Striking lawyers

Subjects to a Bi-jural System

The magnificence of law is that it is unique to a society that creates it, more so to the one that abides by it. Did you know that a country can have two or more legal jurisdictions in its judicial systems? Well, if it weren’t for the democratic principles of proposition and opposition, and the divisive nature of humanity, this article would not have sufficed.

In Cameroon, thousand of lawyers from its common law system began a four-day picket, protesting their government’s policy that does not harmonize their statutes in the country’s bi-jural jurisdiction.

What is a bi-jural jurisdiction?

It is a system where two opposing/different legal jurisprudences co-exist. “Bi” means two.

In Cameroon, the common law system borrowed from the English legal system was predominant in her North Western and South Western regions. Since eight of the country’s regions were Francophone and their major language was French, the government also adopted the French Civil jurisprudence.

Upon independence, Cameroon incorporated both systems in her legal jurisprudence. While some lawyers practice in the civil jurisdiction of the French Civil Code, a large number of her lawyers also subscribe to the English Common law system.

Courts in bi-jural jurisdictions recognise both systems in their due judicial process. The courts have that judicial notice. Although the Common law system lawyers have expressed concern over their status in the country’s legal chambers, the country’s bi-jural jurisdiction is a good example of discussing the legal aspects and consequences in a bi-jural or any other multi – jural jurisdiction.

Common law versus Civil law

COMMON LAW is case law. It is law made by judges in court decisions. It is not in a formal legislative statute but what decision the judge makes. Because of this, Common law systems borrow a lot from previous court decisions when faced with similar facts on a ‘case by case’ basis. ‘Precedents’ is the term.

Common law terms like ‘assumed innocent until proven guilty’, ‘due process of law’, ‘fair trial’, etc indicate the nature of litigation the system takes. It is accusatorial and oral.

Common law as derived from the English statutes is based on ‘common sense’, in the ordinary course of life or common practice for an established period. The English assumed that there were certain factors and mannerisms particular to all humanity, especially their kind. They formulated laws and codes accordingly in their court decisions. In addition, after realising that the law would not necessarily be a reflection of a moral attitude, they fell back on ethics which they termed ‘equity’.

From their distinct behaviour, the English subjected their colonies to English conduct. The Indian Law Reports influenced the decisions in her other colonies in Africa and elsewhere. It is evident in the migration of the India Law Reports into the East Africa Law Reports, etc. Given the common law background, the commonwealth league and the African independence, common law jurisdiction grew in jurisprudence, hence the international common law system.

On the other hand,

CIVIL LAW on the other hand is state law. What the state regards legal and legitimate is the normal conduct of business.

It is inquisitorial and written in nature. The laws herein were formerly formulated and codified by legal scholars from a Roman system of written codes. Judges simply apply what is written to the facts before them. A good example is the Napoleonic Codes of France.

This status followed after the French Revolution and the colonial period in Africa. The French in “Liberty, Fraternity and Equality” mentality and during their many revolutions advocated for a people controlled government on those three foundations duly codified in written statutes. That is why they assumed the ‘assimilation’ policy in their colonies rather than the Belgian and British “Divide and Rule” strategy. It is not amusing that their comrades who aided the American Revolution between 1765 and 1776 stood for the same principles.

Which law takes precedence?

In a bi-jural jurisdiction, cases are decided on the fundamental principles of suits when deciding a ‘cause of action’: act, actor/perpetrator, place of work/ordinary place of business for the parties, court with ordinary jurisdiction, etc. What matters is that the suit is lodged in an appropriate court for proper conduct. Thereafter, the law it is subjected to is the law of precedence. The latter may take a presumption or persuasive role.

The African Instance

Most African countries are bi-jural in nature since they borrow laws from their former colonial governments and their customary law. However, the former takes precedence.

Until recently, Rwanda followed the French Civil law. Upon joining the Commonwealth system, Rwanda assumed the common law system and is still in the process of transforming completely into a common law country to match up to Uganda, Kenya and Tanzania. There are remnants of Civil law in her judicial corners but eventually, her intentions to phase it out will be attained.

A bi-Jural legal system like Cameroon’s, is legitimate. Although her lawyers in the common law background feel discriminated against in their judicial system, they are still legitimate.  As long as the country’s judicial system recognizes both jurisdictions, a bi-jural system is binding on its citizens, subject to each system’s principles.

To say that Cameroon is bi-jural like Canada, is almost untrue since it draws from the Common law, the Civil law and customary law. However, it is bi-jural because customary law is incorporated in the former two whilst adjudicating.

There you have it!

BY ATUHAIRWE AGRACE

This article appears in our weekly digital magazine The Deuteronomy, Vol 7, Issue 2 of October 14th, 2016

To receive The Deuteronomy in real time, click HERE

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