Six years on, the crisis in the Anglophone (English-speaking) regions of Cameroon continues. Recent reports indicate that over 6,000 people have been killed.
A further 600,000 have been internally displaced, while over 7,700 people have become refugees in neighbouring Nigeria.
The conflict’s origins lie partly in the fact that Cameroon applies two different systems of law. Anglophone lawyers say the system marginalises the common law.
Cameroon was colonised by Great Britain and France, which occupied 20% and 80% of the territory respectively. They introduced both their language and their legal traditions in their respective spheres of influence.
So, the Anglophone regions apply the common law. The Francophone regions apply the civil law.
In Cameroon, the common law and the English language have been systemically undermined by the predominantly Francophone government. At the level of the Supreme Court, the predominant application of the civil law often left common law litigants without justice.
In October 2016, a peaceful protest over this by Anglophone lawyers was met with disproportionate force from the government.
By early 2017 the protests had become a violent separatist conflict. The government tried to address some of the concerns by creating the Common Law Division within the Supreme Court. The division is meant to hear final appeals from courts in the Anglophone regions in matters relating to the common law.
The law states that judges in the Common Law Division should have an “Anglo-Saxon” legal background. By implication, they should understand the common law principles and should speak English.
As part of an ongoing project on judicial institutions and conflict resolution, we carried out a study of the Common Law Division between July 2021 and February 2022.
We examined records from the registry of the Courts of Appeal in the Anglophone regions and the Common Law Division. We also interviewed 32 Anglophone lawyers and Supreme Court judges.
The purpose was to assess how the Common Law Division was addressing the concerns raised about the limited influence of the common law in the Supreme Court.
Below are some of the key findings which we discuss further in our report.
Performance of the Common Law Division
The Common Law Division began functioning fully in 2018. As of September 2022, it had received 450 cases, 200 of which were appeals made directly from the Anglophone regions.
The other 250 were appeals that were pending in other divisions of the Supreme Court before the Common Law Division was established. The cases were predominantly civil and criminal matters.
The Common Law Division has made final decisions in 125 cases. In a further 178 cases, it has decided on admissibility – whether claims can be heard.
That is due partly to concerted efforts by the judges to deal with cases in a timely manner.
In the past, as we uncovered in our study, appeals from the Anglophone regions could remain in the Supreme Court without a decision for up to 34 years. One reason was that French-speaking civil law judges could not hear the appeals. Submissions were written in English and based on common law principles which they did not understand.
The common law and civil law systems are quite distinct in legal practices, principles and procedures. For instance, the common law is developed by judicial precedent. This is a legal principle which requires lower courts to follow the decision made by a higher court, when hearing a later case with similar facts. The civil law depends on codified law (legal texts).
Another difference is that, in the common law, submission of arguments in court is generally oral. This gives the court the opportunity to seek clarification, before it considers the matter and makes a decision. In the civil law system, submissions are written in full and provide limited room for oral debate.
Cautiously optimistic
The lawyers are cautiously optimistic about the Common Law Division. The majority have more confidence in making appeals to it because their submissions are written in English and are based on common law principles applied in the Anglophone regions. They know their cases are heard by judges who understand the law and the language.
The judgements are also written in English, mostly in the common law style of setting out the facts, the applicable law and the reasoning of the court.
This is important because judicial precedent cannot be influential if the court does not provide reasons for its decisions.
Challenges
Despite the successes registered so far, the Common Law Division still faces a number of challenges.
Foremost is the issue of procedure. The division applies civil law procedures especially in the key area of admissibility. This is because the 2006 Supreme Court Law lays out the procedure to be applied throughout the Supreme Court.
According to the lawyers, submitting an appeal following civil law procedures is legalistic and technical. Moreover, civil law procedures are not particularly consistent with common law procedures. So, appeals tend to be dismissed at the admissibility stage for technical reasons. Lawyers say this undermines justice for their clients. In the common law, they say, such technicalities would not prevent a court from hearing a case.
Another important concern raised is that the Common Law Division is still under the Judicial Bench of the Supreme Court. This has a number of unfavourable consequences.
First, the division cannot develop the common law sufficiently if it continues to rely on the Judicial Bench, which is civil law oriented.
Second, the division’s broad jurisdiction means it needs a lot of financial and other resources – almost as much as a bench itself.
Third, as a result of the limited resources, Francophone judges may be appointed to the division to alleviate the pressure on the Anglophone judges. That would defeat the purpose of creating the Common Law Division.
What should the government do?
From our research and considering the views expressed by Anglophone lawyers and judges in the study, three recommendations stand out.
Elevating the Common Law Division to a Common Law Bench. That would require a constitutional amendment.
Amending the Supreme Court Law of 2006 so that common law procedures can be applied in the Common Law Division.
Appointing more common law trained judges to the Common Law Division to alleviate the pressure on existing judges.
The government should consider the above recommendations as part of the approach to resolving the conflict.
Ashu Eware, State Prosecutor of the High Court of Manyu Division, Cameroon contributed to this article.
Laura-Stella Enonchong and Ashu Eware receive funding from The British Academy.
This article was originally published on The Conversation. Read the original article.
