Human Rights Violations by the Executive: Complicity of the Judiciary in Cameroon?

Provided by University of Birmingham Research Archive, E-prints Repository

Journal of African Law, 47, 2 (2003), 265±274 # School of Oriental and African Studies.
DOI: 10.1017/S0021855303002122 Printed in the United Kingdom.

CASE NOTE

Human Rights Violations by the Executive: Complicity of the
Judiciary in Cameroon?

The People v. Nya Henry
The People v. Dr. Martin Luma

Introduction

In a previous article in this journal,¹ on remedies in national law for breach
of the African Charter on Human and Peoples' Rights (the African Charter),
the decision of a magistrate in the Cameroonian case of The People v. Nya Henry
was discussed in detail. In that case the department in charge of public
prosecutions (the Legal Department) had, in breach of a court order, refused
to release the defendants on bail. The magistrate held that that action of
the Legal Department amounted to a violation of the defendants' right to the
presumption of innocence guaranteed by the Cameroon constitution and the
African Charter. As a remedy, the magistrate stayed the proceedings and
ordered the release of the defendants. That decision was hailed as one of the
few “courageous and bold'' decisions in a gradually rising tide of judicial
protection of human rights in Africa and in Cameroon in particular.² But, in
two recent judgments,³ the Court of Appeal has now reversed that decision
together with the original decision admitting the defendants to bail.

This note examines the two judgments of the Court of Appeal and the
reasons advanced for reversing the decisions of the magistrate. It will endea-
vour to show that the two decisions of the Court of Appeal are not well
founded in law. The decision of the court on the issue of stay of proceedings
will be examined ®rst before considering the decision on the question of bail.

Stay of Proceedings: Judicial Failure to
Condemn Executive Misconduct

It will be submitted that on the issue of stay of proceedings on the ground of
abuse of process by the executive the Court of Appeal misapplied the law. The
impartiality of the court will also be questioned. However, it is helpful to
begin with an account of the actual decision of the court.

The decision

The facts of the case are simple. The defendants, who had been arrested on
1 October, 2001, applied to a Magistrate for an order admitting them to bail.
In a ruling on 24 October the Magistrate, Bea Abednego, granted them bail

¹ N. Enonchong, [2002] 46 J.A.L. 197.

² Ibid., at 198.

³ The People v. Nya Henry Tichandum (22 August, 2002), Appeal No. BCA/MS/11C/2002,
unreported, and The People v. Dr Martin Luma (22 August, 2002), Appeal No. BCA/MS/8C/2002.

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