The concept of judicial auditing has gained significance in Cameroon’s legal system. The ascent of judicial auditing signifies a growing recognition of the judiciary’s role in upholding the rule of law and protection of the citizens’ rights in the domain of auditing and control of accounts. This development aims to enhance transparency, accountability and the overall effectiveness of the control of public finance in Cameroon. This rise in the involvement of the judiciary in the control of accounts in Cameroon is primarily through the Higher Audit Court (Section One) and the Lower Audit Courts (Section Two).
SECTION ONE: HIGHER LEVEL CONTROLS (THE AUDIT BENCH OF THE SUPREME COURT)
The Audit Bench of the Supreme Court of Cameroon was established by section 41 part V on Judicial Power, of Law No. 96/06 of 18 January 1996 amending the Constitution of 22 June, 1972. Section 41 of Cameroon’s constitution states that; the Audit Bench shall be competent to control and rule on public accounts as well as those of public and semi-public enterprises. This made the Bench the financial Jurisdiction in the Judicial Organization of Cameroon. It has replaced a certain number of institutions, which had as duties the control and judgment of public accounts of the country, such as: the ‘Cour Française des Comptes’ which controlled and ruled on the Public Accounts of Cameroon under the French mandate from 1919 to 1960. It also replaced the three system of control of the Public Accounts which was instituted after independence and which included a federal Accounts Court created by Ordinance No. 62/OF/4 of February 1962, governing the method of presentation, conditions for executing the budget of the Federal Republic of Cameroon, its receipts, expenditures and all the related operations at the level of an Audit Bench in the Supreme Court of the Federated State of East Cameroon, and the Audit Department in the Federated State of West Cameroon.
Moreover, the Audit Bench of the Supreme Court replaced the General State Inspectorate (Inspection Général de l’Etat) which took over from the Federal Accounts Court in 1969 by Decree No. 69/DF/265 of June 1969 relating to auditing of public accountants and, the services of the Supreme State Audit according to Decree No. 78/470 of November 1978 concerning the auditing of accounts and sanction relating to the liability of defaulting accounting officials. This replaced the General State Inspectorate, which carried out the same function.
In creating an Audit Bench in the amended constitution of 1996, to control and rule on public accounts under the judicial power, the legislative wanted conformity with international standards of transparency, legibility of accounts and independence. This was also to ensure a new start for the economic and financial management of the state, thereby arriving at a modern vision of the state, governed by the rule of law. Although the Audit Bench of the Supreme Court of Cameroon was created by the Constitution of 1996, it became operational by virtue of Law No. 2003/005 of 21 April 2003 (the 2003 law) laying down the jurisdiction, organization and functioning of the Audit Bench of the Supreme Court of Cameroon.
The Audit Bench of the Supreme Court which is the main judicial body charged with the control of public finance in Cameroon, contributes to the control process mainly through the Audit Judge. The revaluation of the contribution of the Audit Bench or the Audit Judge in the jurisdictional control of local finances is therefore necessary. In this respect, beyond the renovation of its role, there is a much more important question of its evaluation as an institution of public financial governance. This revaluation basically examines the actions and mechanisms of control of the Audit Bench. On analysis, this revaluation is justified by the extension of the competence of the auditor (I), and by the renewal of its procedures (II).
PARAGRAPH I: THE EXTENSION OF COMPETENCE OF THE AUDIT JUDGE IN THE AUDIT BENCH OF THE SUPREME COURT
The strengthening of a posteriori control is at the origin of the extension of jurisdictional powers in the area of control of public finances. In the present case, it is the deployment of the Audit Judge which is indicated[1]. First of all, he is not only a guardian of good finance, but also a spur to good politics[2]. Next, the fundamental mission of the Audit Bench is to contribute to improving the management of public finances[3]. Finally, the control of public funds requires the action of a body that can guarantee effective and efficient management of funds and sanctions[4]. It is in this context that the broadening of the jurisdiction of the auditor comes into play. This widening proceeds not only from the expansion of material competence (A), but also from the confirmation of spatio-temporal competence (B).
A. THE EXPANSION OF MATERIAL COMPETENCE
The material jurisdiction or the jurisdiction of attribution, that is to say, based on the nature of the offense, has expanded through the institution of certification. To this end, regularity and sincerity constitute the two determinants of the litigation of the certification[5] of public accounts by the accounts judge, even if it is necessary to recognize the emergence of other principles which reinforce sincerity alongside regularity. These fundamental considerations have been internalized by Cameroon law following certain States such as France and Benin, through two legislative texts. These include laws n°2009/011 of 10 July 2009 and n°2018/012 of 11 July 2018. In view of the above, it is appropriate to present the control of regularity on the one hand (i), and to lift a section of the veil on the control of modern principles of management on the other hand (ii).
i. MAINTAINING CONTROL OF THE REGULARITY OF ACCOUNTS
The regulation of accounts is compliance with the law. The control of regularity is one which relates to the verification of the conformity of the local accounting operations with the rules of framework of the said operations. This is financial regularity[6]. To this end, the Audit Judge in his jurisdictional role carries out two actions.
He seeks beforehand to be reassured whether the accounting control has been carried out and, finally, to establish compliance between the accounting operations and the public financial standards. Thus, the control of regularity without constituting a brake on the freedom of action of local authorities satisfies the requirements which are those of a State of law. The verification of regularity relates not only to revenue operations, but also to those of expenditure. For the first scenario, there is an importance in understanding that public revenue is considered as the entry financial transactions, that is to say, the receipts of money in the coffers of a legal person under public law. The procedure for their recovery with regard to decentralized territorial collectivities is subject beforehand to a control of regularity carried out by the accountant before that of the Audit Judge. In essence, the accounts judge during his so-called jurisdictional control in terms of revenue, verifies the conformity of the collection acts and procedures both with the payment mandate and with the budget forecasts. Under the conditions laid down for each of them, receipts[7] are recorded, liquidated and authorized before being taken over and collected. The purpose of the liquidation is to determine the amount of the debt of the taxpayers and must indicate the bases on which it is carried out[8]. On observation, this mission is a catalyst for the sound and sustainable execution of local financial operations.
The second case, which deals with the control of regularity in terms of public expenditure, is the most significant in the office of the judge of accounts because of its importance. In this regard, it could be seen upon initial observation, that public expenditure constitutes the normal use of public funds. These are also expenditures made with public funds. The control carried out by the accounts judge to which they are subject, aims to verify the compliance of payments with legal and regulatory provisions in the area of public accounting. Clearly, the control of the regularity of the financial operations of communities and their public establishments is assimilated to a control of legality, since its mission is to verify that these have been carried out in compliance with the public standards[9].
The judge also specifically checks the regularity and compliance of payments with budgetary requirements. This mission is to ensure the proper use of the funds of public persons[10]. Moreover, in its annual report for the 2009 financial year, the Audit Bench states that the accounts of public accountants must comply with the standards in force for public accounting on the one hand, and they must obey the different statutes of public bodies on the other. The accounts judge was instituted to verify the traceability of public funds, and to promote real management that is regular and transparent. The intervention of this body also reinforces the objectives of a rule of law in the same way as the control of the sincerity of local accounting operations which results from a measure of intrusion of the control of modern principles of management.
ii. THE INTRUSION OF THE CONTROL OF MODERN MANAGEMENT PRINCIPLES
If it is true that the control of the regularity of the accounts still constitutes the essence of the material competence of the judge of the accounts, it also remains that, because of the performance, this competence undergoes an intrusion of a form of control which is increasingly interested in the principles and modern standards of public management such as: the sincerity and good behavior of accounts. Indeed, from its Latin etymology sinceritas which means integrity, purity, and sincerity is synonymous with truth. It is a cardinal principle; perhaps the most fundamental as it crowns the financial legal edifice[11]. It is necessary to consider the study of sincerity through the prism of recent reforms aimed at leading public authorities to what is sometimes qualified too easily or quickly, as “good financial governance”[12].
At the time of the emergence of the Cameroonian local financial system, this principle is at the center of public finances. It irrigates as much as possible the verification of local public accounts by the accounts judge. In essence, there are two forms of sincerity that interest the auditor: analytical sincerity and formal sincerity. From an analytical point of view, the sincerity of the accounts refers to the requirement, the obligation of accuracy and truthfulness of the accounts, that is to say, the accuracy of their entries. And, the truth in question here is that of the accounting entries[13]. To this end, Article 85 of the law on the financial regime of decentralized territorial collectivities provides: “the accounts of local authorities must be regular and sincere. They must give a faithful image of their financial and patrimonial situation”. This could be explained in the sense that, during the production of the accounts, the local public accountants must register truthfully and accurately, all the financial operations that they carry out during the budget year.
Formal sincerity, on the other hand, seems to be the most significant. It relates on the one hand to the concern for verifying the sincerity of revenue collection, and on the other hand, to the concern for controlling the sincerity of expenditure by local public accountants. In the first part, the accounts judge is reassured that the recordings or recoveries in terms of revenue contained in the budget are not false or manipulated, that is to say, unfaithful or asymmetrical to their financial and heritage situation. Also, that they are not undervalued to facilitate financial embezzlement, or overvalued to serve ulterior purposes such as concealing a financial crisis or a real financial deficit. In the second, the accounts judge ensures that expenditure is carried out strictly within the framework of budgetary allocations and prescriptions and according to the scheduling[14] made by the authority’s authorizing officer. In any case, verifying the sincerity necessarily implies that the accounts judge pays attention to the substantial reality of the accounts produced to him and not only to their formal regularity[15].
The verification of the sincerity of the accounts also obliges the judge to be reassured that the accounts present in a reliable and exhaustive manner, the financial flows of the financial year and the assets correctly valued at 31 December[16]. A requirement of budgetary and accounting law, the principle of sincerity contributes to sound and democratic management of local finances[17]. According to Mr. Laurent PANCRAZI, the notion of sincerity stands “as a necessary element for accountability”[18]. Mr. Pascal BELLEMIN for his part suggests that: “the sincerity of local budgets and accounts appears as a rule helping to guarantee the good management of local budgets”. All these doctrinal constructions easily demonstrate the interest in adopting sincerity as a reference standard in public financial governance. It constitutes a pretext for the strengthening of controls[19] and remains, at a time of administrative reforms induced by the decentralizing dynamic, a financial principle “essential to the performance of local finances”[20]. The French Constitutional Council for this purpose, considered in a decision about sincerity, that it “is characterized by an absence of intention to distort the main lines of the balance determined by the law of finance”. In truth, sincerity can then be considered as the sublimated extension of the transparency requirement[21]. Sincerity, in the same way as transparency, constitute levers of good management and therefore of the performance of public administrations. Performance, on the other hand, is the primary objective of the new public financial governance. This is why with Mrs. Marie-Christine ESCLASSAN, it is not surprising that sincerity has become a fundamental requirement of the new public financial governance[22]. Be that as it may, in the sincerity check, it is a question of establishing compliance of the management accounts with the accounting standards applicable to them[23]As a result, the guarantee of the proper keeping of public accounts depends on the will of the accounts judge to protect the principle of the separation of authorizing officers and accountants[24]. Ultimately, if it is true that the dilation of the material competence of the accounts judge is in line with the broadening of his competence, the confirmation of the spatio-temporal competence does not move away from it either.
B. THE SPATIO-TEMPORAL COMPETENCE OF THE AUDIT BENCH OF THE SUPREME COURT IN CAMEROON
The Chamber of Accounts of the Supreme Court of Cameroon has spatial jurisdiction and temporal basis legally founded within the framework of the implementation of its attributions. Thus, it must first be recognized that the area of competence of the Audit Bench as a financial jurisdiction is varied. As a result, the organizations subject to their control are very diverse, by their size, their status, their organization, their operating rules, without however omitting the time and even more, the geographical perimeter which is recognized for them. Obviously, to better understand it, it could be examined by looking at the spatial competence (i), then the temporal competence of the Audit Bench (ii).
i. JURISDICTION RATIONE LOCI
The jurisdiction of the Audit Bench of the Supreme Court of Cameroon covers the entire territory of the State. This reality is implicitly consecrated by the law of 2003[25]. On analysis, it is noticed that the law has provided for the Audit Bench of the Supreme Court of Cameroon. This designation undoubtedly translates and establishes the national competence of the Audit Bench in matters of judging the accounts of public bodies in general, and local authorities in particular.
Moreover, it is also possible to deduce this territorial jurisdiction not only from the material jurisdiction, but also from the status of the Audit Bench of the Supreme Court, which is positioned as the superior jurisdiction in matters of accounts. And on this basis, it rules supremely in cassation on the appeals brought against the final judgments of the lower audit courts[26]. Clearly, as a superior jurisdiction in matters of accounts, the Audit Bench symbolizes the point of convergence of financial jurisprudence. From the point of view of material competence, it can be seen that the Audit Bench checks and judges the accounts of public accountants, declares and audits de facto accounts, imposes fines under the conditions set by law[27]. On the strength of this position of the law, it is easy to notice that there is a lack precision and circumscription as to the origin or jurisdiction not only of the accounts, but also and above all, of the accountants. The law only endeavors to explicitly set out the status of the litigants of the audit chamber who must be public accountants. This state of affairs legitimately leads to it being seen as jurisdiction ratione loci with national scope which structures the capacity for action of the Audit Bench in the same way as its jurisdiction rationae temporis.
ii. THE TEMPORAL COMPETENCE OF THE AUDIT BENCH OF THE SUPREME COURT IN CAMEROON
From the aforementioned, one is entitled to think that the position of the judge is all the more admirable that the legal basis of the jurisdiction ratione temporis of the auditor endorses it; and that, from this decision, the contours of the principle of the temporal competence of the accounts judge seem to emerge. It was indeed the year when the audit chamber, long since created by article 41 of law n° 96/06 of January 18, 1996 revising the constitution of June 2, 1972 had been provided with an organization while its attributions and rules of operation were specified. This law marks the beginnings of the operation of the Audit Bench. However, and as a precaution, the temporal competence of the chamber only applies to the accounts of the year following that of the promulgation of the law of 2003, that is to say the management accounts from 2004. This choice immediately supported by the audit office was dictated by common sense. It is therefore possible to see in the position of the judge, not less the concern to avoid the re-examination of the management accounts which were already it by the administrative way, than the respect of the principle of the non-retroactivity of the law. In any event, the competence ratione temporis of the Audit Bench is dictated by the current or subsequent nature of the management acts falling within the scope of the 2003 law which, on analysis, does not stray from the question the renewal of the procedure followed before it.
ACHIH MAHAMADOU JALLO
LLM BUSINESS LAW UNIVERSITY OF BUEA
ACHIHMOHAMADOU@GMAIL.COM
[1] Article 107 of law No 20009/011 of 10 July 2009 on the financial regime of decentralized territorial collectivises.
[2] SEGUIN P. ‘La Cour, vigie des finances publique’, R.F.F.P. No 100. P. 223-228
[3] Rapport annuel de la Chambre des Comptes de la Cour Supreme du Cameroun pour l’exercice 2009. p. 6.
[4] D’OLIVEIRA Martins G, ‘La place de la cour des comptes dans le system politique au Portugal’, in Bouvier M. La bonne gouvernance des finances publiques dans le monde. P. 201-207.
[5] HURON D., MARTY F., SPINDLER J. ‘De la certification des comptes de l’etat; principes, enjeux et difficultes’ in, R.F.F.P., No 100. Pp 135-143.
[6] CRUCIS H. M., ‘Le controle de la regularite financiere’, R.F.D.A, 1992. P. 730.
[7] Article 45 of Decree no 2013/16 of May 2013 on the general regulation of public accounting
[8] Ibid, article 48.
[9] CHABANOL D., ‘Les chambres regionals des comptes, un autre juge de legalite?’, R.F.F.P., No 85. Fevrier 2004, p. 51-56.
[10] SEGUIN P. ‘La cour, vigie des finances publique’ R.F.F.P., No 100, p. 223-228.
[11] Joye JANE FRANCOIS. ‘La sincerite, premier principe financier’ R.F.F.P. No 111, Sept. 2010, p 17-25.
[12] PANCRAZI L, Le principe de sincerite budgetaire, Paris, l’Harmattan, 2012, p 11.
[13] Article 98 of law no 2009/011 of 10 July 2009 on the financial regime of decentralized territorial collectivities.
[14] Article 69 of Decret No 2013/160 of 15 May 2013 op. cit.
[15] VACHIA J.P. ‘La cour des comptes: Une nouvelle approche des comptes’, R.F.F.P., No 100, Novembre 2007, p. 239-250.
[16] ibid
[17] BELLAMIN P., ‘ Le point de vue d’un financier territorial’ R.F.F.P., No 111, September 2010, pp.133-137.
[18] PANCRAZI Laurent, Le principe de sincerite budgetaire. P. 122.
[19] Joye J.F. ‘La sincerite, premier principe financier’, op. cit.
[20] BELLAMIN (B) op. cit.
[21] Joye J. F. op. cit.
[22] ESCLASSAN Marie-Christine, ‘sincerite et gouvernance financiere publique: y a-t-il une sincerite financiere publique specifique? R.F.F.P. No 111, Septembre 2010, pp. 47-59.
[23] PRAT M. ‘La sincerite et sa mise en oeuvre par les collectivites locales’ R.F.F.P. No 111, sept 2010, p. 85-92.
[24] Fouda J, La chamber des comptes et la protection de la fortune publique au Cameroun, Memoire de Master II en droit public, Universite de Yaounde II, F.S.J.P. 2014, P. 37.
[25] Law no 2003/005 of 26 december 2003 op. cit.
[26] Ibid Article 7
[27] ibid