CEU eTD Collection Hungary 9 Nadorutca 1051 Budapest, University Central European PROFESSOR: Uitz Renata COURSE: Constitutional Adjudication: Courts Enforcing Rights LL.M. SHORT THESIS In partial fulfilment of the requirements for a Masters in Law (LL.M) A CRITIQUE OF THE AMENDMENT MECHANISMS A CRITIQUEOFTHEAMENDMENT CONSTITUTIONAL PROTECTION IN CAMEROON: CONSTITUTIONAL PROTECTION (Comparative Constitutional Law Stream) Law Constitutional (Comparative Central European University Central European Legal Studies Department Studies Legal Malah Anna Submitted to Submitted by © Central © Central European University March 30,2009 CEU eTD Collection BIBLIOGRAPHY------51 CONCLUSION------49 RECOMMENDATIONS------47 ------26 GERMANY CONSTITUTIONAL COUNCIL IN CAMEROON AND THE FEDERAL CONSTITUTIONAL COURT IN ------26 CHAPTER THREE CONSTITUTION------16 IMPACT OF THE SILENT NATURE OF THE CONSTITUTIONAL COUNCIL ON THE CAMEROON ------16 CHAPTER TWO 7 CONSTITUTIONAL ------AMENDMENT MECHANISMS GENERAL OVERVIEW ON CAMEROON CONSTITUTIONAL HISTORY, CONSTITUTIONAL COUNCIL AND 7 ------CHAPTER ONE 1 ------GENERAL INTRODUCTION ABSTRACT------iii ii ------DEDICATION i TABLE OF CONTENTS------3.3. Othercontributing factors------44 3.2. The FederalConstitutional ------37 Court in Germany 3.1. The Constitutional Council inCameroon------28 Constitution and on other Constitutional rights.------20 2.2 The effect of the Constitutional Council’s silence during the 2008 amendment on the 2.1.2. Article 53§1-3 (new)------19 ------18 2.1.2. Article 51§1(new) ------17 2.1.1. Article 6§2 (new) ------17 amendment 2.1. Impact ofthree Constitutional articles amended during the 2008 Constitutional Constitutional ------12 1.3. amendment mechanisms 9 1.2. ConstitutionalCouncil and the Courts------8 1.1. General ConstitutionalBackground------3.2.3. Participation in Constitutional amendment------43 3.2.2 Jurisdiction and Access to the Court------40 3.2.1. ------38 Independence of the Court - Composition/membership 3.1.3. Participation in Constitutional amendment------36 3.1.2. Jurisdiction and Access to theCouncil------32 3.1.1. Independence ------29 of the Council - Composition/membership Abuse of Right to Life------24 ------24 Abuse of Right to Fair Trial: ------22 Abuse ofRight of Expression: 2.2.2. Effects on other Constitutional Rights------22 ------21 Abuse ofthe Rule ofLaw ------21 2.2.1. Effects on the Constitution TABLE OFCONTENTS TABLE i CEU eTD Collection (My relatives and those I encounter in my daily life) To Each andEveryTo Each Memberof MyBelovedFamily God Almighty for His Love and Strength This research is dedicated is This research to dedicated DEDICATION & ii CEU eTD Collection of the Cameroon Constitution. Cameroon the of protection aneffective for amendments in active constitutional participation totake empowered be could Council Constitutional the how on concludes research This Council. Constitutional composition, jurisdiction, and the issue of creation, Council’s Constitutional analyses thesis This constitution. Cameroon the of supremacy the on consequences resultant the and Council Constitutional the of nature inactive the Cameroon the of constitutionality the on impact its considers and mechanisms amendment Constitutional This research work examines the silent nature of the Constitutional Council Constitutional the of nature silent the examines work research This http://www.nationsonline.org/oneworld/cameroon.htm. Nations,shrimps). The Germans in1884 spelt as Kamerun, it whereas during the mandated period under the League of 1472Poo in that discovered many inRivershrimps Wouri inDouala andcalled itRio Dos Camaroes (Riverof government.derives It from itsname thePortuguese word, Camaroes, by named a Portuguese Ferdanandosailor has more than 250 ethnic groups withan equal number of locallanguages.It exercises a republican type of and Atlanticthe Ocean) with apopulationof 20 million inhabitants, its officiallanguages are EnglishFrench, and it 2 taking serious action thereby allowing thethe executive to have its way. complaint against government violationof constitutional rights before the courts; the laterusually refrained from are however, reluctantCameroon in in courts adjudicatingThe on Constitutional functions. these rightsperformed violation Court Supreme asmostthe oftenor whenCourt an individual brings Constitutional a the countries, FrenchConstitution; it can rule onthe constitutionality of law and, it regulates the functioning of state institutions. Insome January whichamended1996, theConstitutionof 1972and 2 June jurisdiction has matters pertaining in to the 1 spelt it Cameroun and the British - Cameroon. See more at Cameroonis located inCentral West Africa, it shares borderwith the Bight of Biafra (part of the Gulf of Guinea The ConstitutionalCouncil inCameroon organis anof 11 members created in1996 by Law No. 90-06of 18 2 constitution. at looks theundermined Thiswork constitution causedCameroon of by ABSTRACT locus standilocus iii to initiate a proceeding before the 1 asregards CEU eTD Collection Rights 6 5 Constitutional Amendment. Sanford Levinson, Ed. (1995), p. 123 4 http://www.enelsyn.gr/papers/w9/Paper%20by%20Prof.%20Charles%20Manga%20Fombad.pdf, page 1 Impact on Constitutionalism, constitutions. Itis A various byits a constitution undermined constitutional amendments. any learned mindsuch why among clausesstillunconstitutional feature the century 21st law and the guarantee of human rights. A glance at thethe of Constitutionsupremacy of Cameroon sovereignty, would puzzlepeople’s of notion the empower clauses constitutional amended Constitutional duringprotection Constitutional will amendments seektoensuretherefore that Cameroon. in Council Constitutional acourt-likeinstance,foror institution: the Federal Constitutional inGermany the Court or 3 theirarrived atthrough consensus people, will the the of represent which its authorities, by limitations such of observation the the restrictions on the ability to amend the constitution stronghold, its of one as demands, which constitutionalism, reveal to amendment constitutional right to amend the Constitution and this right is inalienable is right this and Constitution the amend to right time; they are subject of with passage the However, government. lay astable for rules basic to the stability, down to amendments or ratifications.Constitutionsexpress are designedensure usually national to guiding political to principles, Amar argues that the people retain the Human Rights Correspondence School, FOMBAD, David R. Dow Charles Manga Fombad, (10March 2009) at http://www.hrschool.org/doc/mainfile.php/lesson49/187/ id note 1 The Plan Meaning of Article V, and good governance.” good and law, democracy, rule of for the respect constitutionalism, promote constitution, it is extremely difficult for such a constitution“In the to absence of any limits or restrictions on the amendment of a Limit On The Power To Amend Constitutions: Recent Trend in Africa and Their Potential (accessedMarch 10 2009), at GENERAL INTRODUCTION 6 Lesson 1: Discussion ofConstitutionalism and Its Relationship To Human . Many thiscountries have entrusted jurisdiction courts the to 3 Responding to Imperfection: The Theory and Practice of Practice and Theory The Imperfection: to Responding 1 5 , the limitation of governmentpowers and 4 . Modern day society expects CEU eTD Collection (accessed 10March 2009) at 10 (1999).p. 39-40 constitutional amendment is of vital importance to legal scholars. Gilmar Mendes Gilmar scholars. legal to importance vital is of amendment constitutional review or of unconstitutional amendments against The issueof protection constitutional 9 8 7 it ensure to is it constitution task of whereas the the exist”, by ceaseto would andtime”dictated constitution “blessed (…)the the self-restriction aconstitutionamendmentprocedures, victim the can become “incidental of any atconsiderations rigorous no Where are there ofconstitution. any tenets basic arethe which constitution, thesupremacy of the or protected law,rights constitutional of violate rule the which seems to violates the constitutionalmeans Constitutional the Council has toquash right the act of lawany government, which or norm, laws of thenconstitutionality the on rule theshall and (...) sameconstitution the to pertaining organmatters has the power to refuseArticle 46of Constitution the “the that states Constitutional Council shall have jurisdiction in any amendment, matters. insuch jurisdiction article 46 naturesilent of Constitutionalthe Councilin thisdomain question brings to the right.for violating This amendment orhasit aconstitutional grounds protected quashedany jurisdiction to adjudicate on constitutionality the of amendmentswith Council has never been Constitutional consulted the why but on sucha whole as constitution the of supremacy the just influencedhistory byits legal heritage of France Germany,and Britain. Theissue is at stake not András Sajó, András 46 art. cont. Cameroon CameroonCont. amend. 1996 Gilmar Mendes, Gilmar 7 of the Constitution which clearly states that the Constitutional Council shall have shall Council Constitutional the that states clearly which Constitution the of The Constitution as Fear and Acceptance New Challenges of Constitutional Adjudication in the 21st Century: a Brazilian Perspective, . Limiting Government.Central European University Press 2 9 . raison d’être 10 affirms that 8 ,” if this ,” of CEU eTD Collection Adjudication, 12 p 100 out on 1996Constitution,the whichamendedIt also 1972Constitution. the examines the carried amendments Constitutional 2008 the of Constitution the on impact the examines further research This constitution. Cameroon the in supremacy or amendments of constitutionality Council since its in creation 1996has been so silentinactive almostin and the protecting Constitutional the why reasons the examines It constitution. Cameroon the of supremacy with mechanisms constitutional amendment regard to has in Cameroon greatly the undermined courts the and Council Constitutional the of nature silent the that evidence presents research This government and must adjudicate in the best interest of the nation and must not be partial. for must better from or legislativeadjudicating purposes of beindependent the group other the 11 pdf,p 2. http://www.stf.jus.br/arquivo/cms/noticiaArtigoDiscurso/anexo/Jurisdicao_Constitucional_no_Seculo_XXI_v__Ing. parliament elected democratically mightwhich by meandeclaringa law unconstitutional adopted ina largemajority the constitutional concepts, lawsprotects rights the passedor check legislature,democracy, bythe fundamental safeguards is protected, law the of sovereignty the that ensure must amendments, Constitutional court-like Courts or in institutions, in constitutionality adjudicating of amendments. constitutional of regularity formal and procedural the review well as can it amendments, constitutional of constitutionality the review to competent Gözler Kemal omissions. legislative and administrative with faced when act to is compelled Court Supreme Federal the Dorsen, Rosenfeld, Sajo & Baer, Kemal Gözler, Comparative Constitutionalism: Cases and Materials, American Casebook Series, (2003) p 112. Judicial Review of Constitutional Amendment: A Comparative Study. 11 is of the opinion that once a Constitutional Court has declared it Judicial enforcement oftheConstitution andModels of Constitutional 12 . Thus the constitutional courts or the courts in adjudicating courts the or courts constitutional the Thus . 3 EKIN Press, Bursa – 2008, CEU eTD Collection 15 http://www.reuters.com/article/worldNews/idUSL0521512320080305?pageNumber=2&virtualBrandChannel=0 not want to hear anything about him amending the constitution in order to stand for re-election in 2011. in re-election for stand to order in constitution 14 the amending him about anything hear to want not forstand re-election. The wholewas nation years already powerhis 26 withsick in coupled with hardship anddid the amendment of the Constitutioninthe next Parliamentary meeting slated forMarch 2008 which will enable him prices anditsoonturned a political strike because ofPresident Biya’s intention topushforward a draft proposal for 13 26-year rule, which resulted in and100 people of destruction killing about changefuelextend by his plan over theConstitution Paul provoked Biya’s to to prices President reasons why Constitutional the Council in silentremained 2008 despite the taxi drivers strike Constitutional Court Federal TheGerman in tomake recommendations. order Court Constitutional Federal German the with study a comparative making and out carried been have amendments constitutional heritage, examining thevarious occasions where the Constitutional Council has been silent when legal Cameroon’s analysing by stages, three in answered be will hypothesis stated above The for its empowerment. Constitutional Council and whohas thisstanding before body. Recommendations bewill made followingdoing, jurisdiction issues creation, be the the competence,the shall of considered: Byso out. arecarried amendments constitutional when active participation take to empowered possiblesuch causesof andexamines the how a silence, Councilcanbe Constitutional the scrutinize Constitution, the on of asilent such effects the analyse will research the questions, In active when answering amendmentsarebeingcarried participation these constitutional out. in silent andhowcan Cameron, German the empower beused example thisto body to take been courts the and Council Constitutional the have why ii) Cameroon, in Council Constitutional the of nature inactive the of effect the been has what i) questions/hypothesis: answer to German Basic Law. art. 93 Tansa Musa, The Taxi drivers strike started on 23 February 2008 and lasted until early March 2008 due to an increase in fuel Cameroon activists sayriots kill more than100,( 15 hasfor because beenselected firstly itthis study has a widescope of 4 accessed 21 March2009), at 14 . This research seeks . This research 13 CEU eTD Collection http://news.bbc.co.uk/1/hi/world/africa/7341358.stm Cameroon constitution and on other Constitutional rights. Chapter Three answers hypothesisthe Chapterin Cameroon. mechanisms Two amendment and Cameroon in history examinesconstitutional and political the impactmoves Chapter background One from with introduction It deals of general the that to a general of the silent scared. however isliterature, which of existing a desk through review is conducted The research nature of the Constitutionalremarks the Constitutional Council did not adjudicate on the constitutionality of the amendment. Council on the 17 16 itlegitimise part" by taking want to parliament when bill the was being passed, "thewhole issueis a completefraud. We do not and to the Socialback” years 200 “will takeus Ayah Abinedeclares, (MP) Paul Parliament of which asMember Democratica Constitutional 2008carried recentasinApril out constitutionality,amendment, as country the Front of days present in how demonstrate is to mechanisms amendment (SDF), Constitutional regards MembersThis researchof Parliamenton the silent nature of the Constitutionalwho constitution. unwritten an has walked Britain whereas Council CouncilConstitutional the to and theout Courts ofin Cameroonthe with limited access a is of Cameroon, itbecause tothat similar for this be study not couldtaken as Germany was once a colonial master of Cameroon. However, the French Constitutional Council constitutional amendments. Another reason for this selection is that, justlike France and Britain, in an of part takes laws,Court German active Federal Constitutional the constitutionality over of jurisdiction have both since However, amendments. constitutional regarding clause express any juststanding like andsecondly because, theConstitutional Council Cameroon Will Ross, BBC West Africa correspondent, Africa West BBC Ross, Will CameroonCont. art. 46 17. The research will also analyse why despite all these Cameroon makesway aKing, for 5 (accessed2009),March at 18 16 , it does not have not does it , CEU eTD Collection amendments. in active constitutional totake participation be Council could empowered Constitutional Cameroon.Court in order to show how their example could be used to improve the Constitutional Council in Constitutional Finally,Federal German the examines also chapter This Council. the before standing therewhy Constitutionalthe has beenCouncil silentby looking atits creation,jurisdiction and is a recommendation and conclusion on how the Cameroon 6 CEU eTD Collection population where traditional laws under the control and supervision existed of andsupervision population laws underthe Germans control the where traditional racial basis – one for the Germans, where German laws applied, and the other for the indigenous Instead,underconstitutional existed German matters. parallel colonial two a rule, on courts over jurisdiction with vested court no was there and judiciary independent an for legislated never masters asthecolonial adjudication of in constitutional matters silent were, however, The courts was only during 1996Constitutional the a Constitutionalamendment that Council with system constitutions and a duallegal – Civiland earnedCameroon lawsystem of government Common various in their changes introduced administrators of change constant This below. seen be will Cameroon (before the First World War) and the British and French (after the First World War) as administrations under different administrators or colonial masters orcolonial administrators under different administrations witnessed instage several its legal pre-independent colonial andheritage.Cameroon practice its of nature the from emanates today in Cameroon problems constitutional major the of One http://www.nyulawglobal.org/Globalex/Cameroon.htm alliedwhich really annoyed indigenous the population and itwas of one theythe reasons vigorously joined forcedthe with against20 time. at the master colonial of the that suit to changed Germanwhile the British administered the Commonlaw. Atany giventime, Cameroon’s Constitutional law has to be movedto under the French and British administration, the Frenchout administered their Civil law system onCameroon the19 http://www.nyulawglobal.org/Globalex/Cameroon.htmGermans out of Cameroon during the First World War. See FOMBAD, 18 The German colonial role was very strict although honest and characterized by a lot of forced and free labour, free and forced of lot by a characterized and honest although strict very was role colonial German The Under the Germans, German laws passed in the Reichstag was administered in Cameroon and when Cameroon Charles Manga Fombad, Manga Charles 19 GENERAL OVERVIEW ONCAMEROONCONSTITUTIONAL HISTORY, CONSTITUTIONAL COUNCIL AND CONSTITUTIONAL AMENDMENT ANDCONSTITUTIONAL CONSTITUTIONAL COUNCIL . Researching Cameroonian Law,(accessed 11 March 2009) at CHAPTER ONE MECHANISMS 7 18 . The Germans colonised The Germans . 20 . It CEU eTD Collection 24 23 22 or Retrogression? 21 under French and British untilrule its in independence 1961 during the First WorldWar, second the phase lasted from 1960 when1914 to was Cameroon from 1914 of when protectorate inthe finally1884 to German troops were Cameroon defeated fivethrough least profound and political constitutional changes Cameroon’s constitutional history has gone through majorthree phases administrationof and at 1.1. General Constitutional Background in Cameroon. mechanisms Constitutional and Council Constitutional the Cameroon, constitutionalother This chapter will look fleetingly atthe rights. backgroundconstitutional in inmechanisms in the and unconstitutionality quashing Constitution Cameroon on amendment on subsequent chapterwill impact examine the of such a silentnature of Constitutional the Council outcome any isnothingname of council the date till buta without researchinthe action. This jurisdiction laws independent over constitutionality judiciary andan introduced andof was the protectorates of the administration for abetter by decree legislate, Kaiser to the empowered law, which Under the German colonial masters, Cameroon from independence until date. was administered on the bases of a Reichstag any existing laws, the French implemented the principle of assimilation” of principle the implemented French the laws, existing any consciencerepugnant natural justice, incompatiblewhich werenot to equity good or and with to introduced theirlegal systems and retained while the “British traditional institutions andlaws, Charles Manga Fombad, Charles Manga Fombad, Id. Id. at 20 23 . Under Britishthe andtheFrench, theindigenous population were gradually Journal of African Law,Vol. 42,No. 2(1998), pp.172-186 , pp 173-174 The New Cameroonian Constitutional Councila in Comparative Perspective:Progress Cameroon , International Encyclopaedia of Laws, Vol. 2 Constitutional Law, 2000, p 19 8 22 . The third phase covers the period 21 . The first runs from the period the from runs first The . 24 . There was no CEU eTD Collection 28 University of Chicago, 2004, p 1 27 at 174 Common-Law and Civil-Law System,Yaoundc, 1967,223-234, quoted by Charles Manga Fombad, System,Yaounde, 1987, 137-139, and H. N. A.Enonchong, CameroonConstitutional Law: Federalism ina Mixed 26 courts of the federated states and to review legislative action and give advisory opinion advisory and give action legislative review andto states of federated the courts Federal Court of Justice empowered to decide on jurisdictional conflict between the two highest a its wasthecreation of provisions constitutionof September 1961andoneof Cameroon 1 of 25 which institution process shouldor be with do entrusted authority the to updatingthe remains question the However, values. andcitizens’ circumstances political inthe changes must from livebe canneverlast andso forever timeConstitutions to updated time to upto 1.2. Constitutional Council and the Courts several times,forms the base of the current Cameroon constitution. which,on amended 2 June1972, constitution, 20May the though whichwaspromulgated 1972 united duringform the20May 1972 Unification to a United Republicand of Cameroon adopted West) and (Southern Cameroons two the in However, 1972, President. bythe referred matters of Cameroon Republic form Federation the to Cameroon join Westunder in1961to decided East aplebiscite AndCameroon the British during rule. 1961 West followed Cameroon itsby suit independence achieving from Nigeria whereit was East Cameroon got independence from Frenchthe and hadits first constitution in 1960 whilein decidepower into matters. these economic, judicial social, or independence and the indigenouspopulation givenwere not the can this process be controlled? A Fombad Manga asProf. argues be Charles constitution, can controlled? process this FOMBAD, Adrian Vermeule, Adrian Articles 14, 19 and 33of Articles 14, 19and FederalConstitutionthe of 1961.See C. Anyangwe Tamfuh Wilson, Tamfuh Supra Constitutional Law and Political Systems note 21 at 175 Constitutional Amendments andthe Constitutional Common Law 9 , Y.N. 2006, pp 72-74 25 . This union brought about the second the about brought union This . The CameroonJudicial System, , The Law School – The supra 27 28 and how and , is only note16 26 on CEU eTD Collection 32 armed forces during mass civil demonstrationorganized by the opposition parties. 31 killings and frustration among the citizens and exploded into a series of strikes (ghost town campaigns), discontent challengingbusiness environmentretarded This economy the ledto Cameroon. of and a system government, of andauthoritarian harsh a pervasivecorruption, mismanagement, Assembly by executive,the ruling and aNational dominated Economic party. the of control the under judiciary a strong executive, a system with political autocratic centralized, Until situationthe 1990, though ismuch not differentnow, Cameroon has had ahighly individual andlimiting right governmentpower has been onthe rise. of notion the embrace should constitutions adopted that entails which democracy, Constitutional Europe: Functions and Sources, 1992, Sources, and Functions Europe: 30 2009 amended theConstitution of 2 June 1972 with jurisdiction over constitutionality laws.of Council inintroduced in Cameroon was by 96/6of 1996 Law No. 18 January 1996 which laws of legitimacy the of aguardian as review judicial 29 vital development of the twentieth century with Courts jurisdiction to review, tostrikeConstitutional the legislation, of and to adjudicateintroduction conflictsThe among state branchessanctioned. is a promptly are violations as as mechanism the itisgood for ensuring thatprovided implemented and properly its CameroonCont. art. 46 Between May 1990 and October 1991, more than 400 Cameroonians were killed in direct confrontation with the Igor I. Kavass, John Ferejohnand Pasquale Pasquino ), at http://www.tafjapan.org/english/forums/pdf/john-pasquale.pdf,p 1 31 , and a nationwide call for constitutional and political reforms. A Constitutional reforms. political and constitutional for call nationwide a and , functioning of the institutions” the of functioning the regulating organ be the shall It laws. of constitutionality pertainingmatters constitution. tothe shall It rule on the 46.The“Art. Council Constitutional havejurisdiction in shall The EmergenceConstitutional of CourtsinEurope, p 6 Constitutional Adjudication: Lessons from Europe, 29 . This has led to the wide acceptance of idea of the of acceptance wide led tothe has . This 32 . 10 Supranational Constitutional and Courtsin 30 in the constitutional world. constitutional inthe (accessed 11March CEU eTD Collection or Retrogression? 34 33 impartial” objectively or a “subjectively to Access answered). be why explainedontheConstitutional has been Council Council and be silentthe will amendments. This has greatly affected the constitution of Cameroon (In chapter three, more will constitutional asregards especially activities its in silent very been however, has, council This Justice discretion to refer constitutional controversial on the constitution to the Federal Court of had absolute thePresidentof Republic Federalthe constitution, Inthat Constitution. only been a problem in Cameroon judicial protection through of review constitutional the has orthrough adjudication amendments as far back as the colonialis asrule good as seenas having in the 1 noneSeptemberinelement a democratic society and having a Constitutional where Council standing isrestricted at all 1961 since it does not serve the purpose. Access to constitutional articles 37to42. Charles Manga Fombad, R. Clayton,H. Tomlinson, 34 . It was inonly constitution1996 that the provided for anindependentjudiciary in its which shall give him its opinion on all nominations for the bench the for nominations all on opinion its him give shall which He shall be in assisted taskby this HigherJudicialthe Council the legal department. of judicial power.§3 The Presidentof Republicthe the shall guarantee independence He shall appoint members ofonly by lawandthe their conscience. the be governed benchduties, their of discharge the in and shall, bench the of of Magistrates powers. legislative of and executive independentthe be shall Power Judicial The Tribunals. the and Appeal of §2 Judicial shall bepower exercisedby courts Court, Supreme the name Republic in of of people Cameroon. the the inthe of the 37§1Justice territory beadministered Art. shall Journal of African Law,Vol. 42,No. 2(1998), pp.172-186, p 175 The New Cameroonian Constitutional Council In a Comparative Perspective: Progress The Law of Human Rights , Oxford University Press, 2000, p 657 11 33 and independent court is an essential is an court independent and CEU eTD Collection http://camlaw.rutgers.edu/statecon/workshop11greece07/workshop11/Twomey.pdf, p1 Federations 38 AfricanWorld Press, 2004, p 37 37 36 35 in power government the to security job and allegiance their owe bench andof legaldepartment.Thismakesthe them appointees,political to assuchthey turn in shouldinvolvedhe members inappointing of independence asstated articlethe or be 37§3, article not asaccordingthen independent, toguaranteeitsdoes 37§2,presidentthe need to way its have to executive the left and intervening from refrained generally later courts had these the before havethe individuals actions instances challenged where Despite instances violation numerous Constitutional by of few the rights government, the decisions in because constitutional adjudication of nature contradictory the of Constitution.the major take behavenot to however,been unable independentand to The proven have courts, carefully execute such powers. The method of amendment or the body vested with the power to power with the vested thebody or of amendment method The powers. such execute carefully is of vital importanceAnne Twomey affirms that“mechanisms by which a constitution repealedcan beamended or to a 1.3. Constitutional amendment mechanisms constitution and by courts. the matters the body responsible on is constitutional powers of limitingconstitutionalism, government which reasonsof the meetone fails to andtherefore for executive tothe subject judiciary makesthe indirectly however, suchThis employer. their of interest the violate a might that duty population the of interest in the legislation needs to interests of the people. Hence, it will be very difficult for the judiciary to come out with any Anne Twomey, John Mukum Mbaku John Joseph and Takougang, FOMBAD, CameroonCont. art. 37 , (accessed 9March 2009)at supra be defined bylaw organisation functioningand Higherthe of Judicial Council shall The officers. legal and judicial against action disciplinary on and The Involvement ofSub-national Entities in Direct andIndirect Constitutional Amendment Within note 34, at p 186 35 . The leadership Challenge Africa: in Cameroon UnderPaul Biya, 12 37 , rather than serving the serving than rather , 36 . If the judiciary is judiciary the . If 38 ” CEU eTD Collection sessions or a referendum. parliamentary through out carried be can it that stipulates constitution the above, stated methods the of one through initiated is procedure amendment an When fail. to amendment constitutional members of themake one-thirdParliamentarians,not do areblocked upto especiallytheopposition the who of NationalPresidentusually initiates constitutional whichamendments, are usually in his favourand the Assembly.amendment is as either House a one-thirdof approval of required. Because rigidthis clause,the This has alwaysThis shows how difficultitis for any member of initiate parliamentthe to any constitutional caused all their initiative towards a namely: initiated be can amendment aconstitutional for twoways which provides through Cameroon The constitution of 1996 parliamentarians. the percentage of by or a it President is initiated by the issue, while in others on the legislate citizens whereby the in the people vested forpower this such In some countries, andan operation. procedure specific requirements is exercisedinitiate amendments varies from one country to the otherthrough though most constitutions usually state a referendum or through the sovereignty of the people, majority of the Members of Parliament. of Members the of majority which amendmentshallbe adopted by case the a two-third The of President Republicthe mayrequest asecond reading; in by Parliament. majority members of the adopted absolute an of be shall amendment The amendment. proposed or a draft examine 63§3ParliamentArt. inshall meet congress when uponto called House.” shall be signedleast by one-thirdat of membersthe of either §2 Any amendmentmadeproposed byamember of Parliament by the President of the Republic or by Parliament. 63§1amendments“Art. totheConstitution maybeproposed either 13 CEU eTD Collection 40 39 presidentto go than through proposed by those parliament the purely be the job itThiseasierof by for legislators. makes an the proposed amendment the should it when stated not is amendment in constitutional part active be taking should President itgo through.forneeded Thereason is whythe such to majority atwo-thirds a situation, bill may notgo through. The president has the right toask for asecond reading of the bill and in membersin amendmentelse proposed the adopt of draftor the mustor congress the parliament of majority absolute an amendment, an initiated has parliament the or President the either When check on executive. the on check no is there since impossible almost and slim very are rights constitutional upholding amendment legislaturecontrolled. and up Hecomes himwith a draftselect methodbestproposal to andthe the and judiciaryis President the from proposal the how about said nothing is there equally and anyway or mentioned not is the constitutionality of matters in legislate to constitutionaljurisdiction the has who Council it by referendumcouncil and put whether to or are Parliament the a bill tablingbefore the considers when thePresident classification whole all amendment dormant. centresbill around Chanceswill the President.require may submit any ofdraft bill amendto the constitution to areferendumsuch and when this is Thethe case, the Constitutional a ansimple parliamentthe and will alwayson theirIn linecount support. with president 63§4,the article majority of the votes cast. There is no explanation as to what Charles Manga Fombad, Cameroon1996 Cont. art. 63 §3-4 cast. by amendment be votes adopted majority shall a simple of the amend the Constitution areferendum;to inwhich case the submit bill may §4 The any to Republic the to of decide President 39 Cameroon , International Encyclopaedia of Laws, Vol. 2 Constitutional Law, 2000, p 52 14 40 since he has the majority since hein has party majority the CEU eTD Collection Constitutional Council in matters of Constitutional amendments on the Constitution. the on amendments Constitutional of matters in Council Constitutional the first hypothesis willanswer chapter next rule, the colonial law the of under inof matters constitutionality courts of this researchAfter background analysing and constitutional natureinactive of Cameroon, the of seeingthe the work, by analysing the impact of the the Constitutionalsilent Council or the courts. nature of the by be fundamental protected areto of rights andconstitutionality the upholding amendment of if it improve to done be to need something that show clearly mechanisms amendment This 15 CEU eTD Collection constitutional amendment initiated by the President than those initiated by the Parliament the by initiated those than President the by initiated amendment constitutional for easier it makes constitution the When others. the or another upon encroaches branch government if one achieve to difficult be will This another. one on check a as serve and other independently each mustof act of government the arms the three abovequote, from the As seen fundamentalaffected has this how and Cameroon of Constitution the on Council Constitutional the of nature or constitutional silent the of impact the been has what of question the addresses chapter This Constitution. 1972 the amended that Constitution 1996 right.the on out carried amendments Constitutional For this Thisto bechapter done, will examine the three chapter articles amended will wouldsubjects be exposedtoarbitrary control.in 2008. show It will showhow the life the liberty of theseamendments, andthe the lawof undermined rule andconstitutionality of effect of thewhich 2008 amendments, constitutional of face in the silent is Council Constitutional the when amendments initiated by the Parliament. 42 41 IMPACT OF THE SILENT NATURE OF THE CONSTITUTIONAL COUNCIL ON THE COUNCILON CONSTITUTIONAL NATUREOFTHE OFTHESILENT IMPACT The Constitution stipulates for a one-third approval of either House of Parliament as seen in article 63§2 for all for 63§2 article in seen as Parliament of House of either approval one-third a for stipulates Constitution The The Federalist No. 47 judge then be then subject would bearbitrary forexposed control,to of judging joined with legislative,the the life and liberty of the laws to may arise lest arise may person or body, (…) there can be no liberty,same becausein the apprehensions united are powers executive and legislative the When might behave with all the violence of an execute the legislator the same them in a tyrannical manner. (…) Were power the in manner. (…) them atyrannical CAMEROON CONSTITUTION CAMEROON . Were it joined to the executivejoined the power, . Wereit to monarch or senate should CHAPTER TWO 16 oppressor the judge enact tyrannical 41 . would the 42 and CEU eTD Collection 2.1.1. Article 6§2(new) position of the Senate the electionof Senators shall comprise exclusively Municipal Councillors. 46 hundred and twenty) days following expirythe extensionof the or abridgement period. In this case, Assembly the and the Senate, request the National Assemblyelection to decide, by law, toextend or abridge its term of office. Republic may, afterconsultationof with the Presidenta of newthe Constitutional council and BureauxAssembly of the National 45 shall Senate,take afterconsultation with the Presidentplace of the Republic. notmonths lessof March, June thanand November 40 each year,(forty) when44 convened by theand Bureaux1996 to amend the Constitutionof 2 June 1972.notof the Nationalmore Assembly than and the 12043 (one 15§4 (new) in of - Article crisis National Assembly the case serious Assembly and the Senate - Article 14§3a (new) three most relevant.for analysisin order to demonstrate their impact on the Constitution Cameroon.of These are the The Three articles outof amendedinthe six the 2008 other three amendment amendments Impact 2.1. of three Constitutional articles amendeddeal during the 2008 Constitutional with the conveningairing their grievances. of thepeople against unconstitutionality in masses the amendments, look formust another means of National Constitution, with jurisdiction in matters pertaining to the Constitution failed to protect the Constitutionality of the amendments. If the Constitutional Council, which is the guarantor of the the on adjudicate to failed Council Constitutional the this, despite how, and Constitution Cameroon day present the in law of constitutionality the undermined have amendments Article 67§6(new) is to the effect that where the Senate is put in place before the regions, the electoral college for college electoral the regions, the before place in put is Senate the where that effect the to is 67§6(new) Article of the President the warrant, so circumstances orwhere crisis ofserious case in that states 15§4(new) Article This article states that Law of 2008 No. and 2008/001 to 14April supplementamend some provisions of No.of January law 96/6 18 both houses of parliament shall meet on the same dates in ordinary session during the election”. term of “Art. 6§2(new) Theoffice President of the Republic shall be elected for a of 7 (seven) years. He shall be eligible for re- vis- -vis the regionsthe -Article 67§6(new) 17 44 43 , the extension or abridging of term of office of Constitutional amendment have been selected been have amendment Constitutional 46 . 45 , and the last deals with the CEU eTD Collection the Constitutional Council shall comprise 11 (eleven) members designated for a non-renewable term of office of 9 (nine)of years. of office term a non-renewable for designated members (eleven) 11 comprise shall Council Constitutional the 47 with In addition, President. the behave Presidentdecide the might to funny and cunningly impartiality andindependently their since they know, eligibility on depends their relationship will rather prefer to be loyalyears to the President who This article changesthe tenure of membersthe has of Constitutionalthe Council from 9 (nine) appointed them than to serve the nation 2.1.2. Article51§1(new) nation. whole institutionsmaking andhence country the industrya soughtof cottage detrimentat the of the so. In addition, to maintainfrom prevented or doing him bearrested will talk against tried to who citizen becauseany abuses his stay, he will when that a President tries remain to indefinite is there inpower, be bound to fundamental rights appoint his trusted from having aPresidentof their choice if Presidentan remainsunwanted in Itispower. obvious friends to lead state thecitizen and prevents is asign despotism, of office An of term hisunlimited limit tenure. on strategic to expire in 2011, has whoseterm in issupposed office him ThePresident, in enablestand6§2 re-election. for to 1996 removed the word “once”for re-election once.” The current President whoto has been in power sincemake 1982 introduced article eligible be shall “He himself reads, formerly which president, the of limits term the removes a article This life president without any Article51§1 of Law No. 96-06of 18 January 1996 which amended the Constitutionof 19972,2 June stated that 47 non-renewable term of office to 6 (six) years renewable. This means that these members these Thismeans that renewable. years 6 (six) to of term office non-renewable They must be of high moral integrity and proven competence”. proven and integrity moral high be of must They established professional renown. of personalities among from chosen be shall members These years of office 6 (six) of term renewable eventually an for designated members (eleven) 51§1(new) “Art. The Constitutional Council shallcomprise 11 18 CEU eTD Collection party. CPDM has 152 MPs out of the total 180, the leading opposition party, Social Democratic Front,Democratic SDF, has Front, 16 SDF, the strongest opposition party, the Constitutional Council declared it infavour of the ruling Democratic Movement, CPDM. Although itwas largely criticized that the victory was stolen from the Social 48 than three-quarter Consideringfact theruling that arrive party at. is more the President’s or the party made upof to easy not is which members, their of majority four-fifth a by and ballot open through vote identical an through deciding Senate the and Assembly National the through only is indictment against stateand liablecommitted the for hightreason makesthepresident only This article 2.1.2. Article53§1-3 (new) at agent upon. election the bemanipulated will easily as Government anyperson acting or inconcerned in constituency the election participated the election inarticle provided 48§1broughtbefore them by political any candidate, party that his friends in Constitutional the Council any (articlechallenges 48§2),as regularityto the the of elections and referendum operations. Itshall proclaim the results thereof. If the President places parliamentary elections, presidential of regularity the ensure shall Council Constitutional the yearhis that bewill 48§1states since article heldintheseventh term of presidential which election, presidential forthcoming the in him aid to year sixth in their friends his appoint The 22 July 2007 National Assembly election witnessed a huge majority of the ruling party, Cameroon People functions; his of exercise for the them after be accountable not shall of article 5,8,9and 10above shall be coveredby immunity and he by §3 Actscommitted of inpursuance Republic the President the vote by open ballotand by a four-fifth majority of their members. National Assembly and the Senatedeciding through identical an §2 The Presidentof Republicthe shall be only indicted by the - try: in respect 53§1(new) Art. of acts committed in the exercise of their functions to 48 The president of the Republic for high treason; high for Republic the of president The of the total number of Members of Parliament, this means that the opposition The Court of impeachment shall have jurisdiction, have shall impeachment of Court The 19 CEU eTD Collection 04 andProgressive Movement (MP) has 01 MP. MPs, National Union for Democracy and Progress (UNDP) has 06 MPs, Cameroon Democratic Union (UDC) pertainingadjudicate the constitution inmatters unconstitutionality andto to to amendment, of has amendmentthe prior toits However, enactment. the Constitutional upholdCouncil failed to the the quash expected use itsConstitutional on laws jurisdiction constitutionality Council to of to whole country, but in Constitution caused2 June1972.Thisof civilprocedure amendment the throughout unrest the face of all that, amend January the 18 1996 to thelaw No96/6of amended of supplemented some provisions and Constitutional Council 2008/001of on The adjudicateLaw No. 14 April 2008 that Councilfailedto Constitutional was silent. The Constitution andonothercitizens Constitutional rights. onthe 2008amendment silence the Council’s during oftheConstitutional 2.2 Theeffect governance of principle good and accountability. covers him hewhen isin officebutnotwhen he is of out office. This greatly the undermined beliablefunds knowinghis Theimmunity held thathewouldoraccountable forcan not acts. state’s the managed carelessly he can that means This office. of is out he when even functions Sub §3 states that the President shall not be liable against. or for voted who know will everyone and for acts committedeach since wish their against vote to forced or intimidated feel MPs the of in some make will vote the execution of his is The impeachment allowingmatter, of be aserious it a President carried outthrough an to open as high treason. is to referred notion what of no is there and is stipulated treason andnot treason or the nation will never be in a position to hold the presidentliable for high treason. High 20 CEU eTD Collection http://www.postnewsline.com/2008/10/the-rule-of-law-and-constitutional-amendment-in-cameroon.html, p1 51 50 49 society but madeit amendments since for president-initiated Constitution the the easier the of angles all virtually from opposition with met It century. twenty-first in the amendments in unconstitutional The constitutional was of Cameroon worst the 2008 amendmentone 2.2.1. Effects Constitution onthe rights. constitutional other on and constitution the on amendment this of protect fundamental enshrinedrights in constitution.the This section will expand on impactthe the laws of the land/state are enforced fairly and equally areenforcedfairly and land/state lawsthe the of existence ismade if possible isonly a there andjudiciary,strong independent that which ensures institutionstogether of inimplantsa government away democracy that within Thisstate. that The rule law of canbedefined astheexistence laws of body of an thatmaintainorganised the Abuse of the Rule of Law through successfully. The effect on the constitution can be seen as demonstrated below.went amendment the amendment, the of otherwise or constitutionality the on adjudicating in quiet was Council Constitutional the because also and Assembly National the in upon legislated sovereign’ it suggests constitution,equally that the is which the Law of Supreme land,is the beexpected to and powers government of manoeuvres unreasonable avoidand and arbitrary to encourage order is a“theory of governance relying upon a sequencelegal of and social designedconstraints to law of rule The accountability. itwith comes law and the to is subject everyone means that also It democracy. and is legitimacy there which among governance ofgood components essential Eyambe Elias Ebai, Bernard Muna, Bernard See supra 51 note 42 . Therefore, if is Constitution the thesupreme lawof land,andthe article53§3 Cameroon and The Challenges of the 21 The ofRule Law and Constitutional Amendment Cameroon in 21 st Century, Tama Books, 1993,pp 85-86 50 . It can be said to be one of the , (accessed2009) 22March at 49 to be to CEU eTD Collection received or regarded as inoffensive or as a matter of indifference, but also to that which offend, that to also but indifference, of asamatter inoffensive or as regarded or received are favourable “idea” that “information” or to notonly is “itapplicable Freedom, Fundamental interpretation of the Article 10§2 of European Convention for the Protection of Human Right and the modern to andaccording in is democracy tool an essential Freedom expression of Abuse of Right of Expression: abuses. rights fundamental of lot a witnessed constitution the amend to upheavalsthe taxi the during overdrivers fuel strike by inflated Biya’sprices intention President constitution, the of part integral an be shall preamble the that affirms 65 article and preamble its Though the 1996 Constitution clearly guarantees the protection Constitutional of outlinerights in 2.2.2. Effects onother Constitutional Rights rights. constitutional is protected, rights an directly way of violation saying is there fundamental of judiciary cannot hold himliable and a weak judiciary aConstitutionalor Council in the case of means the of his service asHeadof in State, the execution his responsibility immune from for governance bymaking accountability presidentthe andfaire treatment, free. purports Good any likes he/sheprotection since any whatever president can during do and theirstill reign go without constitution the leaves and governance good of elements the of one violates article This such things after his reign. for judged be cannot and law the above is he that means therefore it State, of Head and President his as is during committed execution of duties the acts thatthepresident the from immune states exercise of of exercise his functions” the after them for be accountable not shall he and immunity pursuance ofarticle8, 9andby 5, 10aboveshallbe covered committed 53§3:Acts “Art. the by Republic in Presidentof the 22 CEU eTD Collection stations in(Equinoxe Radio Douala and Magic FMinYaounde) forairing and debate allowing governmentclosed indown Doualaa television station radio Television) (Equinoxe and two mean stepping beyonddemonstrate the singer-songwriters its milieu.To determination, the The isgovernment determined tolimit freedom of expression asmuch as possible this and will received asix-month imprisonmentfor term singing against the2008constitutional amendment. singer-songwriter another Conscience; La Joe violation. rights fundamental of case only as itsisnot executivethethe is had way,usual,and servingterm. hisprison Mbanga Mbanga 21 March 2009). http://www.internationalpen.org.uk/index.cfm?objectid=D7E60B77-E0C4-ED84-0C8E194E54C2DA10 (accessed any52 citizen is an invitation for nickname)” Biya’s imprisonment that stay networks him inoblige even heisFree Bigto though power tired Katika ... (President a songentitled Constitution,’ ‘“Constipated he sangthat headthe isin of State caught trap of the prison sentence and was imposed high fine for singing against the Constitutional amendment. In receiveda3-year de Mbanga Lapiro criticgovernment, the of songwriter andan outspoken in resulted and anda series abuses.Cameroon’sof arrests singer- imprisonments many This amendment. the criticised and publicly many unconstitutional, declared been not has law torture.Following the enactment of the constitutional amendment, and when the citizens realised that the guaranteed under conditions the fixed bylaw.” the press, of assembly, of Moreassociation, and of trade unionism, as well as the right to strike shall be of expression, of freedom as “thecommunication, of Cameroon of preamble Constitution the of can the is of under guarantee oranysector population”. Freespeech the state the disturb shock or be read at The song has been banned on most TV and radio channels. Any criticism about the constitutional amendment by amendment constitutional the about Any criticism channels. radio and TV on most banned been has song The 52 . Mbanga’s against sentenceappeal the isstill pendingbefore the courtbut 23 CEU eTD Collection http://www.reuters.com/article/worldNews/idUSL0521512320080305?pageNumber=2&virtualBrandChannel=0 treatment.” During the February 2008 strike, as Alice Nkom, lawyer and human lawyer activistsFebruary treatment.” During Alice and 2008 strike,right as the Nkom, cruel, degradinginhuman, to torture, or be to circumstances subjected any person shall no Under circumstances. in all treatment human to and integrity moral and physical life, to “every by to has aright states, protected person 1996 preamble the One rights the of Abuse of Right to Life demonstrators. necessarily being without during this period atrandom citizens werearrested factthat the activistshave complainedmass of trialwith carried no out time for allowed self defend despite 54 the-press-in-2008-cameroon.php 53 terms ranging from 14 months twoto years and payment fines of counsel,lastingjustfivewith trialsheavy about and sometimes minutes, prison to sentenced any in journalists, hurriedly they the hesaid“Once trieddefence without are court, they appear Council, is one of those who opted to defend the defendants free of charge. In an interviewabuse of withright to a fair trial.Francis Ndjonko, a lawyer and member of the Cameroon Bar intentionamend constitution to followedof strikewas the announcement president’s the that the conducted in strict compliance and courts” the innocent “every personis until foundaccused guilty presumed during ahearing with the rights “thelaw a The 1996preamble therightof states, shallensure fairevery beforeto person hearing of defence.” One Abuse of Right to Fair ofTrial: the impacts of the violent controversial constitutional amendment live (making programs for itcall peoplepossible to and givetheirviews) onthemost Tansa Musa, Tansa Attacks Press onthe in2008: Cameroon, (accessed 14March 2009),at http://www.cpj.org/2009/02/attacks-on- Cameroon activists sayriots kill more than100, 53 in modern days. 24 54 ." (accessedMarch 212009) In some cases,human rights at CEU eTD Collection 55 running of Council. for asmooth a Constitutional Theseissuesarenecessary impartially. and work independently or its ability jurisdiction, court to looking composition,tothe the at access this is junction why itfailed todoanything next andthe chapter will tackle this by question failed to adjudicate on and the unconstitutionality silent of remained the amendments. The Council obvious questionask to atConstitutional the rights, of abuses various the or confrontations and upheavals constitutional various the of impact the despite that show analyses above The bidsave to theirlives but died. used tear gas on them. In confusion, and to avoid being arrested, many jumped intothe river in a were trapped bysecurity demonstrators sidesforces of onboth bridgeforcesthe andthe security morereported death the of than 100 with recovered20 bodies from Wouri riverDouala’s where 100 people said“moreactivists died”. than up” andfrom waist the Cameroon in visiblenakedsaid, “manyon beaten them custody marks appearedincourt with were and they Id. 25 55 Newspaper CEU eTD Collection 61 60 59 58 57 Adjudication, andby act a public of right a constitutional the violation (“a individual alleges private procedure process”) in stage an judicial separate ongoing 56 control given to all judicial organs of a given system”) court-like institution”) in (“powerperform model, into review a vested centralisedstarted the Europe acourtor which can constitutional courts the institution. In asguardian of court-likeacting constitution, the a or constitutional the courts model centralised these to disputes constitutional of entrust review with a countries tothis. Many in accordance institutionsact states’ andrespected other disputes concerningconstitutional mustlawandright obligations rule of it and thatthe ensure is involved of duties andenforcement rights the vindication of is for generally andadjudication and rights constitutional typically duties, allocate Constitutions place in the absence of litigation”) of in absence the place takes legislation of review (“review abstract jurisdiction: review of basictypes There arethree Id. Id. Id. Id. Dorsen, Rosenfeld, Sajo & Baer, Id. at 133 CONSTITUTIONAL COUNCIL IN ANDTHEFEDERAL CAMEROON CONSTITUTIONAL COUNCIL Comparative Constitutionalism: Cases and Materials, American Casebook Series, (2003) p 108 government acts acts according tothelaw’” government in ofthe theand institutions ensurethatthe must government it the rule oflaw. This means, protect is ‘to in society a democratic court the role of “The central 58 CONSTITUTIONAL COURTINGERMANY or the decentralised one, first established in the United States (“power to Judicial enforcement oftheConstitution andModels of Constitutional 60 CHAPTER THREE , concrete review (“review of legislation constitutes a constitutes legislation of review(“review , concrete inter alia 26 61 , and the individual constitutional complaint constitutional individual the , and , that itmust enforce the law 56 59 . 57 . The courts usually resolve CEU eTD Collection Constitutional amendment despite the impacts In raisedin despite the chapter. answering this Constitutional previous the amendment in silent been has Cameroon in Council Constitutional the why analyse to aims chapter This Council. Constitutional today’s in felt still is 1, Chapter in seen as limitation, This Justice. review by allowing only the President torefer matters of constitutionality to the Federal Court of Cameroon, 1stSeptemberthe 1961 Constitution provided a very for limited powerofjudicial jurisdiction of Constitutionalthe PriorCouncil isstipulated. tothe1972Unification in hownicely matter the no is violated, right when a constitutional seek remedies able to be not will individuals private the standing, without because important is adjudication for claim constitutional a submit can who or court, the before standing has Who Court. Constitutional the to is access amendment of constitutionality the to importance vital of issue Another hence, failing to respect the legality of constitutional norms. adjudicate basediswill thatindependencea constitutional isremuneration. not when It guaranteed court this on private sector independent branches by meanscreation,and of governmentof the of other appointment influence or impartial constitutional is court foressential democratic ruling.means Thiscourtmust be the relying on the and independentexecutive Thus, court. an the to and access its by creation areinfluenced constitutions as its inThe employerconstitutional courts made theconstitutionality amendments reviewing of tostate and, review depending onits institution. (Constitutional Council) or Council) (Constitutional 62 seek redress from the court for such a violation”) Id at113 a posteriori (German Federal constitutional Court) model of judicial of model Court) constitutional Federal (German 27 62 . Abstract review canbeeither review Abstract . a priori CEU eTD Collection constitutionality of constitutionality attheindependence look section as this ofthe Council will amendments, of in silent been has Cameroon in Council Constitutional the why question the answer why exercisebeen Councilhasjurisdiction. Constitutional the to unable to this attempt In an is question The amendments. constitutional regards as duties its of execution in the silent been the regions. However, functioning of institutions,the andit in shall adjudicate involving disputes the constitution and with these powers at the regulating Councilshall betheorgan thepertaining Constitution, Constitutional to the its disposal,in matters adjudicate to jurisdiction the Council the Constitutional the gives Constitutional Constitution Cameroon Councilconstitutionsbeing governed bytwo –theand1972 1996Constitutions.Article 46of the has since duties Constitutionalthe of Council until latter the is set up”and this lay base forthe Cameroon Court. This isbyvirtue of article 67§4,which “the states, Supremeshall Court perform the operational functionsand its are being outby carried Administrativethe Bench of Supremethe not however, is, Council Constitutional The 1972. June 2 of Constitution the amended that 1996 The in Councilinwas Constitutional Cameroon 1996byLawcreated 96/6of No. 18 January 3.1. The Constitutional Council in Cameroon 63 Constitutionalthe Council in Cameroon both exercise centralisedjudicial review actboldwithoutexternal enoughto influence. TheFederal inCourt Constitutional and Germany and be Council analyse independentcan only impartial important to an Constitutional because Germany could be useful in Cameroon. Composition and access to the Constitutional Council is constitutionalCameroon amendments,and Federal question, willalso Constitutional independence the of Councilin examines chapter the the Constitutional to see how Court, the access example to these of courtsthe andFederal the role theyConstitutional play in Court in This occurs when judicial review is confirmed to one judicial or legal organs. or legal judicial one to confirmed is review judicial when occurs This 28 63 . CEU eTD Collection 65 or Retrogression? 64 The composition of the Cameroon Constitution Council is stated in article 51§1(new) system” judicial the outside matters, whereas thein ofconstitutional the influence from adjudication freeexternal judgeswhoare professional Cameroon ConstitutionalHowever, Council, constitution. the of guardian the as acting institutions aswhichboth are in Germany Court will Constitutional is not bea court seenFederal the and Cameroon in Council of law,Constitutional The below,concerned. is effectiveness “operates the constitutional when is essential court Federalconstitutional or judiciary the of independence The law. Constitutionalconstitutionality amendments,of protection of the constitution and the preservation of the rule of Court judiciarythe andof impartiality judges vital importance fundamental of are to rights, is a tribunal independence of guaranteeof Thus,the thelegislature. or executive the state: armsof other the made up of fundamental if and rights protect interference are able they make without to from the decisions Constitutional courts can only effectively review the constitutionality of the government’s3.1.1. Independence of actionthe Council - Composition/membership protected rights. itscarry dutiesout hence deprivingand Constitution the supremacyits of andindividuals of their effectively to impossible or difficult it find will Council Constitutional dominated an executive Thisor of its mode itsisbecauseadependent members. ofappointment regards and thecreation CameroonCont. amend 2008 Charles Manga Fombad, office of years. of office 6 (six) of term renewable eventually an for designated members (eleven) 51§1(new):TheArt. Constitutional Councilshall 11 comprise Journal of AfricanLaw, Vol. 42, No. 2(1998), pp. 172-186, p 176 The New Cameroonian Constitutional council in a Comparative Perspective: Progress 64 and suffers from executive domination. 29 65 as: CEU eTD Collection 66 for of one reasonsthe why Constitutionalthe Council has beenin silent quashing cases of account This within. protected rights fundamental or Constitution the protect to than President president, initiatedattempt in bythe quash or endeavour, anamendmentany to unconstitutionality or wherenot will council this of members that shows clearly It his amendment. of constitutionality interest hasindirectly pay loyalty to him to and thus ends up beinga institution inwillpartial the be at stake. of council,itthe institution, thisan makes whichhowever, dominated directly executive or They to be partiallywill inclined towards their elector. Since the President of the Republic elects members thereforeeligible for re-election imposes upon them the desire either beto more effectivein their duties or prefer tenureto favour the are terms of many how or years” six of term the renewable “eventually an constitutes the what or member renown” professional of “established constitutes what to as thestated is Nothing competence. proven Constitutional among personalities of established professional must be moralhigh renown integrity who of and Council renewable.The Constitutional Council comprises eleven Themembers electedfact for a renewable thatterm of six years members are CameroonCont. amend 1996 51§2 competence. proven and integrity moral high be of must They established professional renown. of personalities among from chosen be shall members These Council for life. for Council of the RepublicBesides eleventhe members for above,providedformer presidents shall - be - - - follows: as designated be shall They Republic. the of President the by Two by the Higher Judicial Council. Bureau; the with consultation after Senate the of President the by Three Bureau; the with consultation after Assembly National of the Three bythePresident of Republic; the President the by Council, the of President the including Three, 66 : Members of be: Members Council appointed of shall Constitutional the ex-officio 30 members of the Constitutional CEU eTD Collection Constitutional Council. 71 70 or Retrogression? 69 68 Press. (1999), p 9. 67 of functioning Council” the proper the so crucial to are “safeguards by law.These membersimmunities (obligations, and areinstead privileges) of reserving them beto laid down of status the relating to matters and incompatibilities what stated have clearly is to It essential unconstitutionality inare Former Presidents automatically amendment. decree byaPresidential is nominated General Secretary the decree and aPresidential determined by approval. Themodalities andfunctioning Constitutionalthe is Council’s of secretariatgeneral his without action take to or interest, President’s the harm might which adjudication, on venture to Council the for difficult very be will it supervisor, it as President the having President, the or executive beingplacedunderthe functioningHere again of Council we seethe Constitutional the 21 Aprilcame on 2004 out law this However, Council. Constitutional the of independence or impartiality the on impact peace” constitutionalism, power in which “restriction the deals with state of preservation the public of themeaningand constitution.forfeits the of also undermine of This the supremacy Council Constitutional the on branch executive the of influence the increase to on goes only This Article 10§1-2of Article Law ofNo. 2004/004 2004to21 April Organisationthe lay down andFunctioning of the Law No.2004/004 of 21 April 2004 to lay Organisationdownthe and Functioning of the Constitutional Council. Charles Manga Fombad, CameroonCont. amend 1996 Sajó, András 71 67 . This only goes further to show how difficultit will be for the Constitutional Council to . As regards the status of the members, the Constitution states: The Constitution asFear and Acceptance. “Art. 51§5 “Art. by law.” namely immunities,obligations, and privileges be shall laid down incompatibilitiesmatters andrelating status the ofmembers, to memberof Government, of member of those with incompatible be shall of Parliament or of the Supreme court. Other Journal of African Law,Vol. 42,No. 2(1998), pp.172-186, p 178 The New Cameroonian Constitutional council in a Comparative Perspective: Progress 68 : The duties of : The members duties of of Constitutionalthe Council 70 anditfunctioning brought under supervision the of president. the 31 Limiting Government, Central European University ex-officio 69 and have an have and members. CEU eTD Collection ... as adjudicate showshow standing important cannot therefore, when Court is,since a Constitutional Constitution the revise to initiatives 73 Constitution of the version 72 hasrights been violated. Although some constitutions empower its Constitutional Court to “adjudicate… as adjudicate on. bring up aclaim council to to needs for the becausereact somebody able to Council is Constitutional restricted,the to if access and democracy modern in element essential is an justice to Access no matter the number of constitutionalsilent? being its to contribute in Cameroon Council Constitutional abuses, the the before standing Council and jurisdiction can how But rights. fundamental of mightprotection not be to challenge when would makingmoreof procedures it effective in be peoplethe asmanywillbe interests the able their constitutionalConstitutional Court more accessible or allowing for individual constitutionalrights complaint arecountries; tosome itisinmakingindividuals However, restricted particular others. the violated. ThisThe will rule promote on standing democracy3.1.2. Jurisdictionand Access tothe Council variesand from oneprotection of the Constitutioncountry or the rights of individuals.the about care not do and him to loyal are who those only appoint to to decide can President the other, whilein act impartially the constitutionality suchanexecutiveinfluence as the amendmentwith of it is open to all in some CameroonConst. amend 1996 Romania Const.144§a,its art. original in form Constitution inthe of 1991, (now 146§a of 2003 Article the ex officio ex by the President of the Republic, the President of the National the of President the Republic, the of President the by Art. 46§2 Art. , a constitutional complaint needs to be raised by someone whose constitutional whose someone by be raised to needs complaint a constitutional , 73 Matters may be referred to the Constitutional Council Constitutional the to referred be may Matters 72 ,” not all Constitutional Courts have that power. This all have ,” not thatpower. Courts Constitutional 32 ex officio , on CEU eTD Collection to compel the government to respect their constitutional rights, especially on important matters important on especially rights, constitutional their respect to government the compel to in noposition aretherefore “Citizens nostanding. have they because court before the grievance their ventilate cannot violated been have rights constitutional whose Citizens agent. government in as acted access ifa election or the only theyhadparticipated aregranted Individuals theSenate,itas for is yet not functioning. Constitutional neverto the by matter challengingCouncil and of President the referring a think he will so and branch legislative the to belonging not and subordinate a like seem is Assembly National the of President the which in executive dominant very a has President The slim. very is Council Constitutional the to matter a referring ever him of idea the and amendments National Assembly or the President of the Senate. The Presidentis himself the initiator of limited.very is Cameroon in Council Constitutional the to access Mattersarticles, above-mentioned the From maybe referred by the President of the Republic, or the President of the any person acting as Government agent at election. agent the asGovernment acting any person in or in participated theconstituency concerned that election the before Constitutional the Council byany politicalcandidate, party elections inprovided for precedingparagraph maybethe brought 48§2Any Art. inrespect of of challenges of regularity the the one above. provisions of (2) paragraph tothe regional executives pursuant of Presidents orthe Senators, the of one-third Assembly, National one-third Presidentthe Senate, of membersof the of the the Assembly, National the of President the Republic, the of President the by Council Constitutional the to referred be enactment their to §3 Laws well as as may,andtreaties international agreements prior whenever the interests of their Council Regions are at stake. Constitutional the to matters refer may executives regional the National Assembly or one-third of the Senators. Presidents of Assembly,the President of the Senate, one-third of the members of 33 CEU eTD Collection 77 Constitutional Council. 76 Movement, CPDM,made up 153 Members of Parliament out of 180 Democratic People Cameroon the rulingsince party, the but Council toseize the Senators the of one-third or Assembly National the of members the of one-third to given is also Standing constitutional amendment that violates constitutional rights. 75 orRetrogression? Progress 74 As regards the jurisdiction of the Constitutional Council, articles 46 – 48 means receiving from influence external them. Constitutional Council can be in deliberating its functions informingsince these people indirectly membersit not of Councilbutonly showshowdependentandpartial the Constitutional the Council Constitutional the addressed to matter any of notified be to need parliament of Houses the of Presidents the and Republic it is very difficult for any enactment against the CPDM to succeed. The President preamble” in its terms oblique but hortative in such extols elaborately of the like human freedom rights, of speech, and freedom from arbitrary arrest which constitution the CameroonCont. amend 1996 Article19§3of Law No. of 2004/004 2004to 21 April lay Organisationthe down Functioningand of the Quoted in Charles Manga Fombad, Supra note 48. - 47§1TheArt. Constitutional Council shall afinalgive on: ruling institutions. the of functioning the regulating organ be the shall It laws. of constitutionality matters 46. Art. The Constitutional Council shall have jurisdiction in pertaining to the Constitution. It shall rule on the The constitutionality of laws, treaties and international and agreements; treaties laws, of constitutionality The Journal of African Law, Vol. 42, No. 2(1998) p. 179 The New Cameroonian Constitutional councilin aComparative Perspective: 76 . This does not seem to be necessary because they are they because necessary beseem to not does . This 34 75 in the National Assembly, National inthe 77 state that: 74 or to refuse orto any CEU eTD Collection of the standing orders of the National Assembly and the Senate prior to their implementation 79 78 constitution ismaintained in all activities concerning theconstitution, be itconstitutional the of supremacy the sure make shall doing, and inso constitution astheguardian the of act, it in totheConstitution,meansIf hasto adjudicate pertaining matters it Council power shall the badly.adjudicating by rights violate to not in other and competent independent, be efficient, to organ the for need a great is there finals are decision it Since implemented. or be enacted not may unconstitutional natural person andbodies corporate andsub §2emphasisany that provision declared all on as well as authorities, judicial and military administrative, public, all on binding be shall appeal beto thethat rulings Councilshalland 50§1 states not subject they of Constitutional the functioning of the Constitutional Council,is that all decisions of the Council are binding. Article sectionaccording to iv of 2004/0004lawof the 21 April 2004 on organisation the and referred to the Constitutional Council before it canadjudicate on them.The ruling of the council Council... Constitutional the to referred be enactment, their to prior may, agreements international and treaties as well as “laws and The Constitution gives the Constitutional Council Cameroon Const. art. 47§3 Cameroon Const. art. 47§1 operations. It shall proclaim the results thereof. of presidential elections, parliamentary elections and referendum Art. 48§1. The Constitutional Council- shall ensure the regularity- State and the Regions, and between the Regions. Conflict of powers between Statesimplementation; institutions, their to prior Senate betweenthe and theAssembly The constitutionality of the standing orders of the National 79 ”. However, despite these clauses, matters must be 35 a priori jurisdiction over the “constitutionality the over jurisdiction 78 ” CEU eTD Collection 81 March 2009), at http://www.anayasa.gen.tr/jrca.htm, Ekin Press 2008, p 25 1996 to amend the Constitutionof 2 June 1972. 82 inamendment April 2008 The ConstitutionalCameroon Council since its in creation 1996witnessed one constitutional 3.1.3. Participation inConstitutional amendment them. against be adjudicated will that a claim up bring to likely hardly are and amendment the initiating authors main the are In Cameroon however, the Council has a very limited access itto and those who can bring a case Constitutional Court with jurisdiction over laws can adjudicate on Constitutional amendments. 80 it action. be section,can take From previous seen that Council failed butthe to constitution the the amend to intention President’s the following February in nation the throughout a strike amendment of constitutionality the on adjudicate can and laws way of referendum by adopted amendment constitutional the review to jurisdiction have not does it that out ruled matters. The French Constitutional Council in adecision on 6 November 1962,No.62-20 DC, in such adjudicate want it not it to meansitdoes amendments, Constitutional on adjudicate expressly Constitutional Council not empowerthe review, the Constitutiondoesto when Constitutionality of amendment, Kemal Gozler argues that under the European model juridicalof of matters In operations. and referendum elections parliamentary and presidential of regularity the ensure shall Council Constitutional the institutions, state the between problems solving from Apart Regions. between and Regions and State the between institutions, State between powers amendments or ratification of treaties. The Constitutional Council shall resolve conflicts of Law No 2008/001 of 14 April 2008 to amend supplementand some provisions of law No 96/6 of18January Quoted in Kemal Gözler, Id at p 33 80 . The German Federal Constitutional Court however, sees amendments as amendments sees however, Court Constitutional Federal German . The Judicial Review of Constitutional Amendments: A Comparative Study, 82 , which resulted in violent criticism by all sections of the country and country the of sections all by criticism violent in resulted which , 36 81 , thereby showing that the that showing thereby , (accessed 18 (accessed CEU eTD Collection Political Science Review, Vol. 46, No. 3 (Sep., 1952), p 1 84 of Germany,Second Edition,Duke University Press,(1997), p 3. Weimar Constitution the under Tribunal Constitutional the or Court Supreme the either to accorded Constitutional that than Court Federal the to granted is jurisdiction Wider Court. Constitutional Federal the is in judicial of courts vested power judges byfederalcourts, the Länder andby and exercised Basic1951, the for Law providedin theGerman Federal highestRepublic the 92that article 83 secure respectand to also helps and Law) Court the Germany (Basic of of Republic Federal the BasicLaw adjudicate the under arising constitutional on to jurisdiction questions The Federal Constitutional in Court isGermany a specialised tribunal empowered with 3.2. The Federal Constitutional Court in Germany Federal the in Court beexamined.Germany Constitutional will thecaseof in Cameroon, amendments inConstitutional andand participation access jurisdiction After as analysing regards thecomposition independencethe of court the membership,itsand by parliamentariansother during this2008constitutional amendment. means they use, even if itmeans offering money to parliamentarians, as was the concern raised his party and they will number of of Members This Parliament. meansthe presidentwill always receive the supportof ensure that all amendments formwherecomposition moreof ruling parliament the the of total than party the three-quarter follow the rightcomplaint procedure no matter from filinga strikers the prevented which council,limited tothe access due to silencewas the whatagainst such an amendment. Another reason for such a silence is due to the Gerhard Leibholz, Gerhard Donald P. Kommers, The Federal Constitutional Courtin Germany and the”Southwest Case” The Federal Constitutional Court, 84 . Its task is to ensure that all institutions of the state obey the constitution 37 The ConstitutionalJurisprudence of FederalRepublicthe 83 The American The . Created in CEU eTD Collection a judge requiresmajority. a two-third panel while the authority selectto the Court's President alternates between them. The selection of of foureach members select years.each of They term 12 for anon-renewable judges these elect 88 Act of 16 July (accessed1998, 23March 2009) at http://www.iuscomp.org/gla/statutes/BVerfGG.htm#16 87 yearsleast three at for Court Supreme the have served must comprises two panels of eight professional judges, each of which is made up of three judges who autonomous. Unlike the Constitutional in the Council Cameroon, Federal Constitutional Court jurisdiction but also a constitutional organ” The Federal Constitutional isCourt not only body highest the “administration of of justice and 3.2.1. Independence of the Court -Composition/membership below. bewill analysed amendment in constitutional play access,andrule court, of the independence 86 http://www.bundesverfassungsgericht.de/en/organization/procedures.html, 85 rights fundamental the of in application the especially basic order freedemocratic the for effectiveness Law Federalonthe Constitutional Court Act (Bundesverfassungsgerichts-Gesetz, BVerfGG), amended by the Anke Frechkmann and Thomas Wegerich, Thomas and Frechkmann Anke DasBundesverfassungsgericht,(accessed 19March 2009) at Id. 85 and its judges have monopoly no matter in which court they exercise their duties. The duties. their exercise they court in which matter no monopoly have judges its and justice should bejustice elected should of yearsFederal court least with three a supreme haveserved at judges courts of of Federal supreme the justice. Onlyjudges who §3 Three from judgesofeachpanelshall be elected among the §2 Eightjudges shall be toeach elected panel. panels. Article 2§1 The Federal Constitutionalcourt of justice independent of all other constitutional organs. Article 1§1 shallbeThe Federal Constitutional Court aFederal Court shall consist of two The German LegalSystem, The German 88 . 86 . Its results. Its are bindingandindependentis it and 38 87 London Sweet & Maxwell, (1999) p 97. . The Bundestag and the Bundesrat CEU eTD Collection 89 Article 3§3 Senates. two the between balance a enhances President Court’s the of position alternating amendmentan in unconstitutionality is there when or parliament the by legislated are laws sinceunconstitutional they are they have aprofound traininginThis thisintervene domain. to alsothe helps Court when not since jurisdiction their lay within falling matters with or matters Constitutional with members versed well are without is judges made Federalmeans The fact Court the Constitutional upof professional they that that any idea on the subject matter. The serve their panel and the nation as a whole. of organ the as thejudges donothave any a particular to remainloyal reason to person than to eligibleneutrality judgesfor asperarticle the arenot re-election enforces 4§1also The fact that make them impartial inand independent executionthe of theirfunction. state other Thisorgans. strengthen helps to neutrality the membersof Court’s the alsoto and Id. 89 concerns the incompatibility of members of the Federal Constitutional Court with Court Federal of Constitutional members the of concernstheincompatibility permissible. §2 Immediate orsubsequentre-election judgesof beshall not age. retirement beyond extending not Article 4§1The term of office of judgesthe shall betwelve years, such lecturer. Constitutional Court shall take precedence over the functions Federal of the a Judge of functions higher education.of The of institution a German law of at a lecturer of savethat occupation §4 The functions of a judge shall preclude any professional other bemembersorgans. of such cease to corresponding they shall of a Land. On their organs appointment, of the of nor any Government, Federal the Bundesrat, the Bundestag, the of members be not may They 3§3 Art. 39 CEU eTD Collection between Länders. between conflicts on and Länder by law Federal the of implementation on decision final a gives also It the extent of the rights and duties of a Supreme Court or its compatibility with other state organs. The Court has among other powers to interpret the Basic Law in the event of disputes concerning wide states the jurisdiction Germany domainof Court. of the the with regard to all jurisdictions. Article 13 of the law of the Federal Constitutional Court of The German Federal Constitutional Court holds a monopoly on interpretation of the constitution 3.2.2 Jurisdiction andAccess to theCourt the BasicLaw), the constitutional§8a. on (Articlecomplaints 93§1 &§4aand §4b of Law), another recourse exists court to (Article93§1&§4of Basic the within Länder or unless aLand, between different and Länder, the between law, disputes involvingother §8. on public Federation the BasicLaw), of the & supervision second sentence, (Article 93§1 §3 andArticle 84§4, lawFederal by in Länderand the exercise Federal of the of implementation in the particularly Länder, the and Federation §7. in case of ontherightsdisagreements andduties of the Law), one third members of Bundestagthe (Articleof 93§1-2 Basicthe of or a Landgovernment, of Government, Federal the request of on the compatibility BasicLaw,or Land the lawwith law or Federal of compatibility §6. incase ordoubtontheformal andmaterial of disagreements of Land law supremewith Federal organ (Article 93§1-2of Basicthe Law), otherrights of Federaltheir own by the Basichave vestedwith or been parties concernedwho organ of other Law or bylaw, rules of procedure atconcerning the extentof rightsandthe duties a supremeof Federal of thea of in eventdisputes Law the of Basic the interpretation the §5. on determined by the Basic Law, to wit 13 Art. The Federal Constitutional Court shall The Court Federal decide inthecases Constitutional 40 CEU eTD Collection depending on typethe of held.pleading Panel. First the to assigned not review juridical over jurisdiction Deliberationshave also shall Panel Second The of the Federal Constitutional Court shall decide below. seen be in secret ascan stated is clearly jurisdiction areaof panels their and two between the are shared Court the or publichas jurisdiction on the constitutionality of laws, article 21§2 of the Basic Law. The functionsFederal Constitutionalof Court Act and just like the Constitutional Council in Cameroon, it also The Court has a wide range of jurisdiction as demonstrated by article 13 of the Law on withinthe a Land or on compatibility between a Federal or Land law with Basic Law. jurisdiction over other constitutional disputes rights such inas jurisdiction case ofland disputes has also Court Constitutional Federal the in interpretation, verdict final a giving from Apart decision in with decision and together bedrawnup writing shall reasons the resultingfrom pleadingsthe and the taking of The evidence. basis secretdeliberations independentits of on the conviction Article 30§1The FederalConstitutional shall Court decide in Panel. First the to assigned not complaints constitutional and §14above,as well for legalas review proceedings and in§12 forcompetent§5, §6a to§9, cases Article the stated 13§1to §2 The Second Constitutional Panel of Federal the Court shallbe Article 91below andthosein domainthe of law.electoral to pursuant complaints such of exception the with complaints 101, 103and 104of Basicthe Law,as constitutionalwell for as incompatible with with basic rights or underArticlesrights 33, §11 above)be in is to which largely a legal claimed provision legalfor shall proceedings 13§6and be competentreview (Article Article Panelof 14§1TheFirst Constitutional Federal the Court 100§1 of Basicthe Law), (Article is bya Federal requested court decision such law,when Law or the compatibility of a Land statute or other Land law with a §11. On law with compatibility the a FederalorLand of Basic the (Article 99 of the Basic Law), assigned Federal tothe Courtby LandlegislationConstitutional §10. On constitutional withindisputes a ifsuch Land is decision 41 CEU eTD Collection legal norms during a case may first check its compatibility with the Basic Law. In case of of case any Law.In with Basic the itscheck compatibility first may a case during legal norms judicial in review, anycourt employing Concerning concrete or Bundestag. one-thirdthe of other Federal laws.Access theto Court is granted tothe federal government, astate government compatibility between the Federal or State law with the Basic Law or with the State law and 91 (2003) p 125 Constitutional Adjudication, authority he/she compensation. a and wishes redress or review from any whose person constitutional orbasicrights hasrights been violated by a public constitutional as accepts The Federal complaints Court of a method Constitutional “judicial 90 legislatures state and in national minorities and factions andstate and federal state such and party government, courts, parliamentary groups as the to complaints, constitutional of case in the except limited, is access Court’s Constitutional Federal in the as andfew individuals only 3.1.2.), open Presidentseen to the section is (which in Cameroon unlike but access limited has Cameroon, in Council Constitutional the functionsbe like outlined not just out.The properly FederalConstitutional will carried Court, another vital point worth from Apart jurisdiction andthe means of Federal Court, the deliberation Constitutional analysing is who has access to the court because without access the Dorsen, Rosenfeld, Sajo & Baer, & Sajo Rosenfeld, Dorsen, Id. of of Federalthe Constitutional Court. proclamation of decision.the may The date be by deferred an order the and pleadings oral of end the between lie should months three moreNo than involved. made parties to the known beimmediately oral pleadings or atthe end of the deliberations;the in this during caseit given shall be may proclamation of date The decision. the held,it be shall proclaimed publicly, stating themain for reasons signed by participatingthe judges. If oral pleadings have been Comparative Constitutionalism: Cases and Materials, American Casebook Series, Who? What? Whom?:Standing, And justifiabilityand the binding effect of 42 90 . 91 ” When there is a problem of CEU eTD Collection Basic law authorizing it to adjudicate in Constitutional itBasic law Articleto adjudicateauthorizing in amendment. 79statesthat: Constitutional The German Federal Constitutional3.2.3. Participation inConstitutional amendment amendment. Constitutional to comes it when Courtplays Court Constitutional doesFederal the role what not have see shall any we below however, amendment, expressedin Constitutional intervene to it authorizing statement clause expressed any has neither and laws of in constitutionality the over thejurisdiction have both GermanCameroon in Council Constitutional the and in Germany Court Constitutional Federal the above, seen As its compatibility. information as to concrete for Court Constitutional Federal canthe andcontact proceedings court the stop doubt, shall beinadmissible. shall 20 1 and Articles in down laid principles the or process, legislative in the principle on participation their Länder, into Federation the of division the affecting Law Basic this to Amendments §3 Bundestagthe andtwo thirds of votes the of Bundesrat. the §2 Anysuch lawshallbe bythirds Member of the of carried two this clarification. merely makes BasicLawthat add language tothe to treaty, of the this Basic Law do not preclude the conclusion and entry into force be making forthepurpose sufficient, of provisions the that clear of itshall Republic, Federal the promote defence of the designed to or regime, ofanoccupation the phasing out or of a peacesettlement, thepreparation settlement, apeace respecting treaty international expressly 79§1 Art. This LawBasic maybeamended by only a law amending or supplementing its text. In the case of an Court. Constitutional Federal the with complaint constitutional may lodge by authority a Basic Lawhasbeenviolated the public one of underhis rights Articles 20§4,33,38,101, 103and104 of Art. 90§1 Any person Constitutional Federal who Court the by in analogical claims decision a application obtain of Articlemust 80 above.court the thatlaw, one of Federal apply as to law continues a whether determine histo relevance basic rights 86§2 Art. If inproceedings court is it amatter of dispute and or 43 CEU eTD Collection at http://www.anayasa.gen.tr/jrca.htm, Ekin Press 2008, p25 92 of membersof parliament. the of setup blockagethe nature is the another inproblem Cameroon, major is a Council Constitutional the to access Although in Cameroon. Council Constitutional the before so doing than in Germany Court Constitutional Federal the before complaint amendment a constitutional bring to is easier it that seen be can it analyses, above the From 3.3. Othercontributing factors Constitutional Court will always adjudicate in such a Federal situation. the as upon, legislated be to amendment Constitutional the of constitutionality by granted Basic makes German the itimpossibleLaw which for amendments, the undermined constitutionality of an amendment and the wider access to the Federal Constitutional Court Haven taken Federalitis standthis Constitutional bythe intervene Court, in able to the principles inenumerated Articles 1and 20areprohibited. into Federation the of division stated in 79§3of article 1949Germanthe Basic Law,constitutional affectingamendments the as limits substantive the violating amendment an on adjudicate will Court Constitutional Federal The amendment. an of constitutionality the on adjudicate then can it law, of constitutionality the over jurisdiction has court constitutional the since and laws be to amendments has taken a different hasGerman constitutional standingFederal considered and Court the However, of amendment. constitutionality on the adjudicate in be not to a position might Court Constitutional the constitution, a of amendment the clause asto or statement expressed Pr. Kemal Gözler Kemal Gözler, Judicial Review of Constitutional Amendments: AComparative Study, 92 argues that with argues that judicial European the model is no wherethere of review, Länder s, their participation in the legislative process, or the or process, legislative the in participation their s, 44 (accessed2009),18 March CEU eTD Collection http://www.mediaf.org/fr/themes/fiche.php?itm=3328&md=&thm=2 Paul Abine threw sponge),the manipulation. visible judicialhasparty,no amendment tochallengegrounds such an legally asitis validmatter the no Membersis following of upon Parliament legislated the provision article opposition of the 63§3, that it is very expensive. basis of cost, the on areferendum herefused areferendum; outthrough becarried amendment This therefore Biyareferendum in anationwide1996Constitutional the 1972,Presidentthat refused outcry means that,The second option for submitting an amendment bill to referendum is very ifslim. In fact, after the an amendment bill tabled before the 94 93 forvote itandis presently facing threatand had to tabled for his resignation constitutional amendment only one CPDM MP, Paul Abine Ayah, former magistrate, refused to 100. In leastsupport ifnot have 2008 the heany amendment, a95percent would at make up153of 180seatsinthe is Parliament already for enough guarantee the president inthat The President’s therulingparty or People party, Cameroon Democratic CPDM, the Movement, amendment the adopt shall Parliament of members the of majority in a may which a secondcase two-third reading, Presidentof request the Republic the amendment. An absolute majority of the members of Parliament shall adopt the amendmenteffect and thatthe is to 63§3 parliamentarticle in constitution The option. referendum the use to than rather shallParliament meet in congress whenThis called uponis tofelt examine ifa draft the or proposed President decides to table the bill for legislation before the Members of Leger Ntiga Leger CameroonCont. art. 63 Assemblée nationale : Pourquoi Ayah Paul Abine a jeté l'éponge AssembléePourquoi nationale :ajeté AyahPaulAbine (NationalAssembly: WhyAyah (accessed 28March2009) at 45 93 . 94 . CEU eTD Collection this work. section of look atpossible intheRecommendation bedeveloped andConclusion solutions will next question this research its the functions, effectively execute to impossible makes it which practically situation, difficult seeks toa very in is placed resolve, Constitution, the to pertaining matters in or amendment of is theconstitutionality empowerment of this organ.adjudicatein the Constitutional Council,though givenHaving the powerto the seen that An attempt to 46 CEU eTD Collection constitution but this, even anybody after whose constitutional are violated canstillrights bring a the with constitutionality its on adjudicate shall which Council Constitutional the through Furthermore, all proposalsdraft dealing with constitutional shouldamendments firstof all pass executive from influencing the Constitutional Council. the prevent also will and democracy strengthen to help will which Council Constitutional andindependent aseparate inwill members.This produce of part selection those the including Hemight President. the appoint a presidential them through should butnot take decree Council Constitutional the of members three designate not should President the Secondly, Council should be granted to them as is the case in Germany. Constitutional the havingto done,access justice has areviolated ameansof constitutional rights Firstly, access to justice is very important and to make through. sure gone has Cameroon that any private individualshall be drawnfrom Federalthe Constitutional inCourt Germany from and experiencethe that whose decisions during Constitutional as amendments, seen from findings,the some recommendations from active taking Council Constitutional the hindering reasons various the Having considered RECOMMENDATIONS 47 CEU eTD Collection proposed bill and hence the citizens will have the chance to express their views. population on intendedthe This amendment. will helptoenable upon enough debate draftthe cannot amendment constitutional any where be amendment constitutional for set be carried also should bar A time out unless that minimumNational Assembly.length of timeconstitutional rights orconstitutionality of laws and amendment will not be legislated upon in hasthe beenamendment. used to sensitised since the ConstitutionalBy Council has jurisdictionso over laws, therefore,doing, it has jurisdiction over theadopt it the willview of theadjudicate GermanAnother method of empowering the ConstitutionalFederal Council in Cameroon will be for the Court toConstitutional on all Courtdraft that allproposals amendments opportunity are maketo inputson constitutionalthe amendment. laws and and thoseconstitutional that violates make ofParliament, a up153of Assembly party 180Members the ruling where amendmentTo deal with problemthe partieslikedominant of in day presentthe Cameroon National should also go throughand radios for citizens to know what is going on. a referendum,complaintbefore thedraft council.billsshould upon Such besufficiently on television debated this gives the citizens the 48 CEU eTD Collection complaints brought before it. before brought complaints upon react only can which Council, Constitutional the of nature silent the to contributes access constitutional rights is violated to file for remedy before the whose council.individual an for This blockagedifficult it or makes limited this and amendments the of initiators the themselves are who those to limited except is Council Constitutional access to the that shows The research especially the rights protected in the preamble and some of the amendments carried out. achieved, or implemented they are how and ideas expressed some the of between contradiction easily amend the constitution to suit his personal political desire. The constitution also portrays a to made president for The the it has of easy nature dominant executive the groups. government reduced toallow thejudiciary functionand legislative in to their capacity independentas beforemanyfunction instance,For dominance can the beproperly. of needsto executive the modified be to have Constitution Cameroon the within institutions some that show findings The amendments. constitutional influence to likely is Parliament external influence, especially the executive. It also revealed that a strong dominated forin the Councilparty beindependent its into composition,from appointing membersandfree in the need a shows It Council. the to access of lack by caused mechanisms amendment Constitutional obstacles limiting the Constitutional Council in especially Cameroon, with regard to serious revealed topic discussed the on out carried research the have shown that I In this work CONCLUSION 49 CEU eTD Collection the Council available to the citizens who are those whose constitutional rights are easily areeasily affected. rights constitutional whose are those citizens who tothe available Council the a given a higher place in dealing with the Constitutionality of an amendment by making access to the will of the people. It also points out that the Constitutional Council and the Courts need to be reflect it should and Parliament of Members by the initiated than those President by the initiated mechanismfor be amendment anamendmentThis the that suggests easier should not work because nocasehasit eversucceeded reaching theConstitutional Council. silentnature of the Constitutional Council in Cameroon as regard tothe amendmentmechanisms type of decisions it can produce. It did not consider using a case-by-case approach analyseto the is andindependent the Constitutional essential the for court and becauseit access to an Council jurisdiction composition, the at looking by manner analytical in an out carried was research The constitutionality of amendments. the especially Constitution, the to pertaining matters in be active to in order jurisdiction its freely beexercise to allowed needs to influencesexternal and evolvedue to timewith failed to has Cameroon in Council Constitutional the especially organs constitutional how demonstrate aimed to Cameroon of in context the new virtually a topic on out carried This research 50 CEU eTD Collection Law Journals andEncyclopedia Books 10 2 Charles Charles Manga 2 Fombad, 3 ______Adrian Vermeule, 1 11 Kemal 9 Gözler, John Mukum Mbaku and Joseph 8 Takougang, Dorsen, Rosenfeld, Sajo 7 & Baer, Donald P. 6 Kommers, David R. 5 Dow C. 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