CHAPTER ONE

GENERAL INTRODUCTION

To better apprehend this chapter, we shall be looking at the background to the study, Statement of the problem, research questions, research objectives, research methodology, Literature review, research gap, theoretical framework, justification for the study, significance of the study, the scope of the study, limitation, definition of key terms and Synopsis of chapters.     

1.1 BACKGROUND TO THE STUDY

The Constitutional Court[1], as an authoritative body regarding the application of constitutional control[2], issues decisions that would take the place of the segment of the legislative text that has been proven to be illegal[3]. In this context, the decisions have the character of law and as such should be applied in the context of admitting a notification of unconstitutionality. The decisions and rulings of the Constitutional Court are generally binding and has a retroactive effect[4]. Consequently, all public authorities are obliged to respect the decisions and rulings of the Constitutional Court.The mandatory nature of the decisions of the Constitutional Court is a subject of real topicality, a fact that incites various analysis to elucidate the necessity of this characteristic. A written constitution is generally intended to have specific and legally binding effects on citizens’ rights and on political processes such as elections and legislative procedure. This is not always true with most African constitution, for instance, constitutional rights may not be enforced in courts of laws and the constitution has only aspirational not judicial effects.

If a constitution is intended to be binding there must be some mechanism put in placeto enforcethe decision or an act that is contrary to the constitution and providing some remedy when this occurs. We call this process            ‘constitutional review’, carried out either by a specialized constitutional court or by courts of ordinary jurisdiction. They are however many variations on each model, and some systems are even said to be ‘hybrid’.

A constitutional court (sometimes called a ‘constitutional tribunal’ or constitutional council’) is a special type of court that exercises only the power of constitutional review. It is defined by Alec Stone Sweet[5] as a ‘constitutionally established, independent organ of the state whose main purpose is to defend the normative superiority of constitutional law within the judicial order’. In other words, its role is to review laws,stemming from the executive acts and other institutions, to decide whether they are constitutionally valid and provide a remedy in cases where they are not. It exercises this power exclusively: no other court or body can engage in constitutional review. Bodies of this kind exist in about eighty-five (85) countries around the world. The system in which constitutional courts exercises exclusive jurisdiction is called the ‘centralized’ system of constitutional review. It is called the ‘European’ system given that it was invented by the Austrian Legal Scholar Hans Kelsen[6] and is found in European states such as Austria, Germany, Italy, and Spain and those that followed suit are Colombia, Russia, Republic of Korea, Turkey, and Taiwan. This centralized system contracts with systems in which constitutional review is carried out by a court with ordinary jurisdiction and this concerns all questions of civil, criminal, and public law- not just constitutional questions. In such systems, any court can engage in constitutional review. Typically, in this system the power to decide constitutional questions with finalities lies with the highest (apex) court, usually the supreme court, indicating its primacy over the courts. The other kind of it is not centralized, it was developed in the United States[7], it is sometimes called the ‘diffused’ or ‘American’ system[8]. Examples may be seen in Argentina, Australia, Canada, India, Japan, and the Philippines. The constitutional court is often seen as an essential mechanism to achieve and entrench democratic reforms, such as instituting multiparty democracy. States that have created constitutional courts have done so largely because they see the court as a necessary guardian of democratic institutions, constitutionalism and fundamental rights following a period of military dictatorship or totalitarian government. In general, constitutional courts have decided cases which has paved the way to encourage democratic politics and dialogue between different organs of the state, most constitution-makers have preferred the centralized model to the diffused model of constitutional review. Consequently, in the 1990s the centralized model was already well established in Western Europe which rapidly spread across Eastern and Central Europe, West Africa, South America, East Asia and elsewhere.

Constitutional courts are typically more of civil law countries than common law countries. Most European and Asian countries use the civil law system. In the British Commonwealth, which consists almost entirely of common-law countries, the diffused model is almost universal (South Africa is notably an exception). Francophone West African and Middle Eastern countries invariably use the centralized model. Some civil law countries (e.g. Japan) use the diffused system, while some common law countries (e.g. Myanmar) use the centralized system.

Prominent and influential examples of centralized system around world include Colombia, France, Germany, Indonesia, Republic of Korea, Spain, and Taiwan (all civil law countries), and South Africa (which displays a mix of common and civil law). However, not all civil law countries used the centralized system (Argentina, Japan, and Sweden, for example, do not). Prominent examples of the diffused system include Australia, Canada, India, Malaysia, Nigeria, the United Kingdom, and the United States (all common law countries). The United Kingdom does not have a unified written constitution, but its high courts and newly reformed supreme court decide questions of constitutional significance.

The main motivation in establishing a constitutional court is to create a strong and specialized judicial-type body capable of enforcing a new constitution or a new constitutional deal. Reforming an existing apex court or giving it powers of constitutional review as in the diffused system, has not generally been considered adequate to the task. A major and influential example is Germany’s Federal Constitutional Court, established in 1949 under the post-war Basic Law. However, constitutional courts have also played an important part in encouraging elements of democratization, even under authoritarian regime (for example in Egypt both before and after the Arab spring).

In line to this, the Constitutional Court equally has a major influence in the sense that, it is an instrument through which the guarantee of checks and balances between the various arms of government is ensured. Constitutional Courts according to the Cameroon Constitution state that the Constitutional Council shall give final ruling on, the constitutionality of laws, treaties and international agreements, the constitutionality of the standing orders of the National Assembly and Senate prior to their implementation, conflict of powers between State institutions, between the State and the Regions, and between the Regions[9].

The peculiaritiesof theConstitutional Courts rulingsarethat it is not subject to any appeal[10], it directly obtains a legal force which is binding to all citizens and public authorities(that is they are automatic) This therebefore means, all parties must obey and implement the Constitutional Court Decision. Based on this legal foundation, the Constitutional Court’s decisions are‘erga omnes’. They equally have a permanent legal force that is to say they have as force which is‘resjudicata’ meaning it is the first and the last court, no other remedies can be taken.

 The process of gaining independence through these oversees colonies accelerated the putting into place of new institutions which was remarkable in the early 1960s, following the proclamation of the independence of the Malian Federation. The movement became so intense that reflections were made on the exercise and nature of African mode of governing.The objective assigned to these Constitutional Courts was to promote a rapid socio-economic development plan and a multiparty democracy battered by an authoritarian regime. The consecration of this provision can also be best explained by the fall of the Berlin wall, and it is as from the 1990s that it took a worldly dimension, and it paved the way to constitutional reforms which awoke the civil society considered to be the potential force of the nation and led to preoccupations and pressures from international monetary fund who were worried in securing their investments.

With these new constitutions, political regimes became diversified amongst which some differ from the French model but despite these differences, these new constitutions owe sometechnics put in place by the 1958 constitution characterized by a rationalized parliamentary system aimed at maintaining some equilibrium amongst the various arms of government. Nowadays these new African constitutions is not due to African mimicry but due to the internationalization of constitutionswhich is achieved through some double mechanisms which is that of incorporation and harmonization[11].

The creation of Constitutional Courts came to institute another form of organization of courts, considering this one play a greater role than those of the Supreme Court[12]and on the other hand benefits a special and autonomous status. Constitutional courts or constitutional councils that appeared during these last decades proved to be effective when looking at their attributions. It is without doubt that the French constitution will be copied taken into consideration the significance of its functioning and organization as well as its organic laws, modes and procedures of referring matters to constitutional courts. The institutional model varies since it stems from two systems; the European and the American system of control of constitutionality of laws and they can better guarantee and protects the fundamental rights of citizens. It is due to this formula that constitutional courts will be attributed other classical functions like that related to electoral litigations or the respect of procedures relating to the revision of the constitution. The 2001 Senegalese constitution will assume this same architecture different from the precedent fundamental law. The constitutional council is mentioned in the title consecrated to the judicial power.

Whereas most African constitutions have given room for an autonomous constitutional jurisdiction that symbolizes power given to the judiciary and not to the judicial authority as it was the case with former constitution, and it functions out of the judicial structure. This specificity is also seen in their competence or binding force conferred to their decisions which most often imposes on political authorities. Amongst this devolution of competence, we can cite some countries who control regulatory acts’ ‘Acts touching on the fundamental rights of persons and public liberties’’ (In this case we can cite Benin and Gabon). Control on electoral matters effectuated by the constitutional judge does not limit itself to presidential, legislative and referendum but equally to local elections as it is the case in Niger. The constitutional court of Cameroonand Benin equally has the duty to cooperate with the electoral Independent National Commission when it concerns the organization and supervision of electoral processes and even censorship operations. Other African countries such as South Africa have created a commission at the benefit of constitutional jurisdictions to act as court of first instance to hear electoral disputes before is taken to the constitutional council for its final verdict.

The important role played by these courts have made constituent legislator to give more privileges regardingtheir status and mandate irrespectiveof their mode and criteria of designation of judges, and which might jeopardize their independence. Priority most often is given to professional experience in law field (such as Professors of laws, lawyers, magistrates) when it comes to the choice of designating or appointing constitutional judges and this experience goes to fifteen years as it is the case of Senegal and Mali. Other constitutions make mention representative of human rights defense (Niger) and personalities of high moral conduct (Benin), certain texts goto the extent of requiring the possession of a tittle of a Doctorate Degree in Public Law for those who represents law faculty. Just like in France, it is a general principle that, members of constitutional courts are designated by political authorities and of which they vary in their numbers. For instance, in Cameroon, they are composed of eleven[13] members and seven[14]inBenin. The duration of mandate of judges varies, for instance Cameroon has retained the French solution which is nine years nonrenewable before the 2008 amendment which is now six years[15]. In Benin, Gabon, and Niger the duration is five years, six years in Ivory Coast and Senegal. Seven years in Mali and generally nonrenewable except in Benin[16] and Gabon that is renewable once, the judges benefit some jurisdictional immunities during their term of office[17]It is in matters of referrals that a distinction between some African constitutions and the French is felt. If majority of these African constitutions have conferred the control by way of action to political authorities’ while others have conferred it to individuals and public authorities.

According to Section 50 (1) of the Cameroon Constitution, “Rulings of the Constitutional Council shall not be subject to appeal. They shall be binding on all public, administrative, military and judicial authorities, as well as, on all natural persons and corporate bodies”. And Section 15 (4) of the Law of 2004 laying down organization and functioning of the Constitutional Council to emphasize: “They shall be enforced forthwith”. These provisions give the decisions of the Constitutional Council absolute authority of res judicata to the extent that they do not admit any remedy. In the words of Alain Didier Olinga, these decisions are final, irrevocable and intangible”. The analysis of this provision on one hand,may be redundant, while on the other hand, it may also be deficient. Redundant because binding force is per se an essential quality of any decision of any state body, organ or agency: to be deemed a decision it must involve the parties concern or subjects that took part in the proceedings under legal obligations. The provision may also be found deficient because it is inadequate in degree (that is in implementation). This authority of res judicata raises the problem of its implementation, in particular because of the non-existence of the measures tending to insure it. The authority of the Council’s decisions on the judicial authorities poses a particular problem arising from the absence of a mechanism imposing the Constitutional Council’s jurisprudence on other jurisdictions. As in France and the opposite of Italy and Germany where the constitutional judge is placed at the top of the jurisdictional system, the Cameroonian Constitutional Council is located besides the judicial system. In this case, the authority of its decisions can be assured only through the will of other judges who would like to be bound to its positions. From the authority of res judicata, these decisions become endowed with the authority of the thing interpreted, which simply reflects their influence on the jurisprudence of other judges. This can only be valid through a constructive dialogue recognizing the constitutional council, not as the higher institution, but the one charged with giving the correct interpretation to the Constitution. Also, the judge, when rendering his decision on the constitutionality of laws, is invested with the relative authority judged, meaning his decision applies only to the parts of the trial only inter partesand declares the law unconstitutional, he will simply dismiss the application for the dispute before it, but cannot annul it in erga omnes. The law remains in force, it does not disappear from the legal order and can be invoked during another litigation. The Cameroon constitution as well as the law governing the organization and functioning of the constitutional council lack the provisions on who is bound by the decisions, which parts of the decision (only its operative part or reasoning) enjoy a legally binding effect, what are the sanctions for the breach of the obligations stemming from the decisions and the mechanism for the execution or enforcement of the constitutional court decisions. The authority of the decisions of the court on the administrative authorities equally raises the problem of their application by the authorities in charge of implementing them. In the matter of constitutional review, the President of the Republic was rather reluctant to apply the decision of the court ruling as a Constitutional Council, as it appears from the case of the rules of procedure of the National Assembly as enshrined by the Cameroon Constitution[18]and of which certain provisions have been declared unconstitutional[19]. By promulgating the said rules of procedures with the provisions censured by the Constitutional Court, the President of the Republic thus placed himself unilaterally above the decisions of the Constitutional Council, thus weakening dangerously the authority of this high court.

1.2 STATEMENT OF THE PROBLEM

The idea of constitutional mimicry is at the center of doctrine analyzing constitutional phenomenon in sub-Saharan African countries. This makes us to understand, there have been a transfer of western constitutional ideology in our legal edifice, and this has led to a partial integration of principles governing western constitutional law in Africa as a whole[20]. From this idea, our research will be coin around one fundamental question; what is the nature of rulings of the constitutional judgein Cameroon and Benin?

The application or materialization of this provision which might look simple in its enunciation is complex and can be apprehended from its main idea and question. The applicability of this provisionhas witnessed some setbacks which is a call for concern. We can therefore observe some violations in its application which warrant us to reexamine the said provision. This therefore creates some gap in the theory of check and balances in favor of the executive.

1.3 RESEARCH QUESTIONS

 Mindful of the aboveproblem statement, this research will respond to one main research question split into five specific questions.

1.3.1 Main Research Question

To what extent are rulings of the Constitutional judgesbinding in Cameroon and Benin?

1.3.2 Specific Research Questions

• What is the authority of rulings of the Constitutional judges in Cameroon and Benin?
• What is the legal natureand mechanism to enforce the implementation of the court ruling?
• What is the relationship between the constitutional court and ordinary courts
• What sort of procedure is to be expected and what actual verdicts and remedies do constitutional courts have at their disposal?
• What appraisal can be made on the binding force of rulings of theConstitutional judge inAfrica
• What proposals can be made on the enforcementof therulings of the decisions ofconstitutional judge in Cameroon and Benin?

1.4 RESEARCH OBJECTIVES

1.4.1 Main Research Objective

• To critically appraise to what extent is the binding force of rulings of the Constitutional judge enforceable in Benin and Cameroon.

1.4.2 Specific Research Objectives

• To examine the authority of the binding force of rulings of the Constitutional judges in Cameroon and Benin.
• To examine the legal nature and means of enforcing the implementation of the court ruling in Cameroon and Benin.
• To examine the relationship between the constitutional court and the ordinary courts
• To examine the procedure expected and actual verdicts and remedies constitutional courts have at their disposal.
• To make recommendations on the binding force of the rulings taken by the constitutional judge within Cameroon and Benin.

[1] For the definition of constitutional jurisdiction, see: FAVOREU (L), ‘’Constitutional Justice’’, In: Olivier DUHAMEL, Yves MENY, Constitutional Dictionary, Paris; PUF, 1992, p. 556; HOLO (T), ‘’Emergence of constitutional justice’’, in Revue Pouvoire, no 129, 2009, pp. 101-11; FROMONT (M), ‘’The diversity of constitutional justice in Europe’’, Annuario Ibero americano de justiciar Constitutional, no 9, Madrid 2005,

89. 89.

[2] These different modes can be mandatory, controversial, facultative, interesting depending on the mechanism that is adopted. These two mechanisms of control can be direct (by way of action) or indirect (by way of exception).

[3] Constitutional justice permits the petitioning of laws that are repugnant to the constitution before the constitutional judge thereby calling for its control.

[4] This is ‘’ex tunc’’ effect of an annulment decision. It is as if the norm has never existed in the legal order.

[5] Alec STONE.W, ‘’The Oxford Handbook of Comparative Constitutional law’’, Oxford University Press, 2012 pp.816-830

[6] KELSEN (Hans), “Théorie pure de droit, traduction Française de la 2^em ed. De la Reine Rechtslehre’’ par Charles ELSEMANN, Paris, Dalloz, 1997, p. 300.

[7]In the case of Marbury vs Mardison that, the supremacy of the constitution over ordinary laws was established and this was rendered on the 24 of February 1803 by the famous judge Marshall,making this judgment the cornerstone of the constitutional review. The facts of this important case are as follows. After the anti-federalist Jefferson won the presidency in 1800, outgoing President John Adams took advantage of the last moments of his presidency to appoint his judges men recognized for their federalist convictions. In a hurry, he failed to address the appointment letter to some appointed persons including a certain William Marbury. After taking office, Thomas Jefferson will appoint James Madison as Secretary of State and order him not to notify the Marbury appointment in order to render the appointment ineffective. The latter will thus seize the Supreme Court presided over by John Marshall to give an injunction to the Secretary of State to notify his appointment in accordance with the Judiciary Act of 1789, so that he can be installed in his duties as judge. The judge ruled that although the judiciary can issue injunctions to the Government, the Judiciary Act relied on by Marbury (which allowed the Supreme Court to rule in the first instance) is unconstitutional as Section 3(2) of the Federal Constitution excludes the Supreme Court jurisdiction over cases in the first instance, since it rules exclusively on appeal from decisions rendered by lower courts. The judge said: “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument’’.

[8] It is an offensive mode of petitioning law characterized by the existence of a unique jurisdiction which is not in order of hierarchy and designated by political authorities.  

[9] Article 47(1) of the Constitution of the Republic of Cameroon of 02 June 1972. Amended and supplemented by law number 2008-1 of 14 April 2008.

[10] Article 50(1) of the Constitution of Cameroon previews that “Rulings of the Constitutional Council shall not be subject to appeal. They shall be binding on all public, administrative, military, and judicial authorities, as well as on all natural persons and corporate bodies.

[11]Charles MANGA F, ‘Internationalization of Constitutional Law and Constitutionalism in Africa’ The American Journal of Comparative law, Vol 60 2011 pp. 444-470.

[12] Judicial power according to its terminology varies amongst texts of which some considers the Supreme Court as the highest in legal, civil, administrative, and financial matters or as ‘’cour de cassation’’ or ‘’conseil d’Etat’’ as called in France.

[13] Article 51 (1) of the Constitution of the Republic of Cameroon

[14] Article 115 of the Constitution of the People’s Republic of Benin

[15] Article 51 (1) of the Constitution of the Republic of Cameroon

[16] Article 115 of the Constitution of the People’s Republic of Benin

[17] Article 93 of the Ivorian constitution of August 2000.

[18] Article 47 (1) stipulates that “The Constitutional Council shall give a ruling on: the constitutionality of the standing orders of the National Assembly and the Senate prior to their implementation”.

[19] Case CS, Decision Num 001/CC/02-03 of 28 November 2002

[20] Article 93 of the Ivorian constitution of August 2000.