Managing Legal Diversity: Cameroonian Bijuralism at a Critical Crossroads

Chapter 7
Managing Legal Diversity: Cameroonian Bijuralism at a Critical Crossroads

Charles Manga Fombad

Until fairly recently, comparatists and legal historians had shown little interest in one of the fairly unique mixed—or to be more precise, bijural—legal systems in the world: the Cameroonian bijural system. Yet the Cameroonian system provides “a fascinating example of a comparative law melting pot with peculiar and multifaceted problems” (Fombad 1999: 22). Although quite young in comparison with most mixed systems, it has long exemplified some of the intricate issues that may arise when two modern competing but often divergent European legal systems—the English common law and the French civil law—coexist within a developing country. Cameroon is in the process of modernizing its legal system by developing homegrown uniform national laws. Most existing literature on the country’s legal system examines some of the laws that have been harmonized in the legal modernization process since the 1970s and also considers some of the challenges that the country has grappled with in the process (see Anyangwe 1987; Clarence-Smith 1968; Fombad 1991; 1997; 1999; Munzu 1989; Parant, Gilg, and Clarence-Smith 1967; Tumnde 2010). None of these studies have attempted to provide a substantive overview of the nature and scope of the emerging harmonized national laws and their effect on the bijural legal framework. In 1993, along with 13 other mostly francophone West and Central African countries, Cameroon signed a treaty establishing the Organization for the Harmonization of Business Law in Africa (generally referred to by its French acronym, OHADA).1 When it came into effect by Decree 96/177 of September 5, 1996,2 the treaty immediately subjected the whole country to the OHADA Uniforms Acts and, in doing so, raised complex questions about the prospects for sustaining the bijural system at a time when the English law element of the mix appeared to be fast disappearing.

Much can be said for more research into the Cameroonian problematic. As in most African countries, economic development and trade have been stifled by the continuous reliance on antiquated laws inherited from the colonial period. The numerous challenges that Cameroon has faced in modernizing its legal system while respecting its sensitive inherited bijural legacy offer many interesting lessons for other countries faced with similar problems. Law, it must be said, is much more than a body of rules that can simply be imposed on others by those who dominate the formal processes of lawmaking.

This chapter will start with a brief look at the historical origin and the theoretical context of the Cameroonian bijural system. It will then turn to an overview of legal developments in public law, private law, procedural law, and the system of administrative justice since the introduction of the bijural system in Cameroon. The chapter will show that the process of legal reforms has led to an overwhelming predominance in style, form, content, and formulation of civil law over common law in what can be perceived only as a one-sided invasion and assimilation of the former by the latter. Because bijuralism in Cameroon is not only a historical fact but also a daily reality that cannot be ignored or wished away, this chapter will examine ways of correcting the bijural deficit. It will argue that adopting a diversity-conscious approach to legal reforms in Cameroon or, in fact, any country facing such a dilemma is the best way to sustain bijuralism in the country. In conclusion, the chapter notes that the coexistence of legal traditions is both a practical reality and a practical necessity in an increasingly plurality-conscious world where dynamic equity rather than flattening equality prevails.

Historical Origins and Theoretical Context

This section briefly explains how the bijural system came about and some of the complex issues that are associated with it. It then situates this system in the broader family of mixed legal systems in the world. Any legal developments in Cameroon must be understood against this historical background.

Historical Origins

The modern Cameroon is largely a German creation, although the Portuguese were first to arrive at its coast in the 1500s.3 Malaria prevented the Portuguese from penetrating the interior. Before the Berlin Congress of 1884–1885, the British had showed an interest in the territory. But it was the Germans who established a colony in Cameroon in July 1884 (see generally Ardener 1968; Rudin 1938). The country went through two main colonial experiences: the German period from 1884 to 1916 and the combined British and French period from 1916 to 1961.

During the German period, all the diverse ethnic groups in the country were united into a single cohesive modern polity. A law passed in the Reichstag in 1886 that conferred powers on the Kaiser to legislate by decree for order and good government in Cameroon. To maintain peace and tranquility, the legislation established two systems of courts: one for Europeans and the other for Cameroonians. On this basis, two laws—the Consular Jurisdiction Law of April 7, 1900, and the Colonial Law of September 10, 1900—rendered German law applicable in the European courts, while the Cameroonian courts, which dealt with all disputes involving non-Europeans, applied customary law. The Germans were thus the first to introduce legal dualism into the country, with the coexistence of German law applicable to whites and customary law applicable to Cameroonians. However, the two legal orders did not exist on an equal basis. Like the other colonial powers, the Germans made the validity of customary law to be subject to German law. However, the German period was short—merely 32 years—and it is no surprise that there is hardly any relic of the German presence in the Cameroonian legal system today.

The German period in Cameroon came to an abrupt end during the First World War, when the last remnants of German troops in the country were defeated by a combined British and French expeditionary force in Mora in February 1916. An Anglo-French declaration of July 10, 1919, signed in Paris, partitioned the conquered territory between the two victors. The British settled for two small and narrow noncontiguous parts of the country in the West, while the French took the rest, about four-fifths of the territory. The British motives for this division have never been clear. However, some have speculated that the British feared incurring further financial responsibilities in taking on another colonial territory and desired to take on nothing more than what was absolutely necessary to consolidate their Nigerian colony. Under article 119 of the Treaty of Versailles, the Germans renounced all their rights to their overseas territories in favor of the allied powers. The Anglo-French arrangement over Cameroon was formally recognized in articles 22 and 23 of the League of Nations Covenant, which conferred mandates over the territory to both powers. Under article 2 of the Mandate Agreements, both countries had responsibility for maintaining “peace, order and good government of the territory and moral well-being and social progress of its inhabitants.” Article 9 explicitly gave the two countries “full powers of administration and legislation” and the “liberty to apply [their] … laws to the territory under mandate subject to the modifications required by local conditions.” This provision was the basis for the almost wholesale exportation of the English common law and the French civil law to Cameroon.

The British administered their portion of the territory as an integral part of their Nigerian colony. The southern area of the territory was known as Southern Cameroons, and the northern area was known as Northern Cameroons. Although Southern Cameroons was joined to Southern Nigeria and Northern Cameroons was joined to Northern Nigeria, no fusion or incorporation resulted. Nevertheless, the two territories were, for all practical purposes, administered from Nigeria. The extent of direct administration from the Nigerian provinces lessened with time. Nevertheless, many of the laws introduced by the British into Nigeria were simply extended to Cameroon. But the general basis for the application of English law and the extent of its application in Southern Cameroons is specified in section 11 of the Southern Cameroons High Court Law 1955, which states the following:

Subject to the provisions of any written law and in particular of this section … (a) the common law; (b) the doctrines of equity; and (c) the statutes of general application which were in force in England on the 1st day of January, 1900, shall insofar as the legislature of the Southern Cameroons is for the time being competent to make law, be in force within the jurisdiction of the court.4

The interpretation of this vague provision, like that of similarly worded provisions on the reception of English law in many former British colonies, has provoked a lot of controversy and debate over the years.5 It suffices to say that on the basis of this statute, numerous English statutes, as well as Nigerian laws and ordinances, were made applicable to Southern Cameroons and continue to apply in the two anglophone regions of the country today. The British, like the Germans and French, also operated two parallel systems of courts, but unlike the German and French systems, the British system was not separated on racial lines. One structure was for the traditional sector of the population, mainly Cameroonians, and the other was for the modern sector, mainly Europeans or Cameroonians who opted to use it. However, Native Courts Ordinance 5 of 1918 (a Nigerian piece of legislation), which recognized and established the customary court system, made it clear that the decisions of these customary courts were subject to review by local administrative officers. This ordinance was subsequently replaced by the Southern Cameroons Customary Court Law of 1956, which limited the jurisdiction of customary courts to specified matters. According to section 18(1) of the Customary Courts Law, customary law was only valid and enforceable to the extent that it was neither repugnant to natural justice, equity, and good conscience nor incompatible, either directly or by natural implication, with any written law in force at the time. This so-called repugnancy test could be used to invalidate a rule of customary law. More generally, however, administrative officials had the last word as to what was customary law during this period. In essence, customary law was given an inferior status.

Before this chapter turns to a brief discussion of the reception of French civil law in the francophone regions of Cameroon, note that in February 1961, the United Nations organized plebiscites in Northern and Southern Cameroons to determine whether they wished to become independent by joining either Nigeria or French Cameroon, both of which had been granted independence in 1960. Although Northern Cameroons opted to join Nigeria and has been part of Nigeria ever since, Southern Cameroons decided to reunite with French Cameroon. The bijural system resulted from this reunion of Southern Cameroons and French Cameroon, which had lived separately from each other since 1916.

Regarding French Cameroon, the French did not attempt to incorporate the territory into their existing colonies as the British had done. The introduction of French civil law into the francophone regions of Cameroon was based on a French decree of May 22, 1922, which extended to French Cameroon all laws and decrees promulgated in France for French Equatorial Africa. Two parallel system of courts—one administering the justice de droit Française for the whites, and the other being justice de droit indigène for the ordinary Cameroonians—were introduced. Because of the French colonial policy of assimilation, the justice de droit Française was reserved not only to the whites but also to assimilated Cameroonians.6 The customary courts, which dealt with disputes involving ordinary Cameroonians, had jurisdiction in civil and commercial matters. French administrators presided over the customary courts and used the local chiefs and notables merely as assistants or assessors. A particularly striking and unsettling feature of the reception of French civil law in francophone Cameroon was a rule that laws, decrees, and regulations in force in France could be rendered executory in Cameroon merely by a decree of the French head of state.7 French legislative policy during this period appeared to work by trial and error because enacted laws were often quickly amended, repealed, reenacted, or simply replaced (Anyangwe 1987: 97).

Yet when the anglophone and francophone parts of the country were formally reunited in 1961, the new federal constitution provided for the continuous application of the laws received in the two legal districts of the country, unless such law had been expressly or implicitly repealed in subsequent national legislation. The uncertainty over the exact quantum of foreign laws that had been received and were still applicable, especially given the vague limitation date of 1900 in the reception clause in the Southern Cameroons High Court Law 1955, made it inevitable that legal reform was going to be a priority issue after the reunification of the two territories. Reunification was never going to be easy in a country that one writer described as “two different countries in one” (Azevedo 1984: 5). Another writer went even further to assert that reunification was far from being the reunion of two prodigal sons who had been unjustly separated at birth and was more like a loveless arranged marriage courtesy of the United Nations between two people who hardly knew each other (Susungi 1991).

Besides having two divergent and potentially antagonistic legal systems, each with strong colonial cultural baggage, identification, and loyalty, the country has a wide diversity of ethnic groups, cultures, and languages. With a population estimated at 20,129,878 (July 2012),8 Cameroon has an extraordinary multiplicity of about 250 tribes that speak more than 280 indigenous languages. It is doubtful whether there is any other country of comparable size that has as many ethnic groups and languages. Superimposed over this complex mix is the anglophone-francophone divide. Anglophones live in two of the 10 political regions of the country and make up 20 percent of the population, whereas francophones live in eight regions and make up 80 percent of the population. The population imbalance between the two groups has had a considerable effect on the operation of the bijural system and has completely overshadowed other potentially divisive factors such as ethnic origin. There is also religious diversity: about 40 percent of the people are Christian (of whom about half are Roman Catholic), 20 percent are Muslim, and about 40 percent practice a wide variety of indigenous beliefs. The overwhelming majority of Muslims live in the northern part of the country, but others live in a small area in the west (see Fombad 2010). With this background in mind, one can see exactly how the Cameroonian legal system fits within the general legal family of mixed systems.

The Cameroonian System in the Family of Mixed Jurisdictions

As pointed out earlier, in the family of mixed jurisdictions, the Cameroonian system is probably one of the youngest and least researched. It dates to the reunification of the former British Southern Cameroons and the former French Cameroon in 1961, 45 years after they were separated. Although repeated often enough to become trite, this fact remains important: almost all modern legal systems of any sophistication or complexity are mixed (see, for example, Church, Schulze, and Strydom 2007: 47; Glenn 1996: 1–3; Palmer 2001). Most of these mixes are a result of direct or indirect borrowing by lawmakers or judges when they use or cite foreign law. The Cameroonian legal system is mixed in its own unique way, which is fairly different from that of most classical or conventional mixes. It is therefore not surprising that the Cameroon system has missed the critical attention of most comparatists. But to what extent is it different from other mixed systems or jurisdictions?

Comparatists almost all agree that there is no comprehensive and generally accepted definition of a mixed system or even criteria for determining what constitutes one. The complex nature and wide diversity of mixed jurisdictions, as well as their dynamic nature and questions about the structure and degree of mix required, account for this difficulty. For example, in her analysis of mixes, Esin Örücü (2008: 11) distinguishes between overt and covert, structured and unstructured, complex and simple, and blended and unblended mixes. The diverse and sometimes confusing and contradictory classifications of mixed systems underscore the challenges of finding an acceptable definition (JuriGlobe 2013; Örücü 1996; 2008). For example, the JuriGlobe World Legal Systems Research Group argues that the term mixed should not be construed narrowly and suggests that “this category includes political entities where two or more systems apply cumulatively or interactively … [as well as] entities where there is a juxtaposition of systems as result of more or less clearly defined fields of application” (JuriGlobe 2013). On this basis, JuriGlobe places Cameroon in a group of “mixed systems of civil law, common law and customary law,” along with Zimbabwe and Lesotho. Suffice to say that there are many anomalies in this classification, particularly the suggestion that there is no customary law in countries such as South Africa, Botswana, Namibia, and Mauritius.9 Even a more elaborate and complex classification provided by Esin Örücü (2008: 16–18) is not free of contradictions.10

Nevertheless, the numerous definitions that have been suggested can be described as either broad or narrow in their approaches. On the one hand, the broad approach defines a mixed system as one that is made up of at least two diverse components derived from two or more systems generally recognized as independent of each other (Church, Schulze, and Strydom 2007: 49; McKnight 1977: 177). Some of these broad definitions, according to Esin Örücü (2008: 11), use the term mixed to refer to a “combination of various legal sources”; a “combination of more than one body of law within one nation, restricted to an area or to a culture”; “the existence of different bodies of law applicable within the whole territory of a country”; and “legal systems that have never had a single dominant culture.” Although the JuriGlobe definition referred to earlier falls into this category, it is rather too broad and vague. On the other hand, those who adopt the narrow approach define a mixed system as one in which the common law and civil law interact within the same jurisdiction (see, for example, Smith 2005; Smits 2008: 7). A proponent of this narrow approach, Vernon Palmer (2001: 7) states that a mixed jurisdiction should have at least “three abstract characteristics that set them apart from others.” The first characteristic is the specificity of the mixture, which requires that it be built on the dual foundations of common law and civil law materials. In other words, the expression is limited to mixtures from the Romano-Germanic and Anglo–American systems. The second characteristic is a quantitative and psychological feature that requires the dual elements to be obvious to an ordinary observer. Palmer (2001: 8) argues that an occasional transplant or even a series of them from one tradition to another is not enough: there must be a large number of principles and rules of a distinguishable pedigree to create a “distinctive bijurality.” The third characteristic is structural and involves a structural allocation of content in which civil law will deal mainly with private law matters and the Anglo-American element will regulate public law matters.

Cameroon may be classified as a mixed jurisdiction under the broad definition, yet the two legal systems that operate within the country to a large extent coexist rather than interact. This situation is certainly changing, but by constitutional design, the intention was to allow these two systems to operate side by side. Conversely, if the narrow definition is applied, the same reasons militate even more strongly against considering the Cameroonian system as mixed. However, even if the Cameroonian system is not mixed in the strict sense of either the narrow or the broad definition of the term, it can still be considered to be mixed and mixing in a sense that brings it somewhere between the two definitions. In this respect, it is mixed in that two distinct legal systems operate within the same jurisdiction, and it is mixing, as we shall soon see, in that there has been extensive interaction between the two systems by legal harmonization to bring about uniform laws.

Another factor that makes the Cameroonian system complicated is that it also displays features of legal dualism. Such legal dualism is based on customary law, variously referred to at some stage or in some jurisdictions as “native law” (in the colonial days), traditional law, indigenous law, or African law. Nevertheless, the idea of legal dualism based on the operation of customary law is more of a historical fact than a practical reality today. For a long time during the colonial period, the customary law courts were the only method of resolving disputes available to Cameroonians, and these courts operated alongside the modern courts, which were reserved for the whites. However, as noted earlier, although they appeared to coexist, they were not equal because the recognition and enforcement of customary law was subject to standards set under the received laws.

Their jurisdiction was also progressively reduced, and colonial administrators had the powers to review decisions made by these customary courts. By the time of independence, the essentially symbolic legal dualism had virtually ended as a single court structure was set up with customary courts placed at the bottom of the hierarchy of courts. Customary courts continued to administer exclusively customary law, but appeals from these courts were heard by the modern courts. The subservient role reserved for customary courts during the colonial period has continued not only because the recognition and enforcement of customary law has continued to depend on the repugnancy test or similar tests set up during the colonial period but also because their subject-matter jurisdiction has been progressively reduced. For instance, they no longer have any jurisdiction in criminal matters. Cameroon is one of the many African countries today where customary courts play very little role in the settlement of disputes.11 The only exception is the northern part of the country, where Muslim law and Shari’a courts still play a large part in regulating the lives of the rural people.12 The interpretation part of section 27(1) of the Southern Cameroons High Court Law 1955 defined “native law and custom,” which is what we now refer to today as customary law, to include “Muslim law.” This inclusion was rather odd and inaccurate because Muslim law is not indigenous to Cameroon. Like English and French law, it came from abroad. It was imposed on parts of the northern Cameroon in the early nineteenth century through trade contacts and religious wars of conversion known as jihad (see Fombad 2010). When considered along with the other influences, particularly customary ones, on the overall legal system, the element of religious law in the northern part of Cameroon suggests a degree of legal pluralism. However, the concept of legal pluralism has also been the subject of diverse and often conflicting definitions over the years (Griffiths 1986; Menski 2006: 82–128; Örücü 1996: 350). For the purposes of this chapter, it will suffice to describe legal pluralism as referring to a situation in which two or more legal systems or legal orders coexist in the same social setting and operate within different cultural or religious groups. Thus, legal pluralism in the Cameroonian context emphasizes the aspect of both customary law and Muslim law in the legal system.

Nevertheless, it would not be accurate to describe the Cameroonian system simply as mixed, and Vernon Palmer’s (2001) narrow definition of the expression makes more sense. If the broader definition were adopted, there would hardly be any justification for not describing all legal systems in Africa—or even in the world—as mixed. Neither would it be accurate to describe the Cameroonian legal system merely as dualistic or pluralistic. Although it manifests features of both traits, those features are not the dominant aspects of the system. The Cameroonian legal system is more accurately described as bijural, because the two distinct and dominant legal systems in the country coexist in two separate legal districts. The closest example of such bijuralism is that in Canada between the civil law system in the province of Quebec and the common law system in the rest of Canada. Inevitably any two systems operating within a country will interact and enable the overall legal system to develop in a harmonious manner. In the case of Cameroon, a high degree of mixing of the two laws has occurred, resulting in the enactment of uniform laws applicable to the two legal districts. This situation has raised questions about whether the bijural system is giving way to a mixed system or a hybrid system that is uniquely Cameroonian. The next section examines how the system has developed in the past half-century.

A Balance Sheet of Cameroonian Bijuralism

From the very nature of the reunification of the English-speaking and French-speaking parts of Cameroon, one could fairly assume that there was an intention to maintain the bijural legal heritage. On the basis of this assumption, the next section will try to develop some principles that should guide future legal harmonization of laws in the country.

First, however, a brief review of the constitutional basis of the bijural system is necessary. As pointed out earlier, on reunification of the British and French Cameroons in 1961, the constitution provided for the continuous application of the preexisting laws in both parts of the country. This position has been repeated in all subsequent constitutions. On this issue, article 68 of the 1996 amendment to the 1972 constitution (usually referred to as the 1996 constitution) states the following:

The legislation applicable in the Federal State of Cameroon and in the Federated states on the date of entry into force of this constitution shall remain in force insofar as it is not repugnant to this constitution, and as long as it is not amended by subsequent laws and regulations.

This provision is usually taken as the basis of the bijural system. It is supposed to be reinforced by article 1(3), which states, “The official languages of the Republic of Cameroon shall be English and French, both languages having the same status. The State shall guarantee the promotion of bilingualism throughout the country.” One could rely on article 1(3) and several other provisions—such as those in the preamble stating that “all persons shall have equal rights and obligations,” and “the state shall ensure the protection of minorities”—to argue that the two dominant inherited legal cultures were to operate on a basis of equality. However, no law has ever been enacted to implement any of these constitutional provisions. Also, as we shall soon see, no mechanism ensures that these constitutional provisions are not violated. Furthermore, no mechanism ensures that if they are violated, actions are taken to correct the illegality. Hence, bijuralism and bilingualism depend on these bare constitutional provisions.

Another problem with the constitutional basis of the bijural system is that it assumes that there is certainty with respect to what the constitution refers to as the “legislation applicable in the Federal State of Cameroon and in the Federated states,” which the constitution declares must apply until replaced by a new law. In practice, this provision means that, in all matters not regulated by new Cameroonian legislation, the received English and French laws continue to apply. This interpretation seems simple, but in reality, the exact scope and quantum of these received laws as they apply to certain issues have never been certain. For example, as pointed out earlier, in the anglophone legal district, the reception clause—which was worded much like similar English law reception clauses in anglophone African countries—has often given rise to debate and diverse interpretations (see further Fombad 1991: 450–53). When the clause limits the application of English law to legislation that was in force on January 1, 1900 (an arbitrary date by all standards because the British period started in Cameroon only in 1916), does this date apply only to statutes of general application, or does it also extend to the common law and doctrines of equity? If the latter is true, clearly Cameroonian law will be frozen in time. And if the former is true, Cameroon will simply blindly follow laws adopted abroad in Britain that hardly reflect the local conditions.

Probably because of the establishment of the bijural system, the adoption of uniform national laws became a priority quite early after the two Cameroons reunited. Two federal law reform commissions were set up as early as February 1964: the Federal Commission for Penal Legislation and the Federal Commission for Civil and Customary Legislation.13 The only uniform law drafted by these commissions was the Penal Code of 1967. Although there have been other codes—such as the Labor Code, Land Tenure Laws, and Civil Status Registration Ordinance—most of these codes were adopted through the normal parliamentary lawmaking processes. The perceived bias in the law reform process, which has seen the adoption of uniform laws that are essentially based on French civil law, has been widely commented on (see, in particular, Fombad 1991; 1997; 1999; Munzu 1989). The most recent uniform law is the Criminal Procedure Code, which was brought into force by Law 2005/007 of July 25, 2005, and came into effect on January 1, 2007, thus concluding a process that started 30 years earlier. But the most extensive and probably most profound change in the legal landscape was brought about when Cameroon became a party to the OHADA treaty. In a single move, not only was the country’s commercial law updated but also all English commercial law principles that previously applied in the anglophone legal district were replaced by civil law principles.14