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An Analysis of Constitutionalism and the Rule of Law in Post-Independent Cameroon Against Post-Apartheid South Africa

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An Analysis of Constitutionalism and the Rule of Law in Post-Independent Cameroon Against Post-Apartheid South Africa When the rule of law and constitutionalism become a mirage: an analysis of constitutionalism and the rule of law in post-independent Cameroon against post-apartheid South Africa BY JUSTIN NGAMBU WANKI SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE DOCTOR LEGUM (LLD) IN THE FACULTY OF LAW, DEPARTMENT OF JURISPRUDENCE, UNIVERSITY OF PRETORIA, SOUTH AFRICA SUPERVISOR: PROFESSOR KARIN VAN MARLE 29 OCTOBER 2015 i DECLARATION I declare that this thesis is my original work.It has never been presented to any other University or institution. Where other people‘s works have been used, references have been provided, and in some cases, quotations made. It is in this regard that I declare this work as originally mine. It is hereby presented in partial fulfillment of the requirements for the award of the LL.D Degree. Signed: __________________________________ Justin NGAMBU WANKI Date: __________________________________ This dissertation has been submitted for examination with my approval as University Supervisor Signed _____________________________ SUPERVISOR ii DEDICATION This thesis is dedicated to my Almighty God who put this desire in my heart and accomplished it for me, and to my unmarried wife and unborn children, whom I sacrificed in order to achieve this goal first. iii ACKNOWLEDGMENT It really cannot be gainsaid that writing a thesis is a huge task that requires a lot of time, concentration, prayers and even encouragement. It is therefore clear that it will be quite impossible for one to accomplish such an exercise without the input of others. Many people have contributed to this thesis in one way or the other for it to be what it is now. First and foremost, I will extend my gratitude to Prof Van Marle, who took keen concern in my work and raised very insightful comments that finally shaped the thesis to what it is now. She only came in during the last year of this work and had to make sure that everything is in order before final submission for examination was done. I commend her for her intellectual prowess in this regard. At the delicate stage where my previous supervisor left off, it would have been difficult and even impossible for another person to pick up, if they lacked that prowess. I must thank Prof Caroline Nicholson who initially started the supervision of my work before she was later promoted as the Dean of the faculty of law at the University of the Free State. She spent valuable time making sure that the main argument in my thesis is captured in all my chapters. She proved to be a wonderful mentor to me and her invaluable suggestions and comments shaped my understanding and have thus guided my work and these same skills will reside with me into my academic career. I say to her, thank you for your unreserved direction and assistance. I will equally thank Dr Cyril Monembou and Dr Christopher Suh of the law faculty of Yaounde II Soa. They gave me invaluable support and assistance during my research visit. I thank Prof Van Marle once more for facilitating my access to finances for all my conferences abroad and Professor Nicholson for facilitating my study abroad project which enabled me carry out research at the University of Yaounde II Soa, the Supreme Court and the National Assembly, all of Cameroon. I also acknowledge the inputs of my colleagues at the Department of Jurisprudence; Dr. Gerald Kamdem Kamga, Mrs Oluwabunmi Niyi-Gaffar and most especially Mr. Tshepo Madlingozi who all along made insightful comments on my draft journal articles, conference papers and ultimately on my thesis. Many thanks go to the members of the Oliver Tambo law library for their assistance and warmness. They were prepared all the time to order my books and articles from libraries abroad as most of my sources were scarce and not readily available in South African libraries. Special thanks go to Mrs Trudi Bosua, Ms Magdalene Gomba and Mr. Sonti Monakhisi who were present iv all the time to give me assistance whenever the need arose. As a matter of fact, the Oliver Tambo library crew was my family away from family. God bless these people for me! Finally, I give thanks for the love, assistance companionship and encouragement to my immediate family here in South Africa; Mireille Kamga, Joseph Nadjo, Grace Mundela, James Nyondo, Carol Ngang, Pastors Elizabeth and Emmanuel Abba Great and our ―Great Commission‖ as soldiers in the Lord‘s ―End Time Army Worship Center” mandated to take the Good News to the poor, proclaim liberty to the captives and recovery of sight to the blind and to set free the oppressed and announce that the time has come when the Lord will save his people. (Luke 4:18-19) Great thanks to the Wanki Family in Cameroon and abroad. The best family in the entire world, no family on earth rivals the love this family shows to one another. I‘m grateful for their prayers, financial assistance and encouragement. v ACRONYMS ANC African National Congress ARCAM Assemblée Representative du Cameroun ATCAM Assemblée Territorial du Cameroun AZAPO Azania‘s Peoples Organisation BCM Black Consciousness Movement CA Constitutional Assembly CC Constitutional Court CGT Confédération Générale du Travail CODESA Conventions for a Democratic South Africa COPE Congress of the People COSATU Congress of South African Trade Unions CPDM Cameroon‘s People Democratic Union CWA Cameroons Welfare Association CYL Congress Youth League DA Democratic Alliance DPP Director of Public Prosecutions ECC End Conscription Campaign ELECAM Elections Cameroon IFP Inkatha Freedom Party JSC Judicial Service Commission KNC Kamerun National Congress KNDP Kamerun‘s National Democratic Party KPP Kamerun‘s People‘s Party MDR Mouvement pour la Défense de la République NCHRF National Commission for Human Rights and Freedoms NEO National Elections Observatory NP National Party NPA National Prosecuting Authority PAC Pan Africanist Congress vi Racam Rassemblement Camerounais SACP South African Communist Party SADF South African Defense Forces SAP South African Police SIU Special Investment Unit UN United Nations UNDP/NUDP National Union for Democracy and Progress UNICAFRA Union Camerounaise Française UPC Union des Populations du Cameroun USCC Union des Syndicats Confédérés du Cameroon vii SUMMARY The thesis examines the colonial era in Cameroon with the view to determining whether or not there has been a shift from colonial ideologies or jurisprudential transformation in the new democratic dispensation. Constitutional transformation in South Africa is used as a desirable transformative paradigm against which constitutional transformation is measured in post- independence Cameroon. I contend that participation and empowerment of the South African citizenry through the constitution-making process which endowed the citizenry with the power to constrain and restrain government action through the constitution provides a desirable paradigm for constitutional transformation. Cameroon‘s constitution-making process was elite-driven, participation reduced to the colonial government and Cameroonian citizenry side-lined, thereby facilitating the continuity of the colonial ideology to be captured in the independence and post- independence Cameroonian constitutions. Since independence there has been no substantive change in the content of the constitution of 1960 which was then replicated in the 1961, and 1972 constitutions. Conclusively, the legacy of colonialism is still apparent in the present 1996 constitution. This colonial ideology continuity into the current democratic dispensation has inspired disregard for the rule of law and constitutionalism. The thesis concedes that South Africa has not been transformed fully as yet. Violations such as those in Marikana, Nkandlagate and refusal by President Zuma‘s lawyers to hand over the ‗spy tapes‘ to the court can only suggest that South Africa is still undergoing transformation. However, I have pointed out that in just twenty one years SA has made significant constitutional transformation Cameroon has not made despite its fifty five years as a democracy. The thesis ends by making recommendations for constitutional transformation in post- independence Cameroon relying on the SA model to provide for the entrenchment of a bill of rights in the Cameroonian constitution, the Constitutional Council be empowered with the power of judicial review and constitutionalization of specialised institutions amongst others. viii Table of Contents CHAPTER ONE ................................................................................................................................................. 1 INTRODUCTION .............................................................................................................................................. 1 1 RESEARCH PROBLEM, ASSUMPTIONS, AND RESEARCH QUESTIONS ..................................................... 1 1.2 THESIS MOTIVATION .......................................................................................................................... 7 1.3 DEFINITION OF KEY TERMS AND CONCEPTS .................................................................................... 15 1.3.1 CONSTITUTIONAL TRANSFORMATION / PROGRESSIVE TRANSFORMATION ........................... 17 1.3.2 THE DEFINITION OF CONSTITUTIONALISM ............................................................................... 17 1.3.3 CHARACTERISTICS OF MODERN CONSTITUTIONALISM ......................................... 18 1.3.3.1 Constitution-building process ...............................................................................................
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