Constitutionalism and the response to the Covid-19 pandemic under the 1996 Constitution of Cameroon

Chofor Che Christian Aime,
LLM, Ph.D. Pretoria
Senior Civil Administrator in Cameroon

Introduction

The outbreak of the coronavirus (COVID-19) pandemic believed to have emanated from China has created worldwide turmoil as many continue dying, including in Africa. As Africa and Cameroon in particular increasingly become exposed and affected by the virus, policymakers must look into constitutional mechanisms to handle the ravaging effects of this pandemic.

The government of Cameroon has taken measures to stop the spread of the Covid-19 pandemic. Some, which are stringent, include the closing of the borders, private health facilities, schools and hotels. Human rights abuses orchestrated by national defense forces in a bid to manage the Covid-19 pandemic all point to a de facto declaration of a state of emergency in the country. With the spread of the Covid-19 pandemic in the country, concerns are raised on the importance of revisiting the emergency clause and giving more importance to human rights in the Constitution.

Constitutional and Legal Framework regulating responses in case of emergencies

The emergency provision in the Constitution

Article 9 of the 1996 Constitution addresses the issue of emergency powers in Cameroon. Article 9 (1) and (2) state that:
(1) The president of the republic may, where the circumstances so warrant, declare by decree a state of emergency, which shall confer upon him such special powers as may be provided for by law.
(2) In the event of a serious threat to the nation's territorial integrity or to its existence, its independence or institutions, the president of the republic may declare a state of siege by decree, and take any measures he may deem necessary. He shall inform the nation of his decision by message.

The interpretation of article 9 is that the President is attributed to enormous powers under an emergency circumstance. The President’s decision is not subject to any oversight by parliament or judicial review. He enjoys wide discretion to determine which measures are best suited for the situation at hand. This provision points to what Clinton Rossiter considers as a constitutional dictatorship.

One may argue that article 9 undermines constitutionalism by allowing the executive to declare open-ended emergencies, including a de facto emergency such as the case in managing the Covid-19 pandemic in Cameroon. The Constitution is silent on the duty of the parliament and the judiciary; this means that the executive has an upper hand in declaring emergency powers in the country without appropriate checks and balances. Cameroon has adopted the position of the jurisprudence of the French case of Rubin de Servens, by enforcing the same in the country as evidenced by the case of Kouang Guillaume Charles contre Etat du Cameroun judgement No 66 ADD/CS/CA du 31 Mai 1979. This jurisprudence relates to the view that emergency powers are unreviewable and unchecked. These are political acts vested with political immunity and judges, all of whom are in any case appointed by the President, are forbidden from reviewing them.

A major reason may account for the disregard for constitutionalism in times of a state of emergency in Cameroon. The parliament and the judiciary cannot evaluate the validity of the declaration of a state of emergency. The process of defining the scope of the emergency powers and legislation is exercised by a quasi-judicial organ, the Constitutional Council, which entertains matters that may be brought before it only by the President and a restricted group of state officials such as the President of the Senate. It would, therefore, be illogical to believe that the President or his political associates will refer to the Constitutional Council the unconstitutional acts they themselves have committed.

The Constitution of Cameroon lacks mechanisms to impose appropriate constraints on the executive. The entrenched executive powers, by themselves, are subversive of constitutionalism.

Limitation on Rights in the wake of the Covid-19 pandemic

As regards human rights, the Constitution, unlike most post-1990 constitutions, lays emphasis almost entirely on civil and political rights, although some mention is made of certain social and economic rights. Almost all the fundamental rights outlined in the Constitution are found only in the preamble. This makes it complicated to promote and protect human rights in a situation such as the outbreak of the Covid-19 pandemic.

Some major UN treaties have been ratified by Cameroon. Equally, it has signed and ratified the African Charter on Human and Peoples’ Rights (the ACHPR). The country has opted for a monistic system with respect to international law: all international treaties Cameroon has approved and duly ratified and published are supposed to become part of domestic law. Furthermore, article 45 of the Constitution confers a higher normative status on such agreements or treaties that enable them to trump any domestic legislation that goes against them, not excluding the Constitution.

While article 65 asserts that the preamble is an integral part of the Constitution, the non-provision for an effective enforcement mechanism for human rights portrays the bad faith of the constitutional architect. By implication, human rights, especially in the wake of the Covid-19 pandemic are not justiciable in Cameroon. Additionally, in Cameroon, socio-economic rights may be considered as simply state directive principles without any signs of future commitment to their justiciability. This makes the inclusion of Article 65 in the 1996 Constitution a possible excuse for the executive arm of government to avoid criticism, responsibility, or better still, the government merely wants to demonstrate its commitment in principle to the UN’s human rights treaties to which it is party, while in practice the situation remains precarious.

Towards protecting constitutional rights in times of an emergency

Emergency and human rights mechanisms exemplifying best practices have been evoked based on the experiences of South Africa as a benchmark for the review of Cameroon’s emergency situation. The following framework, which is by no means exhaustive, may serve to align Cameroon’s emergency regime and powers with acceptable practice in global democracies.

Oversight by Parliament and the Judiciary

As noted above, the process of declaration, as well as review of emergencies, practically excludes both the parliament and in the judiciary. Accordingly, there are no proper oversight mechanisms on the declaration and enforcement of emergencies. In the response against the pandemic, the government has not so far declared a state of emergency, despite taking measures that may only be justified under such circumstances. Reforms are therefore necessary both in the regulation of the process of declaration of emergencies, judicial review of government decisions as well as the human rights guarantees in the Cameroonian constitution.

Most modern constitutions endorse the principle that the legislature should declare an emergency through a special and expeditious procedure. The legislature should, therefore, reserve that power, when it considers it justifiable to ratify the declaration, to modify its terms or to revoke them. So a modern framework like a democratic constitution and legislation should provide clear guidelines for government in situations of emergency as a means of preventing possible abuses that could be orchestrated as a result of the open-ended nature of a provision like article 9 of the Cameroon Constitution. Apart from giving the legislature powers to decide on the declaration of a state of emergency in Cameroon, the process of appointment of judges and its entire institutional structure should equally be reformed for judicial power to be practically vested in the courts. This would enable any competent court in Cameroon to decide on the validity of a declaration of a state of emergency, for how long it lasts and to review any legislative Act taken in consequence of the declaration of the state of emergency. In South Africa, in pursuance of section 37, an emergency can only be declared in terms of an Act of Parliament. Even after such a declaration, any competent court may still rule on the validity of the legislation enacted in consequence of the declaration of emergency. The emergency must also conform to the country’s obligation under international law in times of emergency.

The need for a Bill of rights

Enforcing fundamental rights entrenched in a constitution is vital to their effectiveness. Exhaustively mentioning rights in a constitution does not suffice. It is important to make sure that any violations of human rights are quickly attended to: the lack of adequate enforcement bodies reduces the value of a constitutional framework. Accordingly, a bill of rights must be entrenched in the Cameroon Constitution and the rights in the bill may not be limited by any law other than a law of general application, and its limits must be clearly defined and not allowed too much discretion.