Termination of Proceedings and Effectiveness of Public Wealth Protection in Cameroon

By Dr. Dhuamel TIETSIA TATIEKAM (Download pdf version)

Termination of Proceedings and Effectiveness of Public Wealth Protection in Cameroon

Introduction

Any person holding public authority or charged with a public service mission is bound by an obligation of probity. This requirement aims not only to guarantee the effectiveness of the State in the implementation of government policy but also to strengthen public confidence in administrative bodies^[1] and, above all, the protection of public wealth. However, this effectiveness is often obstructed by practices such as corruption^[2] as well as the embezzlement of public assets, which, because of their alertness,^[3] are considered “one of the wounds of current Cameroonian society“^[4] or, worse again, as “a pathology, an addiction to which a shock treatment must be administered.”^[5]

This is how several bodies to fight against attacks on public wealth have emerged in Cameroon, such as the Council for Budgetary and Financial Discipline, the Public Procurement Regulatory Agency, the National Agency for financial investigation, the Audit Bench of the Supreme Court, and the National Anti-Corruption Commission.

However, despite the work accomplished by these institutions, serious attacks on public wealth continue to be reported.[6] In order to reinvigorate these protection mechanisms, Article 18, paragraph 1 of Law No. 2012/011 of July 16, 2012, establishing a Special Criminal Court provides that, “In the event of restitution of the body of the offense, the Attorney General at the Court may, with the written authorization of the Minister responsible for Justice, stop the proceedings initiated before referral to the trial[7] court.” The application of this provision has also been extended to proceedings brought before the courts of the first instance in favor of decree no.

Mainly before the Special Criminal Court, we then witnessed the restitution of an amount of 4,088,390,196 FCFA for 61 decisions to stop the proceedings rendered until February 2018.^[8] To this must be added the amount of 1,265,000,000 FCFA, the restitution of which led to the release of the former Minister of Water and Energy on July 29, 2022.[9] These figures reflect the work already done by this special court. But the amount of damages due to the State remains enormous and amounted on this same date to the sum of 97,327,123,221 FCFA for 125 judgments rendered.^[10]

One is therefore entitled to ask whether the stay of proceedings as regulated by the amended law of 2011, as well as the implementing texts contributes effectively to the protection of public wealth in Cameroon. The analysis of the legal provisions, as well as the data mentioned above, led to relativize. Indeed, the protection of public wealth is truly observed through the restoration of the consistency of distracting public wealth (II). Only, it proves to be hampered by the scratching of the traditional principles of criminal justice (II).

I. Effectiveness Proven by Restoring the Consistency of Distracted Public Wealth

The discontinuance of the proceedings is undoubtedly a means of restoring the consistency of the public fortune, which has been unfairly diverted. The amount already paid to the Treasury under this measure further supports such an idea.

Furthermore, the implementation of the aforementioned article 18 is facilitated by its implementing decree, which provides for several restitution methods. Indeed, the restitution can be made in kind or in cash. Moreover, when the embezzlement relates to movable or immovable property no longer in the assets of the respondent, the latter must return the monetary equivalent.

Only to produce its effect, the legislator requires that the restitution be integral. Admittedly, this “all or nothing” logic may be such to encourage the defendants to return the body of the offense in full if they wish to recover their freedom. But it is to be put into perspective, in particular when the respondent is unable to return the entire amount distracted. To this hypothesis must be added the difficulties likely to arise from hypotheses of complicity or co-action in the embezzlement of public property. In these cases, the rule of full restitution of the body of the offense assumes that if one of the defendants requests the discontinuation of the proceedings, he will have to bear alone the total amount of the sum claimed. However, after having paid, his subrogation recourse against the others risks being illusory. In such a configuration, the requirement of full restitution will tend rather serve the protection of the public wealth sought.

It is, therefore, appropriate to consider the hypothesis of partial restitution of the body of the offense not with a view to ordering judgments in cascade but to subsequently reduce the penalties as well as the damages incurred. This logic was also initiated by the court, which, in one case, condemned the mis en cause, having carried out partial restitution, only to the remainder as damages.^[11] But as long as these measures are simply left to the discretion of the judge, they risk being discriminatory and not very attractive. It would therefore be appropriate to introduce them into the legal field. This would, in fact, be similar to the technique of apologies expressly enshrined in the Penal Code without, however, hindering the objective pursued.

II. Effectiveness Hampered by Scuffing of Traditional Criminal Justice Principles

The mechanism of stay of proceedings as regulated is likely to scratch the traditional principles of criminal justice and thus reduce its effectiveness.

The first principle scratched is that of the equality of all before the law.[12] Indeed, the stay of proceedings following the restitution of the corpus delicti is only optional. One could then wonder about the criterion of appreciation of such a faculty which would make it possible to release some and not others. Be that as it may, such “selective repression”^[13] maintains a risk of inequality for all before the law. Moreover, this risk of inequality, which lends itself to the defenders of the thesis of the politicization of the fight against the embezzlement of public property,^[14] is not likely to promote the protection of public wealth. It can, in fact, dissuade a respondent who was well motivated by the intention of returning the body of the offense to take action when he is not sure that by doing so, he will recover his freedom. This measurement would then benefit from being automated if we remain in this configuration.

But there again, it is the function of intimidation of the penal sanction which will be found weakened. The delinquents will then be able to resolve to take action, even if it means returning the body of the offense and regaining their freedom in the event that they are prosecuted.

Faced with such a risk of drifting towards a criminogenic solution, the doctrine^[15] considered that the return of the body of the offense should just be a cause for mitigating the sentence. Such a solution is certainly attractive, but it does not fit well with the objective of greater efficiency in the protection of public wealth displayed by the legislator. Indeed, the defendants would not be very inclined to return the body of the offense if they only benefit from an attenuation of the penal sanction, which, moreover, taints their criminal record.

Consequently, one could rather opt for a reinforcement of the disciplinary sanctions materialized in particular by a severe impact on the career prospects of the defendant. This reinforcement could also be done through additional penalties. In this regard, the institution of forfeitures of article 30 of the Penal Code by the legislator of 2011 seems welcome.^[16]

Conclusion

The institution of the stay of proceedings constitutes a far-reaching reform justified by the concern to restore the consistency of the public fortune unduly diverted. Only if this measure is quite commendable can it still be improved in order to guarantee better efficiency in the protection of public wealth. In this logic of perfectibility, it would be important for the legislator to reconsider the modalities of restitution and to further reduce the attacks on the traditional principles of criminal justice, which taint its purpose. The fundamental issue is to reconcile as much as possible the concern for the protection of public wealth with the need to repress the offender.

[1] VOKO (S.), Attacks on probity , Doctoral Thesis, University Paris 1 – Panthéon Sorbonne, 2016, p. 102 et seq.

[2]On the legal framework for the repression of corruption in Cameroon, see ANOUKAHA (F.), “The Criminal Code of July 12, 2016 and the fight against corruption in Cameroon”, Juridis periodic , n°109, 2017, pp. 113-132.

[3]The worrying rise in corruption and the embezzlement of public property has led Cameroon to be classified, unfortunately, twice as the first corrupt country in the world by the NGO Transparency International in 1998 and 1999.

[4] KAMTO (M.), “The public thing”, African Review of Legal Sciences , Vol. 2, No. 1, 2001, p. 15.

[5] MPESSA (A.), “the budgetary and financial disciplinary council put to the test by the protection of public wealth in Cameroon”, Periodical Juridis , n°92, 2012, p. 78.

[6]From the very terms of the explanatory memorandum to bill n°903/ PJL /AN establishing a Special Criminal Court, the embezzlement of public funds and corruption have become scourges with multifaceted manifestations that plague all aspects of the life of the country, despite the various means deployed by the public authorities.

[7]It was really not a novelty in the Cameroonian repressive landscape. Indeed, article 64 of the Code of Criminal Procedure already recognized the ability of the Public Prosecutor attached to a Court of Appeal to request that the proceedings be discontinued before the intervention of a decision on the merits when they are of a to compromise the social interest or the public peace. Only, through its conditions and its effects, the cessation of proceedings before the special criminal court appears as a special measure.

[8]See the submissions of the Attorney General to the Special Criminal Court, Mrs NGOUNOU Justine Aimée, on February 2, 2018 at the solemn audience taking office of Mr. NDJERE EMMANUEL then appointed President of the said Court by Decree No. 2017/275 of June 07, 2017, p. 12.

[9] NGAPOUT (A.), “Special Criminal Court: Atangana Kouna released”, in Cameroon Tribune , publication of Monday August 01, 2022.

[10] Ibid.

[11] TCS, judgment n°04/ crim of February 26, 2013, case Public Ministry and State of Cameroon v/MBA OTYE Etienne and others, unpublished. See in the same direction CS, stop n°45/P of November 29, 1966, BACS, n°15, p. 1463; CS, judgment n°62/P of August 14, 2008, unpublished.

[12] MONEBOULOU MINKADA (HM), “The Special Criminal Court in Cameroon and the main principles of criminal justice: comparative study on the Laws of 1961 and 2011”, Juridical Tribune, Volume 2, Issue 2, 2012, p. 163.

[13] NGOOLO FOE ( JE .), “Free speeches on the principle of equal rights in law n° 2011/028 of December 14, 2011”, in Mirror of the law, “The Special Criminal Court: what do the dialogue writers think”, Yaoundé, 2012, p. 40.

[14] MENGUELE MENYENGUE (AM), “On the political use of sanctions: essay on the politicization of the fight against corruption and embezzlement of public funds in Cameroon”, Juridis periodical, n°108, 2016, p. 108.

[15] MONEBOULOU MINKADA (HM), “ The Special Criminal Court in Cameroon and the main principles of criminal justice: comparative study on the Laws of 1961 and 2011”, art. prev ., p. 164.

[16]See articles 18 of the law of 2011 amended and supplemented by the law of 2012 and 3 of Decree No. 2013/288 mentioned above.