ABSTRACT

The control of public finance in Cameroon is critical in ensuring sustainable development, economic stability and social welfare. The judiciary in Cameroon is an active participant in the State’s bid to provide effective mechanisms to prevent financial mismanagement, corruption and misuse of public resources, which can undermine the overall development goals of Cameroon. The judiciary has a great role in public finance but even with their active participation, there are various cases of misappropriation and corruption.

This research is aimed at examining the role that the judiciary plays in the control of public finance in Cameroon, the drawbacks the judiciary faces in its control function and solutions that could be used to fix those drawbacks. The data collection for this research was done using the doctrinal method specifically, exegisis and case law. To appropriately accomplish the aim of this research, this work focuses on the judicial control bodies used today, which are the Audit Bench of the Supreme Court, the Regional Audit Courts which are not yet functional, the Court of First Instance, the High Court and the Special Criminal Court. The Audit Bench is the highest body that controls public finance in the judiciary and it has the role of conducting audits, investigations and adjudicating cases related to public finance irregularities.

The judiciary faces certain drawbacks in the performance of their function such as limited financial resources and human resources, lack of specialized expertise, procedural complexities and potential external pressures, which makes their performance inefficient. It is important that the judiciary promotes financial transparency; accountability and good governance as effective judicial interventions can deter corruption, hold accountable those responsible for financial mismanagement and restore the public trust in the management of public funds.

This work points out the potential solutions to the challenges faces by the judiciary, such as ensuring independence and impartiality of the judiciary and fostering transparency and access to information. All in all, this research highlights the significance and challenges of the judiciary’s role in overseeing public finance management. By addressing these issues, Cameroon can strengthen its governance system, improve accountability, and foster sustainable development for the benefit of the citizens.

Key Terms: – Judicial Control            – Financial Auditing

GENERAL INTRODUCTION

0.1. BACKGROUND OF THE STUDY

In 1927, Edgard Allix wondered about the need to publish his book titled ‘Traite Elementaire de Science des Finances et de legislation financiere francaise.’ This was because he considered that ‘where there is neither finance nor a means of discerning any policy in the incoherent provisions and in the day to day expediency suggested by growing distress of the budget and the treasury, a manual of financial legislation is superfluous.’[1] According to him, such a manual would have been reduced to recording only provisional solutions which he knew would be modified according to circumstances and could only have set out the fundamental principles by adding that the practice had ceased to comply with it. He changed his mind, noting an almost unexpected recovery due to the rapid restoration of budgetary balance by the creation of new tax resources, the consolidation of the treasury, the de facto stability given to currencies which attested to the fact that the states were returning to sound methods and good financial policies. These words express the intensity of the subject of public finance which lies at the heart of public needs.

Jean Bodin, a French jurist and political philosopher once said “money is the sinews of war.” This phrase emphasizes on the power of finances in both ancient and modern society. Public finance is an indispensable lever in government policy as it controls the budgeting and allocation of state finances. Public finance can be seen in both its political and economic dimensions. The tendency of public finance to be flexible and shift according to circumstances is probably one of its essential characteristics. It is flexible in its political, economic, legal and social dimensions. Gaston Jeze, later on followed by Michel Bouvier explained that public finance is both heterogeneous and complex which makes it difficult to grasp a complete understanding of the subject.[2] The heterogeneity of public finance contributes to the enrichment of the subject matter but presupposes that the presentation is in an extremely strict form.

The legal aspects of public finance are revealed in three dimensions: budgetary law and the presentation of the rules for drawing up public budgets, public accounting law and presentation which are accounting rules for the execution of expenditure and revenue operations and lastly, public finance controls, whether political, administrative or judicial.[3] For a long time, public finance has been essentially known as state finance. There has however been an evolution on what the subject constitutes and it is now known to include local and social finances.[4] This initial definition of public finance does not sum up the scope of public finance on its own. Eric Oliva demonstrated in his article on the normative definition of public finance, that depending on the dimension studied, that is, between budgetary law, public accounting and auditing, the topic might seem more or less intense. Ultimately, it is a question of appreciating public finances in all its singularity because public finance loses its public character in certain respects. An example being when Audit Courts exercise control over private organizations, which appeal to the public’s generosity.

All states are aware of the need for diversified, in depth control of their operations. This need has grown as the scope of modern state intervention has expanded. The renewed interest in the political meaning of control is relatively recent. For a long time, the over simplistic idea of limiting governments or rulers by the people they governed has remained on the sidelines of the transformations that have profoundly affected the essence and functioning of the modern state. It should be promoted to its rightful place, now that the strengthening of controls in all areas now appeared to be the only way to avoid the arbitrariness of a renewed power, and to contain these changes within the minimum limits imposed by the dialectic of freedom and rationality.[5] The search for new counterweights in the definition of new institutional order is partly the result of the inadequacy of the traditional means of control. It does not, however, call into question either the value or the deep rooted meaning of control and cannot be justified by the alleged decline of such power. The problem lies in the methods and principles of liberal society. Without attempting to redefine the theoretical content of the notion of control which has been the subject of abundant literature, it is worth noting that it is now firmly located at the center of any debate on the state or on power. This is a fundamental phenomenon.

The principal concern is controls exercised on behalf of the administration itself, or on behalf of the authority which holds the political power and which concerns the both the conditions of operation of administrative and para-public management, and its financial management. They are entrusted to specialized departments or organizations, which depending on the case, either an administrative nature through services and contracts or of jurisdictional nature, through courts of audit. The practical purpose of control is determined by its place in the political system. The scope and significance of the function of control has relative value. The concept is in fact dualistic: its legal content depends closely on its ideological definition. This dual aspect is crucial to understanding the problem of control. The ideological meaning of control can be found in both political philosophy and economic theory. Its legal significance and scope must be considered simultaneously from a structural and a functional viewpoint. Classical control schemes are generally based on the distinction between the control of public finances and the control of public services and para-public management. These two areas overlap to a very large extent. In formal terms, these schemes contrast internal controls with external controls. The latter may be exercised by bodies of varying status and nature, whose relationship with the traditional powers will be established on different bases. The solutions adopted in practice are the result of possible options and the constraints inherent in political regimes.

With regard to the possible options, control can be exercised either through hierarchical or through specialized departments or bodies. These are not mutually exclusive. The theoretical options concern both structure of control, that is, internal or external, dependent or autonomous, diversified or integrated, and its modalities, especially in terms of when it should be exercised (preventive and/or a posteriori). They are not merely technical in scope, as they result from the teleological definition of control within the legal and political edifice of the state. The solutions adopted reveal a distinction based on the status of the body vested with the control function. There are control systems characterized either by the attribution of specific powers to a non-jurisdictional authority, independent to the active administration, for example, Common Law and the Audit system, or by intervention of jurisdictional bodies, whether specialized or not, which is the Civil Law model.[6]

On the other hand, in other systems, the control function may be exercised by the executive authority, as in the case of the authoritarian control in Marxist democracies, or it could be entrusted to bodies placed under the legislative power like the German-Scandinavian type of legislative. The significance of the control function in developing countries is by definition, partly irreducible to that of classical models. The content of the control systems will be marked by a greater or a lesser degree of originality, particularly in African states. They must satisfy their need for a very strong control over all sectors of national life which are relevant to state policy. In addition to strictly technical objectives assigned to auditing, it must respond to the two fundamental concerns that have guided the policies of the leaders of the new African states, which are, socio-political integration and economic development.[7] It is not possible to understand ideologies, the interplay of political and social forces, the attitudes of leaders and peoples, the structure and functioning of institutions. These are two poles of empirical policy of development, which realism has steered away from ideological constructs that would have been too far removed for concrete problems to be solved.

The relative value of the control system lies in its necessity in the national framework, and in the web of traditions and socio-economic constraints within which remains the fundamental tool of the political system. Socio-political integration can only be achieved authoritatively, given the multiple forces that naturally oppose it, due to traditional social structures and ethnic cleavages. Authoritarian regimes, however, cannot be satisfied with the external and independent controls found in liberal regimes. In theory, control has two essential functions: eliminating political arbitrariness and limiting administrative imperialism. It would then have to generate institutions and procedures to match. Controlling political arbitrariness will be materially all the more difficult when power is highly centralized. The more power is centralized, the more the control relies on a powerful uni-party, constituting essential political decisions being done at the center. This will lead to an imperialist attitude on the part of the largely politicized administration. It will be important to limit this attitude, both to respect rights and to avoid undermining the necessary dynamism of state action in favor of development. In the administration of economic development, the bodies and agents involved tend to reinforce their autonomy and avoid the constraints imposed by politicians. In practice, economic interventionism and management of development policies have led to tighter controls on economic agents, whatever their legal status.

In any case, the determination of the purpose of control is closely linked to the nature of the economic system adopted by the state. In planned economies which are common in African states, the government generally uses financial control as a means of guiding and regulating the activities of economic agents, in conjunction with those of the executive bodies. The influence of control is therefore decisive in achieving the objectives of planning policy, in improving the management of administrative policies and public establishments, and in the rational use of budgetary resources. [8]Part of the difficulty lies in determining the exact nature of the economic system, most often a hybrid one, to which favors a particular control. Control must therefore focus on both the implementation of development policy and budgetary management.

Public finance is the study of public funds and how governments raise, spend and distribute cash. It is an essential component of any government and has significant impact on how a country works. Public finance is an integral part of any government’s operations and as any other important subject, it needs to be regulated. In Cameroon as in many other countries, public finance is a significant area of concern due to the potential for corruption and mismanagement of public funds. To ensure that public funds are used for their intended purposes and that government officials are held accountable for whatever malpractice may be committed, the judiciary plays a critical role. The management of public finance is a crucial aspect of economic development and it is essential to have effective mechanisms in place to ensure transparency, accountability and efficiency. The authority given to the judiciary to control public finance in Cameroon was provided for by Article 83 of law no 2018/012 of 11 July 2018. Article 83(1) states that operations relating to the execution of finance laws are subject to triple control: administrative, parliamentary and judicial. The judicial control of public finance in Cameroon is a vital component of the system provided by its 1996 constitution and helps in the system of checks and balances between the three arms of government and to prevent corruption and misappropriation of public funds. As such, the judiciary serves as a watchdog for the effective implementation of public finance policies and regulations. The judiciary comprises a hierarchy of courts which include the Supreme Court, Special Criminal Courts, Court of Appeal and lower courts.

The system of control of public finance in Cameroon is double faceted; involving both a priori and a posteriori forms of control, with the judicial arm being a part of the a posteriori control body. The reinforcement of the local finance control is an impact of the reform of the local finance control system. To this end, it constitutes a systematic result of the reduction of the a priori control. Thus, it appears to be a completely logical mechanism, with regard to the missions assigned to the control of public finances in general,[9] and local finances in particular. Clearly, control constitutes a real means of stabilizing public finances.[10] That said, it should be noted that one of the main measures to improve budget execution is the strengthening of a posteriori controls[11]which is in line with the confirmation by the government, of its commitment to strengthen the monitoring of the execution of the budgets of the decentralized territorial communities in Cameroon. Indeed, the a posteriori control intervenes at the end of the budgetary exercise, that is to say, after the execution of the financial operations registered in the budget of a local authority within the framework of a year on a provisional basis. This control has undergone reinforcement, that is, a fortification of its operationalization framework to better achieve its purposes.[12] In essence, it is possible to foresee a strengthening of a posteriori controls through the amplification of judicial control.

As early as 2017, an evaluation from PEFA (Public Expenditure and Financial Accountability) suggested reviewing the architecture of public finance controls in Cameroon, which appeared costly and ineffective. It raised a lack of clarity in the identification and the prerogatives between the CONSUPE (Controle superieur de l’etat), the Court of Auditors and the Parliament with regards to audit and external control. It also highlighted the organizational weaknesses and the inadequacies of the budget preparation, reporting and execution process, the existence of controls most often focus on regularity and compliance of priori controls that do not guarantee reliability of data and limited posteriori controls.[13] These difficulties however worsened since the adoption of the law no 2018/011 and law no 2018/012, on one hand due to the code of transparency and good governance in the management of public finances in Cameroon and on the other hand, to the Organic Financial Law. The law has integrated CEMAC directives of 2011 into domestic laws and clearly distinguished between administrative, parliamentary and judicial control.[14]

0.2. DEFINITION OF KEY CONCEPTS

0.2.1. JUDICIAL CONTROL

Judicial control is a process by which the judiciary has the power to either review actions already carried out or actions in the stage of implementation.[15] Judicial control is also known as judicial review and it gives the judiciary power to review actions executive, legislative and administrative actions. A court with authority for judicial reviews may invalidate laws, acts and governmental action that are incompatible with a higher authority. That is, an executive decision may be invalidated for being unlawful or a stature may be invalidated for violating the terms of the Constitution.[16]

Judicial control in the constitutional law of the United Kingdom is defined as the control by courts over certain decisions taken by administrative and other decision-making bodies. The procedure is most often in relation to the control of the administrative actions by public bodies. The general rule is that courts will not interfere in the normal decision making process with the exception being when a decision which is deemed unreasonable is taken. Judicial control is a well-known state policy to curb excesses in power and acts committed ultra vires.[17]

0.2.2. PUBLIC FINANCE

Public finance is the study of government activities which may include spending, deficits and taxation. Public finance recognizes when, how and why the government should intervene in the current economy and also understands the possible outcomes of making changes in the market. It is primarily a method used to manage public funds in the nation’s economy and plays a vital role in a nation’s growth and development, domestically and internationally.

According to Ishwor Thapa, the literal meaning of the term public finance is the study of the allocation of economic resources for achieving the goals of public affairs; getting this meaning from ‘public’ which means governance and ‘finance’ which means scientific management of money.[18] Hence public finance is the study of the allocation and management of resources and technology for achieving the goals of public organization. However, the literal meaning makes the term narrow. The term has been evolving with time to mean ‘the question of how the government raises its resources to meet its every expenditure.’

John Dalton defines public finance as a subject concerned with the income and expenditure of public authorities and with the adjustment of one to the other. Accordingly, effects of taxation, government expenditure, public borrowing and deficit financing on the economy constitutes the subject matter of public finance.

A renowned economist Philip E. Taylor, defines public finance as a study which deals with the finance of the public as an organized group under the institution of the government.[19] It therefore deals only with the finance of the government which includes the raising and disbursement of government funds. Public finance is concerned with the operation of the fiscal science, its policies are fiscal policies and its problems are fiscal science. Thus, public finance is a part of political economics which discusses the way in which government obtains revenue and manages them.

These definitions adequately show the essence of what was public finance and what is has evolved to be. A study into public finance explains its importance and how delicate it could be if not appropriately controlled or overseen. The definitions are more or less uniform in their essence. However, this study is carried out based on the definition given by John Dalton as it is precise and will be true even with the changing nature of public finance.

0.3. STATEMENT OF THE PROBLEM

In reality, it has always been necessary to create a framework to minimize the risks of waste, loss of resources and misappropriation of funds for private gain. Quite logically, the onerous task of ensuring this was the responsibility of the financial jurisdiction provided for in successive constitutions. In particular, it was entrusted with the task of controlling the regularity of public accounts, to ensure that public money was spent in accordance with the will of elected representatives and for the purposes for which it had been authorized. However, this type of control came up against a legal vagueness that significantly reduced its effectiveness and efficiency. Indeed, several texts enacted at the time had somewhat relativized the scope and significance of judicial control of public finances in Cameroon. This was the case with Law N° 61-3 of April 4, 1961, which created an Audit Bench within the Supreme Court, whose mission was to audit public accounts. Subsequently, articles 100 to 125 of Ordinance no. 62/0F/4 of February 7, 1962 created a Federal Audit Office, defining its powers, organization and operation. On November 10, 1969, the President of the Republic promulgated Law N° 69 -LF-17 abolishing the Audit Bench. A few months earlier, the 1969/1970 Finance Act of June 14, 1969 abolished the Cour Fédérale des Comptes, transferring its powers to the Inspection Générale de l’Etat (IGE). This double abolition removed these institutions (the Cour Fédérale des Comptes and the Chambre des Comptes) from their original functions of auditing public accounts, and entrusted them to an institution internal to the executive, in this case the Inspection Générale de l’Etat (IGE). In so doing, the very purpose of legal control of accounts was severely distorted, and considerably emptied of its meaning.

As a result, fundamental reform was urgently needed. The Constitution of January 18, 1996 introduced a major innovation by creating an Audit Chamber within the Supreme Court, and the law of April 21, 2003 specified its organization and operation.[20] However, there still has been various cases of misappropriation of funds and corruption within this Bench due to inefficiency and lack of resources.

Corruption in Cameroon has been called ‘Cameroon’s worst kept secret’ by Thomson Reuters,[21] and Cameroon has persistent problems with corruption according to BBC News. This, along with all sorts of misappropriation of public funds plagues Cameroon. There is therefore a need to reaffirm the roles of those in charge of the control of public finance in Cameroon as they are proving somewhat ineffective in their application of control. The judiciary, as one of the bodies taxed with the control of public finance in Cameroon, has to an extent been inefficient in carrying out its role as a controlling body and the state still faces serious cases of misappropriation of funds without appropriate preventive or punitive measures or the personnel to implement these measures.

[1] ALLIX Edgard, Traite Elementaire des Science des Finances et de Legislations Financiere, (5^th edition, Rousseau & Cie 1927) p. 3.

[2] BOUVIER Michel, ‘Rehabiliter et refonder la science des finances politiques’, Melanges Amselek, 2005, p. 134.

[3] Stephanie DAMAREY, Finances Publique, Facompo, (11^th ed, Gualino-lextenso) p. 20

[4] ORSONI Gilbert, ‘Les Finances publique sont-elles encore les finances de l’etat?’, Melanges Amselek, 2005, p. 650

[5] Jean-Marie BRETON, Le Controle Adminstratif et Financier (Persee) p. 249.

[6] Jean-Marie BRETON, Le Contole Adminstratif et Financier, (Persee) p. 250.

[7] Ibid p. 251

[8] Jean-Marie BRETON, Le Controle Adminstratif et Financier (Persee) p. 263.

[9] STÉVE Thierry B., La Reforme du control de la depense publique au Cameroun (Presses Universitaires de Rouenet du Havre) p. 106.

[10] Ibid p. 114

[11] Memorandum de Politique Economique et Financiere joint a la letter d’intention du 6 Decembre 2000, paragraphe 15, p. 7.

[12] O’CONNOR, ‘Les Finalites du Control Interne et du controle externe’, La reforme du cadre juridique pour une meilleure gestion des finances publiques au Cameroun. P. 111-127

[13] ‘Genesis of the Diagnostic Study on the Architecture of Cameroon’s Public Finance system of Control’ (Expert in External Public Auditing (Supreme Audit Institutions), 15/07/20) <expertise-france.gestmax.fr> 02/05/23.

[14] Ibid.p. 6

[15] Elliot M, ‘The Constitutional Foundations of Judicial review’, Oxford, England; Hart Pub, 2001.

[16] https://en.m.wikipedia.org> 5/5/23.

[17] West’s Encyclopaedia of American Law, Edition 2.

[18] ISHWOR Thapa, Public Finance: Concept, Definition and Importance for Country’s Development, (Tribhuvan University) p. 8.

[19] Dr. D. Bose, Dr. S. Ganesan, Dr. A. Marimuthu, An Introduction to Public Finance (Fiscal Economics), p. 1.

[20] Jean Marie ONDOUA ‘Controle des Finances Publique et Demarche Performantielle: Role et Missions de la Juridiction Financiere’ La Loi Pourtant Regime Financiere de L’etat: Quel Bilan Dix Ans Apres sa Promulation? (CIL 2017) p. 41.

[21] THOMSON Reuters, Why Corruption is Cameroon’s worst kept secret, (TrustLaw) p. 2.