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Legal pluralism and harmonization of law: Anexamination of the process of reception and adoptionof both civil law and common law in Cameroon andtheir coexistence with indigenous lawsVictoria M. Time aa Old Dominion University , Norfolk, VAPublished online: 01 Jun 2011.

To cite this article: Victoria M. Time (2000) Legal pluralism and harmonization of law: An examination of the processof reception and adoption of both civil law and common law in Cameroon and their coexistence with indigenous laws,International Journal of Comparative and Applied Criminal Justice, 24:1, 19-29, DOI: 10.1080/01924036.2000.9678650

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INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE

SPRING 2000, VOL. 24, NO. 1

Legal Pluralism and Harmonization ofLaw: An Examination of the Process ofReception and Adoption of Both Civil

Law and Common Law in Cameroon andTheir Coexistence with Indigenous Laws

VICTORIA M. TIMEOld Dominion University, Norfolk, VA

This study focuses on how the common law and civil law, two legal systems introduced toCameroon by Britain and France respectively, have been harmonized with traditional lawsto serve the needs of Cameroon. Through studies on the legal process in Cameroon, cou-pled with open-ended questions to legal practitioners, and content analysis of documents, itis evident that many of the customary laws that existed prior to colonization have beenexcluded from much of the governing legislation. Courts do not enforce traditional lawsthat are capricious and obnoxious. A critical examination of the process of harmonizationreveals a gradual suppression of the common law practice.

Introduction

Legal transplants in Africa usually involve the receiving country receivingonly one system of law. French civil law and Anglo common law have beenthe two significant legal models transplanted on African soil. Cameroonprovides a unique example of legal development in Africa because Frenchcivil laws, Anglo common laws, as well as German civil codes have beenreceived and adopted in the country. The pluralistic reception of law inCameroon emerged because of its peculiar colonial history. Between 1884and 1916, Cameroon was a German protectorate. Between 1922 and 1946,both the French and the British, whose forces had deposed the last Germangovernor in Cameroon, had League of Nations ‘‘mandates’’ over Cameroon.Between 1946 and 1961, both the French and British assumed United Nationstrusteeships over Cameroon. The federal Republic of Cameroon came intobeing on 1 October 1961 when the former British (Southern) Cameroon wasreunited with the former French Cameroon. On 20 May 1972 Cameroonbecame the United Republic of Cameroon.

In this study, a determination is made as to how both systems of receivedlaw treated and continue to treat Cameroonian customary law, the legalsystem preceding reception. Given that modern law in Africa has generallytended to successively replace traditional law, I have examined the extent towhich such a development has occurred in Cameroon.

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Procedure

This study is based on my personal observations and studies of the judici-ary as a legal scholar in Cameroon. It is also based on open-ended interviewsconducted with local chiefs; selected Cameroonian judges and barristers; andalso content analysis of Cameroon penal code, Cameroon Gender Law Re-view, Civil Status registration Act, and Case Notes of the Chief of Muaku,Bakossi. The South West and Central Provinces were selected for closerobservation because they typify the common law and civil law practices re-spectively. Cameroon is composed of several hundred tribes, each headed by achief and his henchmen who enforce traditional laws in their various jurisdic-tions.

Harmonization of Pluralistic Legal Models: Civil, Common, and Traditional

Although piecemeal attempts at harmonizing the laws in Cameroon havebeen ongoing, it is optimistic to suggest that a unified body of the variousbranches of law is on the immediate horizon. The application of English law inAnglophone Cameroon was reinforced by the 1955 Magistrate Court Law. ItsSection 11 states:

Subject to the provision of any written law and in particular of this section and ofsection 10, 15, and 33 of this law,

a. the common lawb. the doctrines of equityc. the statutes of general application, which were in force in English on the

first day of January 1900, shall in so far as they relate to any matter with respect towhich the legislator of Southern Cameroons is for the time being competent tomake laws be in force within the jurisdiction of the court.

French speaking Cameroon was governed as a mandatory territory byFrance and the laws it bequeathed to Cameroon are still applicable today. Inthe constitution of the then Federal Republic of Cameroon, Article 46 statedthat the previous legislation of the Federated states would remain in force in sofar as it did not conflict with the provisions of the Constitution. In 1972, theConstitution went further in Section 38 to reinforce the provisions of Article46. It provides:

The legislation resulting from the laws and regulations applicable in the federalstate of Cameroon and in the federated states on the date of entry into force in all oftheir provisions which are not contrary to the stipulations of this constitution, for aslong as it is not amended by legislative or regulatory process (Constitution Of theUnited Republic of Cameroon, 1972, 22).

What obtains in Cameroon today is the application of both English and Frenchlaws and customary laws. The predominantly French speaking Cameroonadheres to the inquisitorial system of justice where both sides are active in all

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CIVIL LAW AND COMMON LAW IN CAMEROON 21

stages of investigations in a case, and the judge maintains a central role in thefact-gathering process. On the other hand, the minority English speakingregion is governed by the adversarial system where the accused is presumedinnocent until guilt is established after a full trial in which each side presentsits case.

Although colonization has imposed a diverse judicial system on Cameroon,many Cameroonians, especially those in the villages, still prefer to settledisputes out of court. This trend is not unique to Cameroonians; indeed, itappears that many less developed nations prefer out of court and traditionalforums of dispute resolution. Collier (1973), for instance, points out that ag-grieved parties in Mexican villages usually try to settle disputes among them-selves. Only after efforts by the council of elders and local village elders whowork in the ‘‘ceremonial center’’ proved unsatisfactory would an aggrievedparty turn to the Mexican courts which apply western laws. Okereafoezeke(1996), made similar observations in Nigeria. In traditional settings, the chiefand the elders of the village listen to, and pass judgment in a case. The Mwaku(a Bakossi village in English speaking Cameroon) Traditional Council, forexample, is made up of eighteen people comprising, ten men (four of whomare quarter heads),1 four women, and four youths. The chief is the head of thecouncil which meets every Sunday. The jurisdiction of the village chief andhis council, that is, the power to hear and decide cases is unlimited. The onlyway to limit their power is for litigants to take their cases to formalized courts.Chiefs rely on customs and traditional folkways in settling disputes. Traditionsvary from tribe to tribe, thus uniformity may not be discerned in verdictsreached by different chiefs even where the facts and circumstances of casesmay have been similar. Fines levied by the chief and his council range from areprimand, native wine, agricultural produce, or livestock, to banishment.

In the towns, customary courts are presided over by ‘‘notables.’’ These arepeople who have not studied law but are presumed to be graced with wisdomand experience. Customary courts generally resolve matrimonial issues anddisputes over land and property. They do not deal with child custody or alimo-ny issues. Such matters are adjudicated by high courts where magistrates andjudges preside. In customary appeals, the judge sits with two traditional asses-sors. The traditional courts in the French speaking Cameroon (TribunauxCoutumier) are presided over by magistrates.

The common law courts that exist in English speaking Cameroon today arethe Courts of First Instance, High Courts, and Courts of Appeals. Those in theFrench speaking Cameroon are the Tribunal de Premiere Instance, Tribunalde Grande Instance, Cour d’Appel, and Cour Supreme. There are also militarycourts which adjudicate issues concerning members of the military.

The judicial system remains a principal area where the Cameroon legisla-ture has embraced the colonial system almost fully, but in an attempt to recon-cile both systems to suit indigenous practices, confusion has ensued. Thecommon law section of the country has no supreme court.2 Cases on appealare tried in the only supreme court which exists in the civil law section of the

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country. Judges of the supreme court comprise members of both civil andcommon law orientation; the law that applies in a case is that which was ap-plied by the lower courts. Courts of First Instance (tribunal de premiere in-stance) try cases on a district level. These courts may not try a case whose fineexceeds 5,000,000 Cameroon francs (approximately $10,000) and whosesentence exceeds five years. Cases tried by this court are simple offenses,misdemeanors, land, and labor matters. The fine and sentence seems to sug-gest that the courts have jurisdiction to try felonies as well. In criminal mattersinvolving insurance claims, the Court of First Instance may impose fines thatexceed 5,000,000 Cameroon francs. The Court of First Instance does notadjudicate matrimonial matters, except when a spouse files a complaint againstthe other for domestic violence. In criminal trials, the state counsel is theprosecuting magistrate while the president and his vice preside over the trial.In civil matters, the president sits alone, and in labor matters, the president andtwo assessors (employers’ assessors and employees’ assessors) have jurisdic-tion over the case.

The High Court (Tribunal de Grande Instance) is found in every divisionof the country. These courts have jurisdiction to try felonies, misdemeanors,domestic relations, and other civil matters. In criminal cases, the judge sitsalone, while the judge and two assessors make a determination in labor mat-ters. Depending on the part of the country, either the civil law or common lawmay apply. There is one court of appeal (Cour d’appel) in every province ofthe country. The appeals court reviews cases on appeal to make sure the lawwas properly applied. One judge presides over criminal cases, and in laborcases, the judge sits with two assessors. The only Supreme Court (CourSupreme) in the country reviews cases on appeal and is vested with jurisdic-tion to try the president and other high government officials.

Criminal Proceedings in Formalized Courts:

Only provisions of the Code Penale (Penal Code) are used to governcriminal proceedings. The Code Penal of Cameroon is a replica of the penalcode of France, but precepts of common law have been blended with the codeto create harmony. A criminal trial is set in motion when a police officermakes a report on the finding of an alleged crime to the court of first instance.The court furnishes the officer with a warrant for the suspect’s arrest. Theinvestigating magistrate, usually the magistrate de premiere grade, interro-gates both the policeman and the suspect, who may stay silent if he/sheelects.3 If a determination is made that a case is strong enough to proceed totrial, the magistrate files a report of his findings and that of the police officerto the court.4

During a trial, the court clerk reads out the charge to the defendant who isgiven an opportunity to address the court, although his or her counsel usuallyperforms this task. All witnesses in the case are interrogated, and sometimesadditional witnesses who had not been included during the preliminary inves-

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CIVIL LAW AND COMMON LAW IN CAMEROON 23

tigation are subpoenaed and interrogated. Counsels on both sides argue outtheir cases. The state counsel (procureur generale also referred to as procur-eur de la republique) acts as the prosecuting magistrate. At the end of thetrial, the presiding magistrate retires to deliberate since there is no jury pro-cess. The presiding magistrate reads out the relevant sections of the code, andthe sentence and fine if the defendant is found guilty. Counsel may make anallocution at this point. This process, however, is a common law requirementwhich obtains only in the common law section of the country. Either partycould appeal on the law and on the facts conditions de droit et du fond.

Since the Code Penale merely gives a range of the minimum and maxi-mum sentence or fine, the discretion of the presiding magistrate or judge isimportant. The Cameroonian judiciary is of the opinion that fairness is betterattained through a bench trial than by a jury trial. They assume that since thepenal code embodies all categories of crimes and punishments, the most apartial judge can do is to give an offender the minimum or maximum punish-ment stated in the code. On the contrary, it is assumed that a jury trial(common law practice), is riddled by imperfections since the jury might notadequately comprehend the briefings on the issues, and even if they do, theymay not be objective in their reasoning.

Another significant difference is that since the civil law section of thecountry does not recognize the existence of the doctrine of stare decisis,5

judicial rulings are not binding on lower courts, nor even on the same court.Common law reliance on case law is not applied in Cameroon in criminalproceedings. Judges, particularly those in the civil law section of the country,make reference during trials to the writings of legal scholars (La doctrine)when the law in a particular case is unsettled or when there is no establishedlaw on the point.

Juvenile Justice

With regards to juvenile justice, the Cameroonian judiciary is yet to intro-duce special courts to adjudicate youth offenders. This situation is especiallytroubling because processing juveniles in adult courts and holding themaccountable to the same extent as adult offenders does nothing to amelioratethe systematic increase of violent youth offenders in Cameroon. Moreover,housing youths in the same prisons as adult offenders only exacerbates theiroffending patterns and techniques when they are released to the community.

Although Borstals (modeled after the British reformatory schools) exist inCameroon, the usage of these institutions differ from their original functionsin Britain. In Britain, they are used to house offenders who are younger thantwenty, and have prospects of reform; but in Cameroon, they are reserved forstubborn and uncontrollable youths (who are not offenders) but who do notrespond to parental discipline.

Traditional modes of youth discipline range from a conciliatory stance to areprimand, flogging, or corporal punishment depending on the offense. In the

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Muaku village of the Bakossi tribe, for instance, three youths threatened todouse suspected wizards with gasoline and burn them because the youthssuspected the wizards were responsible for their inability to pass the GeneralCertificate of Education Examination. The chief begged them to abandon theirplan, promised them that traditional medicine would be buried in the villageto weaken any magical powers of the wizards, and that he would appoint aneducation commission to see into the abilities and problems of the youths(Chief of Muaku’s records, 1997). Had these youths been reported to a policeofficer, charges might have been filed against them, and they would havebeen tried in an adult court and potentially incarcerated in an adult prison.

Matrimonial Proceedings

Prior to 1966, the Matrimonial Law Act of England governed marital rela-tions in the common law section of Cameroon. The only legal marriage thatcould be contracted had to be strictly monogamous. The Code Civil also madeno provisions for polygamy. Prior to colonization, polygamy was the preva-lent form of marriage. In order to comply with European laws, only strictlyreligious persons went through a legal and Christian formality of marriage.

However, in order not to abandon traditional practices of polygamy, thelegislature in Cameroon enacted an Act which regulated matrimonial proceed-ings. The Civil Status Registration Act of 1980 amended the 1966 Act. Cou-ples are given an option to choose between polygamy and monogamy. Absentan express choice, the parties are presumed to have opted for polygamy. Thepublic is given notice of and the opportunity to disapprove of a planned mar-riage.

Although the Cameroonian judicial system neither complies with Englishnor French rules in matrimonial proceedings, the common law section of thecountry applies English law in divorce proceedings. Under the MatrimonialProceedings and Property Act of 1970, consolidated with the Divorce ReformAct of 1969 into the matrimonial Causes Act of 1973, the High Court haspower upon the grant of a decree of divorce, nullity, or judicial separation toorder one spouse to make financial provision for the other by way of periodi-cal payments, a transfer or settlement of property, or both. This provision isapplicable only to parties in a monogamous marriage. Divorce proceedings inpolygamous marriages most often are tried in customary courts. The vastmajority of cases are settled by the parties out of court.

In the French section of the country, the Civil Status Registration Actgoverns divorce proceedings. In the event the marriage is monogamous, theCivil Status Registration annuls the marriage certificate if the court grants adecree of divorce, nullity, or judicial separation. An equitable division of themarital assets is made, but each party is entitled to what he or she had beforethe marriage was validated. In polygamous marriages, traditional courts trydivorce proceedings, or the parties resolve their differences privately.

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Conflict of Laws

Efforts at harmonizing common law and civil law in Cameroon have metconsiderable success since the penal code binds both systems of law. Howev-er, formalized courts are more inclined toward retributive justice than are tradi-tional courts which emphasize restitution and deterrence. Traditional laws andideals are not readily evident in the penal code which suggests that the unifica-tion of laws has not been all encompassing. In the Muaku village, for instance,where only traditional laws apply, a thief who stole coffee seeds from a villa-ger’s farm was forced to return all the seeds to the farmer. In addition, he wasverbally reprimanded and was required to present a goat and a crate of beer tothe chief, which was set aside for consumption by the entire village (notes ofthe Chief of Muaku, 1997). In formalized courts, this thief would have beenfined and incarcerated for a number of years.

An obvious predicament is discerned in the application of traditionalcustoms in the customary courts. Customs vary from tribe to tribe and thusproblems arise when parties to an issue are from different tribes and reside in aforeign town or city. Since traditional laws have neither been codified norincluded in civil and common laws, which law governs the parties becomes amurky issue. To address this problem, the traditional judge must sit withassessors from the tribes of the parties. In divorce cases, for instance, a coupleof Bassa origin (Bassa is a tribe in the French speaking Cameroon) residing inBuea (Buea is the capital of the South West Province of English speakingCameroon) who wish the Buea customary courts to grant their divorce, wouldrequire assessors from their Bassa tribe to be present during the divorce pro-ceedings. The president of the customary court in Buea must sit with twoassessors of Bassa origin who will furnish the court with traditional norms ofthe Bassa people in regards to divorce. Failure of the president to sit with theseassessors from the Bassa tribe, renders the judgment null. Not only is this acumbersome process, it is also expensive to litigants who must pay for trans-portation of the assessors, and also bear the expenses of their housing, feeding,and other incidental costs.

Efforts at harmonizing civil and common law have also been successful incivil matters that concern labor, land, and civil status. The Labor Code, theLand Tenure Ordinance, and the Civil Status Registration Ordinance governissues that relate to labor, land, and civil status. Traditional views with regardto these issues have not been incorporated in the aforementioned ordinances.With regard to issues that relate to contracts and succession, an apparent con-flict in the applications of law is discernible. While the common law is gov-erned by the English Statute of 1925 (a colonial heritage), the civil law isbound by the code civil. It follows that traditional laws, economic issues, andthe changing situation of Cameroonians are not reflected in the governinglegislatures. Traditions relating to contracts and succession vary drasticallyamong tribes thereby rendering judgments meted in customary courts verycontroversial. Controversy arises not only because traditions vary (some tribes

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practice matrilineal inheritance, while others practice patrilineal inheritance),more importantly, controversy arises because many of the traditional normsare obnoxious and repugnant. While many villagers and others who have astake in property would rather adhere to unconscionable traditional stipula-tions, courts are quite leery to apply laws that do not reflect equity or fairness.

Order 48, Rule 1 of the Supreme Court Civil Procedure Rules states clearlythat in matters relating to succession and administration of estates, only theprobate division of the high court has this power to adjudicate. In a bid toharmonize the civil law and common law, the civil statutes deal with wills.The implication is that if a person dies testate, the will is respected, but if hedies intestate, the common law applies the ordinary rules of succession.

With regards to contracts, little or no efforts have been made to harmonizethe laws. In cases that relate to contracts, courts tend to apply the lex fori (lawof the place where a court is) instead of the lex loci (law of the place where thecontract was initiated). It is thus obvious that in choosing the jurisdiction of acourt, a plaintiff by implication has chosen the law applied by that court.Contract law as applied by the common law courts is quite different from thatof civil law (droit des obligations). In addition, traditional norms in this regardare not reflected in either body of law.

Discussion

How well the both systems of law received by Cameroon have beenharmonized to suit the Cameroonian context seems debatable. It appears thatmuch effort has been exerted in harmonizing criminal laws, but other branch-es of law, like succession, contracts, insurance, are yet to be addressed. Thewhole idea of harmonizing laws seems to be thought of in light of the twomain ‘‘adopted’’ systems of laws and little consideration if any, is given totraditional norms and mores. This situation may be explained by the fact thatalthough norms are respected, there is reluctance to perpetuate them if theyare repugnant, capricious, and obnoxious. Traditional laws relating to matri-mony for instance, still view women as chattels of men; thus women are lesslikely to get satisfactory recourse from traditional rulers and courts for com-plaints of domestic abuse. In the Muaku village, for instance, a wife who gotinto a fight with her husband for his failure to provide clothing for her waspunished by the village council even though the council found the husbandguilty of the charges. She was asked to cook food for a large number ofpeople, warned, and forced to apologize to her spouse. Curiously, the husbandwho was found to be at fault was only advised to take care of his wife (notesof the Chief of Muaku, 1997). In the case of Njang v. Njang (1991), theLimbe customary court, in keeping with tradition, refused to grant divorce toMrs. Njang who wanted a divorce on grounds that the marriage had brokendown irretrievably. According to the customary court, a divorce cannot begranted to a couple who have been married for a long period of time evenwhen apparent cruelty exists in the marriage. The courts of appeal, applying

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common law, granted a divorce on three grounds: (1) that the marriage hadbroken down irretrievably, (2) that there was ‘‘uncontradicted evidence ofcruelty by the defendant against the plaintiff,’’ and (3) that by his conduct, thehusband ‘‘was in constructive desertion’’ of his wife (Gender Law Report,1999, 141). The point is, while it may appear that traditional laws have notbeen considered in attempts at harmonizing the laws, the courts have, andrightly so, excluded unjust customs.

There are hundreds of tribes in Cameroon each with its own set of customswhich render it almost impossible to include traditional laws in codifiedcommon law and civil law. Which customs should be included and why, areextremely difficult questions for the Cameroonian legislature and judiciary.Moreover, with population heterogeneity and mobility, tradition gets mixedup if not lost, and enforcing it on strangers seems awkward. Customs are notwritten and because each tribe has its own dialect, it is an extremely arduoustask to blend custom with written common law and civil law. While peopleare required to acquaint themselves with the laws (in this case customs) ofplaces of their abode, when laws are not precisely written, they are subject tointerpretation. In this regard, it will be unfair to punish someone who may nothave known the law because he or she was never exposed to the customs andpractices of the people in that jurisdiction, and secondly, because linguisticdifferences led to misinterpretations. Since there are as many dialects as thereare tribes, it would be unfair to suggest that one should study and know thehundreds of dialects that exist in the country.

Assuming that it were possible to unify all the norms and mores into onecode, the economic circumstances of a large part of the Cameroonian societywould make it difficult for them to seek redress for their problems in formal-ized courts. Court fees are a deterrent. Currently in Cameroon, in civil mattersthe claimant is required to deposit 5 percent of the amount requested with theregistry of the court. As a result, litigation has declined because few peoplecan afford the 5 percent deposit. The corollary is that out of court settlement isthe preferred choice and also resort to the judgments of traditional chiefs. The5 percent deposit requirement has its origin in a decree that was passed in thecivil law courts in Cameroon. It was not enacted by parliament, and its impactseems to be felt more in the Anglophone section of Cameroon, which is rela-tively poorer and thus less likely to afford the fees. Consequently, the provi-sion has met much protest from lawyers practicing common law.

While attempts at harmonization are evident in some regards, a closer lookat those attempts points to suppression rather than harmonization. The EnglishAct, for instance, which the common law courts in Cameroon applied in casesdealing with insurance, has been abrogated. In its place, a new insurance lawembodied in a code enacted in 1994 (CIMA CODE, a French acronym forConférence InterAfricain de Marché d’assurance en Abrégé) is binding in allof Central Africa, including Cameroon. The code in a strict sense is a Frenchdocument that completely ignores the bi-jural nature of Cameroon.

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Further, Cameroon is a signatory to a 1996 treaty that harmonizes civil andcommercial laws in sixteen French speaking African countries. Abidjan, thecapital of Ivory Coast, is the venue of the main court that has jurisdiction oncommercial matters emanating from any of the member countries. The work-ing language of the court is French, and the treaty, seemingly, is void of anyprecepts of common law. This not only suppresses the common law, it obliter-ates it. Another downside of this treaty is that it creates an incomprehensibleinjustice to prospective litigants who would have to incur the expense ofproviding transportation, accommodation, and other incidentals for themselvesand their attorneys to attend court in Abidjan. In addition, to those costs andlegal fees, an English speaking litigant is burdened with addressing the courtin French.

This discussion suggests that the intent of the Cameroonian legislature isunclear. While attempts at harmonization are discernible on the one hand,attempts at suppressing the common law are apparent on the other hand. Whilethe reasons that many traditional laws are not applicable in formalized courtsare understandable, why provisions of common law are obliterated in someinstances remains an unanswered question.

NOTES

1. ‘‘Quartier’’ as in french: villages are divided into small districts and the leaders who headthe district are more commonly known as quarter heads.

2. The existence of one Supreme Court stemmed from a presidential order which entailed thecentralization of key offices and organs in the capital city of the county and an English tradition ofthe absence of a Supreme Court.

3. The right of an accused to remain silent is a common law derivative which prevents anaccused from self-incrimination.

4. This is the equivalent of a grand jury proceeding.5. Stare decisis: A legal term meaning ‘‘to stand by that which was decided.’’ A rule by which

courts are reluctant to interfere with principles announced in former decisions and therefore relyupon judicial precedent as a compelling guide to decisions of cases raising issues similar to those inprevious cases.

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