GENERAL INTRODUCTION

0.1: BACKGROUND TO THE STUDY

Government finances were formed in the nineteenth century as part of a liberal state and they aimed at funding key state activities such as diplomacy, defense, police and justice^[1]. This implies that, the purpose of these financial resources was not to achieve objectives in terms of Economic and Social Development.

Following the events of the early twentieth century, such as World War I, the birth of a Socialist State, starvation and so on, modern public finances were created. In an attempt to support production and restructure the country, the State had to intervene more and more in the economic and industrial sector after World War I in 1916. The main aims of this intervention was to effectively allocate state resources, distribution of income amongst citizens and of course state stability.

There was the introduction of a government budget which was the projection of the governments revenue and expenditure for a particular period of time which is often referred to as the fiscal year. Several principles were put in place in order to ensure the proper execution of programs. Some of these principles are linked to forecasting the budget (principle of annularity) some to budget authorization (principle of universality and unity) and others are linked to budget execution (principle of specialty and separation of authorizing officer and accountant). The focus of this dissertation will be on the principle linked to budget execution; the principle of separation of authorizing officers and accountants in public finance. Executing a budget implies making planned expenses and collecting revenue provided for, in the budget.

The principle of separation of authorizing officers and public accountants is a principle which has structured public financial law since the beginning of the 19th century. It was for the first time with the decrees of the 24 vendémiaire and 17 frimaire year III (end of 1796 early 1797) for revenue and in 1822^[2] for expenditure that the principle of separation of the authorizing officer and the accountant which is a principle of budgetary law was inserted into French legislation, reaffirmed several times, until the decree of December 29, 1962 on the General Regulation on Public Accounting (RGCP). The authorizing officer received the roles of commitment, liquidation and payment, and the accountant, the role of cashier.

The principle was later taken over by other countries, especially African countries such as Cameroon in the ordinance of 7th February 1962^[3]. This text was adopted in the post-independence context in order to meet the needs of the state. The main objective was to participate in the organization of the life of the nation.

Like all the principles of separation known to French public law, separation of powers in constitutional law and separation of administrative and judicial authorities in administrative law, the separation of authorizing officers and accountants results in a double separation which is organic and functional. It commands an organic and functional separation of competences, the same authority not being able to combine the two functions. This separation, successively taken up by the various texts governing public management, pursues a dual objective: an objective of control by making it possible to identify errors and upstream irregularities before the money has left the public coffers and an objective of probity, because two agents are less tempted to deviate from the rules than one. The implementation of the state budget is governed by this principle of separation. Recently, this classic principle suffered from minor infringements: these were justified by particular circumstances and were strictly limited and controlled. Where there is a violation of this principle, the perpetrators of the acts will be severely punished by competent courts provided for in the laws of the state.

This research will first study the principle of separation properly and the system of responsibility of the two categories of agents and also look at the infringements and deviations in this principle in application.

0.2: THE STATEMENT OF PROBLEM​

As the main tool for promoting good financial governance and therefore for combating the embezzlement of public funds, the principle of separation stands out in terms of two main considerations. On the one hand, it imposes independence in the exercise of the functions of authorizing officer and those of public accountant. This is because it is inadvisable, for the security of public funds, to leave in the hands of the same person or those of close relatives, the realization of administrative and accounting operations of execution of public finances. On the other hand, it induces mutual control between the authorizing officer and the accountant, a guarantee of the security and regularity of public funds. Each of the parties has an exclusivity of competences sanctioned by a strict incompatibility regime that provides that an accountant cannot be the spouse of an authorizing officer. For example, the spouse of a Mayor cannot be an accountant of the municipality in question.

Over the years several cases of misappropriation of funds by actors of budget execution have become rampant. Examples of such cases involve;

– Former prime minister and assistant secretary general at the presidency, Ephraim Inoni and former secretary general at the presidency and formal minister of higher education, Jean-Marie Atangana Membera^[4] accused for the misappropriation nor embezzlement of the sum of 287.4 million FCFA jointly. The money was allegedly pocketed in the process of awarding a contract to Aircraft Portfolio Management (APM), the company that was contracted to audit Camair’s leasing contracts back in 2003. The promoter of the APM, Kelvin Walls was the accused while Inoni and Membera were the co-accused.

The two ministers were also accused of siphoning 1.425 billion FCFA which were funds that were transferred in excess to an Austrian company that was contracted to repair Camair’s planes

– Former general manager of SODECOTON, Iya Mohammed.^[5]

This brings us to a situation where, despite the adoption of the principle of separation of authorizing officers and accountants which is enshrined in the laws of Cameroon to ensure transparency in the execution of state budget and to eradicate corruption and embezzlement of state funds by actors involved in the execution of the state budget, illicit enrichment and embezzlement is still a common practice amongst these actors.

0.3: DEFINITION OF KEY CONCEPTS ​

0.3.1 PUBLIC FINANCE LAW 

The finance law is defined under section 12(1) of law no 2018/012 of the 11th July 2018 relating to Fiscal Regime of the State and other Public Entities as that law which determine the income and expenditure of the State, defines the conditions for budgetary and financial balance, to adopt the State budget and to report on its execution. It follows that the definition of finance law is legislative by nature.^[6]

In other words, public finance refers to the study of rules and operations relating to public funds. According to the organic criterion, public finances can also be presented as all the rules governing the finances of the State, local authorities, social security bodies, public institutions and all other legal persons governed by public law. It is a field at the crossroads of tax law, constitutional law, as well as public accounting. 

0.3.2 STATE BUDGET

The State budget is the act that authorizes and provides for the coming year the resources and expenses of the State and thus determines the financial means of the Government’s action. Once voted and promulgated, its execution must be followed. However, Article 46^[7] stipulates that: “The operations of implementation of the State budget are the responsibility of the authorizing officers and public accountants, under the conditions defined by regulation and in particular the decree regulating public accounting. These operations concern the execution of programs, revenues and expenses, cash management”. This means that accountants and authorizing officers are the two categories of actors responsible for the implementation of the budget

0.3.3 THE AUTHORIZING OFFICER

The authorizing officer is defined as any person having the capacity on behalf of the State or public bodies to prescribe the execution of revenue and expenditure entered in the State budget. He initiates the administrative phase by deciding to make an expense or collect a revenue. The authorizing officer is responsible for the proper execution of the programs. In terms of revenue, he issues the proceeds, and in terms of expenditure, he judges the appropriateness of the expenses of the State he incurs, liquid and order. “Authorizing officers are litigant before the body responsible for budgetary and financial discipline, the organization and operation of which is fixed by a particular text”.

The authorizing officer is also defined in law only in the context of public finance. The glossary of legal terms notes that the authorizing officer constitutes a “category of public officials of the State, local authorities and public establishments, who alone are competent to prescribe the execution of public revenue and expenditure” _[8] This definition remains substantially the same in the Legal Vocabulary, for which the authorizing officer is an “authority empowered to instruct a public accountant to collect or disburse funds on behalf of a public body (most often, the authorizing officer is at the same time the authority empowered to commit the expenditure of these bodies)”^. Professor LOÏC PHILIP goes in the same direction, when he writes that the authorizing officer is a “public authority which prescribes the execution of revenue and expenditure. To this end, it establishes the rights of public persons, liquidates and collects revenue, commits, liquidates and orders expenditure ^[9]. Professor CHARLES ETIENNE LEKENE DONFACK also sees the authorizing officer as a public authority, which in addition to its administrative duties, benefits from a special status granting it decision-making powers in financial matters ^[10].

As for Ordinance No. 62/0F/4 of February 7, 1962 on the financial regime of the Federal Republic of Cameroon amended by Law No. 2002/001 of April 19, 2002, it gave no clear and precise definition of the authorizing officer. The same was true for the 2007 law on the financial regime of the State, which was content to specify the role and the different categories of authorizing officers ^[11]. Law No. 2009/011 of July 10, 2009 on the financial regime of RLAs does not comment on the definition of the local authorizing officer either. It is in the decree n° 2013/160 of May 15, 2013 bearing RGCP that it is necessary to find a definition, not of the concept, but of the quality of authorizing officer. The economy of this definition is given in article 10 of the previously cited decree: “Any person having the capacity on behalf of the State or public bodies to prescribe the execution of revenue and expenditure entered in the budget is an authorizing officer. of State “. This definition will be taken up by article 65 of the law of July 11, 2018 on the financial regime of the State and other public entities.

 All in all, the notion of authorizing officer of the municipal budget is understood within the framework of this study as all the people having the competence to prescribe the execution of public revenue and expenditure.

0.3.4 THE ACCOUNTANT

A public accountant is any public official duly empowered to perform revenue, expenditure or securities handling operations, exclusively and on behalf of the state and other public entities, either using funds or securities in his custody, or by internal transfer of entries or through other accounting officers.^[12]

French Decree No. 53/714 of 09 August 1953^[13] provides in its first article: “A public accountant is any civil servant or agent qualified to exercise on behalf of the State, a public authority or a public institution, operations of revenue, expenditure or handling of securities, either by means of funds and securities in his custody, or by internal transfers of entries, or through other public accountants”.

0.3.5 PROGRAMS

Section 30 (3) of the 2018^[14] law defines program as an assembly of “appropriations intended to implement an action or a coherent set of actions under the same ministry and with which special objectives are assigned, defined according to purposes of general interest as well as expected results.”

Programs therefore convey a new category of information linked to public finance management. This information from the public administration must be contained in a regularly drafted document. the government is therefore called upon to present the activities that meet the needs of general interest and as such it is important to implement programs to be carried out within the administration for the realization of objectives determined within the framework of the function.

[1] PAYSANT ANDRE ”Public Finances “, Paris, Armand Colin 5th Edition, 1999, p470

[2] Royal ordinance of September 14, 1822

[3] Ordinance no 62/0f/4 of 7^th February 1962 on the financial regime of the Federal Republic of Cameroon

[4]The state of Cameroon v. Ephraim Inoni, Jean-Marie Membera, Otele Essomba, Hubert Patrick, Kelvin Joseph Walls, special criminal court Yaoundé, Judgment no. 28/CRIM/TCS of October 02, 2013

[5] The state of Cameroon v. Iya Mohammed, Mahamat Karagama, Christophe Mbaiougam, special criminal court, Yaoundé, September 3, 2015.

[6] Article 12(1) of the Law n° 2018/012 of the 11^th July 2018 relating to Fiscal Regime of the State and other Public Entities

[7] Article 46 Of The Law of 2018/012, on the financial regime of the state and other public entities.

[8] RAYMOND GUILLIEN, JEAN VINCENT “Glossary of legal terms”, Paris, Dalloz, 2001, p.463

[9] LOÏC PHILIP, ‘Public Finances’, Paris, CUJAS, 5^th edition Revised and expanded, 1995, p. 453.

[10] LEKENE DONFACK (Etienne Charles), “Finances Publiques Camerounaises,” Paris, Berger-Levrault Coll. Mondes en devenir, Mars 1987, p. 216..

^[11]Art. 51 lists three categories of authorizing officers in Cameroonian financial law.

[12] Article 5 of decree no. 2020/375 of July 2020 relating to the general rules and regulations governing public accounting.

[13] Art. 58(1)) French Decree No. 53-714 of 09 August 1953

[14] Law no. 2018/012 of July 11, 2018, laying down the financial regime of the state and other public entities.