Преамбула к Камерунскому Конституционному Акту от 18 января 1996: практика, проблематика и правовой статус

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аспирант кафедры конституционного и муниципального права Российского университета дружбы народов

Аннотация: 

Данная статья посвящена проблеме в преамбуле конституционного строя Республики Камерун. Автор исследует две теоретические аспекты именно материал рассмотрения и правовой статус преамбуле. Относительно первого пункта, описано конфигурации преамбулы. Здесь автор классифицировал содержащихся в нем элементов в трех категориях: 1) основные права, 2) высказывания из нескольких основных принципов, 3) определение основных ценностей. Во второй точки вопрос о правовом статусе разработана. Он изучил подход сохранен для узаконивания преамбулы. Автор сравнил французский и камерунский методологии в этой области. Далее он показал противоречия выходе среди аналитиков камерунского об интерпретации конституционализацию преамбуле. В этой работе он показал, что конституционализацию преамбуле вносит ценный вклад в положительную конституционализм и создание правового государства в Камеруне.

Ключевые слова: 

конституция, преамбула, конституционализм, Камерун, положения, конституционность, законность, конституционный.

     Cameroon, like other countries in the world has a constitution, formal framed of power and institution, fundamental reference of its legal system.

In theory of constitutional law when analyzing structure of constitution text they systematically tend to make a distinction between constitution body and preamble body. Yet when referring to the constitution, especially when one of its requirements is violated, we do not think of differentiation that could exist between preamble and constitution bodies.

     So what would be the basis for the distinction if it ever takes place to be?

     As formulated or formalized, the Constitution text has two major branches which neither positive law nor the doctrine necessarily give the same politico-philosophical meaning, much less the same legal effect. – The first branch is dominated by a series of statements often served as a literary way: that’s the preamble. – The second, as for it, is presented following segmentations imperative nature:  this articulated part is called up constitution (this approach shall be confirmed in the second part of the paper), this is how systematically appears this differentiation between preamble and constitution articulated part, “meaning that deals with the various organs of the Cameroonian state and their relationships”.

     But the question is: has this distinction any significant  in legal standpoint?

In my own opinion, theoretically, no distinction shouldn’t be admitted from legal standpoint between both members of the constitution. All of them are contributing to the framing of power in the Republic, to the definition and protection of fundamental rights and freedoms of citizens, but there is an exception , “ It is that could be posed by the positive law itself, the system of positive law could explicitly construct a legal differentiation between preamble and articulated body, or otherwise proclaim equal legal value of the two members of the constitution”. For illustrative purpose, in France, the preamble to the constitution of 1958 (which also keeps the preamble of the 1946 Constitution) was devoid of legal effect before  1970. This means that the French positive law was validated the distinction between preamble and articulated part. The constitutionalization of the preamble from the year 1971 has proclaimed the end of the distinction between preamble and articulated part of the constitution {1}. In that way, France has a single and indivisible constitution.

In the years 1990s in african states, there was a remarkable evolution that led the turning point to re-examination or a radical transformation of African constitutionalism. The aim was to breakdown freedom-destroying practices and authoritarianism built up ​​since the independence. This new constitutionalism {2} of course involved a revision of the legal instruments, notably constitutions.

     In Cameroon, a new constitutional act was adopted on 18 January 1996. This is not only  to set new institutions but to establish new rules, introduced a constitutional review, etc … [7] , it  also transformed the legal status of the preamble to the constitution.

Thus, since the constitutional act of 1996, we have to look at the conceptualization and practice of Cameroon’s constitutional law in a new light.

     In this paper we will attempt to explore the content of the preamble and set the relevance of the review of its status.

I. Material considerations of the preamble

      Indubitably the preamble to the Constitution Act of 18 January 1996 has a real material density {4}. The preamble does not only define the fundamental rights and principles, but also describes a number of values.

The statement of fundamental rights.

- every person shall have the right to settle in any place and to move about freely, subject to the statutory  provisions concerning public law and order, security and tranquility;

- the home is inviolate. No search may be conducted except by virtue of the law;

- the privacy of all correspondence is inviolate. No interference may be allowed except by virtue of decisions emanating from the Judicial Power;

- no person may be compelled to do what the law does not prescribe;

- no person may be prosecuted, arrested or detained except in the cases and according to the manner determined by law;

- the law may not have retrospective effect. No person may be judged and punished, except by virtue of a law enacted and published before the offence committed;

- The law shall ensure the right of every person to a fair hearing before the courts;

- every accused person is presumed innocent until found guilty during a hearing conducted in strict compliance with the rights of defence;

- every person has a right to life, to physical and moral integrity and to humane treatment in all circumstances. Under no circumstances shall any person be subjected to torture, to cruel, inhumane or degrading treatment;

- no person shall be harassed on grounds of his origin, religious, philosophical or political opinions or beliefs, subject to respect for public policy;

- freedom of religion and worship shall be guaranteed;

- the freedom of communication, of expression, of the press, of assembly, of association, and of trade unionism, as well as the right to strike shall be guaranteed under the conditions fixed by law;

- ownership shall mean the right guaranteed to every person by law to use, enjoy and dispose of property. No person shall be deprived thereof, save for public purposes and subject to the payment of compensation under conditions determined by law;

- the right of ownership may not be exercised in violation of the public interest or in such a way as to be prejudicial to the security, freedom, existence or property of other persons;

- every person shall have a right to a healthy environment. The protection of the environment shall be the duty of every citizen. The State shall ensure the protection and improvement of the environment;

- every person shall have the right and the obligation to work;

 

Enunciation of various fundamental principles.

     These principles are those that mainly related to the political philosophy and social doctrine of the Republic.

1-Principles of political philosophy.

     Convinced that the salvation of Africa lies in forging ever-growing bonds of solidarity among African Peoples, affirm our desire to contribute to the advent of a united and free Africa, while maintaining peaceful and brotherly relations with the other nations of the World, in accordance with the principles enshrined in the Charter of the United Nations;

     Affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights, the Charter of the United Nations and The African Charter on Human and Peoples' Rights, and all duly ratified international conventions relating thereto, in particular, to the following principles:

- all persons shall have equal rights and obligations. The State shall provide all its citizens with the   conditions necessary for their development;

- the State shall be secular. The neutrality and independence of the State in respect of all religions shall be guaranteed;

 

2-Principles of Social doctrine of the Republic.

- the State shall ensure the protection of minorities and shall preserve the rights of indigenous populations in accordance with the law;

- freedom and security shall be guaranteed to each individual, subject to respect for the rights of others and the higher interests of the State;

- the State shall guarantee the child's right to education. Primary education shall be compulsory. The organization and supervision of education at all levels shall be the bounden duty of the State;

- every person shall share in the burden of public expenditure according to his financial resources;

- all citizens shall contribute to the defence of the Fatherland.

 

Definition of basic values.

     Proud of our linguistic and cultural diversity, an enriching feature of our national identity, but  profoundly aware of the imperative need to further consolidate our unity, solemnly declare that we  constitute one and the same Nation, bound by the, same destiny, and assert our firm, determination to  build the Cameroonian Fatherland on the basis of the ideals of fraternity, justice and progress;

     Jealous of our hard-won independence and resolved to preserve same.

     Resolved to harness our natural resources in order to ensure the well-being of every citizen without  discrimination, by raising living standards, proclaim our right to development as well as our determination to devote all our efforts to that end and declare our readiness to co-operate with all States desirous of participating in this national endeavour with due respect for our sovereignty and the  independence of the Cameroonian State.

     Declare that the human person, without distinction as to race, religion, sex or belief, possesses inalienable and sacred rights;

- the Nation shall protect and promote the family which is the natural foundation of human society. It shall protect women, the young, the elderly and the disabled;

     After examination of the material aspect of preamble, we’ll try in the following lines to investigate its legal character.

                        II. ... The legal status of the preamble

     Speaking of legal status of the preamble to the Cameroonian Constitution, it should be noted that it can claim a concrete legal significance which necessarily leads to series of remarks.

The preamble as a text having constitutional value.

     Cameroonian constitutionalism as we mentioned above has known a significant formal transformation since the adoption of the constitutional act of 18 January 1996. Notably Cameroonian constitution’s maker has defined a new legal status to the preamble of the constitution; it ceases to be seen as a simple text serving as a prelude to the articulated part of the constitutional text. The preamble to the constitution is now a constitutional matter by the fact that it was constitutionalized, and incorporated into the block of constitutionality {3}.

     But how did they used to achieve this constitutionalization of the preamble in the Cameroonian constitutionalism?

     This is to scrutinize the methodology used to proclaim the constitutional character of the preamble in the Cameroonian constitutional order.

     The constitutionalization of the preamble of the Cameroonian constitution took place in the most solemn manner possible. Indeed, the constitutional value of preamble does not partake of a construction of the constitutional judge, let alone not a matter of technical redrafting in the construction of the ‘’norm of norms’’. The constitutional character of the preamble is defined by the provision 65 of the Constitution of 18 January 1996. In accordance with that provision «The preamble shall be part and parcel of this Constitution».

     So we can see here, the value or the constitutional significance of the preamble expressly sanctioned by the part of the constitutional laws.

     In terms of comparative constitutional law, it is been noted that the process of constitutionalization of the preamble in Cameroon radically differs from that of France. In France precisely, the constitutionalization of the preamble had proceeded from a double construction:

- From the technical point of view, Article 1 is not included in any chapter of the articulated part of the constitution but in the preamble. This place,  according to some makers of the constitution is quite fortuitous which act in favor of the legal value of the preamble: it has a constitutional value as well as other provisions in the Constitution since it contains the Article 1 of the Constitution and this article does not have a lower value than the other articles of the constitution [5].

 - The judge's action:  The French judge (in particular the constitutional judge) is the key architect of the constitutionalization of the constitutional preamble in France.

     Indeed it is  the decision of June 16, 1971 ''liberté d’association’’ {5} that the Constitutional Council in this occasion of its fundamental mission of constitutional control proclaimed the constitutional value of the preamble.

     Let’s note that if the cameroonian and french methodologies differ, the effect remains the same:  the amplification of the block of constitutionality.

     It would be useful to wonder about the essential motivations that led to constitutionalization of the preamble within the scope of the Cameroonian constitutionalism. In this concern we could also add the issue of identity or differentiation of prescriptions contained in the preamble.

     So why cameroonian constituant decided to proclaim the constitutional value of the preamble?

     The constitutionalization of the preamble was not a single fancy; it lies within a irreversible movement, that of liberal democracy and the construction of the rule of law {6}. As we know, these standards essentially reflect the politico-constitutional philosophy of the Western world whose spreading and expansion accelerated in the peripheral countries since the fall of the Berlin Wall.

     Then the question was for the cameroonian constituant to capture and harness the Western constitutionalism logic. In fact nowadays to imagine a real democratic constitutionalism without erecting the preamble to the status of constitutional matter  Which ‘’Legal stated’’ can we consider to establish  without integrating the preamble to the constitution in the whole functioning constitutional legality.  Does Contemporary standpoint of the ‘’Legal state’’ not depend on express legal incorporation of the political constitution and social constitution in view to build a homogeneous block of constitutionality?

     Leave the preamble without legal and constitutional value equivalent to exclude from the cameroonian constitutional formalism the ‘’social area’’, that bears fundamental rights and freedoms.

     In my point of view that were the issues that have served as motivation for the decisive orientation of the constitutionalization of the preamble to the Constitution Act of 18 January 1996. This proclamation of the preamble’s constitutionalization is certainly necessary formally speaking, it is however not in itself sufficient in terms of legal dynamic if not resolved the following issue, such as:

 - Is there a legal constitutional identity between all prescriptions contained in the preamble? Can we assert a principle of differentiation of these prescriptions?

     The problem of full constitutional value of all the elements of the preamble to the Constitution Act of 18 January 1996 arose with gravity within the national legal doctrine.

     Some lawyers considered that it’s necessary to make a distinction between the prescriptions of the violation of which could trigger a conformity control to the constitution and therefore lead to sanction of the judge, and those devoided of legal character [3].

     Professor Mouangue Kobila who is in favour of this, currently introduced the idea of ​​a separation between «certain norms» and «uncertain norms» [3, p. 36] in the configuration of the preamble. The question here is to reduce the preamble’s normative unity despite the fact that its constitutional value is affirmed. The approach of professor Kombila seems to be entertained by the remarks already proposed by famous French Jurist Professor Gonidec. He wrote that: « Generally, it can be stated the principle of the preamble has a constitutional value. But, in fact, some provisions have this value virtually because they are not self-executing. To be applicable, they presuppose the legislator intervention.» [4, p. 102] So if certain provisions of the preamble are detachable from of the legality of the constitutional text, for us it would be logical to characterize the constitutionalising act of 96 as imperfect or relative constitutionalising act; in other words, the constitutional value of the preamble is only relative, not complete!

     But it is thought that such option is not that assumed or terminated by the constituant of 18 January 1996. The article 65 of the constitution used as the basis for the enunciation of the constitutional value of the preamble clearly states: «The preamble shall be part and parcel of this constitution». What’s the signification of ‘’ … shall be part and parcel of this constitution‘’?

      For my point of view, this locution signifies formal inclusion of the preamble in to the overall constitutional legality {7}. The statement of the constitutional value of the preamble shall not mean integration of certain provisions and non-integration of others. All provisions (without any distinction) contained in the preamble have the legal constitutional character. If the constituant wanted to make a differentiation between preamble’s provisions, he could have certainly used a more explicit formulation such as «Some provisions of the preamble are part of the constitution», or «Only the certain and precise provisions are part of the preamble of the constitution». Such approach could have allowed to consider a differentiation between the provisions contained in the preamble.

     Having not opted ​​for the formulation that we have presented, the constituant of 18 January 1996 has strictly ruled out the possibility of a segmented account of the legality of the preamble’s provisions.

     Finally, article 65 making the preamble a complete part of the constitution must involve a double meaning: – First of all, the provisions of the preamble form a coherent whole –  Secondarily, all provisions of preamble are placed on the same legality line with the provisions of the articulated part of the constitution.

     The constitutionalization of the preamble to the Constitution Act of 18 January 1996, must therefore be seen as full, perfect and non-discriminatory.  Therefore let’s examine the consequences of the new legal status of the preamble in Cameroonian constitutional law?

 

The constitutionalization of the preamble: what are the implications?

     It is clear that the new value given to the preamble of the Cameroonian Constitution has significant consequences. This substantiality requires both symbolic and legal considerations which necessarily involved in the upgrading of cameroonian constitutionalism.

1 - The symbolism of the constitutionalization of the preamble.

     The constitutional act of 18 January 1996 develops a symbolism unprecedented in constitutional history of the Republic. By inserting the preamble in the block of constitutionality, the constituant has granted the constitution a vital member  which was lacking  so that it can be considered  as  a truly legitimate institution. We do not forget that the preamble sets out the essence of the philosophical vision of society, it exposes the soul of the nation, defines reference values, and traces a politico-philosophical ideal into which engages the Republic. Should we therefore perpetuate the exclusion of the preamble from the normative enunciation of the constitutional body?

     The answer is obviously negative for me. Indeed continuous exclusion shall logically mean that values ​​and principles laid down by the preamble do not have any force, any dynamic. The irrefutable importance of these values ​​and principles require the integration of the text that carries them into the constitutionality block. This recognition of the legality of the preamble’s prescriptions is important. It conciliate two poles of a same reality; two poles that had been left long separated with a real or potential risk to reduce to simple literary writings mass of statements dealing with the rights of citizens and the fundamental principles that animate Republic. The risk was large enough that we could have under section 16 of the DDHC of 26 August 1789:( "A society in which the guarantee of rights is not assured, nor the separation of powers defined, has no constitution ") argued a constitutional relativism {8} in Cameroon.

     The Constitutional Act of 18 January therefore symbolically puts an end to a disastrous disunity between preamble and articulated body of the constitution. It is only by establishing this union that we can consider the following though  of  Elodie Derdaele about symbolism of the Constitution  "…therefore it is part of a speech, inserting state and its people in time and in the space for a common future. It claims to be singular (national and democratic). More than an outcome, its enactment is regarded as a pause for a new beginning, a new covenant, new hope, if it is amended, that’s in the hope of improvement of a given situation (Elodie Derdaele '' between standard and symbol Constitution, reflections on the contemporary constitutionalism'' p.2). ".

     Improve a situation -  at least in a symbolic sense, that is certain. Indeed, the constituting act of 18 January 1996 makes the liquidation of a "draconian constitutional order" {9} and introduces a constructive constitutional order dealing with the protection of citizen’s freedom and rights. With the entrenchment of the preamble, the constitutional law of rights and freedoms in Cameroon increases in systematization and its legitimacy strengthens. More than a triumph of constitutional rights and freedoms, the Constitutional Act of January 1996 tends symbolically to set up another type Republic, which admits a formal conciliation between social and political constitutions, that means between rights and fundamental freedoms of citizens, institutions, and governing authorities.

     So if the Cameroonian constitutionalism through the entrenchment of the preamble since January 1996 has gained in symbolism, it conquered more subsidiary legal elements that offer him a bit more attractive side.

2 - The legal implications of the constitutionalization of the preamble: towards readjusted constitutionalism!

     The constitutionalization of the preamble has happened in a particular period of our political history. A period characterized by a transformation of African societies from a democratic angle. This irreversible movement started with the breaking of the Berlin Wall involved a profound revision of the institutions and the rules of power in African countries.

     Concerning the rules of power, it must be said that African Constitutions as legal framework of power have been amended with a view to make it acceptable constitutions, that is to say, dominated by the logic of democracy and the ideal of construction of the legal state.

     These are the issues that characterized as mentioned above the Constitutional Act of January 1996. They shall lead to a review of constitutionalism not only from substantive but from procedural standpoints. The constitutionalization of the preamble has systematically enlarged material scope of our constitutionalism. If once true (direct) constitutional standard prescription was carried by the articulated part of the constitutional text, it goes differently from the constitutional act of 18january 1996. Considering the preamble equal to the articulated legal corpus, the constituant has increased the density of the Constitutional legality. If therefore the constitutional rule means the provisions of the preamble plus those of the articulated part of the constitutional text, it’s stands to reason to conclude that the constitutional legality in its material version has been enlarged, and that necessarily has procedural implications.

     Now the prescriptions contained in the preamble inevitably claim with regard to new constitutional legality an observance from the legislators of the Republic within the framework of the rule’s production. In fact, if the legislature yesterday had to produce laws principally taking into account provisions of the articulated part of constitution, from January 1996 legislature shall work observing prescriptions formulated by the preamble.

     Further we have to note that the direct material reference of the constitutional judge’s activity in particular during constitutionality control {10}  has enlarged. Thus judge of constitutionality when controlling constitutionality do not only strictly bases on the articulated text of the Constitution but shall invoke in case of need the principles  drawn in the preamble.

     By integrating the preamble in the block of constitutionality, the constituant has defined (new) fully constitutional status for the rights and freedoms expressed in the preamble so they can have the best legal framework if we assume that the Constitution in our republic is the main legal reference placed above all other legal instruments. We often tend to forget that the legal state is firstly characterized by the value and importance attached to the code of systematization or legal formalization of the rights and freedoms before the density of their configuration. The rights and freedoms contained in the preamble having acquired a status ‘’constitutionalized institutions’’, it stands to reason to say that the protection of those rights and freedoms have got from constituant of January 1996 a great attention.

     As a result of the power and constitutional anointing acquired by preamble, frame of rights et freedoms,  it would be more difficult for governments to underrate these fundamental rights and freedoms which constitutional judge  and judge of common law shall ensure a strict respect when  settling specific cases: the construction of the legal state rests on it.

     Finally, it should be recognized that the entrenchment of the preamble to the Cameroonian constitution involved a vast movement of transformation of the Republic. The proclamation of the constitutionality of preamble implies several considerations:- Firstly: the Cameroonian constitutionalism is reinforced; this is due to the reconciliation of both segments of constitution text: segments related to freedoms and fundamental rights of citizens and that describing organs and political institutions {11}; - secondly, the constitutionalization of the preamble implies a new approach of constitutional law in our country. Indeed, the constitutionalization of the preamble signifies a new conception of constitutional law in our country. Indeed, from the constitutional act of January 1996 the constitutional law,( law of power, political institutions and fundamental rights and freedoms of the Republic), granted itself a new direct material source. It is precisely considering preamble as a material frame that constitutional law is entitled to consider itself truly as the law of protection of rights and freedoms of the Cameroonian citizens; - thirdly, the recognition of the legal value of the preamble reflects a revitalization of political contract between rulers and ruled. The former must recognize that sovereignty in the Republic does not belong to them ( they simply possess it), but to the latter (they are the natural owners of sovereignty);  the people in power have strictly to observe the preamble’s prescriptions which form social constitution. The breach of these prescriptions because of their constitutional status (the supreme legal value in Cameroon), shall logically lead to lawsuits. The people are therefore both objectively and subjectively upgraded. - Objectively, the preamble, social frame of the constitution has gained in normativity;  - subjectively, provisions established  in the preamble can be involved by any citizen to enforce its rights, even towards the people in power! To do this, the judge, committed to penalize any abuse of authority, misuse power of procedure or substantive rule by the public authorities, is itself limited by the prescriptions defined by the preamble which is an element of constitutional legality.

     That’s said, the constitutionalization of the preamble tends to protect citizens against the excesses of governments; with the expansion of constitutional legality that entails the new status of preamble, the judge is lacking in discretionary ways; when judging, it remains bound by the preamble’s maters.

     The constitutional status of the preamble reinforces the legitimacy of Cameroonian constitutionalism; it expresses a volunteer to build the legal state in Cameroon.

 

REMARKS

{1} Granger Marie-Pierre, Ph.D. noted that «From 1958 until the 1970s, France’s Constitution was a ‘Separation of Power - Constitution’ but not a ’Charter of Rights and Liberties – Constitution’ (Veil 2008, 7), or, to use the typology developed by Dean Maurice Hauriou, France was endowed with a political constitution, but no apparent social constitution (save for a frail embryo in the 1958 Constitution  Preamble)». (The Preamble(s) of the French Constitution: content, status, uses and amendment’- Acta Iuridica Hungarica. 1-18, available at http://dx.doi.org/, (2011)

{2} BOURGI (A) [6], « L’évolution du constitutionnalisme en Afrique : du formalisme à l’effectivité », RFDC, n°52, 2002, p-p ; 721-748. According to the author  from the 1990s that the movement marking the return of constitutionalism in Africa will spread; they are not as I think the beginning of a new constitutionalism! About the definition of constitutionalism:  As described by political scientist and constitutional scholar David Fellman :

Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in  political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme,  constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law. (  See  Philip P. Wiener, ed, ‘’Dictionary of the history of Ideas: Studies of selected Pivotal Ideas’’ (David Fellman, "Constitutionalism"), vol 1, p. 485, 491–92 (1973-74) ("Whatever particular form of government a constitution delineates, however, it serves as the keystone of the arch of constitutionalism, except in those countries whose written constitutions are mere sham. Constitutionalism as a theory and in practice stands for the principle that there are—in a properly governed state—limitations upon those who exercise the powers of government, and that these limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial. This is by no means a modern idea, for the concept of a higher law which spells out the basic norms of a  political society is as old as Western civilization. That there are standards of rightness which transcend and control public officials, even current popular majorities, represents a critically significant element of man's endless quest for the good life.") in http://en.wikipedia.org/wiki/Constitutionalism

{3} The constitutionality block expresses the idea that the Constitution is not strictly limited to the numbered items that comprise its various titles, but includes texts which refers preamble (Michel de Villiers).

{4} In fact this aspect is common to all preambles of the previous constitutions of Cameroon [1].

{5} Freedom of association’’

{6} Or ‘’Legal state’’, or ‘’State of law’’

{7}   Some authors like Alain Didier Olinga rightly believe that the prescriptions contained in the preamble are all purely and simply constitutional norms; and any breach of the prescriptions equivalent to a violation of the fundamental law that may give rise to contentious [2].

{8}   This is to say that it was pointless to validate the idea of a concret and complete guarantee of rights set out in the preamble considering the fact that their frame was lacking in an express constitutional value. Then have we had really a constitution before the Constitutional Act of 18 January 1996?

{9}   Our purpose here is to  say that if the preamble as the main space of enunciation of fundamental rights and freedoms was devoid of legal  value, this is equivalent to admitting that the constitutional order of the Republic  to some extent severely played down these rights and freedoms.

{10}   In accordance with articles 46 et 47 of the constitution ‘’The Constitutional Council shall have jurisdiction in matters pertaining to the Constitution. It shall rule on the constitutionality of laws. The Constitutional Council shall give a final ruling on: the constitutionality of laws, treaties and international agreements; - the constitutionality of the standing orders of the National Assembly and the Senate prior to their implementation’’.

{11}   Thus, the preamble being ONE with the constitutional articulated text, acquires a supra-legal status in the hierarchy of sources of positive constitutional law.

ЛИТЕРАТУРА: 

[1] Constitution of the republic of Cameroon, new edition febuary 1996.
[2] A. D. OLINGA, ``L'aménagement de droits et libertés dans la Constitution camerounaise révisée'', Revue Universelle des Droits de l'Homme, 1996, vol. 8, n° 4-7.
[3] J. MOUANGUE KOBILA, ``Le préambule du texte constitutionnel du 18 janvier 1996 : De l'enseigne décorative à l'étalage utilitaire'', Lex Lata, n° 23-24, févr.-mars 1996.
[4] P. F. GONIDEC, Les droits africains, Evolution et sources, 2e éd., Paris, L.G.D.J., 1985.
[5] Charles Debbasch et autres, Droit constitutionnel et institutions politiques, 3e éd. Augmentée et corrigée, Economica, Paris, 1990.
[6] BOURGI (A), « L’évolution du constitutionnalisme en Afrique : du formalisme à l’effectivité », RFDC, n°52, 2002.
[7] ‘’Les aspects juridiques et politiques de la réforme constitutionnelle du 18 janvier 1996’’- Rapport général (Maurice Engueleguele), colloque des 24 et 25 juillet organisé par le GRAP, avec le concours de l’Association Africaine de Science Poloitique et la Fondation F. Ebert – Yaoundé.

Заголовок En: 

The preamble to the Cameroonian Constitution Act of 18 January 1996: material consideration and legal status

Аннотация En: 

This article deals with the problem of preamble in the constitutional order of the Republic of Cameroon. The author investigates two theoretical aspects namely material consideration and legal status of the preamble. Concerning the first point, it is described the configuration of the preamble. Here the author classified the elements contained therein in three categories: 1) the fundamental rights, 2) the enunciation of various fundamental principles, 3) the definition of basic values. In the second point the question of the legal status is developed. It is examined the approach retained for the constitutionalization of the preamble. The author compared French and cameroonian methodologies in this field. Further he showed the contradictions exiting among cameroonian analysts about the interpretation of the constitutionalization of the preamble. In this paper it’s shown that the constitutionalization of the preamble makes a valuable contribution to positive constitutionalism and the establishment of legal state in Cameroon.

Ключевые слова En: 

constitution, preamble, constitutionalism, Cameroon, provisions, constituant, constitutionality, legality, constitutional