It is clear that the adoption of a new law often poses several problems, namely acceptance by practitioners, the subject to the trial and the Courts. The introduction of the OHADA treaty and Uniform Acts was no exception in this regard. Indeed, the reactions were stronger in Cameroon, particularly in the Anglophone area, where the OHADA treaty was viewed as a tool for destroying the principles of common law.54 Generally speaking, OHADA law was treated in that area with much suspicion and reservation. The Anglophone region of Cameroon resisted the OHADA treaty because it was originally considered as an instrument of French and Francophone neo-colonialism.55 They asserted that the OHADA was conceived using a civil law approach.56 In this regard, one can divide these problems into two categories, namely constitutional problems and enforcement problems.

3.3.1. Constitutional problems

To address a constitutional issue means to refer to those problems that derive from the unconstitutionality of OHADA reforms, as well as its Treaty. These problems are related to the issue of language, as prescribed by the OHADA.

3.3.1.1. Language problems

In accordance with Article 42 of the OHADA Treaty,57 “French shall be the working language of OHADA”. This means that French will be the official language of the OHADA in all matters related to publishing OHADA Uniform Acts (U.A.s), and arbitrating and settling contractual disputes among litigants. This provision appears to be incompatible and contrary to the principle of bilingualism enshrined in the Cameroon Constitutions of 1972 and 1996. Thus, as per Article 1(3) of the 1996 Cameroonian Constitution, “The official language of the Republic of Cameroon shall be English and French, both languages having the same status…” This article adds that “The State shall guarantee the promotion of bilingualism throughout the country. It shall endeavor to protect and promote the national language”.58
These provisions are the basis on which the Anglophone people in Cameroon have resisted the implementation of the OHADA in Cameroon. Thus, most of them felt that the mandated language of the OHADA was a barrier to them reaping the benefits of OHADA reform, since the U.A.s are written in French, a language that they do not understand.59 Furthermore, the judges, magistrates and registrars, as well as lawyers, argued that because this treaty had failed to forewarn them before its enforcement, and given that they could not benefit from training at the Regional High Judicial School (ERSUMA), they could obviously not be appointed to the CCJA. This would also apply to Anglophone lawyers, since they would not be able to represent their clients in the CCJA.60 With regard to litigants, they argued that this coming into force of the OHADA in the Anglophone region of Cameroon represented an injustice in the adjudication process and infringed upon the principle of a fair trial, which advocates that an individual must be tried in the language that he or she understands.61

Even though one can clearly state that a ratified treaty takes precedent over internal laws and the Constitution, no one can reasonably require the courts and jurisdictions to apply laws in a language which no one understands. The fact that people were not forewarned before this treaty was entered into force, in order to enable them to look before they leap, explains why legal professionals, especially magistrates, judges and lawyers, have been reluctant to apply this OHADA legislation in Anglophone Cameroon.62 Rightly so, Justice Nko T. Irene Njoya.63 stated that “If the common law courts are forced to apply the OHADA Treaty and OHADA U.A.s in French, without an amendment or Article 42, they will be deprived of their inalienable rights to work and express themselves in the language they know best in the CCJA. This will be unconstitutional since the Human Rights Charter is part of our Constitution and Anglophones have the right under the said Charter to work in English”.

The above statement was considered and reaffirmed by the Kumba High Court in the case of Achiangan Fombin Sebastian v. Foto Joseph and Ors. In this case, Mr. Justice Aya Paul asserted, inter alia, that “Any piece of legislation that sanctifies French to the exclusion of English remains inapplicable to the common law courts by reason of self-exclusion”. In the same vein and for the purpose of rejecting this treaty, the president of the Limbe Court of First Instance stated that he was reluctant to apply OHADA legislation, owing to the fact that the law was ambushing innocent English-speaking Cameroonians.64

All the same, it would be contra bonus mores, within the framework of this study, if it failed to highlight the fact that something has been done to address the plight of Anglophone people, namely that the English translation of the OHADA has been enacted and published in the official journal in languages such as English, Portuguese, Spanish, and German.65 However, it is also important to emphasise that another aspect of this issue at the level of translation remains a concern for researchers, who argue that as the official language, French remains an authentic version66 and that this move is still insignificant. Therefore, the translations of this text have no official value, even today, and are sometimes inaccurate and incomprehensible to English speakers, who are more familiar with common law than civil law systems.67 In this regard, Tumnde contends that these translations are “too literal, inadequate, and rather nebulous” because legal translations, in the context of OHADA, have often resulted in a lack of terminological equivalence.68 The report of the International Law and Practice of the American Bar Association and the International Judicial Relation Committee of the U.S Judicial Conference presented on the OHADA U.A.s further state that Unfortunately, we found these English translations not to be as precisely worded as they could be in order to be of authoritative assistance to non-French speaking attorneys…”.69

As an example, one regrettable translation is that of “Registre du Commerce et du Credit Mobilier” (RCCM), which was translated as “Trade and Personal Property Credit Register”, and it is doubtful whether such notion exists under the common law system. Another example is the translation of “Assignation”, which in French is the modern way of bringing a case to court or addressing the judge. This word has been translated in some Uniform Acts as Writ of Summons, Summons, or motion on notice.70 However, this concept is different in civil law to the common law concept “Assignation”, which in French is an extrajudicial act performed by a bailiff, while a writ of summons in common law is an act signed and delivered by a judge, magistrate or other officer entitled by law to do so.71

Contrary to the provisions of the Uniform Acts, it is not possible to approach the Court of First Instance and Court of Appeal through a writ of summons or summons. It could be problematic for English-speaking investors or their English-speaking lawyers to rely on the English version of the Uniforms Acts.72 Therefore, one can understand that French-speaking investors throughout in the world will be more inclined to invest in Cameroon than Englishspeaking investors.

3.3.1.2. The transfer of sovereignty

One of the reasons advanced by professional practitioners in Anglophone Cameroon for their resistance to the OHADA initiative is the transfer of Cameroon’s sovereignty over commercial or business legislation to the OHADA and its institutions. They view the new Law as the “gospel truth”, since it cannot be controverted, due to the fact that after the adoption of the OHADA legislation by the Council of Ministers, the U.A.s immediately became applicable in the Member States, thereby overriding any domestic legislation in the area of that law.73

These provisions, which provide elaboration regarding the adoption of OHADA legislation, and their direct applicability and enforceability, are unconstitutional in respect of Article 2(1) of the 1996 Constitution. According to Article 2(1), “National Sovereignty shall be vested in the people of Cameroon who shall exercise same either through the President of the Republic and Members of Parliament or by way of Referendum.” The same article also states that “no section of the people of any individual shall arrogate to itself or to himself the exercise thereof”. Article 14 goes further to stipulate that “Legislative power shall be exercised by the parliament which is to be legislating and control government action”, while Article 26 (2) b (2) states that “rule governing civil and commercial obligations are reserved to the legislative power”.

In light of the above, the OHADA infringes upon these provisions, as they have governed and ruled on matters which are specifically reserved for legislators. In this regard, it is interesting that legislators have never raised this issue, in order to denounce the fact that the Council of Ministers could usurp their powers and make laws governing commercial obligations.

Furthermore, this problem of the transfer of sovereignty does not only concern legislative power – even a Cameroonian judiciary suffers the same fate, since before the implementation of the OHADA, judgments coming from the Supreme Court were final.74 However, with the advent of the OHADA, the status quo ante of this high and final jurisdiction has changed. It is now the CCJA which has appellate jurisdiction over judgments from the appeal courts in all Member States in matters regarding business transactions.75

3.3.2. Enforcement problems

The enforcement problems of the OHADA refer to those problems that handicap the adjudication process vis-à-vis OHADA business law.76 In other words, it concerns those barriers that prevent the OHADA Law from being a tool of social control, especially in the context of this study. Among these hurdles, one can note the problem of the advent of the CCJA, procedural problems, and the suspicion that the OHADA is only suitable for civil law jurisdictions.

3.3.2.1. The advent of the Common Justice and Arbitration Court of OHADA (CCJA)

The advent of the OHADA, with the imposition of the new Court having its seat in Abidjan, was strongly challenged by many Anglophone people, who felt that the CCJA infringed upon and was contrary to Cameroonian Ordinance No 72/4 of 26 August 1972, which dealt with the organisation of the judiciary.77 Indeed, as per Article 1 of the Ordinance, as amended by Law No 90/058 of 19 December 1990 on the organisation of courts in Cameroon, “Justice in Cameroon shall be administered in the name of the people of Cameroon by the following courts: the traditional law courts, the courts of first instance, the high courts, the courts of appeal, the state security courts and the supreme court”. In this article, one can note the absence of the CCJA.

In addition, one of the main disagreements of Anglophone people with this Court is that it is too expensive and carries a risk when pursuing litigation in the CCJA, which has its only seat in Abidjan.78 Thus, litigants, in order to appear before this Court, will need to possess a vast amount of money to cover their personal transportation, and well as that of their counsel. It is important to note that many litigants or SMEs situated in Cameroon, where the cost of living and purchasing power and turnover are low, cannot afford such expenditures.79

Furthermore, the OHADA Treaty states that a litigant’s counsel, who is not resident in Abidjan, must provide an official address in Abidjan, not in his country, for the duration of the proceedings, in order for court papers to be served.80 This provision again poses another challenge. Firstly, it will not be easy for the litigant to find a suitable official address, and secondly, even if a suitable address were to be found, as Tumnde argues, “Would service on the client or litigant be said to have been effected in Abidjan or when the court paper has been communicated to him in Cameroon?”81 In light of this, one may rightly question whether or not the period between the serving of court papers and communication with the client in Cameroon will be taken into account when calculating the time lapse for prescription.
As if this was not enough, the fact that the official language in the CCJA is French and all proceedings are conducted in French has been highlighted by the Anglophone community as being a source of marginalisation.82 In addition, all the judges at the CCJA are French- speaking, with civil law training, except for a lone judge from Guinea-Bissau, who speaks Portuguese.83 There are at present no judges with a common law background. In this context, one can easily understand why other countries that speak English and have a common law system, such as Nigeria, Ghana, Sierra Leone, South Africa, etc., are still reluctant to adopt the Treaty.

3.3.2.2. Procedural problems

It is important to note that the rules regarding civil procedures in Cameroon vary, and depend on whether one is situated in the Anglophone or Francophone region. In the French area, civil procedure governs the rules of practice and procedure that are applicable in civil matters, whereas in the Anglophone area, the rules that are applicable are basically those of Nigerian colonial legislation (which is the Supreme Court Civil Procedure Rules) 1945 cap 2011 Vol 10 of 1948 edition of the Revised Laws of the Federal Republic of Nigeria.84 The fact that the OHADA has not yet succeeded in enacting uniform procedural codes for its Uniforms Acts is a great concern. Given that the OHADA is silent on this matter, the procedural laws of each member state therefore remain in force85. The question that one can ask here is the following: If an appeal goes before the CCJA, what procedure will be defensible? The vagueness about this issue needs to be addressed.

3.3.3. The problem of suspicion

The problem of suspicion regarding the OHADA was highlighted by the Justice Nko. T. Irene Njoya, who stated that “It is with great suspicion and reserve that common law courts have received the treaty and its uniform laws. The highhanded manner in which the text was dumped on them, the fact that French is the only working language of OHADA, and the fact that Cameroon part in the deliberations resulting in OHADA texts, as a Francophone nation, are reasons giving rise to the suspicious attitude”.86 It follows from this statement that one of the problems with the implementation of the OHADA in the Anglophone area is that people there consider the OHADA legislation to be suitable only for civil law jurisdictions, such as the Francophone areas. Given that the applicable legal system in Anglophone Cameroon is based on common law, many scholars view this treaty as “an unruly horse and something from another planet”, in Tumnde’s words. They argue that the Cameroonian civil and common law traditions are not compatible with OHADA reforms.87

This argument seems to be relevant because in terms of common law, the principle of stare decisis is very important, and the court is a significant source of law, which is considered to be national legislation in this respect.88 In contrast, the civil law system does not recognise this principle, which means that the Court must look to universities and jurists in order to inform their commentaries on legislature enactment.89 Indeed, it is evident that common law attaches more importance to judicial precedents, while the civil law system attaches more importance to codified law.90 In this respect, Anglophone Cameroonians perceive the OHADA law as a menacing shark destined to swallow the common law system.

In summary, it is worth noting that law is a tool of social control that is intended to be applied to society, and not in a vacuum. This means that an elaboration of a law must take the actual problems in society into account, and must therefore include during all the classes affected by this law.91 In this regard, one can observe that the OHADA fails to adhere to these basic rules, by excluding in its elaborations and adoption certain classes, such as national institutions, jurists from all legal traditions, lawyers and other stakeholders.92 The fact that experts or a group are commissioned by the secretariat of the OHADA to prepare a draft law, which is subsequently submitted to each government for review and comment does not contribute to resolving the problem of insufficient participation.93 One can conclude that the specificity of the Cameroonian legal dualism explains itself through the existence of a unique parliament, having jurisdiction to legislate in any domain of law, whether public and private.94
Thus, driven by the need to preserve national unity and colonial inheritance, Cameroonian legislators strive to take into account this bijural legal system, at least at the national level, and the criminal procedures recently adopted may be used as an example.95 There are regional economic integration instruments which have a significant effect on the Cameroonian legal bijural system. The most important problem of OHADA law, after the amended treaty included Spanish, Portuguese and English as working languages, remains, as previously mentioned the mediocrity of translation and the fact that cases cannot be submitted to the Abidjan Court in English. This may be why certain Anglophone countries, such as Nigeria, Ghana, Kenya, etc., are still reluctant to sign and adopt this treaty. If the OHADA envisages attracting these common law countries, it will need to draw inspiration from Canada, which is acknowledged as a living laboratory in matters of harmonisation, as pointed out by Louise Maguire Wellington: “The advent of the global economy and the growing interdependence of national legal systems has generated interest in … Canada’s work in the field of harmonization, particularly among international bodies and organizations that use both the common Law and the Civil Law. Canada is the recognized as a living laboratory for harmonizing two legal systems”.96

REFERENCE

NARCISSE GAETAN ZEBAZE DONFACK,THE SUITABILITY OF THE CISG AND OHADA FOR SMALL AND MEDIUM-SIZED ENTERPRISES ENGAGING IN INTERNATIONAL TRADE IN WEST AND CENTRAL AFRICA.Submitted in accordance with the requirements for the degree of MASTER OF LAW At the UNIVERSITY OF SOUTH AFRICA DECEMBER 2015