Dipanda Mouelle and the Judicial Independence Conundrum

By: Julius Nyamkimah Fondong*

During the recent solemn opening of the judicial year in Cameroon, Supreme Court Chief Justice, the Honorable Alexis Dipanda Mouelle took advantage of the occasion to again raise the issue of the independence of judges in Cameroon. The Honorable president of the court pontificated that the independence of judges was an essential prerequisite for the dispensation of “quality justice”. And for this to be attained judges must be free of all pressure, especially financial, political and social pressures.  The Chief Justice further lamented the numerous ills that plaque Cameroon’s judiciary, to wit, long delays, its irrational organization, its inaccessibility, the frequent use of “esoteric language”, prohibitive costs, lack of transparency, multiple adjournments, protracted litigations etc. 

 
This comprehensive laundry list compels one to concede that the Honorable President of the Supreme Court exudes total mastery of his subject matter. He himself wears the shoes and so stands a better chance of knowing where it pinches. But the fact is that there is really nothing new in what Chief Justice Dipanda is saying.  It is a situation well known to the nation.

Since independence, there seems to have been a conscious effort not only to undermine the independence of the judiciary but also to effectively emasculate its authority. President Ahidjo saw the judiciary as an unnecessarily inconvenience. And so he brought the judiciary under the strict control of the executive arm of government. Even though the constitution espoused clearly the independence of the judiciary, the courts were often referred to simply as “authorities” not a power, because only the executive branch of government exercises any real power. Nowhere else is this reality vivid  as on the State Protocol arrangements  where the Minister of Justice ( not even the Prime Minister) used to come before the President of the Supreme Court.

I am not sure what the order is these days. In the Divisions it’s even worse; the highest ranking member of the Judiciary, that is the President of the High Court, comes behind the S.D.O and his 2 assistants, the D.O, the mayor, the Member Parliament, and the member of the Central Committee of the ruling party. One S.D.O actually once quipped that the courts are only there for “window dressing” and shouldn’t be taken seriously.

In its most fundamental sense, the independence of the judiciary (also judicial independence) is the principle which holds that the judiciary should be politically insulated from the legislative and the executive power. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests.

Unfortunately, since independence, Cameroon as a nation seems to be either unwilling or unable to develop and implement practices based on the above principles that can adequately guarantee the independence of its judiciary.

In 1993 Chief Justice Dipanda Mouelle had the unique opportunity to end once and for all the grip of the executive branch over government over the judiciary and thus set precedence for the independent of judges.  That was during the proclamation of the results of the 1993 presidential elections. Yet he blew it, big time.

During the solemn Supreme Court session for the proclamation of the 1993 presidential polls, Justice Dipanda Mouelle held the nation spellbound as he meticulously outlined the many cases of fraud and irregularities that marred polls, thereby implicitly establishing that the polls were anything but free and fair. But the very nation was shocked to its bones when, in spite of his findings, Chief Justice Dipanda Mouelle unabashedly went ahead to proclaim incumbent President Paul Biya the winner.  In the months and years that followed the little respect the citizenry had for the courts fell to its lowest ebb. True, the courts thereafter sought to redeem their image by massively adhering to the strike action called by the then Cameroon Public Servants Union (CAPSU). But it was too late.

In making that ruling, the Honorable President of the Supreme Court averred that his hands were tied by the law because the electoral code did not give the court the option of annulling the elections even if the court had determined that the polls did not rise to internationally recognized standards of fairness and transparency. Legal practitioners have since argued that even though the Honorable President’s position was tenable before the law, it was too lame an excuse to deprive an entire nation of justice.

Supreme Courts all over the world have a tradition and even the authority to establish precedence. Whenever the application of a law is at variance with the principles of liberty, fairness and justice, Supreme Court judges have routinely ruled in favor of liberty, fairness and justice. In spite of Chief Justice Dipanda Mouelle’s legal position, most Cameroonians to this day believe that their Chief Justice’s ruling was the result of intense political pressure exerted on him by the executive branch of government. And they might entirely not be wrong.

Judges have a duty to interpret and apply the law; but above all else they assert their independence by upholding individual rights and freedoms and protecting citizens from the abusive use of public power.  Such were the principles that led Nyo Wakai to boldly challenge the application of the 1962 ordinance on subversion.
In a bid to deal with the UPC-led rebellion that was raging in East Cameroon, President Ahidjo on   March 12, 1962, signed ordinance No 62/OF/18, commonly known as the “subversion ordinance”.  This ordinance – which I must admit is one of the most scurrilous, loose and lapsed pieces of legislation I have ever come across – among other things, gave administrative authorities ( SDOs)  unlimited powers to arrest and to detain individuals or group of individuals suspected of carrying out acts of subversion. According to that ordinance, if the SDO was minded enough to bring such a suspect or suspects before the courts, the role of the court will be limited to passing judgment.

Nyo Wakai, then a young no-nonsense lawyer, wrote to President Ahidjo, respectfully drawing his attention to the fact that Ordinance No 62/OF/18 could not be applied in the territory of West Cameroon, for the simple reason that under the common law system practiced in that territory, the provisions of that ordinance were untenable. He argued that the Ordinance was at variance with the common law principles that were the bedrock of West Cameroon’s judicial system, namely, the presumption of innocence, the right to bail, and no imprisonment without trial etc. And since he was certain no court in West Cameroon was ever going to apply it, he urged the president to suspend its implementation in the territory of West Cameroon.  I don’t know what President Ahidjo’s response was, but I suspect Nyo Wakai’s position went a long away to reinforce Ahidjo’s suspicions and mistrust of the judiciary. And I also believe that’s why Ahidjo never felt comfortable establishing any of his political prisons (or Civic Re-education Centers as they were officially known) in the territory of West Cameroon. 

Nyo Wakai went on to become Attorney –General of West Cameroon and is today a retired Supreme Court judge. His confrontation of Ahidjo, at a time when doing such a thing was unthinkable and could have landed him into serious trouble, serves as an eye opener to what it takes to assert the independence of the judiciary and the affirmation of the rule of law: boldness, bravery, unquestionable moral and professional probity on the part of judges and lawyers.

After Chief Justice Dipanda Mouelle’s controversial ruling of 1993, some Cameroonian judges have bravely and courageously taken legal positions and issued rulings that go against the interest of the Cameroon’s entrenched and powerful political class.

Such is the case of Justice Fombe who in a landmark ruling ordered the release on bail of persons arrested and incarcerated on the orders of the Governor of the North West Province and the Minister of Territorial Administration, following the outbreak of violence and destruction that swept through the province immediately after Chief Justice Dipanda Mouelle declared Mr. Paul Biya winner of the 1993 presidential elections. Or the case of Justice Bea Abednego who in another historic judgment threw out a case against the SCNC leadership and ordered their immediate release even though the government considers the SCNC illegal and a “terrorist” organization. Or the case of Justice Ambe who in spite of naked threats and immense pressure, still found the powerful Fon Doh Gwayin of Bali Kumbat guilty of murder and sentenced him to 16 years imprisonment.

There are those who believe that these judges might have suffered victimization and “punitive” transfers because their rulings were “out of line”. To buttress their argument, they point to the fact Justice Fombe’s and Justice Ambe’s rulings were not respected: the Bamenda detainees were transferred from Bamenda to Yaoundé where they were further incarcerated before subsequently released; and Fon Doh Gwayin is today roaming the streets as a free man in spite of the fact that he had been tried, found guilty and convicted of manslaughter.

I guess the point I’m so anxious to make here is that Chief Justice Dipanda Mouelle cannot reasonably expect that independence shall be ‘granted’ to his judges by a governing class that considers itself above the law and therefore treats with undisguised superciliousness, those whose responsibility it is to uphold the law. I can’t foresee the government taking any meaningful steps to develop an institutional framework for guaranteeing the independence of judges in the near future, for the simple reason that it has no interest to do that. Independent judges will constitute a threat to its hegemony.

So by and large, that responsibility will have to devolve to the judges themselves. In other words it is up to the judges to assert their own independence. And they can do this in three ways: First, by the boldness of their decisions; second, through a high sense of moral probity; and third through a protuberant sense of professional consciousness and academic excellence.

Unfortunately very few magistrates in Cameroon care to espouse these qualities these days. Our Judges have become complacent, mired in corruption and the “trafficking” of justice. Very few, if any, own a personal library, are capable of conducting online research or even bother to read to keep themselves abreast with new trends in judicial theory and practice. I can’t remember when I last saw anything published by a Cameroonian judge. After-court hours are spent in drinking places  or in their numerous “chantiers” or following up their private businesses, some of which might  have been financed with bribes collected from litigants. Some important traditions and practices of the judiciary like the solemn High Court call-over sessions and the 9.am start of court business are no longer respected.

So if Chief Justice Dipanda Mouelle really wants independence for himself and his judges, they will have to scale the moral high ground, confront the issues that have mired their noble profession and be assertive as individuals and as a group. But above all else they’ll have to do what freedoms fighters all through the course of history have always done: stand up and fight for what is rightfully theirs, that is, if they still have the courage and the stomach for such a fight.

*The columnist is a former Civil Administrator in Cameroon and now a Civil Affairs Officer serving with the United Nations Mission in Haiti. He holds an MPA from the John F Kennedy School of Government at Harvard University.

Comments

[Ambe]

I wish some of them could leave their drinking places to gain assess to such a brilliant article.
My brother, i wish you could even mention the fact that some of these learned judges at times even go too low to campain for political posts.
What abt even fighting with their clerks over bribes from litigants!! Shame to our political system in Cameroon.Nothing lasts forever

[Ntam Charles]

The article is good but could have been better off without the last but one paragraph which appears to me,to be blasphemous if not libelous.How does the writter know that most cameroonian judges can not carry out online reseaches?How does he know that they dont have personally libraries?Criticizing without ridiculing would be more mature.
Ntam

[Va Boy]

You have just quoted some exceptions that prove the rule. In all of those countries quoted justices are not perfectly shielded from political influence, because that is impossible, but a fair attempt has been made such as the lifetime appointment in some cases. The writer is completely accurate:

Unfortunately very few magistrates in Cameroon care to espouse these qualities these days. Our Judges have become complacent, mired in corruption and the “trafficking” of justice. Very few, if any, own a personal library, are capable of conducting online research or even bother to read to keep themselves abreast with new trends in judicial theory and practice. I can’t remember when I last saw anything published by a Cameroonian judge. After-court hours are spent in drinking places or in their numerous “chantiers” or following up their private businesses, some of which might have been financed with bribes collected from litigants. Some important traditions and practices of the judiciary like the solemn High Court call-over sessions and the 9.am start of court business are no longer respected.

SDO is not an elected official, but a political appointee with no democratic standing whatsoever.

Professor, I have been looking for your academic papers to no avail. What is your area of expertise?

[slomo]

For sure my dear Nyamkimah, you seem to forget that the numerous parcels of land you own around Nkwen in down town Bamenda were financed by the same bribes you collected while serving as a civil administrator in Cameroon.
Dont forget this, in so for as financial probity is a solution to the judges' independence, it can rarely ever be a reality in cameroon.The pay package is too small and the govt is doing nothing to motivate civil servants work hard. Hitherto your departure from cameroon, your salary as a cat A civil servant from ENAM was hardly ever 200. 000 (abt 400 USD), it would be interesting if you tell us how you used to survive without any private business,"chantier" and wihout collecting bribes.
Dont get me wrong, corruption is a dead blow to the judicial corp, but i think the goverment of cameroon has to do more to curb it, not the poor judges.

[jude abain]

Dear Mr nyamkimah,in Equity law it is said and i quote 'he who comes for equity must come with clean hands' beyond reasonable doubt you were part of this corruption which you now stand to condemn.it is not a good practice but you should have started by repenting before humbly castigating the practice rather than allow us to investigate you and expose you.just like any where in the world there are competent and incompetent judges in cameroon.please Mr Nyamkimah what have you done to curb corruption in cameroon and what should be done to reduce because we can never eradicate corruption.

[TAGRO]

La Republique du Cameroun is a non-country! It is a colony of France whose institutional apparatus is set-up for the benefit of the colonial master, France.

Establishing a credible justice system is obviously not in the best interest the French owners of this non-country called Republique du Cameroun.

A credible judicial system will stymie corruption and impunity. And when you are happy being a colony (as the installed ruling elite in la Republique du Cameroun are), and also exercing occupation of another territory, the Southern Cameroons, for France's benefit, corruption and impunity are indispensable ingredients to sustain the criminality of colonialism.

[limbekid]

Yes the article is slighly marred by the insinuations towards the end, but then the writer is speaking as an insider, so I would grant him the benefit of doubt.

@ Slomo
I don`t think any government can curb corruption just by increasing wages. The idea of a living wage is relative, and experience has proven that some of the highest earners are the most corrupt. Besides, if legal practitoners are convinced they are worth more than is on offer they can seek greener pastures (as Mr Nyamkimah has done). The government would do well to improve the working environment (infrastructure and support services) to attract the best brains in the business.

[Dr A A Agbormbai]

An excellent article on a very crucial topic to the well being of Cameroon. A problematic area that must be sorted, to take Cameroon to the next level. It is really sad how Cameroonian judges disgrace themselves so much.

I personally think that the examples set by the Supreme Court and its Chief Justice Dipanda Mouelle are responsible for the lack of professionalism among judges.

Time and time again the Supreme Court and its Chief Justice have set bad examples to lower level judges by coming up with unfair decisions that are totally biased towards the President.

The Supreme Court has been an arm of the Presidency rather than an independent centre of justice. The court lacks moral character or strength, and the Chief Justice defends his weak/unprofessional decisions with lame excuses.

If the whole court system in Cameroon (championed by the Supreme Court) had stood up against interference by the Presidency then this whole mess would have been rectified many years ago. Instead, what I find are a bunch of soft-bellied judges who are all too willing to follow the people in perpetrating vice. It's a real shame. And this MUST CHANGE!

[Kelvin Ross]

Once again you said it as it is Mr Fondong. To hell with these corrupt tugs who are trying to criticise you for exposing what they are good at - corruption and inertia. Low pay is no justification for corrupt practices and abstaining from standing up against a morribund judiciary system marred by corruption and inefficiency.

Keep it up Mr Nyamkimah.

[ntam charles]

When i read this article,i felt like someone who enjoyed a very delicious meal until he discovered a cockroach in his dish when he was almost rounding up.The vulgarity at the end of the article is unacceptable from a reputable gentleman like Mr Nyamkimah.What a contemptous slam down on a people who are trying to hold their heads above the wild water.I am thinking of the learned justice Bikok,and how he personally interogated inmates that were brought before him from the Bamenda cells to his office at the State Council.with his independent mind in executing his duties,he simply gave to ceasar what was ceasar's.There are many others like him too,who are delgent in performing their duties.They deserve some respect.As it goes,you get what you give.

Ntam

[Don Nkeng]

Nice article.
Well, what can I say good people??
Cause and effect are a fact of life. Sometime back, there was an article on the state of Accessibility to loans in Cameroon. We saw how idiotic our banks are in that vital area of economics by not lending to SME's etc. Some people on the forum gave the excuse of 'risk'. However I felt that Cameroon simply has an atrocious business climate made worse by lack of proper Laws to protect businesses.
Today I'm happy there's this article on the judiciary. Without a vibrant, INDEPENDENT judiciary Cameroon is going to forever be at a standstill.

[slomo]

@@ kevin Ross and Limbekid,

it is said in my local language that(transliteration)" moindo cannot insult koki that its head is tied meanwhile its(miondo's) body is completely wrapped".
I have nothing against this guy, i know him very well, but i just want him to show us how he used to live as a civil servant in cameroon:paying rents bills and most of all buying all the lands i know in Bamenda,without collecting the same bribes he is castigating and blaming on his erstwhile colleagues. for sure he used to collect.
The government inorder to curb corruption must indulge in a good number of reforms, the main being the motivation of stafF and increase sanctions against defaulters. this is going to bring down corruption to a reasonable level.
Watch, corruption is very bad for the image of the country, but a dual approach ie individual and state is necessary of halt it.

[Feungu]

What justice is this your man you call Dipanda Mouelle chief of? Its scandalous to hear him complain about the ills of the Judiciary he is heading. Did I hear him complain the Judiciary is not independent? Who is he taking Cameroonians for? Is it not this fellow who in the 1992 fraudulent Presidential elections cowardly bowed to the CPDM electoral fraud to declare Mr. Biya the winner? Who is he expecting to fight for the independence of the Judiciary? The man on the street? President my foot. He is one of those that need to be tried and imprisoned for treason. He abated Mr. Biya and his corrupt CPDM parliament to endorse the violation of the Cameroonian Constitution in 2008. Can he claim he is not guilty of this? If not what did he say or do to indicate at least his dissatisfaction with this treasonable act? Dipanda Mouele Coward! Coward! "Lache!"Only time shall tell.

[Ntaho Boniface]

POLITE QUESTION:
IS THE AUTHOR OF THIS ARTICLE CONFUSED BEWTEEN GORGI DINGA AND NYO WANKAI? WHEN IT COMES TO BEING A NO NONSENSE LAWYER IN WEST CAMEROON, ONLY THE NAME GORGI DINGA COMES TO MY MIND, NOT NYO WANKAI. IF I RECALL VERY WELL, FOLLOWING WHAT THE AUTHOR JUST DESCRIBED AS AN INTERFERENCE IN THE JUDICIARY BY AHIDJO, IT WAS GORGI DINKA, WHO AT ONE POINT, DEMANDED THAT AHIDJO SHOULD BE CALLED TO COURT AS A WITNESS, TO THE SURPRISE OF FRANCOPHONES WHO COULD NOT FATHOM THE BOLDNESS OF SUCH AN ANGLOPHONE LAWYER WHO WOULD CALL HIS HEAD OF STATE TO COURT!! BUT THAT'S HOW ANGLOPHONES WERE TRAINED.
I WOULD NEED CLARITY ON WHETHER THE AUTHOR IS TALKING ABOUT GORGI DINGA OR NYO WANKAI, BECAUSE THEY SEEM TO BE A MIXUP HERE.THANKS.