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Published online by Cambridge University Press: 28 July 2009
The legal systems of the vast majority of the Black African countries can either be reckoned among the common-law family of English origin or the civil-law family in its French version. This is a result of Africa's colonial past; France and England ruled the lion's share of the continent as colonies and gradually transferred their own legal systems to their African possessions. By the time most African territories gained their independence in the sixties, the European legal systems had obtained a firm footing, albeit often still applicable only to a limited extent and in a modified version of the occidental model. After independence, practically all African states maintained the legal system imposed on them by their former colonial masters; since then, they have further developed their laws on the pattern of those legal systems. One effect of this evolving state of affairs, despite all national legal peculiarities, has been a strengthening of the basic adherence of African states to the English or French legal system. On the other hand, it has widened the gap between Anglophone and Francophone countries, at least as far as legal development is concerned. In view of both long-term political goals such as African unity, and also current intra-African relations, such as trade and administrative co-operation between the states, separate legal development in Africa might become a deplorable stumbling block.
1 See , M'Baye, “L'unification du droit en Afrique”, (1971) 10 Revue Sénégalaise de Droit 69.Google Scholar
2 , Allott, “Towards the unification of laws in Africa”, (1965) 14,1.C.L.Q. 370.Google Scholar
3 , Allott, “The future of African law”, [in:] Kuper and Kuper, African Law: Adaptation and Development, 220.Google Scholar
4 See , Gonidec, Les Droits Africains, Evolution et sources, Paris, 1976, 36 ff.Google Scholar
5 See , David, Les Grands Systèmes de Droit Contemporain, 7th ed., Paris, 1978, 582.Google Scholar
6 See Allott, op. cit., 381 ff.; it should be noted, however, that Mauritius and the Seychelles have also a mixed English-French legal system.
7 Cf. for Cameroon's history, social, economic and political situation, Dly, Politik und Wirtschaf in Kamerun. Bedingungen, Ziele und Strategien der Staatlichen Entwicklungspolitik, Munich, 1976;Google ScholarLe, Vine, The Cameroon Federal Republic, Ithaca and London, 1971;Google Scholar, Johnson, The Cameroon Federation. Political Integration in a Fragmentary Society, Princeton, 1970;Google Scholar, Prouzet, Le Cameroun, Paris, 1974;Google Scholar, Rubin, Cameroun. An African Federation, London, 1971.Google Scholar
8 See Fouman Akame, “Les grandes ètapes de la construction juridique au Cameroun de 1958 à 1978”, (1979) Revue Penant, 194 ff; Nkoumjin Yotnda, “Soliloque sur certains problèmes soulevés (par) 1’ organisation judiciaire de la Republique unie du Cameroun”, (1976) Revue Penant 6.
9 Allott,381.
10 Cf. Bryde, “Rezeption europäischen Rechts und autozentrierte Rechtsentwicldung in Afrika”, (1977) Afrika Spektrum 119 ff.
11 The Research group comprised five staff members, one ethnologist and seven law students. The Ministry of Justice in Yaoundé assigned us for two months to six of the seven courts of appeal. Moreover, we organised two colloquia with the Faculty of Law of the University of Yaoundé and the National Professional School for future judicial officers (ENAM). The themes of the two colloquia, where we met many judges, prosecutors, law teachers, etc., were various topics in the field of criminal law.
The stay in Cameroon was part of a project of the Max-Planck Institute which deals with the evolution and present problems of the administration of criminal justice in Cameroon. Its main results will be presented in four doctoral theses which treat issues of criminal law in different historical periods.
My own dissertation about the role of the judge and the courts in Cameroon's criminal justice will be published in 1981. The three others will soon be completed. They deal with the administration of criminal law under German and French and English rule as well as with the role of private attorneys in Cameroon.
12 By a decree of 30 April, 1946.J. O. Rep. Francaise 1 May, 1946, 3681.
13 Mangin, “L'influence des conceptions juridiques occidentals sur 1’organisation judiciaire dansles pays d'Afrique francophone”, (1966) Revue juridique et politique 192.
14 Guermann, “L organisation judiciaire au Cameroun oriental, Judicial organization in East Cameroon”, (1973) Revue Camerounaise de Droit 26.
15 By the ordinance 59–86 of 17 December, 1959, J.O. 1959, 1807.
16 Mangin, “La magistrature en Afrique et à Madagascar”, (1968) Revue Penant 200
17 See above.
18 Rubin, op. cit., 112; Johnson, 186.
19 See Nwabueze, Machinery of Justice in Nigeria, 270.
20 According to information from the Ministry of Justice in Yaoundé there were altogether 13 foreign judges and ten foreign magistrates appointed in West Cameroon since independence. Among them were 11 British, six Nigerian, three Caribbean, one Irish and two Cypriot lawyers.
21 Nwabueze, op. cit., 284.
22 For the different position and reputation of the judiciary in France and England, see David, op. cit., 384 ff.
23 See for example Keuning, “Some remarks on law and courts in Africa”, [in:] University of Ife, Institute of African Studies, Integration of Customary and Modern Legal System in Africa, 67ft.; Smith “Man and law in urban Africa. A role for customary courts in the urbanisation process”, (1972) American Journal of Comparative Law 223 ff.
24 Cf. the books mentioned above, p. 1, n. 7.
25 The draft came out in Autumn, 1978, and was the result of the work of the Federal Commission for Penal Legislation which includes lawyers from both parts of Cameroon. The explicit goal of the draft is to bring about a synthesis between the accusatorial and non-accusatorial procedural systems, of the English and French type respectively. It took the Commission more than ten years to elaborate the draft. Whether it achieved the desired synthesis seems quite questionable. Until now it is unclear whether the draft will pass the Parliament without major modifications.
26 Constitution de la République Unie du Cameroun, 2 June, 1972, J.O. No. 4, suppl. of 2 June, 1972.
27 Art. 32 of the Constitution.
28 Ordnance no. 72–44 of 26 August, 1972, J.O. No. 9, suppl. of 1 November, 1972, 126.
29 Regulated by the laws No. 75–16 of 8 December, 1975, and No. 76–28 of 14 December, 1976.
30 Cf. Dawson, The Oracles of the Law, Ann Arbor, 1968, 414.
31 In Spring, 1978, the Minister, the Secretary-General and the directors of all four departments of the Ministry were East Cameroonians.
32 Art. 31 of the Constitution.
33 This practice rests on Art. 73 of the decree of 25 August, 1975, J.O. No. 13, 1 July, 1976, 1927, which regulates the judicial service and says that “in the interest of the service” judges and magistrates may be promoted even without their consent.
34 This was also the general view of the Anglophone participants of the Colloquium which was organised by the ENAM and the Max-Planck Institute for Foreign and International Criminal Law on 6 and 7 March, 1978 in Yaoundé; see above, n. 11.
35 See Parant Gilg and Clarence-Smith, “Le code pénal camerounais, code africain et franco-anglais”, (1967) Revue de science criminelle et de droit pénal comparé, 339 ff.; Clarence-Smith, “The Cameroon Penal Code: practical comparative law”, (1968) I.C.L.Q. 651 ff.
36 Penal Code, s. 95.
37 Penal Code, ss. 46–50.
38 See above, p. 8, n. 25.
39 Cf. the forthcoming dissertation of DÖrken, Die Steltung des Rechtsanwalts in Kamerun.
40 Darge, Pratique Judiciaire Camerounaise: Déontologie du Magistrat, Yaoundé, 1972, 9 and 67–76.
41 See Melone, “Les grandes orientations actuelles de la legislation pénale en Afrique: Le cas du Cameroun”, (1975) Archives de politique criminelle 147.
42 Ordinance 72–16 of 28 September, 1972, J.O. No. 7, suppl. of 1 October, 1972, 103.
43 Penal Code, s. 320.
44 Cf. Meloné, (1974) Revue Camerounaise de Droit 140.
45 See Meloné, op. cit., p. 11, n. 41, at 175.
46 See Gonidec, op. cit., 41 ff.; Bryde, The Politics and Sociology of African Legal Development, Frankfurt, 1976, 78 ff., 112 ff.
47 Costa-Lascoux, “Le droit pénal, l'unité nationale et le developpement économique”, (1975) Archives de politique criminelle 108.
48 Meloné, “Les grandes orientations de la législation pénale en Afrique. Le cas du Cameroun”, (1975) Revue Camerounaise de Droit 34.