How the 1996 Constitution Can Take Care of the NW/SW Exception: A legal Perspective of a ‘third option’.
BY: ASHU NYENTY (Ph.D.).*
As delegates to the major national dialogue, especially those from the two regions that triggered the dialogue in the first place, converge on the Conference Centre beginning this Monday, and judging from the tenor of proposals in the consultations engineered by Prime Minister, Chief Dr. Joseph Dion Ngute, the debate has largely focused on two potentially rancorous and divisive concepts: Unitarism v Federalism. It is on these two concepts that most of the attention is focused, as if to say it is either one or the other, as a solution to the crisis in the NW and SW regions.
The mistake that may be ineluctable if care is not taking is that delegates get into what I call an ideological blockage and fail to adequately explore an alternative that appears to be at arm’s length, but which seems to have been long forgotten. This is mainly so because of lack of familiarity with the various territorial or regional organization models available to Cameroon.
The purpose of this paper, as my own contribution to the major national dialogue, is therefore, to inform public opinion that these two are not the only alternatives and that they should watch out for the potency of a possible ‘third option’ or model that may send everybody home happy- the NW and SW, the other eight regions and of course the government. The issues discussed here would be more relevant to the commission on decentralization and local development, though they may necessarily have ramifications on the work of other commissions such as education and justice system. The reason is that this is the most politically sensitive area of the discussions that may have legal repercussions after the dialogue.
What is the current status of the issues at stake?
Writing on the issues at stake in the national dialogue, Barrister Paul Simo, who has over 20 years’ experience working on countries undergoing peace-processes and political transitions across the world, opined that the discussion has often been tailored in terms of three options, to wit, “separatism, federalism and unitarism”.
In this analysis, I deliberately leave out separatism, because in the context of a national dialogue, that option is dead on arrival. I will proceed to discuss the other two. Federalism in the present state of discussions has two variables. First, an “arrangement similar to the 1961-1972 federation, or in another, to a new multiple federated-state configuration”. The inconvenience of this is that if either of the two configurations is adopted it would lead to a sudden and drastic transformation of the administrative configuration of the state that may force the other eight regions into an arrangement they never asked for or for which their base did not mobilize for; many in the other regions do not yet understand the contours and ramifications of a federation. If there could be an agreement on that fine, but in my view, still coming out of a three-year gruesome war, be sure this option will be resisted with vigour.
Unitarism on the other hand is considered, even by many in the other regions as largely responsible for the despicable state of affairs in the North West and South West regions. Many in the other regions also feel the pinch of Unitarism even though they have not been as vocal as their counterparts’ from the two regions. It is clear that Unitarism as it is currently perceived and practiced may not satisfy or meet “the high aspirations of the people of the NW and SW” and also “of all the other components of our nation”, who clearly want to have a greater say in the management of their local affairs. If these two concepts, in the current state of affairs may be resisted or rejected, what then is the way out?
What is the ‘third option”?
The crux of the matter is that because of their peculiarities( to be discussed shortly) the NW and SW regions desire an arrangement that would provide them with a greater hand in what goes on in their respective regions. That is what leads us to what I have termed the third option (its political and administrative advantages will also be elucidated shortly). In discussions of this nature and based on our immediate past history, I think it would be counter-productive to appear intransigent or take a zero-sum posture of this or nothing. It seems to me that it is advisable to be flexible, weigh the different options and then give and take. That is the very essence of a dialogue.
In my view, the third option is found in the current Constitution of Cameroon. Since the 1996 Constitution was adopted, one provision that has often been ignored and indeed even overlooked, since the search for solutions to the crisis started, is the last Section of Part X devoted to Regional and Local Authorities. That Section 62(2) stipulates that:
“Without prejudice to the provisions of this Part, the law may take into consideration the specificities of certain Regions with regard to their organization and functioning”.
The underlying notion in that section is what is known in modern constitutional engineering as “territorial asymmetry”, which is consonant in countries that have an entrenched minority factor as is the case of the NW and SW regions. According to Barrister Simo, this is an arrangement “in which some regions…would be granted certain attributes and competences different from those granted to other regions”, because the latter regions do not have the same specificities. This model has been practiced with success in countries such as India and even China over Hong Kong, in what is known as the one country two systems paradigm. Even though not everybody in Cameroon espouses this variable geometry in the treatment of regions, the beauty of this asymmetric treatment is that it also works well in a unitary form of state. The example of China and its asymmetric treatment of Hong Kong, and which is a much more centralized system than Cameroon is necessary to point to again. This means that the present Decentralized Unitary system could be maintained, while at the same time the NW and SW find satisfaction in the management of their local affairs. Besides, given that the present Constitution of Cameroon allows for the continuous application of the Common Law, it is recognition of the exceptions that constitute the NW and SW regions. Apart from the examples already given, two of Cameroon’s colonial masters, whose double heritage the Cameroon of today enjoys, that is, Britain and France are plausible other examples. In the case of the United Kingdom, there is a separate status each for Wales, Scotland and even Northern Ireland within the same unitary state. In France, the Corse has a special status. It must be pointed out that it were calls for greater autonomy and threats of breakaway that among other factors pushed the French authorities to give a separate administrative status to that region.
Furthermore, in the couching of the provisions of Section 62(2), it would appear the drafters were foresighted enough to preempt the possibility of considering variations between the different regions in the extent of the powers they should have, depending on their ability and history. My understanding of that section is that the drafters of the Constitution of Cameroon had already envisaged a situation where some regions could be allowed to sail in different boats within a unitary state framework, based on their linguistic, historical, cultural or even demographic peculiarity. The case of the two regions is a very good example, where these conditions of peculiarity are amply fulfilled.
How are the NW and SW peculiar?
To amply justify the need for a special status each for the North West and South West, it would be necessary, in my view, to demonstrate the peculiarity of these two regions. It is clear to everybody of good faith in Cameroon that there are fundamental differences between the NW and the SW on the one hand, and the other eight regions on the other. However, some detail analysis of a few examples would be necessary to make the point. The fact that francophone parents in their numbers send their children to English speaking schools is an eloquent testimony to the fact that there are differences in the educational systems between the two components. It is not simply the language of instruction, the culture of teaching and learning is also fundamentally different.
In addition, in the legal domain, the common law is practiced in the English speaking regions while the civil law holds sway in the other regions. Though some attempt has been made at harmonizing some aspects of the two, they still remain for all intent and purposes walls apart. The Constitution of Cameroon clearly recognizes this legal disparity. It is instructive that it is the perceived adulteration of the educational and legal systems that is the immediate cause of the current crisis.
Again, the colonial past of the two components is different. While the British practiced indirect rule and the Native authority which gave the people much leverage in the management of local affairs, the French system of assimilation, paternalism and the Jacobin-style strong state authority did not afford much of that. So in matters of governance the colonial experiences of the two components differed and this heritage which has been transferred to younger generation has now met zones of friction and conflict.
Even though there are many other examples, these few, in my view sufficiently make the case for the NW/SW exception, within the bigger Cameroonian picture.
What should be the content of the special status arrangement?
Since the current constitution already mentions that possibility, it sounds reasonable that the main worry now for the delegates, if this third option were to be adopted, is to present a basket of what should go into the special status arrangement. What powers do the two regions want to have for themselves exclusive from the central state authorities? Before I proceed to discuss what this basket could contain, it is germane to point out that the special status arrangement could be applied exclusively to the two regions concerned as a matter of priority. However, in order to allay the fears of geometric treatment of regions, which I mentioned, earlier, these powers could also be extended, of course in relative degrees to the other regions if they find no objection for the time being.
Having said that emphasis should at this juncture be focused on the package deal or what I will call the content of the basket. That is what I think the commission on decentralization and local development should be able to do. This is because as I said earlier this is the most political of all the eight commissions. The other issues to be canvassed by the other commissions could only come to add up to that. The basket would certainly be for the delegates to fill but based on my own experience in the understanding of the conflict, the package deal may include but not limited to the management of the education system, the protection of the common law legal system, the proportion of the use of the two official languages in the regions. That basket will include the powers that the regions want to control and the powers of the local councils as well. The central government should be clear on what it intends to irreversibly relinquish to both the regions and the councils.
In addition to the merit of this model mentioned already, this model is neither to the right nor to the left of the debate spectrum. It is at the Centre. It accommodates the desires of those who are opposed to a change of the form of state and also satisfies those who seek greater autonomy. There is no doubt about it; we have already seen that special status arrangements work perfectly well in a unitary state arrangement. In that way everybody is satisfied and consensus is easy to reach on both sides.
Some of these changes if adopted would obviously necessitate legislative, administrative, policy or even constitutional reform. If the commissions consensually agree on what to do then they can easily propose the kind of reform that may suit their agenda so as to protect what they may have proposed.
I submit that the tenor of section 62 discussed above requiring the law to “take into consideration the specificities of certain Regions” is weak. I would rather propose that based on comparative constitutional law, and even Cameroonian history, such fundamental aspects are better guaranteed in the highest legal norm in the hierarchy. In this case it is the Constitution. If that were the case a constitutional revision could be sought to the extent that those guarantees are entrenched.
Is a constitutional amendment possible?
In the run up to the convening of the dialogue and even after the fundamental question on many lips was whether proposals and or conclusions arrived at may be translated into constitutional reform. To this question and analyzing the tenor of President Paul Biya’s 10 September speech, convening the dialogue, some legal experts have argued that such reform was “neither mandatorily required of, nor specifically excluded from the purview of the Dialogue process”.
But that possibility comes to life when you read other portions of the speech together with legal and constitutional provisions in force. On page 14 of the English language version of the speech, he announced his decision to convene a national dialogue “in line with our Constitution”, to “enable us to seek ways and means of meeting the high aspirations of the people of the North West and South West Regions”. My understanding is that if the high aspirations of the people in those two regions are to take charge of those affairs as we have discussed above, and possibly other arrangements agreed to in other commissions, it means that based on what the President said we have to go into the Constitution to seek to satisfy them. Either the Constitution has the answer directly or it points at the direction we must take.
If the Constitution does not have a direct response then a constitutional revision may be necessary to accommodate the issues at stake. And if a proposal is made in this regard, it seems to me that it does not overstep the confines of the Constitution. Provided the revision is pursued in a procedure that is in line with the Constitution of Cameroon, which the President swore to uphold.
On this score, it should be noted that the ‘Natonal Dialogue’ if it is working within the Constitution, does not have the locus standi or power to deliver “binding resolutions” or seek Constitutional amendments. It may only propose. Based on the President’s speech, which for now is the guiding instrument on the purview of the Dialogue’s powers, it has the power to propose whatever it wants to propose, if these can address the concerns and aspirations of the people in those two regions. But it is not within its powers to insist, to push amendment to Parliament, otherwise it would be acting ultra vires and out of tune with the fundamental law of the land.
Who has the power to seek a constitutional amendment in Cameroon? According to section 63(1), “Amendments to the Constitution may be proposed either by the President of the Republic or by Parliament. These are the only two authorities that are constitutionally empowered to seek an amendment of the Constitution. This may of course be through a government bill from the President of the Republic to Parliament or a Private Members bill in Parliament. However, The President of the Republic may also decide to bypass Parliament and directly “submit any bill to amend the Constitution to a referendum; in which case the amendment shall be adopted by a simple majority of the votes cast” and that will be constitutionally correct. .
While a constitutional amendment is not illegal, there are some amendments that will be inadmissible.
According to section 64 “No procedure for the amendment of the Constitution affecting the republican form, unity and territorial integrity of the State and the democratic principles which govern the Republic shall be accepted”. This means in clear terms that any amendment that seeks to change the state from a Republic to a monarchy, transfer part of our territory to another state or institute a one-party state shall not be accepted.
In fine, given the positions held by the different protagonists in the national dialogue and leveraging on my understanding that more consensual conclusions and recommendations may be viewed in a better light, I submit unequivocally, that a third option as I have discussed should be given a thought and explored, if all the parties must take back something to their bases.
*The author of this article is a Doctor in Law and Political Scientist. (The content are his personal views) .The article was previously published in the Median Newspaper on 30 September before the National Dialogue started in Cameroon