Kevin Mgwanga Gunme, et al. v. Cameroon

Communication 266/03
Download Judgment: English

The complainants were South Cameroonian citizens who alleged a variety of human rights violations done by Cameroon and were seeking the right to secede and form their own state.

In 1961, the United Nations Trust System held a plebiscite that allowed South Cameroonians to join Cameroon or Nigeria but not to form their own country. The result ended with the province joining Cameroon. Since this time, South Cameroonians have remained a separate and distinct people who speak English and not the predominate French.

The complainants alleged a variety of violations to demonstrate their continued marginalization. They noted unequal representation in government compared to population statistics (e.g. 20% instead of 22% of the National Assembly), economic development shifting to other areas, a “Cameroonization” of their education system, and significant judicial and police violations. Court proceedings were conducted in French without interpreters, and guilt was presumed upon arrest as is done in the civil law tradition.

In 1993 and 1994, the South Cameroonian people declared an interest to engage the Government of Cameroon with constitutional reform. The later declaration included that if no constitutional talks occurred, the independence movement would be revived. In 1995 the National Assembly passed the new constitution without public debate.

At different times mass protests challenged official policy or called for secession. The government had responded with the use of force and detention without trial. Multiple protesters died from the use of force and during detention.

It was alleged that such systematic treatment, combined with violations of the right to life, the inviolability of the human being and the integrity of the person, amounted to massive human rights violations giving rise to a right to exercise self-determination by way of secession. Evidence of accounts of people killed by the police during suppressions of peaceful demonstrations was given, as well as of deaths in prison due to ill treatment. Further, it was alleged that Business Laws passed by the state of Cameroon discriminated against the Anglophone South Cameroonian people by providing that businesses be registered in French, and by entering into a business harmonization treaty, the Organisation pour l’Harmonisation des Droits d’Affaires en Afrique (OHADA), which provided that business disputes were to be settled in French.

The Commission found that the complainants did not have a right to secede from Cameroon but that Cameroon had violated an array of their rights.

The Commission decided that whether the South Cameroonian people were denied the right to self-determination in 1961 at the time of annexation to Cameroon was outside of its temporal jurisdiction. However, the Commission was able to consider the allegations of human rights abuse, if it were found that the effects of such abuses continued after the entry into force of the Charter.

The Commission found no violation of Article 2 (right to non-discrimination), as Cameroon had taken measures to ameliorate the harmful impacts of language differences due to OHADA membership.

The Commission found a violation of Article 4 (right to life). The Commission found that the State had not properly investigated the allegations of deaths from use of force or during detention. Since the State is best positioned to provide official evidence regarding the deaths, the Commission found the State had not complied with its duty.

The Commission found a violation of Article 5 (freedom from torture and cruel, inhuman or degrading treatment) as police forced used torture, amputations and denial of medical treatment against alleged South Cameroonian terrorists. The Court found that even if the State was fighting terrorism, the actions were not justified.

The Commission found a violation of Article 6 (right to liberty) as the State did not refute that some victims were arrested and detained for days or months without trial.

The Commission found a violation of Article 7.1.b-d (right to due process). Cameroon had used military courts to try alleged terrorists, yet the Commission noted that civil courts in the jurisdiction of the alleged crimes were competent and that the transfer amounted to a violation of 7.1.b. The State did not challenge the fact that interpreters were not provided for trials conducted in French, which the Commission found to violate 7.1.c. The Commission also found the delays violated 7.1.d.

The Commission found a violation of Article 11 (right to assembly) due to Cameroon’s use of force to disrupt political rallies.

The Commission found no violation of Article 13 (right to participate). The Commission found that South Cameroonians have had the ability to participate in government through their 20% of the National Assembly, and there was no violation even if statistically they should have 22% of the Assembly.

The Commission found a violation of Article 19 (equality of peoples). Cameroon provided data showing economic development in South Cameroon and gave a justification of security needs as to why it had moved the seaport out of South Cameroon. The Commission accepted the State’s data on development, but rejected the justification as it implied that the government had no control over the seaport in South Cameroon.

The Commission found no violation of Article 20 (right to self-determination). This right is a right of a people, which the Commission found to be of equal level to an individual right. The Court found that the South Cameroonian people were within the definition of “people” as they share many characteristics and affinities. More importantly, they “identify themselves as a people with a separate and distinct identity.” While the right to self-determination is inalienable, it must be balanced with the need to protect territorial integrity. Using case law, the Court noted that to violate territorial integrity requires evidence of “oppression and domination” i.e. massive human rights violations including violations of Article 13.1. The Court found that the people of South Cameroon had not been subject to massive human rights violations (nor to violations of Article 13) sufficient to give rise to a right to exercise self-determination in the form of secession.

The Court adamantly found a violation with Article 26 (the independence of courts). The President and the Minister of Justice form the chairperson and vice chairperson of the Higher Judicial Council, showing a clear lack of independence.

“The Commission holds the view that even if the State was fighting alleged terrorist activities, it was not justified to subject victims to torture, cruel, inhuman and degrading punishment and treatment.” (Para. 114)

“[T]he Commission finds that “the people of Southern Cameroon” qualify to be referred to as a “people” because they manifest numerous characteristics and affinities, which include a common history, linguistic tradition, territorial connection and political outlook. More importantly they identify themselves as a people with a separate and distinct identity. Identity is an innate characteristic within a people. It is up to other external people to recognise such existence, but not to deny it.” (Para. 179)

“[I]n order for such violations to constitute the basis for the exercise of the right to self determination under the African Charter, they must meet the test set out in the Katanga case, that is, there must be: “concrete evidence of violations of human rights to the point that the territorial integrity of the State Party should be called to question, coupled with the denial of the people, their right to participate in the government as guaranteed by Article 13.1.” (emphasis added)” (Para. 194)