Wednesday, 31 August 2016

Opinion: The Right To Leave 2: Legal Perspective. By Barrister Ajong Stanislaus*

When world leaders met in San Francisco at the end of World War 2 to midwife the birth of the United Nations Organization (UNO), world peace and security was primordial in all their discussions. 
Thus when pen was finally put to paper on the 24th day of October 1945 creating the UN together with the  Charter, Article one specifically spelled out the main purpose of the organization to be, maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace,…’

After the Republic of Cameroun gained independence on the 1st day of January 1960, she was admitted into the UNO on the 20th of September 1960. By becoming a member of the organization Cameroun was automatically ratifying the Charter and became bound by its provisions.
On a critical reading of the Cameroun Constitution of 4/3/1960 -the very first after independence – we find in its Section 40 thus;

“ Les traités et accords régulièrement ratifiés ou approuves ont dès leur publication une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité; de son application par l’autre partie.”

 The 1st of September 1961 Constitution and the 39 Article Constitution of June 2nd 1972 carefully omitted this provision of superiority of internationally ratified treaties and laws in Cameroon.

This provision only resurfaced in the 18th January 1996 Constitution in its Article 45 where it is stated;
“Duly approved or ratified treaties and international agreements shall, following their publication, override national laws, provided the other party implements the said treaty or agreement.”

Constitutional law lawyers might need to give us an inside as to what could have occasioned the omission of this vital provision in the 1961 and 1972 Constitutions. As a Human Rights Lawyer I can only say the Government must have been involved into some mischief and most have reasoned that the absence of a binding international obligation could be a way out.

Could this have had anything to do with the right to leave? Apparently after Law No. 84/01 of 4/2/1984 reverted the name of the Country to the one that joined the UNO on the 20/09/1960 might give us a clue to this deliberate omission. Ostensibly, a process had been steadily completed.

The right to leave is a fundamental and internationally acknowledged Human Right contained in the following Instruments duly ratified by the Republic of Cameroon;

-      Articles 1(2) and 55 of the UN Charter 1945
-     Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) 1966
-   Article 1(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966.

-       Article 20 of the African Charter on Human and Peoples’ Rights 1981

The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations in its paragraph 7 of Principle V cautions States against the disregard of this fundamental Human Right. In any case by the provisions of Article 5 of the Vienna Declaration, “All Human Rights are universal, indivisible and interdependent and interrelated.”

Since the coming into existence of the UNO, the respect and or non-respect of this Human Right has taken a toll on the budget and human resources of the organization. The UN has been called into action in East Timor in 1999, Sudan in respect of South Sudan and Darfur, Kosovo in 1999 just to mention these few.
This right has however, been peacefully effected in the case the Confederation of Senegambia (1982- 1989) and Czechoslovakia (January 1 1993) with  commendable success.

Most recently the peoples of the Eastern Regions of Ukraine in Crimea, Donetsk and Luhansk have had to hold a referendum to determine their fate and status. In Scotland where I study, they are never shy of calling a referendum to ascertain their wishes of remaining in the United Kingdom and this has equally been the case with the people of Quebec in Canada. 

There is more legitimacy in governance when you know the people voluntarily make their choices.
Against the advice of the Cameroon Bar Association, the government recently promulgated into law a Penal Code fraught with disregard of Internationally ratified Treaties and Conventions by the same government.

 By my reading of Article 45 of the Constitution, those provisions which run counter to International provisions are not illegal per se, but become inapplicable as per Section 45 of the Constitution as read with the preamble and Article 65 of same. For those of us in the Cameroun Advocates Forum (Lawyers’ Forum) who think my write up on this particularly acclaimed human right is politically motivated, my reply is simple. 

You are protected by Article 19 of the Universal declaration of Human Rights. However, let it be known that, the Human Rights discourse prospers more in advocacy which is highly protected under Article 15 of law No. 90/059 of 19/12/1990 to Organize Practice at the Bar.

After having failed to cause the government not to promulgate into law what they had internationally engaged to respect, we as lawyers have a duty under the phase of continuous legal education to identify those sections that violate this principle and bring it to the knowledge of the lawyers and Judges. Judgments do not end in Cameroon any Longer.

Barrister at Law,
Chevening Scholar,
Aberdeen, UK

Disclaimer: All the views expressed in this article are those of the author and do not represent the position of the Chevening Secretariat or the Foreign and Commonwealth Office (FCO)

To be continued with Sections of the Penal Code that violates the Right to Leave

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