The Right to Fair Hearing in Cameroon
Department: Law
No of Pages:
Project Code: LL6
References: Yes
Cost: 5,000XAF Cameroonian
: $15 for International students
ABSTRACT
The
subject of this research topic is the right to fair hearing in Cameroon. The
right to fair hearing is enforced in Cameroon through the Cameroon penal code.
The
right to fair hearing is enforce worldwide using some laws like the Universal
declaration of Human right, Geneva convention of Yugoslavia and more.
Despite
the fact that there are some laws that enforce the right to fair hearing in
Cameroon there are still some shorting coming.
CHAPTER ONE
GENERAL INTRODUCTION
1.0.Introduction
The
right to fair trial is an important human right norm that affords protection to
the citizen and guarantees the observance of the rule of law. It ensures that a
litigant before a court is afforded all the necessary protections before the
law to check arbitrariness.
The
concept of fair trial is protected under international human rights law and has
been enshrined in the constitutions of many states, not least Cameroon. It is
constitutional principle of fundamental importance in Cameroon and its origins
dates back several years. Its importance in the furtherance of justice cannot
be over-emphasized.
This
chapter introduces the concept of fair trial by discussing its background,
establishes the statement of the problem relating to the study, the
significance of the study, the objectives to be achieved, the research
methodology employed and the scope of the subject.
1.1 Background to the
study
Before
examining the origin of the right to fair hearing, it is worthy to explain in
brief he concepts of fairness. What fairness does not require is perfection;
indeed, perfection is something more for the province of gods.
As
rightly intimated by his celebrate dictum “the fundamental human right human
right is not a system that is infallible but one that is fair”. Indeed,
perfection is farfetched when it comes to litigations. As could be rightly
interpreted from Diplocks dictum, fairness demands not perfection but for
reasonable, average, honest, just and comely litigations.
The
right to fair hearing mean a judicial proceeding that is conducted in such a
manner as to conform to fundamental concepts of justice and equality. During a
fair hearing, authority is exercised according to the principle of due process
of law.
Fair
hearing means that an individual will have an opportunity to present evidence
to support his or her case and discover what evidence exists against him or
her. In criminal law, when an individual is arrested a fair hearing means the
right to be notified of the charge brought against him or her and the chance to
meet that charge.
In
order for a hearing to be fair and comply with due process requirements, it
must be held before an impartial tribunal; however, a hearing can be unfair
without any intention that an individual that it be way.
A
fair hearing must provide a reasonable opportunity for an individual to present
at the designated time and place, during which time he or she may offer
evidence, cross examine opposition witnesses, and offer a defence.
Formalities
of a court action need not strictly complied within order of the proceeding to
be considered a fair hearing. The right to fair hearing is indeed a basic human
right and it protection is of enormous essence and hence a fundamental
obligation of government.
International
treaties such as the Universal declaration of human right make incumbent on
state to ensure the promotion and protection of human rights in litigations
States therefore has obligation to ensure the protection of the right to fair
hearing on their nationals and others by taking measures to protect them.
Fair
trial stand under ICCPR are found principal within article 14. They are
supplemented by procedural guarantee applicable to proceedings concerning the expulsion
of the alien (article 13 of ICCPR) and the principle of non-retro-activity of
criminal/penal law (article 15 of the ICCPR).
The
various elements of the right to fair trial codified in the ICCPR and also be
found within the Universal Declaration of human rights, customary international
law norms and other treaties, pertaining to international humanitarian law
international criminal law or to countering of terrorism.
In
similar terms article 14 of the American convention on human rights and, in
somewhere lesser detail, article 7 of the African chart on human and people
rights, article 13 of the revised Arab chart on human rights and article 20 of
the ASEAN Human Right Declaration.
Under
international humanitarian law, he third and fourth Geneva Convention 1949
provide judicial guarantees of prisoners of war and civilians detain for
criminal offences relation to international armed conflict.
Common
article 3(1)(d) of the Geneva conventions governing non-international armed
conflicts prohibits the passing of the sentences and carrying out of executions
‘’Without previous judgement pronounced by a regularly constituted court,
affording all judicial guarantees which are recognized as indispensable by
civilized people..’’, considered to reflect customary international law.
Specific
additional fair trial guarantee relevant to non-international armed conflicts
are to be found in article 6 Additional Protocol II.Fair trial guarantees under
human rights treaties in question.
Denial
of the right to fair trial can constitute a war crime in certain
circumstances.Rome statute of the international criminal court also includes
the basic requirements for a fair trial in the context of international
criminal.
The
right to fair hearing is an international law principle that is being observed
in Cameroon and many other countries in the world. The right to fairing is a
municipal law in Cameroon. A municipal law is a law that govern the
relationship of persons in a country.
The preamble 1996 constitution of the Republic
of Cameroon provide that the law shall ensure the right of everyone to a fair
hearing before the courts and section 4 of the judicial organisation ordinance
corroborates same that ‘’ all judgements shall be pronounce in open court’’.
This
is an aspect of judicial neutrality and impartiality and independence. Justice
must not only be done; it must be seen done.
According
to justice Patrick Robinson the right to fair trial can be traced all the way
back to the Lex Duodecin Tabularum also known as the twelve tables which was
the first written code of laws in the Roman republic around 455 B.C.2 contained
within these laws was the right to have all parties present at a hearing, the
principle of equality amongst citizens and the prohibition.
With
the first ten table published around 445 B.C with the last two published around
449 B.C. Another important historical event of the right to fair trial can
still be seen under the work of Judge Patrick Robinson.
Which
is the Magna Carta. In forcing King John sign the Magna Carta Libertatum in
1215, the English nobles ratified the principle that even a king will could be
circumscribed by law. In doing so, the
Magna Carta paved the way for later developments during the age of
enlightenment that would seek to subject governments to the will of the people.
The Magna Carta proclaimed that:
No
freeman shall be taken, prisoned, disseized, outlawed, exile, or any way harmed
nor will go upon him save by the unlawful judgement of his peers or by the law
of the land. Thus, the Magna Carta like the twelve tables recorded in writing a
set of clearly formulated rights.
Subsequently,
court have looked to the Magna Carta in articulating rights such as trial by
jury, habeas corpus , abolition of arbitrary imprisonment and equality before
the law.
The
right to fair trial can also be traced from the very origin of the event of the
garden of Eden following the wrong of Adam and Eve GOD before punishing them
tried them there by granting right of
fair trial.
The
guilty parties Adam and eve where
innocent by an omniscient being as supported by the question put to them
‘’Did you eat of from that tree that I told you not to eat from’’ As could
rightly be interpreted, a fugitive even if caught flagrante delicto should be
presumed innocent.
If
the right to fair hearing is been observe fully setting benefit will be
obtained. Benefit not only to the state but to it citizenry.
Innocent
person will be set free, in the sense that innocent person arrest will be trial
and their own part of the event will be heard by observing the right to fair
trial. And nobody will be held liable for what he has not done.
Quick
and fast justice will be obtain in sense that setting long procedure which
are not
part of the law of the right to
fair hearing will be kept aside ,.that
is the right to fair trial will be
followed according to the law to fair trial ,that is in its isolation.
1.2 Statement of the
Problem
The
term “fair hearing” is a problem in itself in terms of the definition. Several
attempts by legal scholars to give an adequate definition which encompass this
human right principle has most often than not be in futility.
Existing
declarations, resolution and universal “sectorial” treaties relate just too
specific aspects to the “fact in issue.”
Treaties
such as the Universal Declaration on Human Rights (UDHR) 1948, the
International Convention of Civil and Political Rights (ICCPR) 1966, the
African Charter for Civil and Political Rights (ACCPR) 1981, the Cameroonian
constitution of 1996 (as amended in 2008) only instigates for the protection
and promotion of the right but failing to define. Same is indeed a lacuna in
the law that needs to be solved.
However, another problem emanates from the actual implementation of the right to fair hearing in Cameroon .It is indeed no “news” of fact that Cameroon has wonderful laws ensuring the protection and promotion of the right to fair hearing.
Regional
commissions such as the African commission has in the past entertained cases
like that of Emdga Mekong v. Cameroon. Here, the government was accused of
dictatorship on the plaintiff and was held liable for unjustly arresting and
detaining Mr Mekong for 12 years without trial within reasonable time thereby
refusing g his right to fair hearing.
It
is, of course recognized that, the right to fair hearing is stated in the
Cameroon constitution, judicial organisation of Cameroon, Cameroon criminal procedure
code. It is rarely put in to practice as stated by the law.
Based on the problems identified above a number of inescapable questions arises including;
What
accounts for the fact that despite its provision under municipal law the
principle is rarely observed?
What
are the best measures aimed at improving the observance of the right in
Cameroon? These are some of the questions my research will attempt to answer.
1.3 Research Questions
Based
on the problems identified above a number of inescapable questions arises
including.
- What accounts for the fact that despite its provision under municipal law the principle is rarely observed?
- What are the best measures aimed at improving the observance of the right in Cameroon?
1.4 Aims and Objectives
The
objective of this research shall be divided into two. Specific and general
objective.
The
general will look at the extent to which Cameroon adheres to the principles and
laws governing the much heralded human rights doctrine of fair hearing whereas
the specific will be looking at the following;
- My essay will provide a practical tool for practitioners charged with the implementation of human rights in the judicial domain in Cameroon.
- Examine the laws governing the right to hear.
- Depict hearing norms provided in Cameroonian laws
- Examine specific challenges to the actual implementation of fair hearings in Cameroon
- Propose measures that could be taken to curb the unfairness in litigations
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