SUMMARY- Trial Observation Report (Cameroon)

SUMMARY- Trial Observation Report (Cameroon) Case of Nkongho Felix Agbor Balla, Fontem Neba, and others Hearing 27 April 2017, Military Tribunal Yaoundé 1. The Law Society is a professional body representing more than 166,000 lawyers in England and Wales. Its aims include upholding the independence of the legal profession, the rule of law and human rights around the world. The Law Society has consultative status with the Economic and Social Council of the United Nations since 2014. 2. The Law Society has been monitoring the situation in Cameroon following reports of the suppression of public protests and alleged excessive violence used by police forces against lawyers and others at the end of 2016. The subsequent arrest and detention of lawyers and civil society leaders contributed to our concerns, as expressed in letters we sent to authorities in Cameroon on 13 February 2017 (on inter alia lack of jurisdiction of military tribunals over civilians) and 25 April 2017 (on prolonged pre-trial detention). 3. In light of these concerns, the Law Society organised a trial observation at the hearing that took place on 27 April 2017 in the case of Nkongho Felix Agbor Balla, Fontem Neba, and others, who are being tried on charges that carry the death penalty (including terrorism and secession) before the Military Tribunal of Yaoundé. The aim of the observation was to impartially assess whether procedural guarantees, established in international and regional human rights law, were being complied with. 4. The Law Society met with the legal defence team, as well as the President of the Military Tribunal in Yaoundé. We also met with the Commissaire du Gouvernement (State Prosecutor at the Military Tribunal), the Director of the department for criminal and penitentiary matters of the Ministry of Justice, and the Registrar of the Prison Principale de Yaoundé, where Nkongho Felix Agbor Balla and Fontem Neba are being held. However, with regard to these last three meetings, we were told that an authorisation from the Minister of Justice or Minister of Defence was required in order to visit the defendants in prison and speak about the proceedings in this case. 5. Brief reference is made to the historical background. Cameroon was previously a German colony and after the First World War, the League of Nations granted mandates to France and Britain. The latter administered the North and South West 1

regions of the territory. In 1960, the French speaking regions gained independence and the Republic of Cameroon was constituted. In 1961, following a plebiscite, the English speaking regions became part of Cameroon under a federalist system. An amendment of the Constitution in 1972 abolished that system and Cameroon is, according to the Constitution currently in force, a "decentralized unitary State". In the French speaking regions, the civil legal and educational system applies and, in the English speaking parts, common law and the British educational system are used. 6. At the end of 2016, protests were held by teachers, lawyers, and other civil society actors. The reason for these protests was that French speaking teachers and legal officers, who had been educated in the French educational and civil law systems, were carrying out functions in the North and South West regions. More generally, the protests seemed to reflect a growing dissatisfaction with the marginalisation of English speaking Cameroonians, their apparent lack of political representation, and a lack of recognition in practice of the educational and common law system applied in the North and South West regions. The protests were met with excessive force by the police. Nkongho Felix Agbor Balla and Fontem Neba were arrested on 17 January 2017. On 20 January 2017, the Commissaire du Gouvernment at the Military Tribunal in Yaoundé ordered their preventive detention and charged them with terrorismrelated offences. 7. The first hearing before the Military Tribunal in Yaoundé was to take place on 3 February 2017, but was adjourned to 13 February 2017. The next hearing took place on 23 March 2017, when the prosecution requested for the case to be joined with a case against 25 other defendants. On 7 April 2017, the Military Tribunal decided to join the cases and adjourn the trial until 27 April 2017. At the hearing on 27 April 2017, the case was adjourned until 24 May 2017. 8. There are no specific rules of procedure governing proceedings at the Military Tribunal. The Tribunal applies the Terrorism Law, the Military Justice Code, the Criminal Code, and the Criminal Procedure Code (see the report for the official titles of these laws and the text of applicable articles). The Terrorism Law takes precedence as lex specialis, to the extent that its provisions deviate from the Criminal Procedure Code, the Criminal Code, and the Military Justice Code. The Military Justice Code takes precedence over the Criminal Procedure Code and Criminal Code. 9. The report focuses on the hearing that took place on 27 April 2017 and does not offer an in-depth analysis of the Terrorism Law or other domestic laws. Such laws are referred to in Part V only to assess whether the hearing reveals a violation of rights established in domestic, regional, and international laws. However, there are three obvious deficiencies in the Terrorism Law that are in clear violation of international and regional standards. First, with regard to remand in custody, there is no time limit, no judicial decision, and no requirement that the authorisation of the State Prosecutor to remand in custody be motivated. Second, there is no preliminary inquiry. A case is always directly referred to the Military Tribunal by the State Prosecutor, which negatively affects the right to prepare adequately for a defence and to be tried without undue delay. Third, the broadness of the definition of what constitute acts of terrorism and the wide array of offences covered by the Terrorism Law can lead to arbitrariness in its application. 2

10. A description is given of the location and courtroom of the Military Tribunal, as well as of the hearing. During the hearing, an intervention was made by a lawyer representing a civil party and submissions were made on the bail application of Felix Agbor Balla and Fontem Neba, as well as on the bail application for the other 25 defendants. In the first few minutes, interpretation was provided from French into English, but there was no interpretation during the rest of the hearing, with the exception of the submission on the bail application for Felix Agbor Balla and Fontem Neba, which was interpreted from English into French for the judges. There are three judges; all serving military officers in uniform. The defendants stood in the heat for three hours, before they were allowed to sit. Twenty-five defendants were standing together in one box with seating for two persons, pressed up against each other for lack of space. 11. The report, in Part V, sets out the applicable domestic, regional, and international standards with regard to rights that appear to have been violated. It regards several elements of the right to a fair trial, namely: (i) the right to an independent and impartial tribunal, (ii) the right to defence (access to the case file), (iii) the right to an interpreter, and (iv) the right to be tried without undue delay, as well as the right to pre-trial release and the right to physical integrity. 12. With regard to the right to a fair trial, a violation of this right in a case where the defendant is charged with offences carrying the death penalty implies a violation of the right to life and may entail as a remedy the release of the defendant. Fair trial rights are non-derogable in a situation of internal political instability or public emergency, as established by the African Commission on Human and Peoples' Rights and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. The United Nations Human Rights Committee has established that, although the right to a fair trial is not a non-derogable right per se, any trial leading to the possible imposition of the death penalty in a state of emergency should comply with the requirements of the right to a fair trial, because the right to life is non-derogable. 13. With regard to the right to an independent and impartial tribunal, the domestic law of Cameroon establishes a wide range of offences that fall under the jurisdiction of Military Tribunals, irrespective of whether the accused are military officers or civilians. The exercise of jurisdiction by Military Tribunals over civilians constitutes a violation of Article 7(1)(d) of the African Charter, as well as Article 14(1) ICCPR (with regard to the latter, no justification has been offered to justify the exercise of such jurisdiction based on exceptional circumstances). In addition, Section 7 of the Military Justice Code and Section 2 of the Terrorism Law violate Article 1 of the African Charter, since these provisions are not in accordance with the treaty obligations established therein. Moreover, the exercise of jurisdiction by military courts over civilians raises concerns regarding the independence of the judiciary. 14. With regard to the right to defence (access to the case file), we understand that some case files of defendants were either not made available to the defence team by the prosecution or that photocopies needed to be made, which carried some costs. A lack of access to the case file and a restriction of such access constitutes a violation of the right of defence, established in Article 7(1)(c) of the African Charter and Article 14(3)(b) of the ICCPR. Such lack of access makes it impossible for the defendant and 3

his or her legal representative to adequately prepare for the defence. It also violates the principle of equality of arms. 15. With regard to the right to an interpreter, all the defendants are English speakers. We understand that most of them do not understand French. The order of the State Prosecutor in which some of the defendants were charged with certain offences, their provisional detention was ordered, and they were subjected to the jurisdiction of the Military Tribunal in Yaoundé, was in French. This means that the defendants can neither understand the documents pertaining to their trial nor the submissions made at the hearing. Therefore, they are also not able to instruct their counsel. This constitutes a violation of Section 354 of the Criminal Procedure Code of Cameroon, as well as Article 14(3)(f) ICCPR. It also goes against Principle N.4(d) of the African Commission s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. Even if no request is made by the defence, it is a State obligation to provide interpretation for the defendant. Moreover, such interpretation should be adequate. The lack of adequate interpretation also constitutes a violation of the principle of equality of arms. Moreover, if prior to the hearing statements were taken from the accused without interpretation and those statements are subsequently relied on in proceedings, this constitutes a violation of Article 14(1) ICCPR. 16. With regard to the right to be tried without undue delay, the multiple adjournments that have been ordered by the Military Tribunal in this case prevent proceedings from taking place without undue delay. Such delay constitutes a violation of Article 14(3)(c) ICCPR and goes against the African Commission s case-law and Principles on a Fair Trial. The United Nations Human Rights Committee has established that the right to be tried without undue delay is even more important in cases where the accused are charged with offences carrying the death penalty. The state of continuous uncertainty and its psychological impact may constitute a violation of the right to physical integrity established in Article 5 of the African Charter and Article 7 of the ICCPR. Moreover, the Human Rights Committee has established that a delay in proceedings may violate other rights, in addition to Article 14(3)(c) ICCPR, such as the right to freedom of expression and the right to leave one s own country. No adjournment of a month (ordered at the hearing on 27 April 2017) can be given without further motivation in a case of prolonged pre-trial detention. Although the wide array of offences over which the Military Tribunal has jurisdiction contributes to a backlog of cases, the African Commission has pointed out that such a backlog is no excuse for a delay in proceedings. 17. With regard to the right to pre-trial release, Nkongho Felix Agbor Balla and Fontem Neba have been detained for more than four months, since 17 January 2017. The other 25 defendants have been detained for more than five months, most of them allegedly since the beginning of December 2016. Defendants can only be held in pre-trial detention in exceptional circumstances. Any decision on pre-trial detention should be motivated, as well as each decision on the prolongation of such detention. The lack of motivation and prolonged duration of detention that is allowed under Section 11 of the Terrorism Law, constitutes a clear violation of Article 6, as well as Article 1, of the African Charter and Article 9(3) of the ICCPR. The impermissible effects of this provision are evidenced by another case, that of Justice Paul Ayah Abine, who has been in custody since 21 January 2017 without charges being brought against him. This constitutes an additional violation of the right to promptly be brought before a 4

judge, established in Article 7(1)(d) of the African Charter and Article 9(2) and (3) of the ICCPR. 18. With regard to the right to physical integrity, the fact that the defendants had to stand for 3 hours in the heat and that the 25 defendants (apart from Felix Agbor Balla, Fontem Neba and Mancho Bibixy) had to stand in a box built for two persons, pressed up against each other, constitutes a violation of Article 5 of the African Charter and Article 7 of the ICCPR. The African Commission s Principles on a Fair Trial state that one of the essential elements of a fair hearing is respect for the inherent dignity of the human person. The defendants should be treated humanely and with dignity during the proceedings brought against them. 19. Rights that were at least partly respected at the hearing on 27 April 2017 were the right to a public hearing, the right of defence (time available to present submissions to the Tribunal), and the right of access to a legal representative of their own choosing. We cannot assess to what extent these rights have been respected at all times, nor if they have been respected with regard to each of the defendants. 20. The Law Society makes the following recommendations to the authorities in Cameroon, in addition to the recommendations made in its letters of 13 February and 25 April 2017. These recommendations are not necessarily in order of importance; each needs to be addressed to ensure compliance with regional and international standards: The Military Justice Code and Anti-Terrorism Law must be brought in line with international standards. Primarily with regard to the jurisdiction of military tribunals over civilians, as well as the prolonged and unmotivated remand in custody, and the absence of a preliminary inquiry. The defence team must have access to the case file and all other documents relating to proceedings against their clients. No restrictions should be placed on such access of whatever nature. Interpretation must be provided at all stages of the proceedings, as well as translation of all documents relating to such proceedings, where the defendants do not understand the language in which they are being tried. Such interpretation must be made available by the Presiding Magistrate of his own motion (Criminal Procedure Code, Section 354) and be of an adequate standard. The defendants must be tried without undue delay, so that no multiple adjournments should be given that unnecessarily delay proceedings. The overburdening of the Military Tribunal with cases, mostly due to the wide range of offences over which it has jurisdiction, is not a justification for a delay in proceedings. An adjournment cannot be one month, each time, in a case in which the defendants are being held in pre-trial detention, especially in cases in which the defendants are being charged with offences that carry the death penalty. The defendants should be seated during the proceedings. If there are more defendants than fit into the box established for that purpose, then other provisions should be made, which may include seating in the public gallery under the supervision of a prison guard or a Court official. Defendants could be asked to stand, for example, 5

when their names are read out, to give statements before the Court, when asked to answer a question, or to receive judgment in their case. The State must take measures to improve the conditions in the courtroom at the Military Tribunal in Yaoundé, especially making microphones available so that all those present, including the defendants themselves and those seated in the public gallery, can hear the representations made. This ensures that the right to a public hearing is not illusory. We encourage authorities to welcome international observers and provide substantial information in meetings, to the extent possible. This ensures transparency and allows all views to be taken into account. -- Ends.- Dr. Marina Brilman International Human Rights Policy Adviser 6