Tailored for the President -The Constitution of Cameroon

With the next presidential elections in Cameroon being scheduled for 2011, the country remains to see the advent of an independent electoral commission. The modern state of Cameroon was created in 1961 via the unification of two former British and French colonies. For 20 years Cameroon suffered under the repressive government of President Ahidjo. In 1982 Mr Ahidjo was succeeded by his Prime Minister Paul Biya. Faced with popular discontent, President Biya allowed multi-party presidential elections in 1992, which he then went on to win.1 The next multi-party poll in 1997 was boycotted by the three main opposition parties of Cameroon: the Social Democratic Front (SDF), National Union for Democracy and Progress (UNDP), and the Cameroon Democratic Union (UDC). In 2000, the government went on to establish the National Elections Observatory, slightly improving the electoral procedure, however, international observers nevertheless still noted irregularities in the 2000 and 2004 elections.

10 April 2008 Constitutional amendment
On 10 April 2008, Cameroon's parliament passed a controversial amendment enabling President Biya to run for a third term of office in 2011. The constitution of 1996 had previously limited the number of presidential terms to two seven-year terms. According to President Biya’s reasoning for the amendment, a limit on presidential terms was deemed undemocratic, due to the fact that limiting the number of terms deprives voters of a candidate. The National Assembly, where the RDPC (Rassemblement démocratique du Peuple Camerounais) - the President’s party has a wide majority, adopted the bill to amend the Constitution based on this argument. The opposition moved to quickly denounce the amendment as a constitutional coup d'etat.

Is this amendment legally valid?
In many legal systems there are some limits on the revision of a Constitution. Usually a revision is only possible in compliance with strict legal procedures designed for constitutional amendments, more complicated that those prescribed for the adoption of simple laws. However, in Cameroon the Constitution is easily revisable. There are three ways to initiate a constitutional revision or amendment, it can be done by: The President of the Republic; or 1/3 of the members of the National Assembly; or 1/3 of the senators.

The Cameroonian Constitution envisages two concurrent ways of adopting a law of revision or amendment:

The parliamentary way: In which the two assemblies of the Cameroon Parliament (the National Assembly and the Senate), assembled in Congress, have to vote for the amendment and an absolute majority is required to pass any such amendment into law. Since the last legislative elections in 2007 the RDPC occupies 153 of the 180 seats in the National Assembly. Currently no senate is in place and therefore all of the prerogatives of the Parliament are held by the National Assembly. This has allowed the RDPC that has a majority in the National Assembly to easily revise the Constitution; or, alternatively

The referendum way: In which the President can decide to approve a proposal for a revision of the Constitution by referendum, if an absolute majority of the population favours such revision. In the current context the President may not have wanted to take the risk of a popular vote to modify the Constitution when he already has a wide majority in the National Assembly. In Cameroon, there are only two limits to an amendment to the Constitution: The amendment cannot endanger the essential characteristics of the State: “the republican form” of the State, its “unit” and its “territorial integrity”. Moreover, the amendment cannot endanger “the democratic principles which govern the Republic”. In the current context, the opposition party was not in a position to approach the Constitutional council or the Supreme Court to decide on the validity of the amendment because they require 1/3 of the members of the National Assembly or senators in order to do this. Hence, in the absence of an express prohibition, there were no legal hurdles for the amendment of article 6 (2). Therefore, the constitutional amendment is legally valid and the opposition appears to have no judicial way to challenge it.

Other Commonwealth African Examples of Constitutional Amendment of Presidential Terms: President Biya is not, however, the only Commonwealth African president to have modified the constitution to be able to run for a third mandate: The Ugandan President Yoweri Museveni, after 20 years of office, removed the limitation of two consecutive mandates. Bakili Muluzi, in Malawi, and Frederick Chiluba, in Zambia, tried but failed to modify the constitution while aspiring for a third mandate. And, in Nigeria, Olusegun Obasanjo tried to modify the constitution, but the opposition members of Parliament and the vice-president moved strongly against such an amendment. The concept of an unlimited presidential term is held by some as an important democratic principle – that the people should be able to re-elect the same candidate if it is their will. People’s choice should not be limited by a term limitation. Furthermore, it is argued that it can aid the stability of a country. However, term limits offer a guarantee of personnel change and therefore enhance the possibility of change in government. Power alteration is an important feature of a democratic polity particularly in countries where presidents tend to keep their power for as long as they can, motivated by more autocratic considerations, fear of prosecution for corruption or human rights abuses and/or of the loss of connections and privileges.

Immunity from prosecution of the President
Another important feature of the 10 April 2008 amendment was a guarantee of immunity for the President at the end of his mandate. As per the amendment, Article 53 (which deals with impeachment) of the Cameroonian Constitution obtains two new provisions. A new paragraph 2 specifies that the President of the Republic can be indicted only by the National Assembly and the Senate deciding through an identical vote by open ballot and by 4/5 of the members. It should be noted that the open ballot is likely to expose those who do not agree to raise their hands in public and currently the RDPC occupies more than 4/5 of the National Assembly. This indicates that currently President Biya has little to worry about. Paragraph 3 specifies that all acts achieved by the President of the Republic in accordance with his function (as laid down in very broad terms under Articles 5, 8, 9 and 10) are covered by the immunity and could not engage its responsibility at the end of its mandate.

Immunity from prosecution is a well-founded concept when applied honestly for the benefit of the society. It means that the president, during the subsistence of his/her term in office, must not be hindered when acting for public good and that all legitimate actions undertaken during the term of office by a president must be protected from personal legal liability. Nevertheless, absolute immunity leads to impunity and is incompatible with the rule of law; the very essence of rule of law being that no one is above the law. As a result, the law limits immunity to the minimum level required in the performance of official duties by state officers during their office term. Impeachment procedures usually act as a guarantee against abuse of immunity by high level executive functionaries such as the President. In the case of the Cameroonian amendment, the fact that the Parliament’s vote during impeachment is public means that everyone will know who does not support the President and may have to suffer the consequences of their vote. This makes independent votes very difficult.

Some other African Commonwealth countries also have a similar immunity clause in their Constitutions. The Nigerian Constitution of 1999 presently offers carte blanche immunity protections to the president, vice president, state governors and deputy governors in its article 308. The Nigerian President, Umaru Musa Yar'Adua, currently pledged support for the removal of the immunity from prosecution to prove his strong commitment to the battle against corruption.8 The Zambian President, however, no longer enjoys protection from the law as guaranteed in the constitution since a judgment of the Supreme Court in 2003, which ruled that Parliament acted legally and properly in 2002 by removing the immunity of former president Frederick Chiluba. It is the first time such a decision was made in Zambia and in the Commonwealth.9 Now, thanks to the amendment of the Constitution of Cameroon, President Biya will be able to run for a third term of office, and if he does not win in 2011, he will have a relaxing retirement without accountability. Free from legal challenge by the opposition, the amendment has prepared his safe exit in the case of any eventuality.