Chaining the ghost of power abuse

In a country with scant regard for separation of powers, clearly delineating the extents to which the executive, legislature and judiciary can encroach into each other’s sphere of influence without occasioning turmoil in the polity, cacophony becomes very obvious in any attempt to establish a conversation between justice and equity on the one hand and justice as per the highest bidder on the other. This seems to be the case with Cameroon where disregard for the principle of judicial sanctity has overridden the much acclaimed credo of “equal rights and justice” for all a la Robert Nester Marley, aka Bob Marley.

In the circumstance, some unscrupulous government functionaries have immersed themselves deep into illegalities that make mincemeat of the rule of law or due process, evoking in their wake an atomistic society perpetually at war with itself. Breakdown in law and order has become customary, with the executive arm of government pocketing a legislature complicit in relegating the judiciary to a pun on the chessboard of a towering oligarchy. Local administrators instead of sworn men of law call the shots on purely legal issues.

Matters that are supposed to be heard in originating and appellate courts are surreptitiously transferred to military tribunals. In the event, sentences that have no basis in law are sometimes passed on innocent citizens with little or no prospect of appeal. Such capricious indulgence has its root in obnoxious ego pampering, intended to attract the attention of a deified individual who, ironically, is the head of the judiciary.

As if the situation had not aroused enough drudgery for the ordinary Cameroonian, the now ubiquitous crisis pitting separatist militias against the Biya regime has intensified the situation by the agency of a free-for-all that has attracted disingenuous approaches to pandering to the whims of the maestro of the classical orchestra called Cameroon. Apart from being an all comers affair, it has elicited commentaries of variegated leanings depending on which side of the contending factions they emanate.

Such is the case with a municipality that seems to have been atrophied by the shenanigans of its incidentally upturned Mayor, Ekema Patrick Esunge. Leaning on the vagaries of the crisis, the Mayor has gone into overdrive, oppressing the very denizens whose wellbeing is supposed to be his primordial concern. With pistols reminiscent of American Wild West he struts the streets of Buea accompanied by heavily armed goons, ready to crush any opposition. Boutiques and other business premises are vandalized all in the name of fighting ghost towns.

The legality of his actions remains a moot point as only a court order can authorize the closure of business premises according to current legislation. However, in a system that doesn’t clearly lay claim to respect for the rule of law or due process, Ekema deludes himself in pyrrhic victories, forgetting that the crisis like any other incident on planet earth is amenable to the law of mutability that should end sooner or later.

To edify readers on the ramifications of such apparent deviousness as represented in the malfeasance of the careworn mayor, Barrister Eta Besong Junior, a legal luminary and onetime President of the Cameroon Bar Association consented to an exclusive interview. The inflections of legal implications raised by the legal chieftain leave no one in doubt as to the lawlessness that the Mayor’s actions evoke and the unpalatable consequences that ought to accompany such gung-ho approach to managing public affairs particularly for someone who was elected to protect the very persons he is now hurting.

As always, it is a reader’s delight from The Rambler stable to be savoured with relish.

Read on:

What is your opinion on the legitimacy or otherwise of persistent recourse by the Mayor of Buea to sealing shops within this municipality?

Firstly, the mayor sealing people’s business premises even for a day, one hour, one minute, one year or any length of time is illegal. Every businessman has the right to carry out his business unperturbed, so long as it complies with the regulations to carry out the business. For a mayor to seal stores in the guise of fighting the socio-political unrest reveals a poor appreciation of his role as guarantor of the welfare of citizens within his jurisdiction.

Why is it illegal?

 It is illegal in the sense that, in Cameroon there are laws which govern things like that and penalties for infringement of the law must be applied. You don’t provide a penalty which the law has not itself provided. It is not for anybody… not even the Governor, President of the Republic has the right to provide a sanction which is not provided by law. So the law does not give the mayor the right to do what he is doing.  We have what is called principal penalties, accessory penalties or preventive measures. It is clear they must be provided by law. Once they are not provided by law, you cannot carry them out and even questions of seizure, confiscations are issues which must be determined by a court of law. That is to say there must be a court decision ordering a closure of an establishment, the sealing of an establishment, the confistication of any material in any establishment; it must come by way of a court decision. So, if there is no court decision, nobody has the right to do that type of stuff.  Sometimes they might say the mayor is acting as a municipal authority, but the council is not the mayor. The mayor is one of the executive members of the council but he is not the council, and the municipal decisions and orders are taken by the council in session. The council must sit and take a decision. If that decision is for execution by the mayor, he can only execute it, but when a council decision interferes with public rights, it must have the visa of the supervisory authority.  Now the supervisory authority is the Ministry of Decentralization. If the council takes the decision, it must have the visa if it affects the general public interest for it to have a force of execution.  But there is no council decision to the best of my knowledge which empowers the Mayor under which he can pretend to go around sealing business premises and destroying people’s properties.

Can the mayor be sued since as you put it, what he is doing is illegal? Better still, can he be criminality charged for his actions?

Yes he can. The answer is that every illegal act can be prosecuted in court criminally because if you look at Section 1 of our penal code, the 2016 law which says all persons are equal before the law and are subject to criminal law. Not only in the Cameroon criminal law courts but also subjected to international treaties and conventions wherein Cameroon has ratified. So he can be sued. If you look at the Penal Code Section 34 which talks about closure of an establishment or business places.  The closure of a business is an accessory penalty but which must come after a court decision. If the court has not decided, you cannot execute what is not allowed by law; so if he goes and does that, he can be prosecuted because for one thing he has abused his functions. In law, we say he is acting ultra-vires; that is acting outside the powers the law gives him. Any act that is outside and in contravention of private interest can be prosecuted.

In this case, who can or should initiate criminal prosecution?

In this case the persons whose rights have been infringed can initiate criminal proceedings. It can be initiated by making a complaint to the police or the Gendarmes with a declaration that you are going to claim damages.  The authorities are supposed to take a statement from you as a complainant. Then they are supposed to get witnesses who were present during the infringement; they will now get statements from the person you are complaining against. The Mayor in this case, is called the suspect so they will get a statement from the suspect; he will have to come and explain his actions. They will tell him what the complaint is about, the possible criminal charges against him in accordance with the penal code and ask him to make a statement.

But how would the aggrieved be required or expected to complain to the same police, gendarmes or soldiers with whom the mayor goes around breaking and destroying?

You see, the unfortunate thing for these policemen and gendarmes who are accompanying the mayor is that they are ignorant of the law. The position of the law on this is that, ignorance of the law is not an excuse. So since they are   committing criminal offences, both the mayor and his council workers, the policemen, gendarmes, soldiers who are accompanying him are co-offenders or assessors. So, all of them can be prosecuted. You would sue them in their personal names but you see, they requisition these military people or these forces of law and order and they follow him blindly in executing an illegality.

The law provides for that, if you look at sections 95, 96, and 97 of the penal code, they are assessors, they are co-offenders and they can be charged for conspiracy.

These people who go about perpetrating this with the Mayor often commit assault and battery in the process of arresting people who supposedly broke seals or who simply failed to open their business premises. Sometimes they are arrested and detained until they pay up. Where does such money go to?

First of all, let us look at what they have done, whether it is legal or illegal. The sealing of a man’s business place is illegal and therefore, that businessman has the legitimate right to break the seal. This is what the common man does not know. You have a right to forestall illegality. Self-help is a remedy, so the law says the sealing must be in conformity with legal orders. So if there are no legal orders, the sealing must be lawful. If the sealing is unlawful, you have the right to destroy it. He had sealed this office once, and I destroyed it and I wrote to him, the Procureur General, and since he came with the military I wrote to the military and police to tell them that they were committing an illegality. The business owner has the right to break the seal because the seal is put there unlawfully.

 How about in the case when they commit assault and battery?

It is illegal to assault, even to arrest. If you look at section 291 of the penal code it talks about false arrest. In fact, they are very lucky. It is just that they carry guns and the common man hasn’t got weapons. The common man has a right… if they physically attack you, you have a right to retaliate. There you will be acting on what we call lawful defense. The law provides for lawful defense. Section 34 of the penal code talks about lawful defense and if they come and they are carrying out all those their illegal acts, the person who is now reacting, the businessman, has been provoked so he has another defense of provocation. But the only thing in provocation is that your reaction must be proportionate to the offense, such as, if you are given a blow, don’t kill the man. You know, it must be proportionate. But the one of lawful defense… you have no criminal responsibility if you are acting under lawful defense.

Then what happens to the money that is paid before the seal is removed?

The money is paid illegally. The people are not supposed to pay. I have said that you don’t pay. You cannot promote illegality by falling into illegality. They are paying it from ignorance. The remedy for the person is to break the seal. He puts a piece of paper which he calls a seal and then writes that any breakage is contrary to “section this, this of the penal code…”

Does he conform?

No, that is a vain threat because he cannot prosecute you under that section. The law will not prosecute you.  The law will first of all want to find out whether that seal was lawfully carried out and since there is illegality you cannot be prosecuted for going contrary to an illegality.

What about more apparently serious cases in which he breaks business premises because they did not open especially on the so- called ghost town days?

That is destruction. Section 316 of the penal code talks about destruction. So, if he breaks a man’s place, and has destroyed the door, that’s an offence. All these offences are called disturbance of quiet enjoyment and intruding into privacy. His interference with the man’s business even is illegal and under the law… if you look at Section 89 of the penal code… Being a public servant who he is, doesn’t mean he must work in the civil service.  He is a public servant distinguishable from a civil servant, and according to Section 89 of the penal code there is aggravated circumstance. His act as a public servant, doing what he is doing is aggravating. The quality of his public service aggravates his offense.

Can claims be made?

Yes of course, I mean anyone who suffers an infringement of his right has the right to claim against the offender; that is the person who has infringed his right. That is why under the criminal procedure codes in Cameroon now the criminal case can go along side, if you look at section 61 of the procedure code.  The criminal case can go alongside the civil case. That is once the criminal claim is over it can be put to run on currently.  The legal department might be hesitant to introduce the criminal case. That is another problem which the common man might face but the law permits any individual to carry out what is called private prosecution. If you feel that the legal department will not, you can carry out private prosecution. If you feel that the legal department would not, you draft your charges, passing through extra judicial means. That is to say you get a lawyer or a bailiff to draft it for you and you file it in court. 

Can someone else do that on behalf of another party?

No, you cannot do that. That only person who can act for that party is a lawyer. 

If for instance, the mayor criminally breaks and enters, and as a concerned citizen who shops where he has sealed… Does this not indirectly infringe on one’s right to purchase from a preferred place at a particular time, price and convenience and in a particular manner? If I am concerned that by kicking down the door the mayor has exposed my choice shop to thieves why won’t I sue?

You see, the point is that the real victim of that offense is the owner of the business place because as a purchaser, you have other places you can go and purchase.

What if it is a monopoly?

If it is a monopoly, you are bound to suffer because your rights have been interfered, you have the right to sue. But the question now is, is it a criminal offence? No, there is no criminal offence in your regard. With regard to the person who has the business, there is a criminal offence of the destruction but for you, you can bring a civil action but you will plead that this was a monopoly,  so that was the place you were supposed to purchase from and it has affected.

For instance if he seals a pharmacy for not opening…

But there is not just a single pharmacy in Buea. There are several.

Yes but not all pharmacies stock every drug. If he seals a single pharmacy which stocks a particular drug which is useful to me and my health, and I think it would affect my health or even lead to precipitated death. And even if every other pharmacy is open and I see that I was going to buy a particular drug which is only found there at a cost affordable to me…

That is what I am saying. In case you have a particular place which has that drug. But you know, he might mitigate it to have a defence by saying, “I know that this drug is sold but didn’t go there.” So that is it Hmmm! As I said, any use of force on a person is an offence and that person has the right to sue you if he uses force and interferes with the man’s property.

For example, if the man was ill in the house and couldn’t open on that day or had traveled and not necessarily because he or she was respecting “ghost town?”

Now the problem is this, the man whose business premises has been broken into or has been sealed does not need to justify to Ekema why he didn’t open. A business is a private enterprise and the man has the freedom to open or not. He is not working under any regulation which says you must open. There is no compulsion on a private business man to open. So if you come and say that the man did not open because he was respecting ghost town, the onus is on you to establish that. You the man alleging because in the law he who alleges must prove. And in that case Ekema will be bringing that as a defence. If he is prosecuted and he says the guy did not respect ghost town, that is why I sealed his place, he must have established  first all that there is a rule or some law or regulation authorizing him to seal for not respecting ghost town. Secondly, he must come and show just cause for doing and did you find out why the guy did not open his place? All of those will be for him, it will not be for the man to justify. So this thing of people running to him, explaining to him ‘I locked my place because I went to Douala to buy goods…’ A private businessman is free and has the latitude to open when he has to or not. If he or she is using premises which are regulated.Take for example; beer parlors, off licenses have regulation as to when to open and to close. A man who owns a private business, selling in his store hasn’t got those regulations. There is nothing which says that the man operating a provision store must open at 8:00am or should close at 10:00pm, or a radio station. There is no regulation as to that. You cannot come and say the man was respecting ghost town that’s why he did not open. You see, that will be completely illegal and it is a sort of torture out of illegality as a matter of common sense. What should Ekema do if he must achieve his goal for stalling ghost town? He has nothing to do vis-a-vis the business people.

Sometimes they claim to be taking orders from above. Would you want to imagine that because of the prevailing lawlessness accruing from a collapse of governance, Ekema could just be a pliant tool in the hands of a hidden parochial interest? As such would he not be immune to the laws of the land on which you seem to place so much premium?

You see, it is good that people should know certain things like that. If you stand in court and you say that you acted because you were complying with authority, that is not enough. You must show that the orders of that authority were lawful orders. If the orders are unlawful, your obedience to those orders give room for your prosecution. You are not supposed to obey unlawful orders. So all those who will come and say well, that is why I said his workers, the police, the gendarmes and the soldiers accompanying him can together be prosecuted as co-offenders, assessors or whatever. You are accessory to the whole thing. So they can be prosecuted because what orders he has given them are unlawful.

We are asking this against a backlog of a situation we have in Cameroon today, whereby an old woman and the daughter have been arrested on a simple ground that she gave birth to a certain Chris Anu who is considered as an enemy of the state? 

That is an illegal infringement on her liberty. I agree but who is going to prosecute that woman?

She may be held in custody for a very long while…

Fine, now let me tell you she has a right to bring an action for illegal arrest and imprisonment.  That is false imprisonment.

Against who now?

She goes to the court.

But the system has seemingly buckled under, crashed under a chief magistrate?

The system has crashed in Cameroon but the point is that, Cameroon has ratified many treaties and conventions. The unfortunate thing is that you cannot in most cases go to the international tribunals when you have not exhausted domestic avenues. So you exhaust the domestic avenues knowing that, the domestic avenues will not give the remedies you require but once you have exhausted them, now you seize the international tribunals against Cameroon.

Like the case of Albert Mukong?

Like Mukong did. You seize the international tribunals and there you would have a remedy against Cameroon and Cameroon cannot appeal.

Are sovereign states bound by the decisions of these international tribunals?

Yes Cameroon is bound by their decisions.

Are their decisions not as nonbinding as those of the Hague?

Well, but I think that Cameroon would respect it; they respected it in the case of Albert Mukong.

But they did not respect it in the case of Hamidou Yaya Marafa…

Well, the point is, had Marafa exhausted all the local avenues? I don’t know. I have not seen that judgment so I can’t give a value appraisal of it. But once you have exhausted local avenues and now you seize the international tribunal and you have a judgment, it will be executed. You don’t need to execute it only in Cameroon.  It can be executed anywhere that the state of Cameroon has property. Anywhere that Cameroon has properties; it can be executed because that one is an international jurisdiction. Execution is not limited to the national territory.

We interviewed someone who said the only way that the mayor can get him work on a Monday would be signing an undertaking that if anything should happen to him or that in the event of his shop being attacked, he (mayor) would pay for the eventual damages?

That one is talking like someone who does not know the law. Because first of all Ekema cannot. That type of talk I heard it before that Ekema can’t guarantee the unforeseeable, you cannot guarantee that. At least Ekema is not an insurance company to insure risks; he can’t. His action amounts to torture and torture doesn’t necessarily have to be physical; it can even be mental or emotional. Those are all criminal matters. It is covered by section 132 of our penal code. Any public servant who acts like that creates torture to an individual physically, mentally, physiologically, all of that. It is against section 132 of our penal code.  “Any public servant who uses force to any person shall be punished.” You should look at section 140 which deals with oppression of the penal code. I am talking about the penal code.

Is it morally and logically acceptable what the regime is doing with tax payers’ money? As we talk, assignees of the regime are going around, carrying out propaganda with large chunks of cash and man hours for schools to resume in the heat of the raging war?  

Hmm! let me make this one clear…

Not necessarily legally…

But it must be legal. As of now if you go to the military tribunal, you know that some military personnel have absconded, run away from their posts, gone into hiding and things like that. Some of them are being prosecuted in the military tribunal. But go and see the charges. They are prosecuting them for absconding in times of peace. I am not saying it is time of war. I have brought this because you see, the government does not look at this socio political crisis in the Northwest and Southwest as a time of war. No, they are looking it as unrest, a civil unrest created by some people but not as war. Even though they are all out in war with these people but they look at it as …..

Is it for them to define convenient nomenclature, and act on it or for one to effectively see and believe the evidence one’s own eyes?

No, it is the evidence of your eyes, yes. But times of war or times of peace are defined by statutes. So now, they are saying it is a time of peace. You know it is also good that we know certain things. Has a parent the right to stop a child from going to school? The right to education is a universally declared human right okay! So a child has a right to education.

Just as a child has the right to life?

Yes, just like that…

Just as the right to self preservation

Exactly!

So between life and school, which do you choose in this case? And should you choose school, would that be simply because it is enshrined in legal statutes?

No, if a man put himself in a position of risk. If you voluntarily exposed yourself to a known risk… In law we say that you are “volent” (volenti non fit injuria.) That is the Latin expression. If you expose yourself to a risk, you can’t complain of it. It is not an actionable thing when you expose yourself to a risk, provided what happened is within the law. That is why I brought the case of not going to school. Can the government prosecute every parent who refuses to allow their child to go to school? The penal code provides that any parent who has the means and does not send the child to school commits a criminal offence, which means that if the parent hasn’t got the means the parent does not commit a criminal offence. It also means that since the parent has a right to protect the child against physical harm, if the parent prevents the child because he sees the danger, threat, you have the right not only to protect yourself against threats from somebody to your person; you have a right to protect somebody else against physical threat.

You have the responsibility and a duty as well?

Yes, you have. So if they are going to prosecute you, you will have a defense, that you were preventing a greater risk. Going to school and facing death which is a greater risk? It is facing death. So you are helping to prevent the guy from that eminent danger; you have a defense.

Which is easier to achieve, peace or war? In this case you have thousands of Cameroonians, homo sapiens in the bushes running from state coercion, soldiers, who are killing them, who have burnt their houses and schools in some cases and the same government is asking and has undertaken propaganda for children to be sent to school without as much as providing a foolproof wherewithal for them. Where are they going to go to school? Even if they come back out of the bushes, where do they stay and school? Under trees?

Yes, that is a very tricky question because the first thing is that you will have to know the government will never accept that they burnt houses, burnt schools or killed anybody. You know what happened in the prisons recently; of course people died. Even here in Buea, but the government is saying that nobody died. The government is saying that the military acted professionally. What do they call professional? Because even this penal code punishes the use of live ammunition in cases like that to quell a riot like that where the other people do not have ammunition. You can use it if the other people are armed but if they are not armed the code penalizes everybody who uses it. You can use batons, teargas, but not live ammunition. Even using it and shooting into the air is an infringement of the law. But do you think this country or the government can accept? The government cannot. Since you are the one going to allege that the government through its agents like the military burnt your house, burnt the school, shot people, you will now have the onus to prove and you can’t prove that.

It is not like one is preaching against the back to school propaganda. Far from that. But if you say go to school, I say yes but where is the school? Show us the virtual school?

If there is no school then you cannot be compelled to go to school. You cannot go to a place which does not exist. You cannot ask a man to give you what he hasn’t got or you cannot ask a man to go and seek what is nonexistent. That’s why I wanted to answer your question which is easier to achieve, peace or war? The achievement of peace is a subsequent act.

This is what it is, it is derivative. It is subsequent because it is derived from your act. You do an initial act and derive peace. It is a derivative or a subsequent act. It is difficult to ask for a subsequent factor like that because peace is supposed to be antecedent. Peace should be a sine qua non, existing at all times. So if the state wants to achieve peace then the state is in other words saying that peace does not exist. If you want to achieve war then you are saying peace is what is reigning now and war is a subsequent commodity.

So is the state trying to be smart or it is in a ‘Catch 22’ situation?

Talking about trying to achieve peace is to say there’s no peace as of now. If there is peace, you would not want to achieve peace because it is already within you. You don’t achieve what you already have.

But they say, albeit inadvertently, from time to time that they want and are working for a return to peace?

The catch phrase is “return to.” A “return to peace” means peace had existed, it no more exists and you want to get it again.

And what is the direct opposite of peace? It could be trouble or war, don’t you think?

Yes but now it is multifaceted. It is not just war. The absence of peace is not just war. It might be unrest, “peacelessness” and war.

But war is relative?

That’s what I’m saying. So if they want peace they would they would not…. for you to say that they want peace because there is war is to limit absence of –peace to war, which is a very tricky issue…

But when there is an open confrontation during which one side is shooting and the other is shooting back with resultant heavy casualties, what do you call that? Just a game played with Christmas toys?

The point is that these are factual issues which are definitely difficult to prove. Because by the time you are going to court, you are saying that ‘they shot.’ The question the state counsel or the defense lawyer will ask is ‘who shot who or who shot?’ You know that you don’t see the names of the soldiers by the time they are shooting. If they came here to shoot us, they will not shoot and leave anybody to go and testify. They will kill everybody who is a possible witness.

But sometimes they inadvertently leave traces?

Yes but you know inadvertently. This inadvertence does not tell you who was the perpetrator of the shooting. So you’ll just go and say soldiers were shooting. You have alleged, so you prove; can you give the names of the people, can you describe them, can you show them?

If a shooter got in here, opened fire and wrongly assumed that I had died, whereas I did recognize the soldier and I can identify him subsequently. If, for example, there were CCTV cameras without the knowledge of the shooters…

It is the CCTV camera and your knowledge of the man. The CCTV cameras will do what the law will call corroboration. It corroborates your evidence and that man can never escape criminal procedure; because your evidence is corroborated by the CCTV camera. So there is no doubt. But if it is just your word against the man’s word, there’s doubt. At first in Cameroon, they said the accused will be discharged and acquitted if there was reasonable doubt. But the law in Cameroon now has taken away the word reasonable doubt. Now even if the doubt is just an iota of doubt, there is doubt. In this case it should be acquitted.

Beyond CCTV cameras, there could be forensics. For instance shooters sometimes can leave incriminating traces behind them, especially drugged, callous executors?

But you know for sure forensic evidence in Cameroon is wanting. We used to have in West Cameroon where they used to send policemen to go to London; to go and do forensic investigation. So they can come here and just by touching this book, you think that you are gone and nothing is there but they would have gotten your finger prints. That even the finger prints must have finger print indexes. We have it in the law but which is not applied. Otherwise nobody should have two, three, four ID cards. But you see, we copy laws, but to put them in application, there is a vacuum. Just cobwebs

Interviewed by  Charlie Ndi Chia, *Takie Esther Ajougho,

Sengue Carine Koke, Pauline Enanga Etonge, Anu Alice Azemchap (UB journalism students on internship)

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