LIBERATION VERSUS OCCUPATION; COURAGE AGAINST BRUTALITY
From the day it came on the scene, the Southern Cameroons Youth League had been adamant about safeguarding the rights, all the rights that a normal human being, that a sovereign country, is entitled to. To do that, they have always advocated their unshakable feeling that the rights to self-defence for a people under the heavy burden of an unconscionable brute is sacrosanct. For these beliefs and their toil for their land, they have known the full range of the brutal terrors that only those who refuse to accommodate the rules set by the coloniser, the oppressor, the “master,” the “superior race” gets to know as since its inception, its leaders and members blood have painted the walls and soak the grounds of the Kondenguis, the BMNs and the CENEER torture chambers in both La Republique and the Southern Cameroons.
Today there are new converts to the cause of Southern Cameroons liberation. It is a wonderful thing. It is a beautiful thing. But the work did not start today, and when you were sleeping, the work was going on. Variously, people have said that this thing started now and the SCYL will want to get credit or so on and so on. The first lesson of liberation is that the spark for inflection points might be lit at any moment. It might just be a housewife refusing to give up her seat, or some such innocuous thing. It is not about credit, it is about result. And so while you were sleeping last year and the year before that and the year before that, the youth league was on the ground, in our quarters, keeping the embers that were almost dead alive and doing it with their lives and their livelihood as you will see from the deposition below in the Military Tribunal in Bamenda. So when you go about challenging SCYL leaders and members, be aware that before them, the idea of our people physically throwing out our colonisers off our land in this current generation was unheard off. They are the first martyrs who offered their lives for our people and paid with it, and keep paying. So when you go about spouting off on the Ebenezer Akwanga’s…, just take a deep breath, take a moment and reflect on what it means for a generation to decide to put their lives on hold and lay it down so others might be free. When you do that, then maybe, just maybe, you will temper your comments and while not agreeing with them, have some respect and humility if for nothing else but the sacrifices they have already made.
IN THE MILITARY TRIBUNAL OF BAMENDA
HOLDEN AT BAMENDA
BETWEEN SUIT No
THE STATE OF CAMEROON ————————————————————— PROSECUTION
- WALTERS NUMVI
- CHE CLOVIS NJI
- TABUKUM FRU ANDREW ————————————————- ACCUSED PERSONS
- KONGNSO STEPHEN
NOTICE OF OBJECTION IN LIMINE LITIS
TAKE NOTICE that at the hearing of the above cited Suit between the parties herein on the 3rd August 2015 or any other subsequent date for which you shall have no other notification, the Accused Persons herein shall raise a Preliminary Objection in limine litis on the following grounds;
- That this Hon Court lacks jurisdiction to hear this matter.
- That the use of the French language as the language of proceedings before this court in this matter violates the Constitutional and Fundamental Human Rights of the Accused persons.
- That the Accused persons are civilians who were neither caught carrying weapons of war nor recruiting people for war.
- That there is a conflict of jurisdiction given that the Application for Habeas Corpus which was filed on behalf of the Accused persons since the 25th of May 2015 is still pending adjudication before the High court of Mezam Division.
- That the Accused persons have been subjected to severe torture and cruel inhuman treatment prior to being court marshaled.
On the basis of the foregoing grounds adumbrated upon hereunder, the Accused Persons shall pray you to decline jurisdiction and transfer their case to the court of Appeals to resolve the issue jurisdiction and to set the Accused persons free without more.
“That this Hon Court lacks jurisdiction to hear this matter”
“jurisdiction” is defined by the authoritative “Black’s Law Dictionary” 6th Ed, 1990 by Henry Cambell Black as “the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties, it defines the powers of courts to inquire into facts, apply the law, make decisions and declare judgments … it exists when the court has cognizance of the class of cases involved, proper parties are present, and point to be decided is within powers of court”. In fact the learned Justice Vera NGASSA of the South West Court of Appeal opined that at the mention of “jurisdiction’, every court of law must stop and re-examine the sources of its authority over the issues being adjudicated upon for the decision of s court of law on an issue outside its jurisdiction is of no legal import.
The Accused Persons have been brought before this court for trial pursuant to S. 5 (1) of Law No 2014/028 of 28th December 2014 on the Repression of Acts of Terrorism otherwise called the “Terrorism Law”. This ipso facto means that they are suspected terrorists.
It is our submission that these Accused persons have been brought before this court under the above cited Section which carries the death sentence under the mistaken view or misconception that they are “terrorists”. The Accused persons are members of the Southern Cameroon Youth League (SCYL) which is the youth wing of the Southern Cameroons National Council (SCNC). The SCNC is a recognised movement in Cameroon which is widely known even internationally within the United Nations Organisation and the African Union to be the vanguard organization fighting for the restoration of international legality in the relationship between the territory that constitutes the former UN trust Territory of the Southern Cameroons and the La Republique du Cameroun which is the name given to the former Un Trust Territory of French Cameroons under French Administration. These adherents of the restoration of international legality argue very strongly that illegality cannot give birth to legality. They argue that both French Cameroun and British Cameroons were Mandated Territories of the League of Nations which upon the defeat of Germany in World War II, became United Nations Trust territories pursuant to UN Resolution 63-III of 13th December 1946 which further gave the territories respectively to France and Britain to prepare for eventual self government. That the said UN Trust Territory of Cameroon under French Administration got its independence on 1st January 1960 as “La Republique du Cameroun” and was admitted into full membership of the UNO in September 1960 with a flag, Coat of arms, National Anthem and Map showing its international boundaries that did not include the British Cameroons which was still a UN Trust Territory being prepared independence.
That pursuant to the UN organized Plebiscite of 11th February 1961 and UN Resolution 1608 of 21st April 1961 the Un Trust Territory of the Southern Cameroons was to join Cameroon only after a Treaty of Union the details of which had to be worked out by 1st October 1961. Unfortunately, before this date La Republique du Cameroun amended its Constitution of 1st January 1960, passed it through their parliament on 6th September 1960 to include the Southern Cameroons calling the new entity the Federal Republic of Cameroon and in September 1960 sent her troops to occupy the entire territory of the Southern Cameroons without any Treaty of Union as required by international law. Such a treaty had to be deposited at the UNO Secretariat pursuant to Arts 102 and 103 of the United Nations Charter. The absence of this Union Treaty makes the entire actions of La Republique du Cameroon and its administration over the territory of the former UN Trust Territory of the Southern Cameroons an absolute illegality since 1961 and pure annexation at international law. Annexation is not only an illegality but a crime at international law from which Cameroun has continually benefitted enormously from the annexation of the Southern Cameroons in violation of the Latin legal principle nemo nudutur propriam turpitudi – nobody should benefit in any way whatsoever from a crime he has committed.
This is probably the only reason why the Special Representative of the UNO Secretary General at the recent celebrations of the 50th Anniversary of the Independence of La Republique du Cameroun gave the Head of State of La Republique du Cameroun a special anniversary gift of the Two Maps of La Republque du Cameroun at independence in 1960 and that of the Un Trust Territory of the Southern Cameroons to remind all and sundry of the existing historical fact of illegality. Various panelists at the colloquiums organized in Foumban and Buea respectively in April 2013 during the said 50th Anniversary Celebrations of the independence of La Republique du Cameroun including Scholars like Professors Magloire ONDOUA, VERKIJIKA FANSO, Victor Julius NGOH, and Mola NJOH LITUMBE were unanimous on this fact of non existence of a treaty of Union sanctifying the unification of La Republique du Cameroun and the UN Trust Territory of the Southern Cameroons.
The question that begs for an honest response is whether the Accused Persons can rightly be court-marshaled before you and charged with terrorism so as to be given the death sentence for daring to restate what is on everybody’s lip and also subject of international jurisprudence? We urge you to de line jurisdiction and refer the parties to the Common law Courts. Your lordships and Assessors in doing so would simply be following the jurisprudence already laid down by other Military Tribunals in similar cases in La Republique du Cameroun. For example, in 1984 Batonnier emeritus FON FONGUM GORGI DINKA was arrested and incarcerated in Kondengui Yaounde for publishing a pamphlet entitled “The Revolt of Ambazonia” in which he argued strongly for the restoration of the independence of the Southern Cameroons alias Ambazonia concomitantly with the promulgation of Law No 001/1984 renaming the erstwhile United Republic of Cameroon as “La Republique du Cameroun” the name she carried before the purported union with the Southern Cameroons and his publication provoked widespread riots in the territory of the former Southern Cameroons. Whilst in detention he sought leave and was given, writing material expecting an apology to the Head of State but he instead wrote another pamphlet, which he entitled “Defuse the time bomb” in which he developed the legal arguments in the previous publication. He was court marshalled before the Military Tribunal in Yaoundé in 1985, which to the shock and consternation of all and sundry set him free. In December 2014 the Military Tribunal in Buea Suit No 152/ORD/JI/TMB ruled declaring their incompetence to try one OBEN MAXWEL EYONG who had been brought before them for recruiting militants to use guerilla tactics to fight for the Southern Cameroons with the inspiration of the great Latin American liberator Che GUEVERRA whose book “guerilla Warfare: Self defense from the attack” as guide. In the same line of thought, the High Court of Bamenda in Suit No HCB/028/92 between The State of Southern Cameroons alias Ambazinia & 2 others Vs La Republique du Cameroun & 1 other per Justice FOMBE Richard gave value to the application for a declaratory judgment that the governance of La Republique du Camerooun over the territory of the former Southern Cameroons is illegal.
We therefore challenge the constitutional and legal foundations of this Honourable court to adjudicate on this matter on the basis of the foregoing constitutional and legal history showing that illegality cannot produce legality and like Lord Denning the great English judge of all times opined “you cannot put something on nothing and expect it to stand. In fact in challenging the legality of all legal foundations of this Honourable court we make bold to state that the proper court to try the Accused persons as avowed citizens of the Southern Cameroons should in our humble opinion be the High court of Bamenda that was created under the UN Trusteeship mandate and whose jurisdiction was forced into abeyance by the post October 1961 illegalities systematically orchestrated by La Republique du Cameroun on the territory of the Southern Cameroons and its citizens.
“That the use of the French language as the language of proceedings before this court in this matter violates the Constitutional and Fundamental Human Rights of the Accused persons”
On the 6th of July 2015, the Accused persons were surreptitiously and without any prior notification as to the date brought before this court and the Court made an order of pre trial detention for 6 months renewable which proceedings were carried out exclusively in the French language that the Accused persons neither understand nor speak. Furthermore, since they had no prior notification that they were going to be taken to court on that day, they too had no time to inform their Counsel to be present or send a representative.
The use of the French Language in the court especially wherein the parties are English speaking violates the constitutional rights of the Accused persons on many counts; Firstly, it violates and makes nonsense of the bi-jural nature of the Cameroon judiciary given that by definitions all courts in English Speaking Cameroon ought to use the English language as the main language of the court by virtue of their geographical location west of the Mungo River. Secondly it violates the constitutional right to fair hearing as enshrined in the Preamble of the Constitution of La Republique du Cameroun as read alongside Art 65 of same. Furthermore, Cameroon is a signatory of various international Human Rights legal instruments which by virtue of Art. 45 of the Constitution take precedence over national legislation. This is the case of the International Covenant on Civil and Political Rights which in its Article 14 holds that an accused person should be tried in a language which he best understands and in an impartial tribunal wherein he has sufficient guarantees for the protection of his rights to fair hearing. These rights are also enshrined in the universal Declaration of Human Rights as well as the African Charter of human and Peoples Rights both of which have been ratified by Cameroun and promulgated into law.
It is therefore our informed opinion that the commencement of proceedings before this Hon Court surreptitiously without any respect for the fundamental Human Rights of the Accused persons constitutes such a gross violation of these rights that is indicative of the partiality of the ensuing trial. We therefore pray you to decline jurisdiction and send the matter to the appropriate legitimate jurisdiction which is the Common law courts.
“That the Accused persons are civilians who were neither carrying weapons of war nor recruiting people for war”
The Accused persons facing trial before this Hon Court as terrorists likely to be given the death sentence as per the section under which they are being charged are not military men but untrained youths, civilians who were not bearing arms or weapons of war. They were not inciting citizens or the population to overthrow the established political order or government. They did not perpetrate any crimes that instill any grievous fear in the population as such. In fact from their declarations, they should be credited with having brought to the knowledge of government in unequivocal terms the realities and level of growing discontent among the youths of English speaking extraction in La Republique du Cameroun and so rather than persecute them in the name of court marshal before the military tribunal, their pleas should be given alternative attention with a view to resolving the more serious social crisis involving their generation with a view too to avert the impending cataclysm.
In Cameroon, military tribunals still apply old French imported colonial laws such as the Code d’Instruction Criminale (Ordinance of February 1838), Ordinance No 59/91 of 31 December 1959 relating to the organization, competence and the functioning of military jurisdictions, and Ordinance 72/05 of 26 August 1972. According to Barrister Nkafu these laws, which have been repealed in France,are virtually void of human rights and freedoms
“That there is a conflict of jurisdiction given that the Application for Habeas Corpus which was filed on behalf of the Accused persons since the 25th of May 2015 is still pending adjudication before the High court of Mezam Division.”
The Accused persons standing trial before this court were arrested on the 7th and 10th May 2015 respectively in Bamenda for the 1st , 2nd , 3rd Accused and Kumbo frothe 4th Accused and all of the were incarcerated and tortured in communicado at the Judicial Police headquarters in Bamenda. They were denied food, medical facilities and access to Counsel. As such Counsel filed an application for Habeas Corpus which was received in the registry of the High Court of Mezam, Bamenda on 25th May 2015 as Suit No HCMB/7CRM/2015 between Wirngo Vincent Jumbam & 4others Vs the People of Cameroon. By this application for Habeas Corpus the applicants who are the Accused persons herein are praying the State party or prosecution to produce them before the judge and justify their continuous incarceration failing which the Court should order their immediate release. This application is still pending adjudication before the High court yet the same state party hs brought the same Accused persons before this court for prosecution. By so doing, the State party has created a conflict of jurisdiction given that the same parties are standing trial before two different courts of the same standing on the same facts at the same time. This situation was foreseen by the law makers of the Criminal Procedure Code in S. 600 (2) which states that
“Where two different Courts of First Instance or two High Courts of the jurisdiction of the same Court of Appeal assume or decline jurisdiction, the conflict thus created shall be resolved by the Court of Appeal”.
We therefore pray your lordship d Assessors under this ground to hold that there exists a conflict of jurisdiction between the Bamenda Military Tribunal and the High Court of Mezam, Bamenda which should first of all be resolved by the Court of Appeal North West Region. A copy of the Application for Habeas Corpus filed on behalf of the Accused persons herein and which is still pending adjudication before the High Court of Mezam, Bamenda is hereto attached as Exh “A”.
“That the Accused persons have been subjected to severe torture and cruel inhuman treatment in order to extract confessional statements from them prior to being court marshaled.”
It is our submissions based on solid facts and evidence before this Hon court that the Accused persons herein were severely tortured and subjected to cruel and inhuman treatment in order to extract confessional statements from them. They had no access to their Counsel and even medical facilities and so gave confessional statements in the hope that they may be freed or at least given better treatment. This fact is further borne out by their application for Habeas Corpus which has been pending in the High Court of Mezam, Bamenda since 25/05/2015. A copy of the Complaint of torture and cruel inhuman treatment pending investigation before the Learned Procureur General North west Region is hereto attached as Exh “B”.
It is therefore clear that the Accused persons have been charged to court for political reasons because of their political beliefs rather than for any alleged crime they may have committed.
It should be noted that according the penal code of Cameroun which is consistent with its obligation under article 7 of the ICCPR, any evidence that was extracted through torture and other forms of coercive methods shall not be admitted in court as evidence. This is also true in the Convention against torture which Cameroun is a signatory. The Convention states:
‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made’.
General Comment 20 of the Human Rights Committee states that: “The aim of the provision of Article 7 of the [ICCPR] is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through the legislative and other measures as may be necessary against the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity…The prohibition in Article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.”
The Human Rights Committee recalled its settled practice that the safeguard in article 14(3)(g) of the ICCPR should be understood in terms of an absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. The CCPR noted that where no alternative evidence is presented by the State party, due weight must be given to the author’s account that his confession had been obtained by ill-treatment, and consequently found violations of articles 7 and 14(3)(g). Zhuk v Belarus, Communication No. 1910/2009, 5 November 2013
Chiti v. Zambia, Communication No.1303/2004, 28 August 2012
In 1997, Mr Chiti was arrested by police on suspicion of involvement in an attempted coup d’etat, and later charged with treason. Over a period of nine days Mr Chiti was held incommunicado, denied access to a lawyer, and repeatedly beaten using techniques intended to cause severe pain and suffering. As a result of the torture, Mr Chiti signed a number of statements implicating senior politicians in the attempted coup.
The CCPR further considered that the statements signed by Mr Chiti, and extracted by torture (again unrefuted by Zambia), also constituted a violation of article 14(3)(g) of the Covenant. The Committee recalled its General Comment No.32 in which it insisted the right not to testify against oneself must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. The Committee recalled its earlier rulings, holding that where evidence is alleged to have been obtained by torture, “the burden is on the State to prove that statements made by the accused have been given of their own free will.”
Nallaratnam Singarasa v. Sri Lanka, Communication No.1033/2001, 23 August 2004
The author of a complaint must not have the burden of proving his confession was made under duress. Rather, the burden of proof rests with the prosecution.
Singarasa was arrested in July 1993 for suspected terrorist activities, and allegedly beaten and tortured repeatedly in detention by members of the Sri Lankan security forces and the police. During this time, Singarasa was denied access to legal counsel and interrogated. Singarasa later made a statement to the Police and forced to put his thumbprint on a confession, written in a language he did not understand. Through appointed counsel, Singarasa was able to request a medical examination, which documented injuries consistent with his account of beatings. In a voir dire hearing to consider the admissibility of the evidence, the High Court concluded that the confession was admissible. The High Court ruled that the Prevention of Terrorism Act (PTA) under which Singarasa was detained provided that any statement may be admitted if made to a senior police officer, provided it was not found to be irrelevant. Pursuant to the PTA, it was for an accused person to assert the irrelevance of such a statement. The confession was admitted, despite the medical evidence collected, and Singarasa was later sentenced to a term of thirty five years.
The Human Rights Committee (CCPR) considered, as an implicit part of the principles that no one may be compelled to confess (ICCPR article 14(3)(g)) and that any accused person must be innocent until proven otherwise (article 14(2)), that it was for the prosecution to prove that the confession was made without duress. The CCPR ruled that the burden had effectively been reversed in Sri Lanka due to the explicit language of the PTA, and that even if the threshold of proof was placed very low, as it was in this case, the burden remained with Singarasa, and therefore a violation of the Covenant was found.
Evidence obtained through torture should never be relied on irrespective of its probative value
We therefore pray you on the strength of the foregoing arguments to find favour with our preliminary objection in limine litis and make the following orders;
- An order declining jurisdiction to hear and determine this instant Suit between the parties herein and refer the matter to the Court of Appeal to resolve the issue of jurisdiction.
- An order declaring all processes in this case that are in French and which were never communicated to the accused in the English Language which they understand and prior proceedings and ongoing proceedings null and void and of no effect.
- An order that the entire process before this Hon court be declared null and void and the Accused persons set free without any preconditions given that the order of detention and the charges or allegations from which they flow were never communicated to them in a language they understand. They were accused, charged and arraigned for a capital offence and proceedings conducted culminating in an order of detention (for 6 months renewable) issued against them in a language they do not understand.
And this will be substantial justice.
DATED AT TAKU CHAMBERS BUEA THIS 28TH JULY 2015
(Shufai) BLAISE SEVIDZEM BERINYUY
ADDRESSES FOR SERVICE;
Prosecution; C/o Commissioner for Government
Bamenda Military Tribunal, Bamenda
Accused Persons; C/o Their Counsel,
Taku Chambers, P O Box 144, Buea.
 Article 15, UNCAT