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Corruption Under Cameroon Law

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Corruption Under Cameroon Law Corruption Under Cameroon Law By Justice Mbah Acha Rose Fomundam Vice President, Court of Appeal, South West Region, Cameroon. Corruption is a general phenomenon and the definitions applied to corruption vary from country to country in accordance with cultural, legal or other factors and the nature of the problem as it appears in each country. Black’s Law Dictionary, (7th Edition edited by Bryan A. Garner) defines the word “Corrupt” as, “Spoiled, tainted, vitiated, depraved, debased, morally degenerated. As used as a verb, to change ones morals and principles from good to bad” Corruption is defined as “the act of doing something with an intent to give some advantage inconsistent with official duty, and the rights of others, a fiduciary’s or official’s use of situation or office to procure some benefits either personally or for some one else, contrary to the rights of others”. Generally, corruption may be perpetuated by an individual alone, or is entrenched within a public sector in which case it is described as systematic corruption. In Cameroon, corruption is considered as a specific offence and there exist national as well as international instruments in Cameroon that deal with corruption. As far as national instruments are concerned, there is the Cameroon Penal Code, the Criminal Procedure Code, the National anti-corruption commission, the law on the Declaration of Assets and Property, and the law No. 2003/004 of 21/04/2003 on bank confidentiality; there also exist the National Agency for the investigation of financial matters. As far as the international instruments are concerned, there is the United Nations Convention Against Corruption, the United Nations Convention on the fight against transnational organised crimes, and the African Union Convention on the fight against corruption. Part 1: NATIONAL INSTRUMENTS ON CORRUPTION. (1) The Penal Code. This is the main national legislation that deals with corruption as an offence in Cameroon. The penal code otherwise known as law No. 67-LF-1 of 12th June 1967 identifies and punishes several forms of corruption. These forms are bribery, indulgence, undue demand, compulsion of public servant, procuring influence, misappropriation of public funds and corruption of employee. (a). Bribery: (S.134 penal code). Bribe is what is usually given or taken in a corrupt relationship. To pay or receive a bribe is corruption per se and is usually understood as the evidence of corruption. The word bribery has several conotations (appellations). There exist several equivalent terms or bribery. In some countries it is called ‘Kick backs’, ‘gratuites’, ‘back shees’, ‘sweetners’, ‘pay-offs’, ‘speed and grease money’. In Cameroon the word bribery also has other appellations such as ‘Choko’, ‘Kola nut’, ‘myjar’, ‘petrol’, ‘chokuchoku’, and in French ‘Dossier bien habille’, ‘Dossier cravate’ and several others. These terms are used in a bid to water down the pejorative meaning attached to bribery. S.314 of the Penal Code which deals with this form of corruption punishes a public servant, government employee or anyone who for himself or a third party solicits, accepts or receives the bribe as well as he who gives the bribe or yields to it. According to that section, the bribery can take the form of an offer, a promise, gift, or present. Such 2 bribery is usually given in exchange for acting contrary to professional obligations or to accomplish certain duties. As per S.134 the P.C bribery must be in order to obtain the performance, postponement or abstention from an act of his office. It could be a reward for an act that had already been performed, or the person receiving had refrained from doing the act. Thus this section of the law punishes both the giver and the receiver of the bribe. The penalty as per this law is both imprisonment for from five to ten years and with fine from two hundred thousand to 2million Francs CFA. Where however, the act does not lie within the competence of the person corrupted, but was facilitated by his office, imprisonment shall be from one to five years, and a fine of from 100.000frs to 1,000,000frs. (B) Indulgence (S.137 Penal Code) This section deals solely with public servants who act to the detriment of a government department, co-operative, or any State Authority or corporation either public or subject to the administrative control of the state, or in which the state holds directly or indirectly the majority of the shares. The corrupt act envisaged here is where the public servants grants exemption from any fee, due, duty, tax or contribution, or he delivers at a lesser price than that prescribed any produce of the establishment. The section of the Code stipulates a penalty of two to ten years imprisonment with fine of from 20.000 to 2.000.000frs. (C) Undue demand (S.142 penal code) Under this section, the law punishes any public servant, notary, public auctioneer, bailiff or process server or the representative of any such persons who acts corruptly. The corrupt act as described by this section consist in 3 demanding any fee, due, duty or tax which is not due or any material benefit other wise than on payment of the proper price. Such acts are punished with imprisonment for from two to 10 years and with fine of from twenty thousand to two million francs CFA. (D) Compulsion of Public Servant (S.160 Penal Code) Here the law punishes anyone who through interference or threats procures a public servant improperly to perform or refrain from any act of his office. This is considered as corruption and is punished with imprisonment for from two to ten years and with fine of from twenty thousand to one million francs. (E) Procuring Influence (S.161 Penal Code ) This practice which is considered as corruption is punished in like manner as the offence of compulsion of public servant discussed herein above. Here two categories of persons are envisaged:- any person, and then any public servant. The 1st category which is any person, must have acted with assault or threat or by presenting gifts or making promises, with intent to corrupt a person having any influence real or supposed, with interest to procure any advantage from any public authority. The 2nd category is any civil servant who acts for himself or on behalf of a third party. The corrupt act here consist in soliciting, receiving, or accepting any offer promise or gift to procure any advantage from public authority or body placed under the control of the public authority, any contract, operation or other benefit arising from agreements concluded with public authority or body placed under the control of the 4 public authority. The public servant by so acting takes due advantages of the real supposed influence that his status or office has conferred upon him. The punishment envisaged for both categories of offenders under this section is the same – imprisonment for from 2 to 10 years, and with fine of from 20.000frs to 1.000.000 frs. (F) Corruption of Employee (S.312 Penal Code) The person envisaged here as the possible offender, is an employee in receipt of any form of emolument. The corrupt act consist, on his part, in receiving any gift or accepting any promise without the permission of his employer, for doing or omitting any act of this employment. The punishment for such act is 1 to 3 years imprisonment of or a fine from 50.000 frs to 500.000 frs or both such imprisonment and fine. (G) Misappropriation of Public Funds. (S.184 Penal Code) This is one of the forms of corruption which has been frequently identified by writers. Embezzlement is one of the forms of corruption and power abuse that can develop in closed institutional and moral spheres, independently of the public sanction Sindh Chief Minister Arbab Ghalam Rahim, speaking as chief guest at an essay and painting competition for student of schools, colleges, and universities, on October 17th, 2005, identified embezzlement and misappropriation as some of the common forms of corruption amongst bribery, gifts, intellectual and professional dishonesty. S.184. envisages whoever (not only civil servants) by any means takes or keeps dishonestly any property moveable or immoveable, belonging to, in transmission to, or entrusted to the state, or to any authority or corporation either public or subject to the administrative control of the state or in which the state holds directly or indirectly the majority of the shares. 5 The penalties prescribed vary accordingly to the value of the property. ¾ Where the value of the property is more that ½ a million frs, the penalty is life imprisonment. ¾ Where the value of property is 500.000 Frs. or less but more than one hundred thousands francs the penalty is imprisonment for from 15 to 20 years. ¾ Where the value of the property is 50,000 FRS or less the penalty is Imprisonment for from 5 to 10 years and with fine from 50,000 frs to 500,000 frs. This section provides that the penalty in case of mitigating circumstances may not be reduced below 10 years, 5 years, or 2 years and its execution may not be suspended. S.184 (4) provides that, the court may order any form of confiscation of any property, moveable or immoveable, belonging to the offender, and attached, which is the proceeds of the offence. Besides this, the law stipulates that the trial judge must order the publication of the judgment, and impose certain forfeitures on the offender, such as: ¾ Removal and exclusion from any public service, employment or office. ¾ Incapacity to be a juror, assessor, expert, referee, or sworn expert.
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