INTRODUCTION
The Regional Audit Courts in Cameroon as well as the Special Criminal Court which are charged with a certain level of control. The control at this level has proven insufficient and inefficient to an extent. This chapter therefore, focuses on the drawbacks at the point of the Regional Audit Courts (Section One) and the shortcomings which can be seen in the domain of the Special Criminal Court (Section Two).
SECTION ONE: OPERATIONAL BLOCKING OF REGIONAL AUDIT COURTS
The operationality of the lower audit courts is partial and incomplete. This incompletion stems from a number of reasons which, in the end, are not conducive to the crystallization of transparent and efficient budget management. This reality does not allow for a substantial improvement in local budget management. And yet, one cannot claim to improve local management and engage in a performance approach, without having a reliable description of the assets and improving the sincerity and exhaustiveness of the accounting data[1]. This is an objective whose achievement undoubtedly challenges the lower audit courts with a view to optimizing local budgetary management[2]. This area therefore seeks to explain that the operational blocking of regional audit courts stems not only from a logic of politicization of the judicial control of local accounts (I), but also from the precariousness of the balance of interests premises (II).
PARAGRAPH I: THE POLITICIZATION OF JUDICIAL CONTROL OF LOCAL ACCOUNTS
The materialization of the lower audit courts in Cameroon is held back by a political logic, which is only due to a simple administrative act or even a legislative act at most. Because, it’s real effectiveness can only result from a decision of the President of the Republic, or even on the initiative of a second law according to the circumstances and the political objectives.
Indeed, at the origin of this delay lies in the first place the will of the political leaders. This involves anything that would work in favor of the thesis of the politicization of the jurisdictional control of local public accounts. Only, on closer inspection, the delay observed seems to be justified by its legality[3]. Cameroonian positive law in general and the constitution in particular, enshrine for this purpose what is known as the principle of progressiveness. The principle beyond the meaning assigned to it by political leaders (A), and also its significant influence on the establishment of lower audit courts (B).
A. PROGRESSIVENESS IN THE ESTABLISHMENT OF JURISDICTIONS
Progressiveness in the establishment of the institutions of the Republic is an implementation technique that has a constitutional anchor in Cameroon. Thus, according to the constitution of 1996: “the new institutions of the Republic provided for by this constitution will be gradually put in place”[4] and above all, “during their establishment and until this establishment, the institutions of the current Republic remain and continue to function[5]. An analysis of this provision shows that the procedural nature of the implementation or exercise of certain legal institutions such as the lower audit courts is legally founded. This reality is taken up by the law of 2006 within the framework of the organization, the determination of the attributions and the development of the functioning of the lower audit courts. In essence, the establishment of regional audit courts is carried out gradually, according to the needs and means of the State. Reading this constitutional passage, one is tempted to wonder if the regional audit courts are not yet necessary, and if the State does not have considerable means to be able to set up these bodies whose importance is not more to demonstrate in local governance. Could the reason for the curtailed establishment of this local jurisdictional system be found elsewhere? The answer to this question is probably carried away by the wind of political suspicion, which can be better understood through an attempt to decipher the meaning of progressiveness.
B. THE MEANING OF PROGRESSIVENESS
The progressiveness in the establishment of the institutions enshrined in the 1996 constitution has a purpose and pursues certain objectives. These purely constitutional objectives are time bound; and all the more so since every constitution has time as its natural ally and it is over time that a constitution is planned, realized, evaluated[6]. It is therefore understandable why it already appeared difficult and risky to evaluate the application of a constitutional text, only one year after its promulgation[7]. However, more than twenty years have elapsed; progressiveness is still producing its effects and can therefore legitimize the evaluation of the institutional system of local governance in general, and of the lower audit courts in particular. On analysis, this state of affairs stems no less from the experimentation of the well-known rule of the jurists of the application of the law in time, than from a real political determinism. And this goes beyond the objectives that can more or less be assigned to the application of the principle of progressiveness in local governance.
In such a so-called political perspective[8], it should be emphasized that: three main issues must be raised regarding the principle of progressiveness set out in article 67, paragraph I[9] of our fundamental law. It is essentially about the determination of the institutions whose establishment is subject to progressiveness, the determination of the competences in terms of the establishment of new institutions and the control of the pace of establishment of new institutions[10]. The analysis thus opens up the opinion that the observation of local governance in Cameroon seems to give more substance to the third objective, that is to say the control of the pace of the establishment of new institutions. In any event, the constitutionalization of progressiveness does not ignore the requirement of common sense which consists in granting the political authorities the time necessary to set up new institutions, it is less usual on the other hand that the constitutional text even takes the risk of prescribing, so to speak, progressiveness in the establishment of the institutions provided for by the constitution. In short, one could attribute to the established powers the ability to thwart the will of the constituent power through simple inactivity.
In view of this, the fact remains that the prevalence of the political nature of progressiveness deserves to be highlighted. This is because it enshrines the simultaneous existence of three groups of standards[11] which constitute a kind of transitional law that it establishes, in addition to the measures of the same nature that it implores[12]. It is aware of this cliché that the constitutionalization of progressiveness appears as a strategy of honed sense, coupled with the rest of a talented perversity, management or manipulation of political psychology[13]. Even more, one is tempted to see in it the reflection of a deliberate and permanent strategy of political instrumentalization of changes and developments[14]. This seems to be the position of Mr. Alain Didier OLINGA in a rhetorical question that he asks himself in his attempt to understand article 67 of the constitution of the Republic of Cameroon.
Overall, beyond the reasons relating to necessity and more to the availability of resources if one sticks to the 2006 law, it is a position that clearly reflects the political sense of progressiveness in the establishment local institutions which, by extension, constitutes an element of justification for the operational blocking of the regional audit courts, in the same way as the precariousness of the balance of national and local interests.
PARAGRAPH II: THE PRECARIOUS BALANCE OF NATIONAL AND LOCAL INTERESTS
The balance between local interests and national interests shows a certain precariousness. On analysis, this is a balance that is not very favorable to the emergence of local interests which involves anything that could partially constitute a justification for the operational blocking of the lower audit courts. In other words, the tendency to reduce the interests of decentralized local authorities vis-a-vis those of the State can to a certain extent justify the delay in the operationalization of these jurisdictions, including the contribution to local financial governance, is eagerly awaited.
Indeed, it is the constitution of 1996 which gives the constitutional basis of the Regional Audit Courts as an essential link in the jurisdictional system in charge of guaranteeing the financial interests of the decentralized territorial communities. It therefore, left the freedom to the law to determine the form of these courts. This is how one can see a firm will on the part of the law to want to give them a consistent local anchoring and a certain institutional weight. Only, this desire seems to collide with another reality which shows a slow concretization of local imperatives (A), which faces the recognized importance of public service requirements (B).
A. THE SLOW REALIZATION OF LOCAL IMPERATIVES
Slowness seems to characterize the implementation of policies and measures initiated by the State with a view to improving local governance in Cameroon. This attitude stems from the precarious balance that underlies the relationship between national and local interests. Today, therefore, the operational blocking of the lower audit courts is partly justified. Indeed, the realization of local imperatives refers to the materialization of policies aimed at consolidating territorial decentralization through the promotion of regional and local interests. For the region, regional interests probably mean the affairs of the geographical area determined by the region. As far as local interests are concerned, they can be understood as the affairs of the municipality concerning its geographical area. The concretization of the imperatives specific to the decentralized territorial collectivities is understood as the pursuit and promotion of the economic and social, educational, health, sporting and cultural development of these communities, that is to say of the regions and municipalities[15]. As a result development has been retained as a main subject by the constitution itself[16]. Good regional and municipal governance is limited to these objectives. The activities of local authorities are therefore limited to development objectives both at the level of municipalities and regions, thus confined to good governance.
On observation, this vision aimed at transforming the local framework is slow to take shape and not only reduces the ability of decentralized territorial collectivities to act, but also and above all the extent of their financial strength. Thus, the resulting management will also be of a restricted nature; and therefore cannot really require the extension of the organic framework of judicial review. This could be the key to understanding the operational blockage of the regional audit courts from the delay in the concretization of the imperatives of the decentralized territorial collectivities which contrasts with the importance given to the requirements of public service.
B. THE IMPORTANCE OF PUBLIC SERVICE REQUIREMENTS
The notion of public service is complex, with a complexity that stems from its very nature and from the diversity of its forms of emergence[17]. As a result, the apprehension of this notion alternates between the organic dimension and the functional dimension beyond the requirements it entails. The importance accorded to public service requirements in the organization and operation of the regional audit courts renders feasible, if not absolutely, at least considerably, the local anchoring of the regional audit courts, and consolidates their inclination to defend the interests of the State more than those of the decentralized territorial collectivities. This reality justifies in all likelihood the hypothesis of the precariousness of the balance of national and local interests. In this respect, the operational blocking of the lower audit courts can find an element of justification on two levels. Firstly, there is the capacity, although relative, of the Audit Bench of the Supreme Court to ensure judicial control of local public accounts. Secondly, it is possible to raise the problem of the state’s concern to maintain the superiority of its interests over the interests of local authorities. The granting of importance to the requirements of public service in the organization and functioning of the lower audit courts reinforces the superiority of the State vis-a-vis the decentralized territorial collectivities. The public service occupies a central place in public action[18] and appears as an ideological and political notion captured by the law[19]. It constitutes the legal expression of a republican philosophy[20].
It is hardly surprising to see that Mr. Leon DUGUIT seems to share this opinion. According to him, “public services are one of the elements of the State”[21]. The State then justifies its permanence through the help of the notions of public service which, on analysis, remains the cornerstone of administrative law[22]. In doing so, it legitimizes it, in particular through the correlative notions of compulsory, fundamental or sovereign public service. Moreover, these requirements are part of a public service system in the process of reconfiguration between the State and the local authorities for a real consideration of the interests of the local authorities in a context where the State tends to maintain its hegemony. The deployment of the public service today balances between the principles of the unity of the State, the indivisibility of the Republic and the principle of the free administration of the territorial collectivities[23]. In short, the establishment of a balance between national and local interests can produce an advantageous effect in the effectiveness of the jurisdictional control of local public accounts by the audit jurisdictions having local color. This can go through the articulation of the public service between national space and local terrain. It is a solution to the problem of the pre-eminence of national interests at the local level by taking into account public service requirements with a national connotation in the architecture of the regional audit courts. If this plan is to be reached, it could amplify the densification of the judicial network.
SECTION TWO: THE SPECIAL CRIMINAL COURT AS AN OFFICE WITH GLOOMY RESULTS
The improvement of the management of local finances by the fight against embezzlement of public funds and the promotion of a culture of transparency and good governance in budgetary management, constitutes if not mainly, at least incidentally the directed or purposeful orientation of the special criminal court office. In this regard, it should in all likelihood be noted that beyond a unique consideration of the principles of criminal justice in its office, the special criminal court shows a certain sluggishness in achieving this cardinal objective, although shared.
Clearly, the Special Criminal Court today carries out a mission with results that are actually bleak notwithstanding its meritorious judicial action. The action of the special criminal court should materially result not only in the recovery of embezzled public funds, the reflux of acts prejudicial to local finances, but also through the maintenance of quality and balanced justice both organically and functionally. To better understand this ambiguous dysfunction, this research will try to demonstrate that it stems from a compromising organizational framework (I) and an unreassuring functional layout (II).
PARAGRAPH I: A COMPROMISING ORGANIZATIONAL FRAMEWORK
The special criminal court shows a number of structural deficiencies. These deficiencies seem to feed the significance on the place and the interest of the special criminal court in the enterprise of the judicial control of public finances in general, and local ones in particular. Following the classic structuring made around the fundamental organs of justice including the Bench, the prosecution and the registry, it is possible to detect a certain type of emphasis which contribute to darken the results of the special criminal court. These emphases are intimately linked to the structuring and logically constitute the structural deficiencies discussed here. This is clearly the problem of integrating or taking into account the principles of criminal justice in the said structuring. In this context, in addition to the adaptability[24] of these principles in the organization of the special criminal court, one is challenged by their variable nature[25]. It should be emphasized that the observation thus made, can carry by itself some effects. In this order of ideas, the versatility of the principles of criminal justice in the organization leads to the ineffectiveness of the principle of the separation of judicial functions at Bench, the violation of the orthodoxy of the powers of the prosecution authorities and the ambiguity of the principle of appeal against the decision of the examining magistrate at the registry[26].
On analysis, it emerges from this idea that the general problem is human and concerns specialization. Although the law does not expressly state this, one can believe that the specialization in question aims at the involvement of experienced specialists in the handling of criminal cases which, here, are of great complexity. Only, however, we can regret that, given its importance, this specialization is not expressly mentioned in the composition of the special criminal court, except to hope that the advisers referred to in the 2011 law will include specialists in economic and financial issues. For Mr. Spéner YAWAGA, ‘in view of recent texts, there is no longer room for hope. Indeed, the decrees n°2012/192 and 2012/195 of April 18, 2012 appointing the magistrates of the public prosecutor’s office and the bench, came to respond in an unsatisfactory way to this desire for specialization. At the public prosecutor’s office as at the bench, we will be dealing with generalist magistrates’[27]. And yet, the objective of the specialization of the jurisdictions aims only to implement a specialization of the magistrates in the face of a category of offenses deemed special or exceptional.
In reality, these are courts that have to hear cases that require judges to have specific knowledge, linked to specific training. In addition, the other problem that may arise at the head office level mainly concerns the preparatory instruction. The 2012 decree provided for 4 judges at the bench of a court whose jurisdiction rationae loci is national. As a result, this number seems to be insufficient with regard to the potential volume of cases. In view of the preceding developments, the legitimacy of the shady aspect of the results of the special criminal court office seems to be reinforced, through this visibly compromising organization, which is not without negative influence in the functioning of this institution. If this is the case, it is no less true that the unreassuring functional layout also contributes to this.
PARAGRAPH II: AN UNREASSURING FUNCTIONAL LAYOUT
The in-depth examination of the functioning of the special criminal court reveals several dysfunctions that have an adverse impact on the expected results of this considerable institution. Talking about functional impairments comes down to examining the functioning of the special criminal court from its dominant pillars, which are: instruction, judgment and therefore sanction. Indeed, on the functional level, the law has paved the way for solitary work even if the opposite is sometimes possible. This is because this number cannot always make it possible to envisage a form of collegiality, except to create a single group. Only, taken in isolation, certain criticisms are formulated against our examining judges. This is how some of these judges set about resuming the investigation without looking for added probative value, or else and in the opposite case, they are looking for guilt at all costs when they only have to look for the elements charging and discharging. One can then understand the recommendations aimed at making a point of honor on collegiality, and all the more so since it constitutes a principle of the functioning of justice which is based on the concern to limit miscarriages of justice. Collegiality must be understood as the desire to institute teamwork as early as possible in the criminal procedure, in order to defeat any risk of error as soon as possible.
The idea that collegiality prevents error is not new in itself. As a result, one of the traditionally recognized virtues of collegiality is that it allows, through dialogue between judges, to state the law with a little more clarity and certainty due to the consensus born of the synergy of views. Marking his support for this idea, Mr. Roger PERROT observes that: “the single judge system can only function correctly if, at the time of taking office, the judge already has a consummate professional training and a sufficient maturity of mind to be able to rule alone on complex problems”[28]. However, the principle thus formulated should not be understood in absolute terms, because only professional training and maturity of mind can effectively protect the magistrate from error. Reality deserves to be perceived in this way, because error is ontological to human nature and therefore collegiality always retains its full meaning. In any case, without making collegiality a guarantee of success, it is apparent that the legislated staff could pose a problem of work organization, given the complexity of the files to be processed. One could have advised for the appointment of a number of investigating judges that reflects the material and territorial jurisdiction of the special criminal court as that would have made it possible to consider without ambiguity, collegiality in the organization of work.
The French system of training centers is quite illustrative in this regard. Such experience aims to contribute to the proper functioning of the structure for which he can recommend any legal or organizational measure[29]. It does not therefore appear contradictory to think that it is an approach which necessarily contributes to the proper administration of justice, particularly in complex cases, where there are a multitude of accused persons and violations of the public wealth. With regard to the judgment, one notes the intrusive introduction of a judgment in first and last resort, although justified by a not insignificant concern for speed in the procedure[30]. Presented in this way, the solution adopted implies speed in the procedure, that is, it makes it possible to obtain a final decision in a short time. However, it remains strongly criticized, because it goes against another fundamental principle of the good administration of justice. This is the principle of double jurisdiction[31]. The devotion to the repression of offenses by the special criminal court seems to be of apparent ambiguity. The ambiguity that here starts from the consecration of a possibility of stopping proceedings which opens the way to a settlement[32], and leads to the adoption of a corrupting solution[33]. The solution enshrined in Article 18 clearly shows that this provision risks producing perverse effects. In reality, we are in the presence of a corrupt disposition, that is to say, which activates crime, through an incentive to consume the offense combined with the incentive to consume a lot[34]. Be that as it may, the idea of the rehabilitation of the special criminal court was not to promote the embezzlement of public funds. It seemed more than beneficial, beyond the criticisms that can be made about its unsatisfactory results, it must be recognized.
CONCLUSION
The judiciary’s contribution in Cameroon public finance is not to be underestimated. The government has seen the need to bring judicial auditing closer to the people, hence the introduction of the regional audit courts. However, the subjective and ever changing attributes of people and the states need to priotitize the general state rather than regional collectivities has made the decision for a regional audit court stagnant. This lack has caused a congestion of cases in the Audit Bench of the Supreme Court and limited or incompetent workers. There is therefore a need for judicial and well as executive authorities to implement the regional courts and supplement the staff as needed to ensure efficiency in the office of the audit judge.
ACHIH MAHAMADOU JALLO
LLM BUSINESS LAW UNIVERSITY OF BUEA
ACHIHMOHAMADOU@GMAIL.COM
[1] ZAHEED M., La demarche de performance dans la gestion locale,2017, pp. 115.
[2] Ibid.
[3] Art. 67(1) of the 1996 Cameroon Constitution
[4] Ibid.
[5] Idem.
[6] OLINGA A. D., ‘L’article 67 de la constitution’, Lex Lata, No 033, Mars 1997, p. 3-9.
[7] Ibid.
[8] SIETCHOUA DJUICHOKO C., ‘La difficile gestion des juridictions inferieures des comptes au Cameroun’, op. cit.
[9] OLINGA A. D., ‘L’article 67 de la constitution’, op. cit.
[10] Ibid.
[11] According to Mr. Alain Didier Olinga, this trilogy of standards is based on the old provisions which subject to article 68, continue to apply until further notice, certain provisions which are called subject to the existence of a practical impossibility in this sense, to apply immediately; new provisions whose application is temporarily frozen.
[12] GWELTAZ E., ‘Securite juridique et mesures transitoires’, R.F.D.A., 2007, P.275.
[13] Idem.
[14] Idem.
[15] OWONA Joseph, La decentralization Camerounaise, 2011, p. 28.
[16] Idem.
[17] GUGLIELMI G.J., KOUBI G., LONG M., ‘Droit service public’, Paris, L.G.D.J., 4ed., 2006 p. 105.
[18] GUGLIELMI G.J., KOUBI G., LONG M., op. cit. p. 105.
[19] MORAND-DEVILLER J., BOURDON P., POULET F., ‘Droit administratif’, Paris, L.G.D.J., Coll Cours, 15th ed. 2017, p. 565.
[20] GUGLIELMI G.J., KOUBI G., LONG M., op. cit. p. 105.
[21] DUGUIT L., Traite de droit constitutionnel, Paris, Sirey, Tome II, 1923, p. 54.
[22] Ibid.
[23] GUGLIELMI G.J., KOUBI G., LONG M., op. cit. p. 447.
[24] MONEBOULOU MINKADA H. M., op. cit.
[25] Ibid.
[26] Ibid.
[27] YAWAGA S., op. cit.
[28] PERROT R., Insitutions judicaires, op. cit. p. 399.
[29] KARSENTY D., ‘Reflexion sur la mise en oeuvre des poles d’instruction au regard des droits fondamentaux’, J.C.P., 2008, p. 121.
[30] Article 11 of the 2011 law on the Special Criminal Court in Cameroon.
[31] This criticism is justified because the double jurisdiction is a principle of our criminal procedure. To this end, the right to a double degree jurisdiction is set out in paragraph 5 of article 14 of the international convention on civil and political rights adopted in 1966. Under the terms of this text, any person convicted of an offense has the right to have the conviction and sentence reviewed by a higher court in accordance with law.
[32] Art. 18 of the 2011 law on the Special Criminal Court
[33] YAWAGA S., op. cit.
[34] Ibid.