Cameroon, A Police State? About Administrative Custody
By Steve TAMETONG, PhD & Pierre-Claver KAMGAING (Download Pdf Version)
The wind of liberal democracy will not have swept away all the vestiges of the police state long maintained in Cameroon under the cover of Ordinance No. 62/OF/18 of March 12, 1962 on the repression of subversion. Indeed, this legislation had made impossible any democratic political life and had emptied of its substance the enjoyment and exercise of fundamental rights and freedoms guaranteed by the Constitution. Today, administrative custody seems to be one of the vestiges that has survived the passage of time. A unilateral prerogative of arbitrary deprivation of freedoms formerly held by the administrative authorities, administrative custody was formally instituted by law n°90/054 of 19 December 1990 on the maintenance of public order. In application of this law, and under the pretext – justified or false – of maintaining public order, the administrative authorities can request persons and property in the legal forms, request the forces of order, control the movement of goods and persons, but above all “take measures of police custody for a period of 15 days, renewable, within the framework of the fight against organized crime. This deprivation of liberty ordered by the administrative authorities is commonly referred to as “administrative custody”, which distinguishes it from judicial custody ordered in the context of criminal proceedings. At a time when most democratic systems are implementing a legal and institutional framework favorable to the rule of law and the development of fundamental rights and freedoms, it is not without interest to question the appropriateness of maintaining administrative custody in Cameroonian positive law, especially in normal times. Before mobilizing the arguments in favor of abolishing it (I), it is appropriate to first dwell on the difficulties it poses in the Cameroonian context (II).
The difficulties posed by administrative custody
An analysis of the provisions of the law on the maintenance of law and order reveals serious difficulties in the implementation of administrative custody. Indeed, this is a serious measure not only because of its duration, but above all because of the profound infringement it causes to fundamental rights and freedom. In this case, the freedom to come and go. In rereading the last part of article 2 of the 1990 law, it appears that the legislator seems to give a blank check to the administrative authority by leaving it free to assess the appropriateness of placing an individual in administrative custody. This means that any person can be deprived of liberty in the name of preserving “public order”. However, in spite of its systematization, public order in the Cameroonian context remains instrumentalized and recited without embarrassment, like an old antiphon, by the administrative authorities. In this context, there is reason to fear that the most trivial situations, such as participation in a banned public demonstration, may lead to administrative custody by the administrative authority in violation of the law on public meetings and demonstrations and the provisions of the penal code. For example, it was noted in 2011 that, of the 2,599 residents of the New-Bell prison in Douala, about 240 were detained in execution of an administrative decision. This would mean that despite the ministerial circular in charge of territorial administration aimed at regulating this practice, the administrative authorities almost always resort to it in an almost systematic manner.
One might think that the purpose of this law is to fight organized crime. But this would not be completely true because, in reality, the circumstance of “fighting organized crime” is only a cause for renewing the duration of administrative custody and not the purpose pursued by it. In the same light, the legislator does not give any precise definition of organized crime. One wonders whether “large-scale crime” is opposed to “small-scale crime”. Indeed, what is the criterion of differentiation and appreciation of such a concept? Does banditry become “big” because of the seriousness of the offences committed, the size of the gang of alleged bandits, or the repetition over time of offences of the same nature? Even admitting the hypothesis of “big crime”, it seems to us that we should not entrust the administrative authorities with the role that judges should play. Clearly, in normacly, as soon as the administrative authorities apprehend a person who has undermined or is likely to undermine public order, they must immediately place him at the disposal of a magistrate in application of the principle of the separation of administrative and judicial authorities.
In addition, it is questionable whether police custody is a preventive or repressive measure. Indeed, the legislator does not specify the status and rights of the person placed in administrative custody. One must simply refer to practice to realize that administrative police custody is carried out in the same way as judicial police custody, i.e. in police or gendarmerie premises or in prisons. It is therefore not excluded that, at the end of administrative custody, criminal proceedings may be initiated against the person concerned. This situation has the consequence of adding to the duration of administrative custody that of judicial custody and of lengthening the deprivation of liberties. This infringement is all the more serious because the person arbitrarily detained in police custody in execution of an administrative decision cannot benefit from compensation in the same way as the person arbitrarily deprived of liberty by a judicial custody measure.
Ultimately, a person who believes that he or she has been illegally placed in administrative custody may initiate the habeas corpus procedure. This consists of applying to the president of the High Court (Tribunal de Grande Instance) of the place of arrest or detention or to any other judge on seat of the said Court designated to obtain his immediate release. It is also clear that the administrative authority that takes an illegal administrative custody measure engages its civil, penal and disciplinary responsibility, without hiding the responsibility of the administration for assault. Moreover, from all the above, the necessity of abolishing administrative custody is no longer seriously debatable.
The need to abolish administrative police custody
By undermining the principles of the law, administrative police custody maintains the shadow of a police state in Cameroon. This is especially true since there is no real control over this measure. Specifically, the administrative authority is not obliged to inform the public prosecutor’s office of the existence of a person in police custody and of the facts that justify it. However, such information would allow the public prosecutor’s office, in the event of an offence, to possibly consider replacing administrative custody with judicial custody. But fundamentally, one is entitled to question the appropriateness and necessity of granting excessive power to the administrative authorities when the judicial authorities are competent and better equipped to implement judicial custody. Doesn’t the maintenance of administrative police custody establish a kind of parallel justice, and an incursion of the executive power into the domain of the judiciary, in defiance of the separation of powers? In any case, turning administrative authorities into “disguised” judicial police officers is neither appropriate nor desirable in a country that is considered to be a state governed by the rule of law. Thus, the invocation of organized crime does not justify the survival of this practice insofar as the ordinary courts and the special courts – in the case of the military tribunal – are competent to order police custody in this case.
It is therefore necessary to give justice its rightful place, as it has the means to prevent and restore public order. As for the prevention of public order offences, and although often ignored, preventive engagement is part of the Cameroonian penal arsenal. It should be favored. It consists of the president of the court imposing on any person who, by his conduct, shows his unequivocal intention to commit an offence, likely to disturb the public peace, to commit himself personally and, if necessary, with solvent guarantors, to pay the fixed sum if he commits an offence of this nature during the determined period. If the undertaking is not respected, the court seized of the offence orders, in case of conviction, the payment of the fixed sum, without prejudice to the penalties relating to the offence. In our opinion, this can be seen as a real alternative to administrative custody. The abolition of administrative custody will lead to a reconfiguration of the relationship between the administrative authorities and the public prosecutor. Better still, it will lead to greater collaboration because, as soon as there is a risk of disturbance of public order, the administrative authority will refer to the public prosecutor’s office so that public action can be taken as a preventive measure. Similarly, there is nothing to prevent judicial police officers who witness a breach of public order from collaborating with the public prosecutor’s office and triggering the judicial custody mechanism at the request of the administrative authority.
It must be admitted that the administrative custody still practiced in Cameroon is from another age and perpetuates the memory of a police state. It is like a knife that constantly hangs over the heads of citizens and constitutes a brake on the full benefits of rights and freedoms. Its abolition is therefore necessary and must lead to the implementation of judicial mechanisms of prevention and repression of offences (preventive engagement, judicial custody). If the advent of a more policed state is desirable, the resurgence of a police state is detestable, especially in the era of the triumph of freedom and the rule of law over authoritarianism and tyranny.