the return to multi party democratic processes, most of
them are SCNC and SCAPO activists who, in their logic of contestation,
defied republican institutions especially the forces of law and order,
either during demonstration of the anniversary of "Southern Cameroon" every
1 October of the year, or at the approach, during and after important
elections."
117. It goes on to state that,
"whatever the circumstances, the more it is true that every individual shall
have the right to liberty and the security of his person, the more it is
accepted that an individual may be deprived of his freedom for reason and
conditions previously laid down by the law. (Article 6 of the Charter) The
cases of arrest registered since the return to multiparty politics in this
part of the territory has always obeyed the principle of legality....."
118. The Commission states that a State Party cannot justify violations of
the African Charter by relying on the limitation under Article 6 of the
Charter The Respondent State is required to convince the Commission that the
measures or conditions it had put in place were in compliance with Article 6
of the Charter. The Commission has previously expressed itself on the effect
of claw back clauses. Communication 211/98; Legal Resources
Foundation/Zambia,[FN12] states the following;
"The Commission has argued forcefully that no State Party to the Charter
should avoid its responsibility by recourse to the limitations and "claw
back" clauses in the Charter. It was stated following developments in other
jurisdictions, that the Charter cannot be used to justify violations of
sections of it. The Charter must be interpreted holistically and all clauses
must reinforce each other. The purpose or effect of any limitation must also
be examined, as the limitation of the right cannot be used to subvert from
the popular will, as such cannot be used to limit the responsibilities of
State Parties in terms of the Charter."
--------------------------------------------------------------------------------
[FN12] 14th Annual Activity Report, 2000-2001
--------------------------------------------------------------------------------
119. Further to the foregoing, Communication 147/95 and 149/96, Sir Dawda
Jawara/The Gambia, the Commission stated that,
" [t]he Commission in its decision on communication 101/93 laid down a
general principle with respect to freedom of association, that ‘competent
authorities should not enact provisions which limit the exercise of this
freedom. The competent authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by constitution or
international human rights standards.' This therefore applies not only to
right to freedom of expression of association, but also to all other rights
and freedoms ... for a State to avail itself of this plea, it must show that
such a law is consistent with its obligations under the Charter."[FN13]
--------------------------------------------------------------------------------
[FN13] The principle was stated in Communication 101/93; Civil Liberties
Organization (In respect of the Nigerian Bar Association)/Nigeria, where the
Commission discussed the effect of the claw back clause in Article 10 on the
right to freedom of association and stated the following; " [f]reedom of
association is enunciated as an individual right and is first and foremost a
duty of the State to abstain from interfering with the free formation of
association. There must always be a general capacity for citizens to join,
without State interference, in association in order to attain various ends.
In regulating the use of this right, the competent authorities should not
enact provisions which would limit the exercise of this freedom. The
competent authorities should not override constitutional provisions or
undermine rights guaranteed by the constitution and international human
rights standards. (emphasis is added)
--------------------------------------------------------------------------------
120. In view of the foregoing, the Commission finds that the Respondent
State has violated Article 6 as alleged by the Complainants.
ALLEGED VIOLATION OF ARTICLE 7(1)
121. The Complainants alleged that the Respondent State violated Article
7(1), on the right to fair trial. They allege that individuals were
transferred from Southern Cameroon to Francophone Cameroon for trial by
military tribunals and that other victims were tried in civil law courts,
without interpreters.
122. The Respondent State admits that between 1997 and 2001, some
individuals were transferred from the North West Cameroon, and were tried
for various criminal offences by the Yaoundé Military Tribunal, These
offences include unlawful incitement, disturbances of public peace,
destruction of public property, assassination of gendarmes and civilian
individuals, illegal possession of weapons and ammunition, and the illegal
declaration of the independence of Anglophone Cameroon on 30 December 1999.
123. The Respondent States asserts the following;
" [a]ware that in the past the actions of SCNC militants have always ended
up in assassinations, kidnapping of persons, destruction and setting ablaze
of public buildings, public authorities could not remain indifferent in
front of this manifest determination to cause disorder and disturbances.
About three days before 1 October 2001, gendarmes were dispatched nearly
everywhere in the areas and localities targeted by the SCNC."
124. The Respondent State submitted that some of the victims were released,
albeit after prolonged periods of detention, for lack of evidence. Others
were released on bail, and fled the country. It argues that the prolonged
detention was due to administrative bottlenecks, which are a constant
concern of the government. The Respondent State did not indicate the
measures it had taken to address the chronic administrative problems causing
prolonged detentions.
125. The Respondent State denied that it ignored or failed to implement
Court decisions in Anglophone Cameroon. It cited a number court decision it
had complied with, including those which overturned executive decisions. The
Complainant did not give any specific case or decision which was not
complied with by the Respondent State.
126. The Commission wishes to state that the rights outlined in Article 7
constitute fundamental tenets of any democratic state. It is through respect
for these rights that other rights guaranteed by the Charter may also be
realised. The Commission has adopted the Principles and Guidelines on the
Right to Fair Trial and Legal Assistance in Africa, to assist State Parties
to better guarantee the rights enshrined in Article 7.
127. The Respondent state did not explain why it transferred individuals
from North West Cameroon for trial by the Yaoundé and Bafoussam Military
Tribunals, nor the reason why the victims were tried by tribunals outside
the jurisdictions where the offence were allegedly committed. The Commission
has stated previously that trial by military courts does not per se
constitute a violation of the right to be tried by a competent organ. What
poses problem is the fact that, very often, the military tribunals are an
extension of the executive, rather than the judiciary. Military tribunals
are not intended to try civilians. They are established to try military
personnel under laws and regulations which govern the military. In
communication 218/98 Civil Liberties Organisation, Legal Defence Centre,
Legal Defence and Assistance Project v. Nigeria the Commission stated the
following:
"The military tribunals are not negated by the mere fact of being presided
over by military officers. The critical factor is whether the process is
fair, just and impartial" [FN14]
--------------------------------------------------------------------------------
[FN14] § See para 27.
--------------------------------------------------------------------------------
128. The accused persons were not military personnel. The offences alleged
to have been committed were quite capable of being tried by normal courts,
within the jurisdictional areas the offences were allegedly committed. The
Commission finds that trying civilians by the Yaoundé and the Bafoussam
Military Tribunals was a violation of Article 7(1) (b) of the Charter.
129. The Complaints submit that the accused were tried in a language they
did not understand, without the help of interpreters. The Respondent State
did not contradict that allegation. The Commission states that it is a
prerequisite of the right to a fair trial, for a person to be tried in a
language he understands, otherwise the right to defence is clearly hampered.
A person put in such a situation cannot adequately prepare his defence,
since he would not understand what he is being accused of, nor would he
apprehend the legal arguments mounted against him.[FN15] The aforementioned
Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance
in Africa, states that one of the essential elements of a fair hearing is:
"...an entitlement to the assistance of an interpreter if he or shecannot
understand or speak the language used in or by the judicial body."[FN16]
--------------------------------------------------------------------------------
[FN15] See the decision of the Commission on communications 54/91, 61/91,
98/93, 164/97 to 196/97 and 210/98 Malawi African Association, Amnesty
International, Ms. Sarr Diop, UIDH and RADDHO, Collectif des veuves et
ayants-droits, and Association mauritanienne des droits de l'homme v.
Mauritania, 13th Annual Activity Report,
[FN16] § 97. § 2(g).
--------------------------------------------------------------------------------
130. The Commission recognizes that the Respondent State is a bilingual
country. Its institutions including the judiciary can use either French or
English. However since not all the citizens are fluent in both languages, it
is the State's duty to make sure that, when a trial is conducted in a
language that the accused does not speak, he/she is provided with the
assistance of an interpreter. Failing to do that amounts to a violation of
the right to a fair trial.
131. The Commission therefore concludes that the Respondent State violated
Article 7(1)(b) (c) and (d) of the Charter.
ALLEGED VIOLATION OF ARTICLE 9
132. The communication alleges violation of article 9 of the Charter. The
Complainants did not make any submissions concerning Article 9.The
Commission has therefore not made any finding regarding Article 9.
ALLEGED VIOLATION OF ARTICLE 10
133. The Complainants allege that the Respondent State violated Articles 10
of the African Charter. The parties did not make any submission on Article
10 of the Charter. The Commission finds no violation of Article 10.
ALLEGED VIOLATION OF ARTICLE 11
134. The Commission examined whether Articles 11 was violated. The
Commission deems that there is enough information on the record, based on
the both parties to enable the Commission to make its determination.
135. Article 11 states that:
"Every individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to necessary restrictions
provided for by law in particular those enacted in the interest of national
security, the safety of others, health, ethics and rights and freedoms of
others."
136. The facts before the Commission depict cases of suppression of
demonstrations, including the use of force against, the arrest and detention
of people taking part in such demonstrations. The Commission has held
previously that;
".....the Charter must be interpreted holistically and all clauses must
reinforce each other."[FN17]
--------------------------------------------------------------------------------
[FN17] Communication 211/98 Legal Resources Foundation/Zambia, at para 70.
--------------------------------------------------------------------------------
137. The Complainant states that several victims were arrested and held in
detention for long periods, for exercising their right to freedom of
assembly. Some of the detained persons were acquitted. There were others who
died at the hands of security forces or in detention, after being accused of
participation in "unlawful political rallies." The victims who died, or had
been detained suffered while exercising their exercise of the right to
freedom of assembly.
138. The Commission does not condone unlawful acts by individuals or
organisations to advance political objectives, because such actions or their
consequences are likely to violate the African Charter. It encourages
individuals and organisations, when exercising their right to freedom of
assembly, to operate within the national legal framework. This requirement
does not absolve States Parties from their duty to guarantee the rights to
freedom of assembly, while maintaining law and order. The Respondent States
admits that it detained demonstrators, applied excessive force to enforce
law and order, and in some cases lives were lost. The Commission concludes
therefore that Article 11 of the African Charter was violated.
ALLEGED VIOLATION OF ARTICLE 12
139. The Complainants alleged that Article 12 was violated by the Respondent
State. They did not substantiate any infringement by the Respondent State of
the right to freedom of movement. The Commission finds no violation of
Article 12.
ALLEGED VIOLATION OF ARTICLE 13
140. The Complainants alleged violation of Article 13. They stated that the
people of Southern Cameroon were not adequately represented in the
institutions of the Republic of Cameroon except for "token" appointments.
They allege further that the Respondent State manipulated demographic data
to deny Southern Cameroonians equal representation in government.
141. The Respondent State submitted that, upon the introduction of
multi-partyism in 1992, many Southern Cameroonian opposition parties, such
as the Social Democratic Front (SDF), have participated in municipal,
legislative and presidential elections. Opposition parties control several
councils and are represented in the National Assembly. It argues that access
to high office is open to all citizens without distinction. The Respondent
State accused the Complainants of bad faith, and stated that some of the
highest positions in the Republic had been held by Southern Cameroonians. It
accuses SCNC and SCAPO of persecuting fellow Anglophones who refuse to
adhere to the secession agenda.
142. The Complainants claim that Southern Cameroonians have since 1961 been
accorded only 20 % representation in the Federal/National Assembly instead
of the 22% they think they deserve. The Complainants' main complaint is the
ratio of representation, rather than the non representation. The Respondent
State states that 20% representation cannot be said to be "tokenism."
143. The Commission is inclined to agree with the Respondent State. It finds
that in spite of the alleged disproportionate percentage, Southern
Cameroonians were representation, and hence participated in public affairs
of the Respondent State as required under Article 13 of the African Charter.
144. The Commission states that it is not sufficient for the Complainants to
assert in general terms that a certain category of citizens were denied the
right to access public positions or that they were under-represented in
government or public administration. The Complainants did not furnish the
Commission with information or cases that individuals in Southern Cameroon
were denied representation or denied access to public services. The
Commission finds that allegations concerning "tokenism" have not been
substantiated and concludes that there is no violation of Article 13.
ALLEGED VIOLATION OF ARTICLE 17
145. The Complainants allege that the Respondent State violated Article 17
of the Charter, because it is destroying education in the Southern Cameroons
by under funding and understaffing primary education. That it imposed
inappropriate reform of secondary and technical education. It discriminates
Southern Cameroonians in the admission into the Polytechnique in Yaoundé,
and refused to grant authorisation for registration of the Bamenda
University of Science and Technology, thereby violating article 17 on the
right to education.
146. The Respondent State denied that it is destroying the education system
in the Southern Cameroon. It provided detailed data and statistics on the
measures it had taken to carter for the education sector in the Southern
Cameroons. It stated that in certain cases it had provided more resources to
Southern Cameroon than it had done for other regions. The Complainants
contested the reliability of the data and statistics, but did not convince
the Commission that the data should not be relied upon.
147. Regarding the alleged discrimination concerning admission of Southern
Cameroonians into the Polytechnique in Yaounde, the Respondent State argued
that admission to the National Advanced School of Engineering is based on
merit, as is the case with all higher institutions of learning. It stated
that the School has trained a number of civil engineers from both the
Anglophone and Francophone parts.
148. Concerning the alleged refusal to grant authorisation for the
registration of the Bamenda University of Science and Technology, the
Respondent State stated that the said university did not fulfill conditions
for establishment of private universities. The Complainant did not show
whether the criteria were met by the Bamenda University of Science and
Technology or not. The Commission reiterates that for it to make finding on
any allegations, the Parties have to provide it with the necessary
information. Rule 119 of the 1995 Rules of Procedure of the Commission,
(which govern this communication) require parties to furnish explanation or
statements, including additional information.
149. The Complainants should have done so under Rule 119 (3) of the Rules of
Procedure. The Commission allowed Parties to make oral submission in this
particular case. The Complainants did not substantiate the allegations. For
the above reasons, the African Commissions finds that there is no violation
of Article 17(1) of the Charter.
150. The Commission then examined the alleged violation of Articles 19, 20,
21, 22, 23(1), and 20 of the African Charter.
ALLEGED VIOLATION OF ARTICLE 19
151. The Complainants premised the complaint alleging violation of their
collective rights on the events which happened prior to 18 December 1989.
The Commission has already expressed itself on the question of its
jurisdiction rationae temporis. The Complainants alleged that the Respondent
State, "forcefully and unlawfully annexed" Southern Cameroon. They argue
that the Respondent State:
"........established its colonial rule there, complete with its structures,
and its administrative, military and police personnel, applying a system and
operating in a language alien to the Southern Cameroon, ... and continues to
exercise a colonial sovereignty over Southern Cameroon to this day."
152. They argue further that:
"... the occupation and assumption of a colonial sovereignty over Southern
Cameroon by the Respondent State amounts to violation of Articles 19 and 20
of the African Charter..., both of which outlaw domination , and colonialism
in all its forms and manifestations. Article 19 places an absolute ban on
the domination of one people by another. Article 20 emphatically asserts the
right of every people to existence, to self determination, and of resistance
to colonialism or oppression by resorting to any internationally recognised
means of resistance"
153. These are very serious allegations which go to the root of the
statehood and sovereignty of the Republic of Cameroon. The Respondent State
responded by arguing that the Commission is:
"...incompetent to handle the issue of the process of decolonisation that
took place in this State and under the auspices of the United Nations."
154. Respondent State submits further that the Commission cannot examine or
adjudicate on the 1961 UN plebiscite, on events which took place between the
October 1961 and 1972, when the Federal and Union Constitutions were
adopted, because they predated the entry into force of the Charter.
155. The Commission concedes that it is not competent to adjudicate on the
legality of those events, due to limitation imposed on its jurisdiction
rationae temporis, for reasons stated hereinabove. The Commission cannot
make a finding on allegations made by the Complainants concerning "illegal
and forced annexation, or colonial occupation of Southern Cameroon by the
Respondent State," since they fall outside its jurisdiction rationae
temporis.
156. The Commission states, however that, if the Complainants can establish
that any violation committed before 18 December 1989, continued thereafter,
then the Commission shall have competence to examine it.
157. The Complainants alleged cases of economic marginalisation, and denial
of basic infrastructure by the Respondent State, as constituting violations
of Article 19. They allege that these violations were a consequence of the
events of 1961 and 1972, and continued after 18 December 1989.
158. The Respondent State contested the allegation of economic
marginalisation. It submitted documents and statistics in support of its
provision of basic infrastructure in Southern Cameroon. The statistical
information and data show that, for the period 1998 up to 2003/4, the North
West and South West provinces, (Southern Cameroon,) were allocated
substantially higher budgetary resources, than the Francophone provinces,
for the construction, and maintenance of roads, and running of education
training institutions. The documents show that the situation in the
Anglophone regions is not that different from other parts of the country. It
argued that the problem concerning inadequate infrastructural development is
not peculiar to Southern Cameroon.
159. The Complainants rejected as adulterated the data and statistics
provided by the Respondent. The complainant did not furnish any document to
support their allegation. The Commission finds no reason why it should not
rely on the data and statistics provided by the respondent State in its
decision. The Commission holds that the Respondent State allocated public
resources to the Anglophone provinces without discrimination.
160. The Respondent State did not however respond specifically to the
allegations concerning the relocation of major economic projects and
enterprises from Southern Cameroon. It explained the reason for relocating
the seaport to Douala from Limbe, otherwise known as Victoria. It argues
that, Douala being the gateway into Cameroon, the government needed to
monitor the movement of persons and good for evident security reasons and
efficient customs control.
161. Every State has an obligation under international law to preserve the
integrity of its entire territory. The maintenance of security and movements
of persons and goods on the territory is part of that obligation. The
argument by the Respondent State that it could not guarantee the security of
persons and goods at Limbe, unless it moved the port, is tantamount to
acknowledging that it had no control of Limbe. The Commission believes that
the security and customs authorities could have effectively monitored the
movement of persons and goods, even if the seaport had continued to be at
Limbe.
162. The Commission states that the relocation of business enterprises and
location of economic projects to Francophone Cameroon, which generated
negative effects on the economic life of Southern Cameroon constituted
violation of Article 19 of the Charter.
ALLEGED VIOLATION OF ARTICLE 20
163. The Complainants state that the "alleged unlawful and forced annexation
and colonial occupation" of Southern Cameroon by the Respondent State
constituted a violation of Article 20 of the Charter. They claim that
Southern Cameroonians are entitled to exercise the rights to self
determination under Article 20 of the Charter as a separate and distinct
people from the people of "La Republic du Cameroon." Article 20 stipulates
that:
All peoples shall have the right to existence. They shall have the
unquestionable and inalienable right to self determination. They shall
freely determine their political status and shall pursue their economic and
social development according to the policy they have freely chosen.
1. Colonised or oppressed peoples shall have the right to free themselves
from the bonds of domination by resorting to any means recognised by the
international community.
2. All peoples shall have the right to the assistance of the states parties
to the present Charter in their liberation struggle against foreign
domination, be it political, economic or cultural.
164. The Complainants submit that the UN plebiscite was premised on certain
conditions, including the convening of a conference of equal representative
delegations from the Republic of Cameroon and Southern Cameroon to work out
the conditions for the transfer of sovereign powers to the future
federation. It is further submitted that such arrangements should have been
approved by the separate parliaments of the Republic of Cameroon and
Southern Cameroon before sovereignty was transferred to a single entity
representing both sides. The Complainants submit that the results of the
plebiscite were never submitted to the parliament of the Southern Cameroon
for approval.
165. The Respondent State did not respond to the allegations concerning
"unlawful annexation and colonialism." It submitted instead that the issues
are incapable of adjudication by the Commission on account of its lack of
jurisdiction.
166. The Respondent State contested further the claim that Southern
Cameroonians are a "separate and distinct people". The Commission shall
examine this issue.
167. The Complainants reiterate that their "separate and distinct" identity
is based on the British administration over Southern Cameroon. They submit
that they speak the English language, and apply the common law legal
tradition, as opposed to the Francophone zone, where French is spoken and
the civil law system is applicable.
168. The Respondent State submitted that it does not dispute the basic
historical facts concerning the Trust administration, but denies that
Southern Cameroonians exist as a "people." It states the following;
" [t]he complainants raise in order to shore up this assertion the use of
the English language (working language), the specificity of the legal
system, of the educational system, of the system of government, traditional
cultures. In fact, the specificities of former Southern Cameroons stem
solely from the heritage of British administration and the legacy of
Anglo-Saxon culture. No ethno-anthropological argument can be put forward to
determine the existence of a people of Southern Cameroons, the Southern part
being of the large Sawa cultural area, the northern part being part of the
Grass fields' cultural area. Since 1961, although some specificities had
been preserved on more than one aspect, there had been remarkable
rapprochement at the administrative and legal levels. The ‘separate and
distinct people' thesis is no longer valid today."
169. The Commission shall clarify its understanding of "peoples' rights,"
under the African Charter. The Commission is aware the controversial nature
of the issue, due to the political connotation that it carries. That
controversy is as old as the Charter. The drafters of the Charter refrained
deliberately from defining it. [FN18] To date, the concept has not been
defined under international law. However, there is recognition that certain
objective features attributable to a collective of individuals, may warrant
them to be considered as "people".
--------------------------------------------------------------------------------
[FN18] See the Report of the Rapporteur of the OAU ministerial meeting on
the draft African Charter on Human and Peoples' Rights held in Banjul, the
Gambia, from 9 to 15 June 1980 (CAB/LEG/67/3/Draft Rapt. Rpt (II), p.4.
--------------------------------------------------------------------------------
170. A group of international law experts commissioned by UNESCO to reflect
on the concept of "people" concluded that where a group of people manifest
some of the following characteristics; a common historical tradition, a
racial or ethnic identity, cultural homogeneity, linguistic unity, religious
and ideological affinities, territorial connection, and a common economic
life, it may be considered to be a "people.". Such a group may also identify
itself as a people, by virtue of their consciousness that they are a
people.[FN19] This characterisation does not bind the Commission but can
only be used as a guide.
--------------------------------------------------------------------------------
[FN19] See the Final Report and Recommendations of the Meeting of Experts on
extending of the debate on the concept of "peoples' rights" held in Paris,
France, from 27 to 30 November 1989,(SHS-89/CONF.602/COL.1) § 22
--------------------------------------------------------------------------------
171. In the context of the African Charter, the notion of "people" is
closely related to collective rights. Collective rights enumerated under
Articles 19 to 24 of the Charter can be exercised by a people, bound
together by their historical, traditional, racial, ethnic, cultural,
linguistic, religious, ideological, geographical, economic identities and
affinities, or other bonds. .
172. The drafters of the Charter provided for the protection of "peoples
rights" under the Charter. In his book, entitled; The Law of the African
(Banjul) Charter on Human and Peoples' Rights, Justice Hassan B. Jallow,
[FN20] an eminent African Jurist, who participated in the drafting the
African Charter, sheds light on this issue. He says that:
"[t]he concept of peoples' rights, to which a whole chapter had been devoted
in the draft did not mean there was any grading of rights. There were
economic, social and cultural rights which have particular importance to
developing countries and which together with civil rights and political
rights in one complementary whole should henceforth be give an important
place."[FN21]
--------------------------------------------------------------------------------
[FN20] Trafford Publishing, Canada 2007
[FN21] Hassan B. Jallow, ibid, page 28.
--------------------------------------------------------------------------------
173. Justice Jallow cites the late President Leopold Sedar Senghor, the
first President of Senegal and an eminent African Statesman, who told the
inaugural meeting of African Legal Experts to draft the Charter, the
following:
"People will perhaps expatiate for a long time upon the ‘People Rights' we
were very keen on referring to. We simply meant, by so doing, to show our
attachment to economic, social, and cultural rights, to collective rights in
general, rights which have a particular importance in our situation of a
developing country. We are certainly not drawing lines of demarcation
between the different categories of rights. We want to show essentially that
beside civil and political rights, economic, social and cultural rights
should henceforth be given the important place they deserve. We wanted to
lay emphasis on the right to development and the other rights which need the
solidarity of our States to be fully met; the right to peace and security,
the right to a healthy environment, right to participate in the equitable
share of the common heritage of mankind, the right to enjoy a fair
international economic order and, finally the right to natural wealth and
resources."[FN22]
--------------------------------------------------------------------------------
[FN22] Ibid page 29.
--------------------------------------------------------------------------------
174. The African Commission has itself dealt with the issues of peoples'
rights without defining the term "people" or "peoples' right." In its
acclaimed Report of the Working Group of Experts on Indigenous
Populations/Communities,[FN23] the African Commission described its dilemma
of defining the concepts in the following terms:
"[d]espite its mandate to interpret all provisions of the African Charter as
per Article 45(3), the African Commission initially shied away from
interpreting the concept of ‘peoples'. The African Charter itself does not
define the concept. Initially the African Commission did not feel at ease in
developing rights where there was little concrete international
jurisprudence. The ICCPR and the ICESR do not define ‘peoples'. It is
evident that the drafters of the African Charter intended to distinguish
between the traditional individual rights where the sections preceding
Article 17 make reference to "every individual". Article 18 serves as a
break by referring to the family. Article 19-24 make specific reference to
"all peoples"
--------------------------------------------------------------------------------
[FN23] Report of the African Commission's Working Group of Experts on
Indigenous Populations/Communities, published jointly by the ACHPR/IWGIA
2005
--------------------------------------------------------------------------------
175. It continues:
"Given such specificity, it is surprising that the African Charter fails to
define "peoples" unless it was trusted that its meaning could be discerned
from the prevailing international instruments and norms. Two conclusions can
be drawn from this. One, that the African Charter seeks to make provision
for a group or collective rights, that is, that set of rights that can
conceivably be enjoyed only in a collective manner like the right to self
determination or independence or sovereignty...".[FN24]
--------------------------------------------------------------------------------
[FN24] Ibid, at page 72-73, Part 3.4 Jurisprudence from the African
Commission on Human and Peoples' Rights, under Chapter 3; An analysis of the
African Charter and its Jurisprudence on the Concept of ‘Peoples'
--------------------------------------------------------------------------------
176. The Commission deduces from the foregoing discourse that peoples'
rights are equally important as are individual rights. They deserve, and
must be given protection. The minimum that can be said of peoples' rights is
that, each member of the group carries with him/her the individual rights
into the group, on top of what the group enjoys in its collectivity, i.e.
common rights which benefit the community such as the right to development,
peace, security, a healthy environment, self determination, and the right to
equitable share of their resources.
177. It is in the light of the above that the Commission shall examine the
allegations against the Respondent State, concerning the violations of the
collective rights cited hereinabove.
178. The Commission states that after thorough analysis of the arguments and
literature, it finds that the people of Southern Cameroon can legitimately
claim to be a "people." Besides the individual rights due to Southern
Cameroon, they have a distinct identity which attracts certain collective
rights. The UNESCO group of Experts report referred to hereinabove, states
that for a collective of individuals to constitute a "people" they need to
manifest some, or all the identified attributes. The Commission agrees with
the Respondent State that a "people" may manifest ethno- anthropological
attributes. Ethno-anthropological attributes may be added to the
characteristics of a "people." Such attributes are necessary only when
determining indigenology of a "people," but cannot be used as the only
determinant factor to accord or deny the enjoyment or protection of peoples'
rights. Was it the intention of the State Parties to rely on ethno
anthropological roots only to determine "peoples' rights," they would have
said so in the African Charter? As it is, the African Charter guarantees
equal protection to people on the continent, including other racial groups
whose ethno anthropological roots are not African.
179. Based on that reasoning, the Commission finds that "the people of
Southern Cameroon" qualify to be referred to as a "people" because they
manifest numerous characteristics and affinities, which include a common
history, linguistic tradition, territorial connection, and political
outlook. More importantly they identify themselves as a people with a
separate and distinct identity. Identity is an innate characteristic within
a people. It is up to other external people to recognise such existence, but
not to deny it.
180. The Respondent State might not recognise such innate characteristics.
That shall not resolve the question of self identification of Southern
Cameroonians. It might actually postpone the solution to the problems in
Southern Cameroon, including those already highlighted hereinabove. The
Respondent State acknowledges that there have been problems created
regularly by the secessionist SCNC and SCAPO, in that part of its territory,
which calls itself the "Southern Cameroon".
181. The Commission is aware that post colonial Africa has witnessed
numerous cases of domination of one group of people over others, either on
the basis of race, religion, or ethnicity, without such domination
constituting colonialism in the classical sense. Civil wars and internal
conflicts on the continent are testimony to that fact. It is incumbent on
State Parties, therefore, whenever faced with allegations of the nature
contained in the present communication, to address them rather than ignore
them under the guise of sovereignty and territorial integrity. Mechanisms
such as the African Commission were established to resolve disputes in an
amicable and peaceful manner. If such mechanisms are utilised in good faith,
they can spare the continent valuable human and material resources,
otherwise lost due to conflicts fighting against ethnic, religious
domination or economic marginalisation.
182. The Commission shall address the question, whether the people of
Southern Cameroon are entitled to the right to self determination. In so
doing it shall contextualise the question by dealing, not with the 1961 UN
Plebsicite, or the 1972 Unification, but rather the events of 1993 and 1994
on the constitutional demands vis-à-vis the claim for the right to self
determination of the Southern Cameroonian people.
183. The Complainants allege that the 1993 Buea and 1994 Bamenda Anglophone
conferences submitted constitutional proposals, which were ignored by the
Respondent State. This forced the Complainants to conduct a signature
referendum of Southern Cameroonians in 1995, which endorsed separation.
184. The Complainants argued that the people of Southern Cameroon through
the 1993, 1994 conferences, and the 1995 signature referendum, raised issues
of constitutional, political and economic marginalisation. They allege
further that the Constitution adopted by the Respondent State in December
1995 did not address their appeals for autonomy. The Commission is of the
view that these complaints merit its determination.
185. The Complainants submit that the Respondent State's refusal or failure
to address their grievances amounted to a violation of Article 20. They
claim therefore that they are entitled to exercise their right to self
determination under the Charter. The Respondent State responds that these
grievances constitute a secessionist agenda by SCNC and SCAPO. It denies
that the Complainants are entitled to exercise the right to self
determination under Article 20.
186. The Respondent State submitted that the Buea Declaration of 3 April
1993 recognised that the Southern Cameroonians had freely joined La
Republique du Cameroun in 1961, and further that the transition to a unitary
state in 1972 was approved by both Francophones and Anglophones who voted
98.26% and 97.9% respectively through a national referendum. It states
further that the so called referendum of September 1995 by SCNC does not
invalidate the 1972 data. The Respondent State doubts the accuracy of the
referendum. It states that:
"[s]ince 1996, the State of Cameroon is a unitary decentralised State,
adopted by members of parliament, including those from the Anglophone part
of the country. Legal instruments relating to putting in place of the
decentralised regional and local authorities, ...were enacted in July 2004'
187. The Respondent State argues further that:
"[t]he self determination of the "people" of Southern Cameroon, following
the logic of the Commission (cf per the Katanga case) would be
understandable where there are tangible evidence of massive violations of
human rights, and where there is evidence ascertaining the refusal of the
nationals of Southern Cameroon, the right to take part in the management of
public affairs of the State of Cameroon. There is no such proof..........:
188. The Commission recalls that the Katangese had urged the Commission to
recognise the independence of Katanga. In reaching its decision in that
case, the Commission stated the following:
"The claim is brought under Article 20(1) of the African Charter....There are
no allegations of specific breaches of other human rights apart from the
claim of the denial of self determination.
All peoples have a right to self determination. There may however be
controversy as to the definition of peoples and the content of the right.
The issue in this case is not self determination for all Zaireoise as a
people but specifically the Katangese. Whether the Katangese consist of one
or more ethnic groups is, fore this purpose immaterial and no evidence has
been adduced to that effect.
The Commission believes that Self determination may be exercised in any of
the following ways: independence, self-government, local government,
federalism, confederalism, unitarism or any form of relations that accords
with the wishes of the people but fully cognisant of other recognised
principles such as sovereignty and territorial integrity"[FN25]
--------------------------------------------------------------------------------
[FN25] Communication 75/92, 8th Annual Activity Report,
--------------------------------------------------------------------------------
189. The Respondent State condemns the Complainants' secessionist agenda.
This Commission stated in the Katangese case that, it;
".... is obliged to uphold the sovereignty and territorial integrity of Zaire,
a member of the OAU and a party to the African Charter of Human and peoples'
Rights."
190. The Commission notes that the Republic of Cameroon is a party to the
Constitutive Act (and was a state party to the OAU Charter). It is a party
to the African Charter on Human and Peoples' Rights as well. The Commission
is obliged to uphold the territorial integrity of the Respondent State. As a
consequence, the Commission cannot envisage, condone or encourage secession,
as a form of self-determination for the Southern Cameroons. That will
jeopardise the territorial integrity of the Republic of Cameroon.
191. The Commission states that secession is not the sole avenue open to
Southern Cameroonians to exercise the right to self determination.[FN26] The
African Charter cannot be invoked by a complainant to threaten the
sovereignty and territorial integrity of a State party. The Commission has
however accepted that autonomy within a sovereign state, in the context of
self government, confederacy, or federation, while preserving territorial
integrity of a State party, can be exercised under the Charter. In their
submission, the Respondent State implicitly accepted that self determination
may be exercisable by the Complainants on condition that they establish
cases of massive violations of human rights, or denial of participation in
public affairs.
--------------------------------------------------------------------------------
[FN26] §4. See above para 185.
--------------------------------------------------------------------------------
192. The Complainants have submitted that the people of the Southern
Cameroon are marginalised, oppressed, and discriminated against to such an
extent that they demand to exert their right to self-determination.
193. The Respondent States submitted that the 1996 Constitution was adopted
by the National Assembly, which included representatives of the people of
Southern Cameroon. The Respondent State argues that, within the framework of
the 1996 Constitution, three laws on decentralisation, which "will enable
Cameroon to resume the development of local potentials," were adopted by the
Parliament. The Respondent State submits further that since 2004 measures
are being taken to give more autonomy to regions. Whether the laws shall be
applied to address the concerns of South Cameroonians, will depend on the
goodwill of both sides.
194. The Commission has so far found that the Respondent has violated
Articles 2, 4, 5, 6, 7, 11, and 19 of the Charter. It is the view of the
Commission, however that, in order for such violations to constitute the
basis for the exercise of the right to self determination under the African
Charter, they must meet the test set out in the Katanga case, that is, there
must be:
"concrete evidence of violations of human rights to the point that the
territorial integrity of the State Party should be called to question,
coupled with the denial of the people, their right to participate in the
government as guaranteed by Article 13 (1)." (emphasis added)
195. The Commission has already made a finding that Article 13 was not
violated. The Commission saw ample evidence that the people of Southern
Cameroon are represented in the National Assembly, at least through an
opposition party, the SDF. Information on the record suggests that there has
been some form of representation of the people of Southern Cameroon in the
national institutions prior to, and after 18 December 1989. The Complainants
may not recognise the representatives elected to the national institutions
under the current constitutional arrangement. The Respondent State on the
other hand may not share the same views or even recognise the SCNC and SCAPO
as representing a section of the people of Southern Cameroon.
196. The Complainants' main complaint is that the people of Southern
Cameroon are denied equal status in the determination of national issues.
They allege that their constitutional demands have been ignored by the
Respondent State. In other words they assert their right to exist and hence
the right to determine their own political, and social economic affairs
under Article 20(1).
197. The Commission is not convinced that the Respondent State violated
Article 20 of the Charter. The Commission holds the view that when a
Complainant seeks to invoke Article 20 of the African Charter, it must
satisfy the Commission that the two conditions under Article 20(2), namely
oppression and domination have been met.
198. The Complainants have not demonstrated if these conditions have been
met to warrant invoking the right to self determination. The basic demands
of the SCNC and SCAPO as well as the two Anglophone Conferences, is the
holding of constitutional negotiations to address economic marginalisation,
unequal representation and access to economic benefits. Secession was the
last option after the demands of Buea and Bamenda Conferences were ignored
by the Respondent State.
199. Going by the Katanga decision, the right to self determination cannot
be exercised, in the absence of proof of massive violation of human rights
under the Charter. The Respondent State holds the same view. The Commission
states that the various forms of governance or self determination such as
federalism, local government, unitarism, confederacy, and self government
can be exercised only subject to conformity with state sovereignty and
territorial integrity of a State party. It must take into account the
popular will of the entire population, exercised through democratic means,
such as by way of a referendum, or other means of creating national
consensus. Such forms of governance cannot be imposed on a State Party or a
people by the African Commission.
200. The African Commission finds that the people of Southern Cameroon
cannot engage in secession, except within the terms expressed hereinabove,
since secession is not recognised as a variant of the right to self
determination within the context of the African Charter.
201. The Commission, however, finds also that the Respondent State violated
various rights protected by the African Charter in respect of Southern
Cameroonians. It urges the Respondent State to address the grievances
expressed by the Southern Cameroonians through its democratic institutions.
The 1993 Buea and 1994 Bamenda Anglophone conferences raised constitutional
and human rights issues which have been a matter of concern to a sizable
section of the Southern Cameroonian population for quite a long time. The
demand for these rights has lead to civil unrest, demonstrations, arrests,
detention, and the deaths of various people, which culminated in the demand
for secession.
202. The Respondent State implicitly acknowledges the existence of this
unwelcome state of affairs. It is evident that the 1995 Constitution did not
address the Southern Cameroonians' demands, particularly since it did not
accommodate the concerns expressed through the 1993 Buea Declaration and
1994 Bamenda Proclamation.
203. The Commission believes that the Southern Cameroonians' grievances
cannot be resolved through secession but through a comprehensive national
dialogue.
ALLEGED VIOLATION OF ARTICLE 21
204. The Complainants allege violation of Article 21. They did not bring any
evidence to support their allegation. In the absence of any such evidence,
the Commission finds no violation against the Respondent State.
ALLEGED VIOLATION OF ARTICLE 22
205. The Complainants alleged cases of economic marginalisation, and lack of
economic infrastructure. The lack of such resources, if proven would
constitute violation of the right to development under Article 22.
206. The Commission is cognisant of the fact that the realisation of the
right to development is a big challenge to the Respondent State, as it is
for State Parties to the Charter, which are developing countries with scarce
resources. The Respondent State gave explanations and statistical data
showing its allocation of development resources in various socio-economic
sectors. The Respondent State is under obligation to invest its resources in
the best way possible to attain the progressive realization of the right to
development, and other economic, social and cultural rights. This may not
reach all parts of its territory to the satisfaction of all individuals and
peoples, hence generating grievances. This alone cannot be a basis for the
finding of a violation. The Commission does not a find a violation of
Article 22.
ALLEGED VIOLATION OF ARTICLE 23(1)
207. The Complainants did not substantiate their allegations on the
violation under Article 23(1) The Commission therefore finds that there was
no violation of article 23(1) of the Charter.
ALLEGED VIOLATION OF ARTICLE 24
208. No evidence was brought to support the allegation that article 24 has
been violated. Consequently, the Commission finds no violation.
ALLEGED VIOLATION OF ARTICLE 26
209. The Complainants alleged violation of Article 26. They submitted that
the judiciary in the Respondent State is not independent. They allege that
the Executive branch influences the judiciary through the appointments,
promotions, or transfer policy. It is also alleged that the President of the
Republic convenes and presides over the Higher Judicial Council.
210. The Respondent State avers that judicial independence is guaranteed by
the Constitution. It states that Article 37 of the 1972 Constitution
requires every institution and person, including the President to respect
it. The State argues further that the Higher Judicial Council which is the
appointing and disciplinary authority for magistrates does not necessarily
require magistrates to pledge allegiance to the President. It concedes that
the President of the Republic chairs the Higher Judicial Council, the
Minister for Justice, is the Vice Chairperson, three members of Parliament,
three members of the bench, and an independent personality.
211. The Commission states that the doctrine of separation of powers
requires the three pillars of the state to exercise powers independently.
The executive branch must be seen to be separate from the judiciary, and
parliament. Likewise in order to guarantee its independence, the judiciary,
must be seen to be independent from the executive and parliament. The
admission by the Respondent State that the President of the Republic, and
the Minister responsible for Justice are the Chairperson and Vice
Chairperson of the Higher Judicial Council respectively is manifest proof
that the judiciary is not independent.
212. The composition of the Higher Judicial Council by other members is not
likely to provide the necessary "checks and balance" against the
Chairperson, who happens to be the President of the Republic. The
allegations by the Complainants in this regard are therefore substantiated.
The Commission does not hesitate to find the Respondent State in violation
of Article 26.
213. The complainants did not mention Article 1 among the provisions of the
African Charter alleged to have been violated by the respondent State.
However, according to its well established jurisprudence,[FN27] the African
Commission holds that a violation of any other provision of the African
Charter automatically constitutes a violation of Article as it depicts a
failure of the State Party concern to adopt adequate measures to give effect
to the provisions of the African Charter. Thus, having found violations of
several provisions in the above analysis, the African Commission also finds
that the Respondent State violated Article 1.
--------------------------------------------------------------------------------
[FN27]
--------------------------------------------------------------------------------
214. For the above reasons, the African Commission:
i. Finds that Articles 12, 13, 17(1), 20, 21, 22, 23(1) and 24 have not been
violated.
ii. Finds that the Republic of Cameroon has violated Articles 1, 2, 4, 5, 6,
7(1), 10, 11, 19 and 26 of the Charter.
RECOMMENDATIONS
215. The African Commission therefore recommends as follows;
1. That the Respondent State:
I. Abolishes all discriminatory practices against people of Northwest and
Southwest Cameroon, including equal usage of the English language in
business transactions;
II. Stops the transfer of accused persons from the Anglophone provinces for
trial in the Francophone provinces;
III. Ensures that every person facing criminal charges be tried under the
language he/she understands. In the alternative, the Respondent State must
ensure that interpreters are employed in Courts to avoid jeopardising the
rights of accused persons;
IV. Locates national projects, equitably throughout the country, including
Northwest and Southwest Cameroon, in accordance with economic viability as
well as regional balance;
V. Pays compensation to companies in Northwest and Southwest Cameroon, which
suffered as a result of discriminatory treatment by banks;
VI. Enters into constructive dialogue with the Complainants, and in
particular, SCNC and SCAPO to resolve the constitutional issues, as well as
grievances which could threaten national unity; and
VII. Reforms the Higher Judicial Council, by ensuring that it is composed of
personalities other than the President of the Republic, the Minister for
Justice and other members of the Executive Branch.
2. To the Complainants, and SCNC and SCAPO in particular,
(i) to transform into political parties,
(ii) to abandon secessionism and engage in constructive dialogue with the
Respondent State on the Constitutional issues and grievances.
3. The African Commission places its good offices at the disposal of the
parties to
mediate an amicable solution and to ensure the effective implementation of
the above recommendations.
4. The African Commission requests the Parties to report on the
implementation of the aforesaid recommendations within 180 days of the
adoption of this decision by the AU Assembly.
Done in Banjul, The Gambia at the 45th Ordinary Session, 13 - 27 May 2009.
ANNEX 5: RESOLUTIONS ADOPTED DURING THE 45TH ORDINARY SESSION
o RESOLUTION ON THE ESTABLISHMENT OF AN ADVISORY COMMITTEE ON BUDGETARY AND
STAFF MATTERS
o RESOLUTION ON THE TRANSFORMATION OF THE FOCAL POINT ON THE RIGHTS OF OLDER
PERSONS IN AFRICA INTO A WORKING GROUP ON THE RIGHTS OF OLDER PERSONS AND
PEOPLE WITH DISABILITIES IN AFRICA
o RESOLUTION ON COOPERATION BETWEEN THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES' RIGHTS AND THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND
WELFARE OF THE CHILD IN AFRICA
o RESOLUTION ON THE ESTABLISHMENT OF AN ADVISORY COMMITTEE ON BUDGETARY AND
STAFF MATTERS
[1] The African Commission on Human Peoples' Rights (the African Commission)
meeting at its 45th Ordinary Session in Banjul, The Gambia from 13 – 27 May
2009:
[2] Conscious of its mandate under the African Charter on Human and Peoples'
Rights (the Charter) to promote and protect human & peoples' rights in
Africa;
[3] Aware of the vital role of its Secretariat in ensuring the effective
discharge of its mandate and the importance of having an effective
Secretariat;
[4] Further conscious of the difficulties the Commission has had in the
preparation, presentation and execution of its budget, and desirous of
facilitating its budgetary preparation process;
[5] Welcoming the decision of the Executive Council of the African Union to
strengthen the human resources capacity of the Commission through the
recruitment of 33 more staff over the next five years;
[6] Recalling the decision at its 6th Extra Ordinary Session to establish an
Advisory Committee to work with the Secretariat to prepare the Programs
budget of the Commission;
HEREBY RESOLVES TO
a. Establish an Advisory Committee entitled "Advisory Committee on Budgetary
and Staff Matters", with the following mandate:
i. To work with the Secretariat to identify activities from the 2008 – 2012
b. Strategic Plan of the ACHPR that would feature in the Commission's
c. budget Proposals; (ii) To work with the Secretariat to prepare the
programs budget of the
d. Commission for presentation to the relevant Organs of the African
e. Union; (iii)To work with the Secretariat to ensure proper execution of
the
f. programs; and (iv)To work with the Secretariat on the implementation of
the approved
g. new structure of the Secretariat of the Commission
a. Appoint the following to the Committee:
i. Commissioner Musa Ngary Bitaye
ii. Commissioner Kaytesi Zainabou Sylvie
iii. Commissioner Reine Alapini-Gansou
iv. the Secretary to the Commission (ex-officio)
v. 1 Senior Legal Officer (ex-officio)
vi. the Admin and Finance Officer (ex-officio)
FURTHER RESOLVES THAT
a. The Advisory Committee shall work in conformity with these terms
b. of reference, the Rules of Procedure of the African Commission, the
provisions of the African Charter on Human and Peoples' Rights and the
relevant African Union Rules and Regulations;
a. The Advisory Committee shall report at the Ordinary Sessions of the
Commission on the implementation of this Resolution;
b. The Advisory Committee is established for an initial period of two years.
Done in Banjul, the Gambia on the 27th May 2009. |
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