GENERAL INTRODUCTION

      All human beings and the law have as most cherished finality   to attain a state of absolute equality and justice. All of history was a fight for justice but this seems to be an unattainable ideal. To attain this  vision it has been  imperative to establish it as a  preemptive  norm  where  non application is not  permissible .To that, a number  of international and national human rights instruments have been  concluded which Cameroon ratified so  applicable  in  our nation. The aim of this study is to demonstrate the legal framework of protection which in practice are limited because of the political, and socio economic situation climate. Although human rights are  entitlement to all persons by virtue of their humanity, the UDHR marks an important turning point in their international recognition. This  has become a peremptory norm of customary international law[1].Note  should be taken that the right to access justice is a universal right [2]And this document  provides  ‘‘a common standard  of achievement  for all people  and all nations”[3].It is argued that the constitution is the most vital legal document for a nation  that subscribes to the rule of  law[4] because  it  governs the relationship between the  people and their government.[5]The constitution of Cameroon  is a bundle of bill  of rights in its, preamble[6].And pledges adherence to the UDHR, the charter of United Nations and  ACHPR and all duly ratified   international conventions relating thereto[7].Cameroon been a party to six   of  nine  UN  core Human Rights  Treaties[8].This is of advantage as citizens can directly invoke  international  human  rights law   and urge a national judge to apply directly as  the  case  may be in domestic matters. And as per the  constitution duly ratified international  conventions prevail over national laws, so  a Cameroonian   judge can declare any national   law as  invalid  if there’s  conflict of law with human  rights treaty law. In 1990 the national commission on human rights was created with a limited mandate to make recommendation in respect   of investigated cases of human rights violations to the president of the Republic[9].

            To this effect all the rights to justice and equality are of great reference to my work. As the Grundnorm of the state and most needed piece legal piece for the nation is a whole Bill of Rights is true because it provides for strong attachment to ideals of justice and equality. As it reads “Affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights. The charter of the United Nations and the African Charter on Human and Peoples’ Rights and all duly ratified International Conventions relating thereto, in particular, to the following principles; -Equality, liberty No person may be compelled to do what the law does not prescribe, no person may be prosecuted, arrested or detained except in the cases and according to the manner determined by law. No person may be judged and punished except by virtue of a law enacted and punished before the offence committed; the law shall ensure the right of every person to a fair hearing before the courts. Every accused person is presumed innocent until found guilty during a hearing conducted in strict compliance with the right of Defense, every person has the right to humane treatment in all circumstances under no circumstance shall any person be subjected to torture, to cruel, inhumane or degrading treatment, No one shall be harassed. It shall ensure the equality of all citizens before the law.

            All of these aspects of Rights to access justice and equality are great foundation to claim that legal Basis of Protection is strongly rooted. All international convention ratified by Cameroon in domain of ensuring Justice to people equally serve as Guarantees for the right to access justice. As it reads in the constitution “Duly approved or ratified treaties and International Agreements shall follow their publication, override National Laws …”[10].Most of these international conventions shall be of importance to   my study. The state shall ensure and guarantee all citizens of either sex with no discrimination the rights and freedoms set forth in the preamble of freedoms set forth in the preamble of the constitution. So all those rights to defense presumption of innocence and Procedural Guarantees shall be made available to all citizens without discrimination. The constitution is one of main source of defendants’ rights. It covers protections from illegal search, seizure, illegal arrest, detention and prosecution, prevents from retrospective effects of the law.

            The constitution though the Grundnorm and primary source of all rights (right to access justice) other National Laws provide for protection of rights to justice. These laws are mainly the penal code[11].  Cameroon’s Criminal Procedure code of 2005.[12] Which will be abbreviated and used as CPC here. CPC provides for procedural Guarantees. This CPC is a harmonized form of civil and common law judicial systems.  Been a   hybrid of those two systems it stands more for the common law principles which is based on the accusatorial system. This accusatorial system [13]of justice unlike the civil law system of inquisitorial lies on the basis of the presumption of innocence. As it reads “any person suspected of having committed an offence shall be presumed innocent until his guilt has been legally established in the course of a trial where he shall be given all necessary guarantees for his defense. The presumption of innocence shall apply to every suspect defendant and accused”. [14] This code proceeds by defining who a defendant suspect and accused are: it defines a suspect as a person against whom there exists any information or due by which tends to establish that he may have committed any offence or participated in its commission.[15] The defendant shall be any     person an examining magistrate notifies that he is presumed henceforth either as the offender or co-offender, or as an accomplice.[16] The accused shall be a person who must appear before the trial court to answer to the charge brought against them whether in respect of a simple offence a misdemeanor or a felony.[17] Issuance of court process[18] is a means to avoid illegality and abuse of power by judicial officers in the case of arrest, searches, and so on. These documents have to be shown by any official before arrest,(except in fragrant delicto cases) search or any other proceedings. The various court processes are bench warrants, summons remand warrant production warrant, search warrant, warrant of arrest and imprisonment warrant. Once in police custody which is reduced to a period of within forty-eight hours (48) and therein investigation goes on because suspect still presumed innocent still proven guilty by due process of the later. No bodily or psychological harm shall be caused to the person arrested.

            One of the cornerstone criterion for guarantee of right to access justice is the right to a fair trial. This right to a fair trial is a norm of international human rights law designed to protect individuals from unlawful and arbitrary curtailment or basic rights of a person. As it is guaranteed by the International Covenant on Civil and Political Rights (ICCPR)[19] under article 14 of ICCPR which provides the <<everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law>>. This goes in streamline with our constitution [20] which in its preamble says all persons have the right to fair hearing and defense. This right to fair trial is applicable both in determining of an individual’s rights and duties in a suit at law and with respect to determining of any criminal charge against him.  The word “suit at law” refers to various types of court proceedings which could be administrative. This right has become a non derogable right provided for on Article 4(2) of the ICCPR. The right to access justice having been defined will be examined in two phases. At pretrial and actual trial phase. The  right to access justice takes the course  of due process of law Justice to be administered is not only during trial  but from time  of alleged commission of offence ,   arrest  , trial, to subsequent appeal (the right to appeal)[21]..

DEFINITION OF TERMS

            Emile Durkheim recommends that the first step to a sociological work is to define concepts in order to know what they are all about.[22]

The terms to define here are; Protection, Right and Access Justice;

Protection means the state of being kept from harm, loss, etc. the state of being protected. The Protection of a right could be before a violation or redress after violation. The protection here is of the right to access justice equally and fairly to all. There is no protection if despite the textual protection, there are no mechanisms of reinforcement and impunity..

Right:  legally it is a privilege entitled to by virtue of the law. That which is proper under law, morality something that is due to a person by just claim, a legal guarantee. A legally enforceable claim and interest the violation of which is a wrong.[23]A number of rights exist but our attention will be on civil right. In this case all persons have the right to access justice and its institutions.

Justice:  Justice is one of those sublime words attempts at defining which never seem adequate, however the  following definitions may be considered  ;the fair and proper administration of the laws. Here referred to as personal justice which is justice between parties.[24] The same is true for access to justice, which cannot be found as a phrase in dictionaries. For the purposes of this dissertation, however, a clearer understanding of the concept is required. The Philosophical approach is primarily as an ideal: Justice is the fair treatment of people:  on   principles of justice, fairness    and   equality.[25]

Aristotle says justice consists in what is lawful and fair, with fairness involving equitable distributions and the correction of what is inequitable. The notion of justice now becomes more concrete. The challenge is to achieve what political philosophers call a ‘just state’, ‘to govern by promulgated established laws, not to be varied in particular cases’. Ways are to be found to redress an inequality that has always existed in societies where people have not been able to access resources at the same level, and thus from that unequal basis, justice has not been properly administered.

            Access to justice: refers to the ability of people to seek and obtain a remedy through formal institutions of justice and in conformity with human rights standards. Access to justice intersects with human rights in a number of ways. First, it is itself a fundamental human right as set out in Article 8 of the Universal Declaration of Human Rights: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Secondly, it is a means to protect and enjoy other rights. Thirdly, for the right to access to justice to be truly enjoyed, a number of other human rights must also be protected, such as the right to information, the right to physical safety, the right to confidentiality and the right to privacy. A fair and efficient system for providing justice is crucial to the proper functioning of society. Not only does it hold individuals, including state officials, accountable for their actions, but it also sets norms of behaviour for other citizens. This system must be available to the most disadvantaged. There is no access to justice where citizens (especially marginalized groups) fear the system, see it as alien, and do not access it; where the system justice is financially inaccessible; where individuals have no lawyers; where they do not have information or knowledge of rights; or where there is a weak justice system. Access to justice involves normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight.

STATEMENT OF PROBLEM

            The political and socioeconomic situation of Cameroon makes it difficult for many to access justice. Yet justice must not only be done but seen to be done. How then do we ensure that justice is made more available to all who need it, as well as the right to a fair hearing? In other words, how is the efficiency of protection guaranteed?

RESEARCH HYPOTHESIS

            A research hypothesis been a reasonable guess based on available evidence which the researcher intends to check brings us to the evidence that justice which is supposed to be a public service and has to be administered in the name of the republic still   is considered an affair of the elite class. This is so because a number of socio, cultural and even political considerations play in the process. For this reasons many people abandon formal justice for mob justice as a way of seeking redress even though it is really deplorable and against human rights standards.

RESEARCH   QUESTION

            The research question here is based on the problems and practical deficiencies of fair trial as a milestone to justice.

What are those obstacles to access justice in Cameroon?

Or better still is justice in Cameroon accessible to all?

OBJECTIVES OF TOPIC:

            Choosing this topic amongst many was not by chance, but for particular reasons.

Primarily it’s to critically analyze and measure the administration of justice in Cameroon vis-à-vis international standards, shortcomings and the way forward.

And to understand why justice too many is a far reaching dream.

[1]The UDHR is a declaration that has gained the status of law over the years because of it universal acceptance as law (opiniojuris).Many countries have incorporated it in to their constitution and there is no evidence of its rejection by any country. Many of the right   of the right it contains are also customary international law an as such are binding on all subjects of intermational law including those that have not signed and subsequently treaties inspired from the declaration.

[2]Art  8 of  UDHR ‹‹everyone  has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights   granted him by the constitution or by law.››

[3]Preamble of UDHR

[4]Every person is subject to the same laws and no one (however rich or powerful) is above the law principle of equality before the law.

[5] See  B.Siegan(1994)  Drafting a  constitution for a Nation or Republic  Emerging into Freedom,George Mason Univ  Press  pp.72

[6]Unlike that of  2^ndjune 1972,art 65 of the amended  constitution of 1996 explicitly makes  the preamble part of the constitution with   the effects that its provisions have same legal force as other substantive articles.

[7]See preamble of 1996 Constitution

[8]See office of High commissioner for Human Rights(OHCHR)at‹http;//WWW2.Ohchr/English/Law/index.htm core≥(last  accessed  20/20/2010)

[9]Section 2 of Law No 2004/016 of July 2004 to set up  the  organization  and functioning  of NCHRF  that repeals Decree No 90/1459 of  8^th November to    setup The  National Commission On Human  Right  And Freedoms

[10] Art 45 of constitution.

[11] Law No. 67/LF/1/ of June 1967.

[12] Law No. 2005/007 of 27^th July 2005.

[13] Section 307 OF CPC‹‹The burden of proof shall  lie upon the party who institutes a criminal  action››

[14] Section 8 (1, 2 of cpc)

[15] Section 9(1)

[16] Section on 9(2) of cpc.

[17] Section 9(3) of cpc

[18] Section 11 of cpc

[19] International covenant on civil and political rights on general assembly resolution 2200 (XXI) December 16, 1966 enter into force march 23 1976

[20] See above 1996 preamble of constitution

[21]Section 436   of cpc reads‹‹every judgment including that delivered by  a military court shall be subject to appeal, unless  otherwise  provided by law″

[22] Emile Durkheim,1981 Les Regles De La Methode  Sociologigue ,quadrique 20  EDITION  p.34

[23]Blacklaw’s  Dictionary 4^th  edition Bryan A.Garner.P.657

[24]Blacklaw’s  Dictionary 4^th  edition Bryan A.Garner.PP..426

[25]Oxford English Dictionary  8^TH   Edition oxford University Press P..813.. 2010