Centre for Human Rights and Democracy in Africa

 

SYMPOSIUM

CORRUPTION UNDER CAMEROON LAW

By Justice Mbah Acha Rose Fomundam
Thursday, June 25, 2009

Corruption is a general phenomenon and the definitions applied to corruption vary from country to country in accordance with cultural, legal or other factors and the nature of the problem as it appears in each country.

Black law Dictionary, 7th Edition by Bryan A. Garner, Editor-in-chief defines the word corrupt as,

“Spoiled, tainted, vitiated, depraved, debased, morally degenerated. As used as a verb, to change ones morals and principles from good to bad”

Corruption is defined as “the act of doing something with an intent to give some advantage inconsistent with official duty, and  the rights of others, a fiduciary’s or official’s use of situation or office to procure some benefits either personally or for some one else, contrary to the rights of others”.

Generally, corruption may be perpetuated by an individual alone, or is entrenched within a public sector in which case it is described as systematic corruption.

In Cameroon, corruption is considered as a specific offence and there exist national as well as international instruments in Cameroon that deal with corruption.

As far as national instruments are concerned, there is the Cameroon Penal Code, the Criminal Procedure Code, the National anti-corruption commission, the law on the Declaration of Assets and Property, and the law No. 2003/004 of 21/04/2003 on bank confidentiality; there also exist the National Agency for the investigation of financial matters.

As far as the international instruments are concerned, there is the United Nations Convention Against Corruption, the United Nations Convention on the fight against transnational organised crimes, and the African Union Convention on the fight against corruption.

Part 1:    NATIONAL INSTRUMENTS ON CORRUPTION.

  1. The Penal Code.

This is the main national legislation that deals with corruption as an offence in Cameroon. The penal code otherwise known as law No. 67-LF-1 of 12th June 1967 identifies and punishes several forms of corruption. These forms are bribery, indulgence, undue demand, compulsion of public servant, procuring influence, misappropriation of public funds and corruption of employee.

        (a). Bribery: (S.134 penal code).
                      
Bribe is what is usually given or taken in a corrupt relationship. To pay or receive a bribe is corruption per se and is usually understood as the evidence of corruption. The word bribery has several conotations (appellations). There exist several equivalent terms or bribery. In some countries it is called ‘Kick backs’, ‘gratuites’, ‘back shees’, ‘sweetners’, ‘pay-offs’, ‘speed and grease money’. In Cameroon the word bribery also has other appellations such as ‘Choko’, ‘Kola nut’, ‘myjar’, ‘petrol’, ‘chokuchoku’, and in French ‘Dossier bien habille’, ‘Dossier cravate’ and several others. These terms are used in a bid to water down the pejorative meaning attached to bribery.

S.314 of the Penal Code which deals with this form of corruption punishes a  public servant, government employee or anyone  who for himself or a third party solicits, accepts or receives the bribe as well as he who gives the bribe or yields to it. According to that section, the bribery can take the form of an offer, a promise, gift, or present. Such bribery is usually given in exchange for acting contrary to professional obligations or to accomplish certain duties.

As per S.134 the P.C bribery must be in order to obtain the performance, postponement or abstention from an act of his office. It could be a reward for an act that had already been performed, or the person receiving had refrained from doing the act.
 
Thus this section of the law punishes both the giver and the receiver of the bribe. The penalty as per this law is both imprisonment for from five to ten years and with fine from two hundred thousand to 2million Francs CFA. Where however, the act does not lie within the competence of the person corrupted, but was facilitated by his office, imprisonment shall be from one to five years, and a fine of  from 100.000frs to 1,000,000frs.

  1. Indulgence (S.137 Penal Code)

This section deals solely with public servants who act to the detriment of a government department, co-operative, or any State Authority or corporation either public or subject to the administrative control of the state, or in which the state holds directly or indirectly the majority of the shares. The corrupt act envisaged here is where the public servants grants exemption from any fee, due, duty, tax or contribution, or he delivers at a lesser price than that prescribed any produce of the establishment. The section of the Code stipulates a penalty of two to ten years imprisonment with fine of from 20.000 to 2.000.000frs.

  1. Undue demand (S.142 penal code)

Under this section, the law punishes any public servant, notary, public auctioneer, bailiff or process server or the representative of any such persons who acts corruptly. The corrupt act as described by this section consist in demanding any fee, due, duty or tax which is not due or any material benefit other wise than on payment of the proper price.

Such acts are punished with imprisonment for from two to 10 years and with fine of from twenty thousand to two million francs CFA.

  1. Compulsion of Public Servant (S.160 Penal Code)

Here the law punishes anyone who through interference or threats procures a public servant improperly to perform or refrain from any act of his office. This is considered as corruption and is punished with imprisonment for from two to ten years and with fine of from twenty thousand to one million francs.

  1. Procuring Influence (S.161 Penal Code )

This practice which is considered as corruption is punished in like manner as the offence of compulsion of public servant discussed herein above.

Here two categories of persons are envisaged:- any person, and then any public servant.

 The 1st category which is any person, must have acted with assault or threat or by presenting gifts or making promises, with intent to corrupt a person having any influence real or supposed, with interest to procure any advantage from any public authority.

The 2nd category is any civil servant who acts for himself or on behalf of a third party. The corrupt act here consist in soliciting, receiving, or accepting any  offer promise or gift to procure any advantage from public authority or body placed under the control of the public authority, any contract, operation or other benefit arising from agreements concluded  with public authority or body placed under the control of the public authority. The public servant by so acting takes due advantages of the real supposed influence that his status or office has conferred upon him.

The punishment envisaged for both categories of offenders under this section is the same – imprisonment for from 2 to 10 years, and with fine of from 20.000frs to 1.000.000 frs.

(F) Corruption of Employee (S.312 Penal Code)
           
The person envisaged here as the possible offender, is an employee in receipt of any form of emolument. The corrupt act consist, on his part, in receiving any gift or accepting any promise without the permission of his employer, for doing or omitting any act of this employment. The punishment for such act is 1 to 3 years imprisonment of or a fine from 50.000 frs to 500.000 frs or both such imprisonment and fine.

(G)  Misappropriation of Public Funds. (S.184 Penal Code)

This is one of the forms of corruption which has been frequently identified by writers. Embezzlement is one of the forms of corruption and power abuse that can develop in closed institutional and moral spheres, independently of the public sanction

Sindh Chief  Minister Arbab Ghalam Rahim, speaking as chief guest at an essay and painting competition for student of schools, colleges, and universities, on October 17th, 2005, identified embezzlement and misappropriation as some of the common forms of corruption amongst bribery, gifts, intellectual and professional dishonesty.

S.184. envisages whoever (not only civil servants) by any means takes or keeps dishonestly any property moveable or immoveable, belonging to, in transmission to, or entrusted to the state, or to any authority or corporation either public or subject to the administrative control of the state or in which the state holds directly or indirectly the majority of the shares.

The penalties prescribed vary accordingly to the value of the property.

  1. Where the value of the property is more that ½ a million frs, the penalty is life imprisonment.
  2. Where the value of property is 500.000 Frs. or less but more than one hundred thousands francs the penalty is imprisonment for from 15 to 20 years.
  3. Where the value of the property is 50,000 FRS or less the penalty is Imprisonment for from 5 to 10 years and with fine from 50,000 frs to 500,000 frs.

This section provides that the penalty in case of mitigating circumstances may not be reduced below 10 years, 5 years, or 2 years and its execution may not be suspended.

S.184 (4) provides that, the court may order any form of confiscation of any property, moveable or immoveable, belonging to the offender, and attached, which is the proceeds of the offence. Besides this, the law stipulates that the trial judge must order the publication of the judgment, and impose certain forfeitures on the offender, such as:

  1. Removal and exclusion from any public service, employment or office.
  2. Incapacity to be a juror, assessor, expert, referee, or sworn expert.
  3. Incapacity to be guardian, curator, deputy guardian, or committee save of the offender’s own children, or member of a family counsel.
  4. Prohibition of wearing any decoration.
  5. Prohibition of serving in the Armed Forces.
  6. Prohibition on keeping a school, on teaching in any educational establishment, and in general on holding any post connected with the education or care of children.

As earlier stated, some of these sections of the law punish the corrupt conduct of public servants. A public servant is defined in S.131 of the Penal Code as:

“Any judicial or legal officer, any official, any employee or official of the state of any other body corporate governed by public law or of a corporation or semi-public corporation, of a law official, any Armed Forces of Gendarmerie servicemen, any employee of National Security or Prison Administration and any person charged whether continuously or occasionally with any public duty, mission or tax, while acting in the discharge of his office in relation to the said office”.

Just like Section 184 of the Penal Code, S.133 of this code provides that where the court convicts under S.134, (a) and S.161 of the Penal Code, the court must order forfeitures and confiscation as stated herein above.
             The Penal Code is not the only law which punishes corruption in Cameroon.
(2) Other National Instruments

  1. The national Anti-Corruption Commission was created by Decree No 2006/88 of 11th March 2006 to fight corruption. It is a National body that oversees anti-corruption efforts in the Cameroonian public service

            The body collects information, investigates, studies cases and publishes texts on corruption and proposes solutions to competent authorities.

  1. S.66 of the 1972 constitution of Cameroon as amended in 1996 requires the filing of a statement of assets and liabilities for all public officials. Law No 2006/3 of 25/04/2006 was enacted and concerns the said declaration of assets of public officials
  2. On the 21/04/2003, Law No 2003/004 on bank confidentiality was passed. It brought significant improvements such as the prohibition on the invoking confidentiality on information concerning an account when this information is requested by public authorities for the purpose of investigating the account.

(d) There also exist the National Agency for the Investigation of Financial Matters. This body is charged with investigating into suspected accounts, in which there is so much money.
(c) To these national instruments can also be added, the Cameroon Criminal Procedure Code promulgated by law No 2005/007 of 27th July 2005.

Part XI (section 645 to 675) of this code is dedicated to extradiction. Extradiction is the process whereby a requested state hand over a foreigner found in its territory to a requesting state in order that he is prosecuted for one or more specified offences of ordinary law or subject him to a term of imprisonment passed against him after a criminal trial for an offence of ordinary law.
  S.642 (2) of this law states:
(a) “Felonies and misdemeanours of which are not directed against any kind of government shall be considered as common law offences and may justify extradiction.
 (b) “Offences of universal jurisdiction provided by international conventions and ratified by Cameroon shall be considered as ordinary law offences.
                      These national laws dealing with corruption are applied in Cameroon alongside the international law on corruption.

Part II
           International Instruments

  1. The United Nations Convention Against Corruption

                   The United Nations Convention Against Corruption is the first legally binding international anti-corruption instrument. This convention was adopted on the 31st of October 2003 and ratified by Cameroon on the 25th of April 2004. This convention gives the global community the opportunity to establish an effective set of bench marks for effective anti-corruption strategies.
                                                                                                         
           
The United Nations Conventions Against Transnational Organised Crime.
This convention has been ratified by Cameroon. This convention inspired Cameroon to set up the National Anti-Corruption commission in 2006.

The purpose of this convention is to promote co-operation, to prevent and combat transnational organised crime more effectively. For the purposes of this convention, an organised criminal group means a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with the convention in order to obtain directly or indirectly a financial or material benefit. Article 8 of the said convention, States
   (1) “Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally,

  1. The promise, offering or giving to a public official, directly or indirectly of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain form acting in the exercise of his or her official duties.
  2. The solicitation or acceptances by a public official, directly or indirectly, of an undue advantage for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

(3) African Union Convention on the Fight Against Corruption
        In dealing with international instruments on the fight against corruption, it is worth the while to mention the African Union Convention which was adopted on the 12th of July at the African Union Heads of States Summit at Maputo in Angola. The objectives of this convention are stated in its article 2 and are as follows,

  1. Promote and strengthen the development in Africa by each State Party, of mechanisms required to prevent, detect, punish and eradicate corruption and related offences in the public and private sectors.
  2. Promote, facilitate and regulate co-operation among the State Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption and release offences in Africa.
  3. Co-ordinate and harmonize the policies and legislation between State Parties for the purposes of prevention, detection, punishment and eradication of corruption on the continent.
  4. Promote Socio-economic development by removing obstacles to the enjoyment of economic, social and cultural rights as well as civil and political rights.
  5. Establish the necessary conditions to foster transparency and accountability in the management of public affairs.

Conclusion

The fight against corruption is also the preoccupation of the magistrates and judges in Cameroon who in the course of performing their duties will not hesitate to convict when corruption is proved. Antonio Maria Costa, UNODC Executive Director, in his statement at the Bali Conference against corruption held in January 2008, had this to say, “Everyone has a role to play, not only Governments, Civil Society, the Media and the average citizen. Corruption hurts us all, therefore fighting it is a shared responsibility."
               
                                    By
                                            Justice Mbah Acha Rose Fomundam
                                            Vice President
                                            Court of Appeal
                                            South West Region
                                            Cameroon.

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