Southern Cameroon’s Objections to ACHPR Banjul Ruling

OBJECTIONS OF COMPLAINANTS TO THE RULING IN

Kevin Ngwang Gumne et al v. La Republique du Cameroun (Communication 266/2003)

Preamble

Complainants in the above communication are sorely aggrieved by the ruling of the Commission in the matter. They have accordingly instructed me, as their counsel in that communication, to enter objections to the ruling along the lines articulated below.

Complainants are dissatisfied with the general tenor of the ruling. In particular they are very aggrieved by that part of the ruling that purports to deny the people of the Southern Cameroons the inalienable and continuing right to self-determination by freeing themselves from annexation and colonial occupation by the contiguous State of La Republique du Cameroun (Respondent State).

Complainants submit, with all due respect, that the ruling on this point is politically motivated and, moreover, seems designed to advance the political objectives and colonial agenda of the Respondent State.

Complainants fear that the Commission might unwittingly have allowed itself to lend aid and comfort to the colonial agenda of the Respondent State, and the perpetration of crimes prohibited by the Charter, than adjudicate on the matters submitted to it without fear or favour.

Complainants further contend that the ruling on self-determination is unwarranted, has many inconsistencies and constitutes a grave miscarriage of justice. For, the ruling is anchored neither in human rights law nor in public international law nor in any known principle of law and justice. It cannot therefore be supported having regard to the facts and the evidence adduced before the Commission. It is clearly a recipe for disaster.

Complainants reject this latest attempt to whitewash with a thin veneer of a human rights ruling the Respondent State’s colonial occupation of the Southern Cameroons. Complainants wish to call attention to the fact that the people of the Southern Cameroons resisted for 50 years attempts by the UK to sink them into Nigeria. They wish further to reaffirm the unshakable resolve of the people of the Southern Cameroons to continue to resist to the bitter end the continuing rolling conspiracy, for half a century already, to sink them into French Republic of Cameroun. They wish to let it be known that they will never surrender their homeland to foreign occupation!

The reasoned arguments for taking objections to the ruling are summarily articulated below.

1. Commission violated principles of justice by basing its ruling on mere suppositions, in disregard of the evidence tendered in the matter.

On the critical issue of self-determination for the people of the Southern Cameroons under Articles 19 and 20 of the Charter, the Commission’s ruling is based on mere suppositions. The Commission studiously disregarded Complainants’ submissions on law and fact and the evidence that was tendered.  Complainants tendered the following evidence to the Commission in support of their case:  (1) a large cartographic map of the Southern Cameroons; (2) a citation of the international treaties defining and demarcating the international boundaries of the Southern Cameroons;

This disregarded of the law and the evidence adduced is remarkably surprising especially in light of the Commission’s own important observation that the “Respondent State did not respond to the allegations concerning unlawful annexation and colonialism.” (paragraph 167)

It is established in law elementary that where a respondent state fails to respond to specific claims or allegations and the complainant has adduced satisfactory evidence in support of the same, the matter will be taken as proved. This is a well established principle of law. It has been repeatedly affirmed by decisions of the UN, European and the Inter-American human rights treaty monitoring bodies. (See, for example, the view of the UN Human Rights Committee in Mukong and in Dinka, both cases brought and decided against La Republic du Cameroun)

Embarrassingly, the commission failed to show how it came to the controversial view (i) that the territory of the Southern Cameroons constitutes a legal part of the territory of Respondent State; (ii) that Complainants are engaging in secession or threatening the territorial integrity of Respondent State; (iii) that the Southern Cameroons case is on all fours with the Katanga case; and (iv) that the illegal and forced annexation of the Southern Cameroons began and ended prior to the entry into force of the Charter for the Respondent State.

2. Commission violated principles of justice by ignoring relevant evidence and by failing to address its mind to cogent submissions by Complainants

The Complainants stated in paragraph 194 of their Submission that:

The variant of self-determination that the people of the Southern Cameroons seek is the restoration of their independence and statehood forcibly suppressed by Republique du Cameroun.

Their claim to this variant of the right to self-determination is supported by the following paragraphs in their Submission:

“195. There have been, and there are, no valid legal ties of any kind  that could affect the principle of self-determination contained in Article 20 of the African Charter or in UN Resolution 1514 (XV) in respect of the Southern Cameroons.

197. The Southern Cameroons and Republique du Cameroun have always been two separate countries with firmly established international boundaries. Each has always had a separate State culture (law, language, education, administrative system); a separate colonial history (except for the 20-odd years of a common German colonial experience); a separate Mandate/Trusteeship Agreement; a separate independence day; a separate people with no substantial ethnic connection; a separate people with a separate vision; a separate people with a separate way of life; a separate people with no common or similar cultural heritage; and a separate people with a separate aspiration.

200.  There is not one single instrument of international law or valid instrument of its own municipal law that Republique du Cameroun can plead in justification of its colonization and domination of the Southern Cameroons. There is absolutely no count on which Republique du Cameroun can show why it has assumed colonial sovereignty over the Southern  Cameroons and is forcibly preventing the people of the territory from exercising sovereignty over their God-given land.

198. The Southern Cameroons is legally not a part of Republique du Cameroun. That country did not attain independence with the Southern Cameroons comprised within its territories. Nor did the two countries become conjoint and then achieve independence as a single State.”

The Commission failed to address this compelling submission by Complainants. This failure by the Commission is the more intriguing in light of the Commission’s observation in paragraph 167 of its ruling that “Respondent State did not respond to the allegations concerning unlawful annexation and colonialism.” It is therefore not competent for the Commission to say that Complainants “premised the complaint alleging violation of their collective rights on the events which happened prior to 18 December 1989.”

The collective right that is in issue here is the imposition of alien rule. That, in and by itself, is a ground for self-determination. The imposition of alien rule is proved by Complainant’s clear and unchallenged demonstration that Respondent State has no legal basis for imposing its jurisdiction on the Southern Cameroons.

Regrettably the Commission, rather too erroneously, adopted as Bible truth the averments of Respondent State when there is no legal or factual basis in substantiation of the same.

3. Commission misdirected itself on what it was called upon to decide

Complainants did not request the Commission to go into any past events in order to ascertain the legal validity of Respondent State’s assumption of territorial jurisdiction over the Southern Cameroons. The Commission on its own also had no need to go into those events in order to ascertain whether the Southern Cameroons was under illegal occupation of the Respondent State or not.

Rights, especially in international matters, such as purported joining of peoples, unions of territories, and decolonization, must be proved by legal instruments that comply with the UN Charter (and, regarding matters in Africa, the AU Constitutive Act). It is therefore these instruments attesting the claimed rights of the various parties that needed to be examined, not any delving into and interpretation of past events.

The relevant past events in this case (the 11 February 1961 plebiscite in the Southern Cameroons and UN General Assembly Resolution 1608 (XV) of April 1961), which the Commission misdirected itself as matters it was called upon to examine, did not occur in a legal vacuum. They occurred within the context of international law and under the auspices of the United Nations. As such, the truth of the Respondent State’s allegations in connection with such matters can only be verified by instruments derived from those events, and which comply with the standards set by the UN and international law. The United Nations does not operate on an informal basis, but on firmly established principles. As a member of the United Nations, Respondent State is bound by principles of International Law, including the law of the United Nations. Chief among the principles of International Law relevant to Communication 266/2003 are those enshrined in Articles 102 and 103 of the UN Charter, and in Article 4(b) of the African Union Constitutive Act.

UN Charter:

Article 102 (1). Every Treaty and every international  agreement entered into by any member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the secretariat [of the UN] and published by it.

(2) No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.”

Article 103. In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

AU Constitutive Act:

Article 4(b). Respect of borders existing on achievement of independence”.

Together, these principles provide a formidable guarantee against fictitious claims of rights by States, especially with regard to territory. Every single territorial claim of a Member State of the UN or AU must be tested only on the basis of these articles, and to succeed, the State claimant must comply with them. If the Respondent State alleges it has jurisdiction over the Southern Cameroons or that it is in Union with the Southern Cameroons, there is no other way to prove its point than to produce legal instruments which comply with Article 102 of the UN Charter and Article 4(b) of the African Union Constitutive Act. Nowhere has the Respondent State ever produced such instruments! These are the legal instruments the Commission was called upon to verify if they exist or not, and not a delving into past events.

Furthermore, the Commission ruled that it has competence to adjudicate on violations which can be established to have continued after 18 December 1989 or whose effects have continued after that date. (paragraphs 98, 99 and 158) It took note of Complainants’ submission that Respondent Statecontinues to exercise a colonial sovereignty over the Southern Cameroons to this day”. (paragraph 153)

The submission of Complainants on this point reads:

153. For the people of the Southern Cameroons, the francophonity imposed on them and the ubiquity in their territory of the gendarme, sous-préfet, préfet, gouverneur, commandant de légion, brigade de gendarmerie, camp militaire and commissariat de police are living symbols of alien domination and daily reminders of their shameful status as a subjugated people, all the more shameful because the colonizing State is a third rate third world country.

168. Evidence of that domination of the people of the Southern Cameroons includes the armed occupation of the territory for over forty years already; the total control of its economy and resources; the imposition of a foreign administration; the imposition of  foreign administrators; the imposition  of an alien law and legal system; the imposition of an alien language in the schools and public administration; the abolition of the Southern Cameroons parliament and government; the confiscation of all means of expression from the people; and the  imposition of direct rule by the colonizing State.”

This evidence of colonial occupation was never challenged by Respondent State. And yet, strangely, the Commission never addressed its mind to this unimpeachable evidence.

4. Commission’s attempt to sink the Southern Cameroons into Respondent State has no legal basis

The footnote to the very first sentence of the Commission’s ruling, even before the Commission has considered the evidence of the parties, proclaims as follows:

“The use of the term “Southern Cameroon” in this Communication, is not intended to confer any     legal status or recognition.  The words “Southern Cameroon” describe the territory of the Respondent State where violations are alleged to have occurred.  Unless otherwise expressly stated, the terms, “Southern Cameroonians,”  “Anglophones,” or “Francophones” describe the people said to occupy the two parts of the Republic of Cameroon, which were prior to 1st January 1961 either English or French administered UN Trust territories respectively.”

This is sophistry pure and simple, and a piece of mysticism, all the more amazing as the Commission does not say when and how, in its considered view, the Southern Cameroons became a part, de jure, of La Republique du Cameroun, the former French Trust Territory that achieved independence from France on 1 January 1960.

By what alchemy or magic does the territory of the Respondent State consist of “two parts … which were prior to 1st January 1961 … UN Trust territories?”

Complainants are deeply troubled by this very enthusiastic and gratuitous statement of the Commission. The statement amounts to an à priori reasoning.  It is patent that Respondent State provided no evidence of its claimed entitlement to the territory and people of the Southern Cameroons. In fact, Respondent State failed, as the Commission itself observed, to respond to the issue of annexation and colonialism cogently argued by Complainants. Intriguingly the Commission drew no legal consequences, as it should have, of the failure by Respondent State to do so.

Even more puzzling, the Commission did not even bother, throughout the over 4560 days that this communication was before it, to undertake fact-finding as warranted by the nature and circumstances of the case. Such fact-finding would have revealed to the Commission that there is not one shred of paper signed anywhere under the sun which gives jurisdiction over the Southern Cameroons to the Respondent State.

The Southern Cameroons is a historical, geographical and legal reality and not an invention of Complainants. Its frontiers are well defined by international treaties: the Anglo-German Treaty of 1913, the Anglo-French (Milne-Simon) Declaration of 1919, and the Anglo-French Treaty of 9 January 1931.

At the hearing on the merits, Complainants tendered a large cartographic map of the Southern Cameroons showing the Territory’s International boundaries. This critical piece of evidence was not challenged by the Respondent State. Most unfortunately, the Commission chose to suppress it and proceeded on the unfounded assumption that the territory of the people of the Southern Cameroons forms part of the territory of La Republique du Cameroun.

The Southern Cameroons is not some non-descript territory or the figment of some fertile imagination. The Southern Cameroons exists historically and in fact and law, notwithstanding the fact that its statehood has temporarily been suppressed by Respondent State, the colonizing country. Moreover, references to the Southern Cameroons are available in UN records, British Government records, historical documents and encyclopedia.

The Southern Cameroons, a UN Trust Territory, was a self-governing territory with its own Constitution, Parliament, House of Chiefs, Judiciary, Civil Service and Prime Minister from 1954 to 1961. It had a government called by the sovereign name of “the Government of the Southern Cameroons”. It conducted general elections in 1959 and government changed hands without any rancor. Its Prime Minister negotiated with the President of La Republique du Cameroun during the abortive discussions on a proposed political association of the two countries. Border crossings between the Southern Cameroons and La Republique du Cameroun required the presentation of passports. These are hard facts that can, with only a little effort, be easily ascertained from records available to the general public and the Commission. Paragraphs 6-15 of Complainants’ Submission describe in detail the territory referred to as the Southern Cameroons. Even the Respondent State concedes that it politically associated with the Southern Cameroons in a constitutive federation. Does a state politically associated with a part of its territory in a constitutive federation?

On what principles of law, justice or equity does the Commission base its implied controversial view that Respondent State, a former UN Trust Territory like the British Southern Cameroons, has the right to accede to statehood but that the Southern Cameroons has no such right and must instead become an internal colony of Respondent State?

The Commission, in total disregard of the facts put before it, misconstrued communication 266/2003 as concerned with human rights violations within one country. An attentive reading of the Communication shows that it is concerned with human rights violations by one country against the people of another territory. In other words, it is concerned with human rights violations committed by Respondent State against the people of the Southern Cameroons and in the territory of the Southern Cameroons.

The human rights violations by Respondent State consists of (i) the annexation and colonial occupation of the Southern Cameroons by Respondent State, thereby denying the people of the territory the exercise of their inalienable right to self-determination, and (ii) various individual human rights violations committed and continue to be committed for nearly half a century in the territory of the Southern Cameroons.

Complainants submitted in paragraph 198 of their Submission as follows:

“The Southern Cameroons is legally not a part of Republique du Cameroun. That country did not attain independence with the Southern Cameroons comprised within its territories. Nor did the two countries become conjoint and then achieve independence as a single State. The international tutelage agreements did not require the two countries to be joined. And Republique du Cameroun was not granted independence on condition that it colonized the Southern Cameroons.”

This factual submission could not be and was not challenged by Respondent State.

5. Commission betrayed bias by making gratuitous allegations against Complainants

In a number of paragraphs of its ruling (192, 193, 202) the Commission in effect held brief for Respondent State by making against the SCNC and SCAPO gratuitous allegations  of secession and of threat to the territorial integrity of Respondent State. These are very serious accusations by the Commission. The Commission does not substantiate its allegations. Nor does it articulate the seemingly peculiar understanding it has of “secession” and “territorial integrity” in this context.

Throughout their just struggle for freedom the people of the Southern Cameroons have been particularly careful not to make any claims or do anything which might in any way diminishes even by one inch the rightful territory of Respondent State. All they have asserted is the territorial integrity of their Homeland, the Southern Cameroons. They have done so by producing the international treaties defining the Southern Cameroons and clearly describing its international boundaries. They have done so by showing that the Southern Cameroons is not, and has never been (and will never be) a legal part of Republic of Cameroun. They have done so by showing that under Article 4(b) of the African Union Constitutive Act, Republic of Cameroun did not achieve independence with the Southern Cameroons as a part of its territory and that there have been no new arrangements on the boundaries between the two territories. They have done so by showing that the continuing assumption, by Republic of Cameroun, of colonial jurisdiction over the Southern Cameroons is illegal and an imposed alien rule with no instrument of international law to support it.

6. Commission erred in law in ruling that massive human rights violations is a condition precedent for the invocation of self-determination under Article 20

Article 20 represents an emphatic rejection of colonialism in all its forms (whether by an African state or some other state from across the seas) and manifestation (whether by annexation, domination or whatever new form of imperialism). It does not link the right of self-determination to massive human rights violations.  The wisdom of Article 20 is that colonialism cannot, in any circumstance, be justified. This is why that Article declares the right to external self-determination as unquestionable and inalienable.

Respondent State is obstructing, denying and resisting the exercise of that unquestionable and inalienable right by the people of the Southern Cameroons.  The onus therefore lies on it to prove that it is entitled under international law to assert territorial jurisdiction over the territory of the Southern Cameroons. Hence, it is not necessary, under Article 20, for Complainants to show massive violations of human rights in order to vindicate the right to external self-determination.

Evidence of colonialism, of alien rule (and this necessarily means alien domination) suffices. The imposition of alien rule is by itself the violation of Article 20. There need be no massive violation of individual human rights, although in the present case there is compelling evidence of a consistent pattern of various violations stretching over a period of half a century and therefore would properly qualify as massive violations. Contrary to what the Commission appears to suggest, massive human rights violation does not mean violation of the Nazi or Rwanda proportion.

Under Article 20, the right to reject colonial rule is unquestionable and inalienable. Not even the Commission should put itself in a position, as it most unfortunately did in this case, to question and seek to suppress that right which the Charter fittingly characterizes as unquestionable. It is wholly unseemly for the Commission to transform itself into an advocate for Respondent State.

In contemporary international law, territorial and sovereignty claims must be based on valid legal instruments. Respondent State cannot therefore claim any sovereign rights over the Southern Cameroons on the basis of an alleged “process of de-colonization that took place … under the auspices of the United Nations” without showing any legal instruments which resulted from the alleged decolonization, and on the basis of which it can presume to exercise rights over the Southern Cameroons.

7. Commission erred in law in holding that Katanga applies to the case of the Southern Cameroons

The Commission erred in law when it invoked the Katanga jurisprudence as a universal principle of the Charter applicable in all cases where there is a demand for self-determination. (paragraph 196). The Commission’s reading of Katanga is deeply flawed. The Katanga principle applies only where the people seeking external self-determination are shown to be part of the State from which they seek self-determination. Even in such a situation and contrary to the Commission’s flawed understanding of that case, the right to external self-determination is feasible under the Charter. Katanga in fact affirms this and merely states two conditions (massive human rights violation committed against the aggrieved people and their non-participation in the governance of the state in question) which the people in such a situation need to satisfy in order to succeed in their claim, under Article 20 of the Charter, to the right to external self-determination.

Katanga is distinguishable. It is factually not on all fours with the Southern Cameroons case. The Commission thus erred in law when it applied Katanga to the case of the Southern Cameroons. Had there been a showing and a determination that the Southern Cameroons territory is, legally, part of the territory of Respondent State then there would have been ground for holding that the two cases are the same and that therefore the Katanga jurisprudence governs the matter. But that is not the case.

8. Commission erred in law in ruling that the 1993-1994 events in the Southern Cameroons extinguished the right of the people of the Southern Cameroons to self-determination

Contrary to the understanding of the Commission, the unquestionable and inalienable right of the people of the Southern Cameroons to external self-determination under Article 20 of the Charter is not tied to the events of 1993-1994. Those events were/are incapable of conferring sovereignty over the Southern Cameroons to Respondent State. They were/are incapable of depriving the people of the Southern Cameroons of their continuing right of self-determination under the Charter. They could not/cannot prejudice the subsequent invocation of the rights of the people of the Southern Cameroons under the Charter. Inalienable rights are not rights that can be lost by their non-invocation at some point in time. The strategic moment to invoke those rights is always left to the aggrieved people.

Nothing said or done by the people of the Southern Cameroons in the context of the 1993-1994 events could diminish their rights under the Charter, or grant Respondent State rights which it does not have under international law. The right to external self-determination of the people of the Southern Cameroons is premised on the context of colonial occupation, not on events occurring within that context.

9. The ruling of the Commission contains many inconsistencies

The ruling of the Commission is distressfully replete with inconsistencies. A few examples of such inconsistencies will suffice.

Respondent State advanced the much flogged secession argument (paragraph 70) and invited the Commission to decline admissibility on the basis of that argument. The Commission rejected this argument (paragraph 74), holding that the communication is compatible with the Charter and the AU Constitutive Act, meaning that the communication does not amount to advocacy of secession. The Commission also rejected (paragraph 88) Respondent State’s challenge to admissibility based on the Northern Cameroons case and UN Resolution 1608(XV) of April 1961. The Commission further rejected (paragraphs 96-99) the argument of Respondent State that the Commission has no jurisdiction ratione temporis to entertain the communication. Further still, the Commission rejected (paragraphs 171-181) Respondent State’s perverse reasoning that the native inhabitants of the Southern Cameroons do not constitute a people and do not have territory of theirs. (paragraphs 91-92, 168-170). In fact the Commission emphatically declared that “the people of the Southern Cameroons qualify to be referred to as a people.” (paragraph 181) Being a people they necessarily have a territory and the right to self-determination.

Curiously, after rejecting the secession argument, the lack of jurisdiction ratione temporis argument, and the ‘no territory’ argument, the Commission strangely turned round and upheld the self-same arguments. It peremptorily proclaimed that Complainants are engaged in a secessionist enterprise threatening what it said is the territorial integrity of Respondent State. It declared itself, erroneously, unable to consider certain relevant facts on the ground of lack of jurisdiction ratione temporis. And then it proclaimed the territory of the Southern Cameroons to be part of the territory of Respondent State.

The Commission ruled that it has competence to adjudicate on violations which can be established to have continued after 18 December 1989 or whose effects have continued after that date (paragraphs 98, 99 and 158), but, incongruously, took the opposite position that it would not look at the evidence which proves those violations (paragraph 157).

The Commission was not invited to pronounce itself on any past events. It was invited to rule on the ongoing situation of annexation and colonial occupation of the Southern Cameroons by Respondent State. Colonialism is a grave human rights violation. The colonial occupation of the Southern Cameroons occurred before 1989 and is still continuing to this day. How then could the Commission have declined to pronounce itself on this matter?

10. Need for a reconsideration of the ruling

Complainants have the utmost respect for the Commission and the African Union whose organ it is. However, they note with grave concern the many serious legal lapses in the Ruling of the Commission, particularly with regard to the fundamental issues on which the demand for self-determination by the people of the Southern Cameroons rests. The principal and general failing noticed is the Commission’s suppression of evidence, its selective consideration of Complainants’ Submission, and its ruling on self-determination, based as it is, on neither fact, nor on law, nor on principles of justice.

For this reason, Complainants respectfully request the Assembly of Heads of State and Government of the African Union to refer communication 266/2003 back to the Commission for reconsideration. The Commission should be required to determine whether or not there are any instruments of international law which link the Southern Cameroons to Republic of Cameroun and if so the nature of the rights derived from those instruments.

Complainants further respectfully submit that in the interest of justice and peace, and the search for a lasting solution to the problem between the Southern Cameroons and Respondent State, the AU Assembly of Heads of State and Government should direct the Commission to review its ruling and to decide communication 266/2003 purely on the basis of facts and evidence, law and justice, and the arguments articulated in the submissions of the parties.

For the purpose of enabling the Commission to arrive at a just decision the Respondent State should be required to produce the existing instruments of international law, if any, consistent with Article 4(b) of the African Union Constitutive Act and Article 102(1) of the UN Charter, which give it territorial jurisdiction over the Southern Cameroons.

Professor C Anyangwe

Counsel for Complainants

24 June 2009

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