Should Biya put in place the Constitutional Council?

In Cameroon, preparations for the establishment of the "Council for the wise” advances without drawing negative lessons from the experience other countries such as Côte d'Ivoire, had with this institution during the post-election crisis of 2010-2011.

Some opinions wonder if the stubbornness of the government to set up this body which is supposed to be, according to the Constitution, 'the regulating body of the institutions', is not proof of the ulterior intentions of the presidential camp to hold ultimate political alternation cards.

Provided for in the Constitution without be implemented since 1996, the head of State, Paul Biya, made the announcement on February 20, 2014, and the Parliament has initiated a proposal for a law on the rules of procedure of the Congress forethought.

The question is to know if in a neo-presidential or hyper presidential system (concentration of powers in the hands of the President of the Republic) as that of Cameroon that has lasted for 32 years, the Constitutional Council will not come to cancel the power separation efforts which is currently on going. In the margin of the debate, as in Côte d'Ivoire currently, on the role and functioning of the Constitutional Council in democracy it is appropriate to consider if its implementation in Cameroon, in a context 'of eternisation' in power, will not create rather perverse effects.

First of all, it hould be observed that the Constitutional Council is perceived as a desire manifested by neo-presidential authorities to circumvent the national sovereignty of the people provided by the Cameroonian Constitution: "no fraction of the people nor any individual may claim the exercise" under article 2.

The implementation of a "Council for the wise " to regulate "the functioning of the institutions [Executive, legislative, judicial and local authorities]" within the meaning of article 46 of the Constitution may be paradoxical if it does not take its power from the people by way of elections by universal suffrage direct and indirect as required in article 2, paragraph 2.

This adds to the real problem which is the risk of instrumentalisation of this Council and the lack of remedies and balances to prevent abuse registered at the expense of the sovereignty of the people.

Also, it can be seen that the attribution of responsibility of the final proclamation of election results into the Constitutional Council, appointed by the camp of the outgoing President, is likely to bypass the withdrawal of the Organization and the proclamation of the results at the Ministry of territorial administration also appointed by the same outgoing president in favour of an independent Electoral Commission that can escape the control of the outgoing President.

For example, in Côte d'Ivoire, the loss of control of the Independent Electoral Commission by the incumbent President, Laurent Gbagbo, at the end of the controversial agreements of Linas-Marcoussis in France, was offset by its control of the Constitutional Council which, from the point of view of the Ivorian law, had the power to decide in the last resort.

The murky role of the Constitutional Council which had invalidated then later on validated the election of candidate Alassane Ouattara has made this institution a simple political body at the service of power instead of being an ideal regulatory body.

Moreover, in practice, the Constitutional Council also called "Council for the wise" is yet another institution which could allow the President of the Republic to settle his former companions in the sense that they could still be found as committed activists of political parties.

Finally, in Cameroon, we see that the Constitutional Council comes late when the debate on the constitutionality of the main treaties, agreements and laws had been closed. For example, members of the opposition lacked remedies on the eligibility of Paul Biya in 2011 following the change of the Constitution and the change on the limitation of the presidential term.

Currently, except new amendment to the Constitution, Paul Biya will remain in power until his death. Also, measures are ongoing to counter the authority of the President of the Republic to ratify the EPA agreements decried by all civil society and the opposition. As in Côte d'Ivoire, Cameroon fears, without recourse, that international interference could organize themselves in violation of national sovereignty.

In conclusion, we note that the establishment of the Constitutional Council as part of a dysfunctional democracy, such as Cameroon, can only produce perverse effects and exacerbate the failings of this "democracy".

The Constitutional Council is a body whose skills are special, lying on the border of the legal and political. There is a real risk of the political instrumentalisation of the Council.