The Paradox of Constitutional Transformation Under the 1996 Constitution of Cameroon

Laura-Stella Enonchong

De Montfort University

Introduction

The 1996 Constitution of Cameroon was adopted at a time of great expectations when the country appeared to be transitioning from an authoritarian state to a modern constitutional democracy. It epitomised a break with the authoritarian features of the 1972 Constitution, and indeed, was described by the executive as a Constitution ushering a new era with respect to the separation of powers and checks and balances. Yet, more than two decades on, that Constitution has failed in several respects to meaningfully regulate political life or to respond to pressing societal demands. This Blog post aims to analyse two overarching aspects of constitutional design which have obstructed meaningful constitutional developments in Cameroon. 

An Equitable Separation of Powers or Hyper-Presidentialism?

The previous 1972 Constitution provided for an unsatisfactory system of separation of powers underpinned by an over-concentration of power with the executive. This was purportedly remedied by the 1996 Constitution although in reality, the separation of powers is the first myth undermining meaningful transformations in politics and society in Cameroon. Whilst there is a clear institutional separation of powers, functionally, that separation is questionable. In analysing this issue, we must begin by noting that the separation of executive power takes the form of semi-presidentialism, such that executive power is supposedly shared between the Prime Minister and the President. However, that separation is heavily skewed in favour of the President who is responsible for the appointment and dismissal of the Prime Minister and his cabinet. Although the Prime Minister is constitutionally the head of government, government policy is defined by the President and implemented by the Prime Minister. Yet, where the confidence of the government is called into question by parliament, it is the Prime Minister and the government who must resign even though the impugned policy originated from the President. 

Further presidential dominance can be seen in the legislative domain, despite purported reforms to strengthen parliament and to enhance popular representation by introducing a Senate, the upper house of parliament. Thus, the President is endowed with powers to rule by decree, to dissolve the National Assembly (lower house of parliament) and to unilaterally regulate states of emergency without a requirement to consult parliament. The President appoints thirty members of the 100-member Senate, providing significant leverage for the executive within the Senate.  

In addition to these issues, the judiciary has had little impact on improving the protection of human rights and holding the executive accountable. This is so despite the fact that the 1996 Constitution elevated its previously subordinate status from an ‘authority’ to a ‘power’ on par with other governmental powers. However, substantively, the judiciary remained subordinate to the executive, in particular, the President, as was the case under the 1972 Constitution. Thus, the President retained powers as the guarantor of judicial independence, and in that respect, acts in consultation with the Higher Judicial Council (HJC) which is meant to ‘provide its opinion’ to the President on matters of the judicial tenure (such as appointment, promotions and discipline). Whilst such a system may appear attractive as a cooperative mechanism for securing judicial independence, two things must be noted. Firstly, the HJC only provides an opinion to the President who is not compelled to follow it. Secondly, and crucially, the President is the chair of the HJC which is meant to advise him. In effect, the President therefore advises himself on action to take with respect to the appointment, promotion and discipline of judges. This explains to a significant extent why judicial independence is severely compromised to the extent that judges are restrained from acting assertively towards the executive. In the rare instances where some judges have acted heroically to decide against the executive in high profile cases, they have been faced with disciplinary action.

The 1996 Constitution further consolidated these vast presidential powers through a constitutional amendment in 2008 granting the President immunity from prosecution whilst in office and following the expiration of his term. Whilst Article 53 makes provision for an impeachment mechanism, as exists in most constitutional systems, this is an extraordinary remedy and in the particular case of Cameroon, depends on an indictment by a parliament which is subordinate to the executive. Given the nature of the considerable powers described earlier and the lack of a credible accountability mechanism, it is fair to conclude that there is hardly an equitable separation of powers but more of a hyper-presidential system. This situation is indicative of the fact that the 1996 Constitution did not transform presidential power in a way that promotes accountability and good governance. The old system has been perpetuated under this Constitution with any permutations geared at further consolidating executive dominance. 

Lack of a Credible Mechanism to Promote a Progressive Constitutional Ideology

In a modern constitutional system, constitutional jurisdictions play a vital role in consolidating constitutional transformations particularly through the adjudication of electoral disputes and the protection of human rights. This is crucial in Cameroon partly because the 1996 Constitution did not remedy the problem of a flawed electoral system designed to consolidate incumbency advantages. This explains to a significant extent why, since the supposed democratic transition in 1990s, the ruling CPDM has consistently dominated the National Assembly and since 2013, that has also included the Senate. The Constitution made provision for a Constitutional Council with jurisdiction in constitutional review and adjudication of electoral disputes relating to presidential and legislative elections. However, for inexplicable political reasons, the relevant legislation to establish it was not enacted until 2018 prior to presidential elections that year. In the few cases decided since 2018 when the Constitutional Council actually came into operation, it has overtly undermined democracy by deciding in favour of the ruling CPDM party even where the evidence indicated undisputed instances of gross electoral malpractice and collusion with the Electoral Commission to favour the incumbent government. One major reason for the stance taken by the Council is the fact that like the judiciary, the members of the Council (the judges) are dependent on the President. This restricts the extent to which they can act fairly to promote transparent and credible electoral processes.

Moreover, its remit is limited in the protection of other fundamental human rights. First, in terms of constitutional review, its powers are limited to pre-legislative review. Second, standing is limited to political actors such as the President and legislators who are initiators of laws that may potentially be impugned for their constitutionality. Thus, ordinary citizens who are more likely to be affected by legislation undermining their human rights have no recourse to challenge their constitutionality with the effect that they continue to be subjected to rights infringing laws. 

Conclusion

The failure of the 1996 Constitution to introduce meaningful changes to the constitutional system is a paradox of constitutional transformation, explained by the absence of substantive changes to an authoritarian political ideal. The very process of constitution ‘making’ in the 1990s set the democratic revival on a flawed path given that the aspiration of the people for a new progressive Constitution was thwarted by the adoption of an extensively revised 1972 Constitution. This was presented to the people as a new document, the 1996 Constitution, which to all ends preserved existing authoritarian themes. Meaningful transformation in Cameroon must therefore be conceived in the light of a shift away from the ethos of the 1996 Constitution, both procedurally and substantively. 

Laura-Stella Enonchong is Senior Lecturer in Law at De Montfort University, United Kingdom

Suggested Citation: Laura-Stella Enonchong, ‘The Paradox of Constitutional Transformation under the 1996 Constitution of Cameroon’ IACL-AIDC Blog (4 October 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/10/4/the-paradox-of-constitutional-transformation-under-the-1996-constitution-of-cameroon.