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INTRODUCTION TO LAW AND FUNDAMENTAL RIGHTS

INTRODUCTION TO LAW AND FUNDAMENTAL RIGHTS.

This course addresses many issues, part I shall cover introduction to law in which key legal
principles and concepts and also general background to law shall be discussed.

Part II shall focus on fundamental rights and here, we shall be looking at concepts in labour
law, human rights and the program may be rounded up by looking at legal issues on
environmental protection.

Chapter One:

PART ONE: DEFINITION OF LAW AND THE NEED FOR LAW IN OUR
SOCIETY.

Many definitions have been attempted; Law consists of rules of conduct established by the
government of a society to maintain harmony, peace, stability and justice within the society.
It does this by defining the legal rights and duties of the people. It also provides a way to
protect the people by enforcing these rights and duties through the courts and the legislature.

The law cannot stop us from doing wrong; however, it can punish us if we choose to do
wrong. The law draws the line between permissible and non-permissible conduct so that
people do not hurt one another.

Law also means the sum total of rules and regulations put in place to control people.

The primary aim of the law is to enforce certain standard of behavior amongst citizens of a
particular state and also in the interest of peace, good order, progress and cohesion. Prof Hart
in his book entitled ‘The concept of Law’, states that there must be in each modern civilized
state, an established law making authority duly vested with such powers and what that
authority determines is law.

Part two: MEANING OF LEGAL TERMS.

1. Sovereignty: The power of a country to control its government without external

influence.
2. Pacta Sunt Servanda: Agreement must be kept express.
3. Persona Non-grata: outcasts.

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4. Defacto Company: A company cooperated in good faith that exist in fact and not in
law.
5. Ubi jus, ubi remedum: Equity cannot suffer a wrong to be without a remedy.
6. Indictment/count: Charges against a person or an accused. Counts are the various
charges.
7. Consensus ad idem: means meeting of minds. A contract is an agreement and unless
the parties are of the same mindset in what they intend, there will be no agreement.
8. Stare Decisis: Let the decision stand. This is basically the doctrine that judges are
bound to follow a previous decision if the facts before them are similar or the same as
those of an earlier case.
9. Nemo dat quot non habet: You cannot give what you do not have. As applied to sale
of goods, the rule means that a seller of goods cannot sell what he doesn’t have
(cannot give a greater title to the purchaser than the sale possesses). Thus, a purchaser
who buys stolen goods from a thief cannot give a valid title to them since the thief had
no title.
10. Separation of Powers: It refers to the separation of the executive, the legislature and
the judiciary with one of the three branches of government able to exercise total
power. The doctrine of separation of power is thus based on the idea of ‘checks and
balances’.
11. Corporate Legal Personality: this means that a company can sue and individual and
an individual can in turn sue the company. Simply put, it means a company can sue
and be sued. The company can be held liable for her wrong doings.
12. Res Ipsa Loquitur: The thing speaks for itself.
13. Contract Intuitu Personam: Means a personal contract e.g marriage contract.
14. Locus Standi: This refers to the competence or the qualification of a party to bring an
action in court or to invoke the jurisdiction of the court towards the enforcement of a
particular right or duty.
15. Res Judicata: Finally decided by the court and cannot be subject to any further
proceedings.
16. Constitutional Law: Doctor D.I.O Ewulekwa defined constitutional law as a
collection of legal rules, which prescribes, establishes and regulates the work of the
composition of a political allocation, otherwise known as state.

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17. What is a state? It can be considered as an organized political community controlled

by a government. It can also be defined as a unit in a country or as an organized
community forming part of a country e.g lagos, California.
18. Exequatur: It is an enforcement order.
19. Defamation: This is tarnishing the reputation of someone. It is in two parts; i.e
slander and libel. Slander is spoken defamation while libel is printed or broadcast.
Both share the same features.

Part Three: THE CLASSIFICATION AND DIVISION OF LAWS IN CAMEROON.

Cameroon is a state of two cultures or two legal systems. We have the common law applied
in the former West Cameroon (imported from Britain) and the Civil law applied in former
East Cameroon (imported from France). These two legal systems represent two major world
cultures and Cameroon shares these characteristics only with Canada across the whole world.

CLASSIFICATION OF LAWS.

Laws are classified into municipal and international laws

1. Municipal, Domestic or Internal Law:

Municipal law is that which applies within a boundary of a given state. In Cameroon, laws
may be classified into two legal systems (common law and civil law). The common law
imported from Britain, is applicable in former British colonies. Its major characteristic is that
it is ‘judge made laws’. This legal system is applied in England and in all the countries of
English expression including Anglophone Cameroon.

The civil law system is the legal system applied in continental Europe, Africa and
France.

a. Private law: This concerns all rules relating to the legal relationship between the
ordinary citizens e.g family law, law of contract, law of torts, insurance law, private
international law e.t.c.
b. Public Law: This is defined as ‘all the rules relating to the status of those who
govern, their powers and the relationship between them’. The content of public law
varies from state to state. In Cameroon, public law comprises of constitutional law,
administrative and finance law.

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- Constitutional Law: It is that branch of public law dealing with a system of

government in a country. It regulates the structure of government activities, their
relationships with each other and their main functions.
- Administrative Law: Is that branch of public law dealing with organization of
powers and duties of administrative authorities. It is mainly concerned with the
exercise and control of governmental power.
- Finance Law: Is that branch of law which deals with state budget and how this
budget can be executed by the authorities concerned.
2. The international Law: This law deals with rules governing state relations. It is
made up of treaties and conventions signed or ratified by each contracting state. Here,
as usually referred to as international law or hard laws and is binding on states that
sign them. The basis for the existence of international law is found the principles
contained in the Vienna Convention of Laws on Treaties, signed at Vienna on the 23 rd
of May 1969, and entered into force on the 27 th of January 1980, that agreements must
be kept express(in latin as PactaSuntServanda)
. International law also consists of declarations, resolutions, recommendations and
guidelines. These are non-binding instruments and are usually referred to as soft laws.
International law subjects include; international criminal law, international trade law,
International Environmental law, international Human Rights Law.E.t.c.

THE DIVISION OF LAWS

I. Substantive Law:

It is the substance that makes up the law. It is that area of the law which explains what you
can and what you cannot do, for example the law states that ‘you should not murder another
human being except it was for self defence, you are under duress (pressure) or when you are
drugged by another person. On the other hand, they are laid down rules and principles which
guide the judges at arriving at a decision in a case.

II. Procedural Law:

They are the steps that must be taken when filing a law suit against another person. It is
otherwise known as adjectival law. It deals with rules as to the commencement of an action in
court, establishment of proofs, and examination of parties’ e.t.c.

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Part four: SOURCES OF LAW IN CAMEROON.

Can be grouped into Internal and external sources.

1. THE INTERNAL SOURCES:

A. The Constitution:

A constitution is that document which organizes the distribution of power in a state. It lists
out the different rights and duties of the citizen and gives the mode of protection by the laws.
The constitution is the fundamental law of the land or the grand norm that all other laws must
conform to. Any law which is not in conformity with the constitution is said to be
unconstitutional and therefore not valid.

B. International treaties, conventions and agreements:

According to article 2(a) of the Vienna Convention on the law of treaties, “treaties are
defined as international agreements concluded between states in a written form and governed
by international law”. Whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.

In Cameroon, treaties, conventions or agreements are ratified by the President of the

Republic with the approval of the National Assembly (see article 45 of the 1996
Constitution). Once any treaty, convention or agreement has been duly ratified by the
president of the Republic, it becomes an internal source of law in Cameroon.

C. Legislation:

This is the principal source of law in Cameroon. According to article 26(2) of the 1996
Constitution, the following shall be reserved to the legislative power:

-The fundamental rights, guarantees and obligations of the citizens,

- Safeguard individual freedom and security,

- The rule governing public freedoms,

- Legislation, rules governing social security and insurance,

- The duties and regulations of the citizens in respect of national defense.

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Legislative power shall be exercised by the parliament which shall comprise of the
national Assembly and the senate. See article 14(1) a and b of the 1996 constitution.

D. The executive:

Article 28(1) of the 1996 constitution states that ‘Matters not reserved for the legislative
power, shall come under the jurisdiction of the authority empowered to issue rules and
regulations. This authority is the president of the Republic and his subordinates. Legislation
by the executive is by way of decrees signed by the head of state. He may in appropriate
circumstances delegate powers to the ministers and other administrative authorities who shall
legislate. For example, ministerial decrees and prefectural orders.

N.B: It must be noted that pieces of legislation passed by the executive are laws in
the internal sense of the word.

E. Customs:

There are more than 250 ethnic groups in Cameroon. Each of them apply their own custom.
Cameroon is potentially rich in terms of customary law, which now constitutes one of the
sources of law in Cameroon. Customary law is contained in section 27(1) of the Southern
Cameroon High Court Law of 1955 (SCHCL), which provides that ‘the court shall observe
and enforce every native law and custom which is not repugnant to natural justice, equity and
good conscience nor incompatible with any written law for the time being enforced’.

2. EXTERNAL SOURCES:

The common law from England and the civil law from France are now applicable in
Cameroon i.e the English and French speaking part of the country respectively have various
laws imported as a result of foreign administration in Cameroon.

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Chapter Two:

THE CONSTITUTION.

The constitution is the fundamental law of the land or the grand norm that all other laws must
conform to. Any law which is not in conformity with the constitution is said to be
unconstitutional and therefore not valid. There exist several types of Constitutions which will
be examined below.

TYPES OF CONSTITUTIONS.

1. Written Constitution:

Under a written constitution fixed rules and principles of government are written down
clearly in a single document e.g the 1996 constitution of the Republic of Cameroon.

2. Unwritten Constitution:

This does not denote the absence of documentation; rather it is characterized by the
absence of a single document which can be referred to from time to time by the citizens
and government. It is made up of some fundamental functions of laws, rules and
regulations, power and principles of government. In other words, unwritten constitution
can be termed judicial decisions, conventions and traditional beliefs which have grown
with the people but which are not codified in one single document e.g Great Britain where
the laws are scattered in charter, petitions, parliamentary, judiciary decisions, customs
and conventions. Examples of these documents are; the Bill of Rights 1688, the Magna
Charta 1215, the Petition of Rights 1828.

3. Rigid Constitution:

A rigid constitution is one which is very difficult to amend, revise or change because it
involves a special procedure which is provided for under the constitution. Example of
countries with rigid constitutions are; Nigeria, Ghana and the U.S.A.

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4. Flexible Constitution:

There is no special procedure prescribed for the amendments of this type of constitution.
Such constitutions are usually found in a Unitary State with unwritten constitution e.g
Great Britain, Netherland, Canada, Australia et.c .Here, the parliament can alter any part
of the constitution by a simple majority of vote.

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Chapter Three: THE CONCEPT OF LEGAL PERSONALITY.

Part one:

The History of Corporate Personality.

Corporate legal personality arose from the activities of organizations such as religious orders
and local authorities, who were granted rights by the government to hold property, sue and be
sued in their own rights and not have to rely on the rights of the members behind the
organization. Overtime, the concept began to be applied to commercial ventures with a public
interest element such as railway building features and colonial trading businesses. However,
modern company law only began in the mid-19 th century when a series of company’s Acts
were passed which allowed ordinary individuals to form registered companies with limited
liabilities. The way in which corporate personality and limited liability are linked together, is
best expressed by examining the case of Salomon against Salomon & Co LTD.

Corporate personality refers to the fact that so far as the law is concerned, a company
really exists. This means that the personality of the company is different from that of its
owners. With that, the company can sue and be sued in its own name, have its own property
and can be crucially liable for its own debts. It is this concept that allows limited liability for
shareholders as the debts belong to the legal entity of the company and not to the
shareholders of the company.

Part Two:

The concept of Legal Personality.

The concept of legal personality involves the legal status of physical, moral or jurisdict
person. Legal personality is the characteristic of a non-human entity regarded by law e.g the
status of a person. Legal personality means the capacity to sue and be sued.

Part Three:

Civil Responsibility/ Liability:

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Civil responsibility arises in a general manner from the breach of contract under the law of
contract. On the other hand, civil responsibility arises as a result of a breach of duty under the
law of tort. The law of contract deals with binding agreements and under the law of contract,
if one party breaches a contract, such a party will be liable in a civil court. Under the law of
contract, damages are intended as compensation for the plaintiff’s loss, while under the law
of tort, a person who suffers legal damage may be able to receive damages usually monetary
compensation.

Remedies for breach

The main remedy against tortious law is compensation for damages or money under the law
of contract, damages for breach of contract is damages by way of compensation.

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Chapter Four:

KEY ASPECTS OF CRIMINAL LAW.

This chapter deals with crimes called public wrongs, which are wrongs against society. The
chapter describes the three main classifications of crimes most often handled by criminal
courts in Cameroon. It also discusses the primary steps in the criminal justice system that is
followed when a person actually commits a crime or is suspected of committing a crime.

Michael Allem in his book entitled, ‘Criminal Law’ defines a crime as ‘an act or
omission or state of affairs which contravenes the law and which may be followed by
prosecution in criminal proceedings with the attendant consequence of conviction or
punishment’. Karl and Cross in their book entitled ’Criminal Law’ defines a crime as ‘an
illegal act, omission or event whether or not it is a tort, a breach of contract, or a breach of
trust. The principal which is the offender, is detected and prosecuted in the name of the state
and if found guilty, is liable to punishment, whether or not he is ordered to compensate his
victim’. The American Institute Model Penal Code sets out the objective of criminal law as:

 To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens
substantial harm to individuals and public interest.
 To subject to public control, people whose condition indicates that they are disposed
to commit crimes.
 To safe-guard conduct that is without fault from condemnation of criminals.
 To give fair warning on the nature of conduct declared to be an offence and
 To differentiate on reasonable grounds between serious and minor offences.

Generally, crime is a public wrong that directly and seriously threatens public order.

Criminal law on its part protects the whole community by setting out rules on how people
should act and what they are permitted to do. Five objectives are widely accepted for the
enforcement of the criminal law;

Punishment,

Retribution,

Deterrence,

Incapacitation and

Rehabilitation.

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1. Retribution: Criminals ought to suffer in some way. It is the most widely seen goal.
Criminals have taken improper advantage of others and consequently, the criminal
law will put criminals at some unpleasant disadvantage to balance the scales.
2. Deterrence: The individual deterrence is aimed at the specific offender. The aim is to
impose a sufficient penalty to discourage the offender from criminal behavior.
General deterrence on the other hand aims at the society at large. Imposing a penalty
on those who commit offenses, other individuals are discouraged from committing
those offences.
3. Incapacitation (Imprisonment): Designed to keep criminals away from the society
so that the public is protected from their misconduct.
4. Rehabilitation: Aims at transforming an offender into a valuable member of the
society. An example of a rehabilitation center is the Booster institute in Buea.

In Cameroon, The National Assembly, the president of the Republic and other executive and
administrative authorities are vested with law making powers. This is in accordance with Part
4 of the 18th January 1996 Constitution, which states the relationship between the executive
and the legislative powers, Article 26 and 27 respectively. Article 28 of the 1996 constitution
states that parliament may empower the president of the Republic to legislate by way of
ordinance for a limited period and for a given purpose. The above definition have not missed
the objective of law which is the respect of certain standards of rules in the society and by so
doing, avoid transforming the society into a jungle.

Part One: Classification of Offences

In the Cameroonian Penal Code, classification of offences depends on the maximum penalty
that a particular offence or omission attracts. Such a classification also directly determines the
court that has jurisdiction to given offences. Thus, under the criminal organization of courts,
any offence that attracts a minimum sentence of more than 10 years is triable by the high
court, while the court of first instance has jurisdiction over offences that may attract a
maximum penalty of 10 years imprisonment. There are three categories of offences
prescribed by the penal code.

Section 21 of the Cameroon Penal Code classifies crimes as follows; Felonies,

misdemeanors, and simple offences.

1. Felonies:
A felony shall mean an offence punishable with death or with loss of liberty for more
than ten years, see section 21(1) (a) of the Cameroon penal Code. All felonies are
tried in the high court. Examples of felonies are; murder, treason e.t.c.

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2. Misdemeanor:
Under section 21(1) (b), it shall mean an offence punishable with loss of liberty or
with fine where the loss of liberty may be for more than ten days, but not for more
than ten years and the fine more than twenty-five thousand francs. From the above
definition, it follows that all misdemeanors are tried in the court of first instance.
Examples of misdemeanors include; assault, criminal trespass, or disturbance of quite
enjoyment over a land.
3. A simple offence:
Section 21(1) (c) defines a simple offence as an offence punishable with
imprisonment for up to ten days or with fine of up to twenty- five thousand francs.
Furthermore, section 21(2) of the Penal Code is very instrumental in the definition of
offences. It provides that the nature of the offences shall be affected by:
a. Modification of the penalty imposed by reason of an excuse or mitigating
circumstances, or
b. Aggravation of penalty imposed under the section 88-89 of this code. Hence, if for
reasons of the finding of the trial court, the offender standing trial is sentenced to
less than 10 years, the offences will still remain a felony for the purpose of any
eventual amnesty or previous records of conviction.

Part Two: Criminal Responsibility

Criminal responsibility arises as a result of a criminal prescription. Criminal

responsibility falls within the domain of criminal law. The main aim of the criminal law is to
secure peace and social order in the society. Section 1 of the Criminal Procedure Code
(CPC), states that all persons shall be subject to the criminal law and section 17 of the penal
code provides that no penalty or measures may be imposed unless provided by law and
except in respect of an offence lawfully defined.

Nature and Incidence of Criminal Responsibility.

When the definition of every offence is examined, it can be seen that it always consists of two
elements.

 The physical and mental element

In English law, the two terms which stand for the physical and mental elements of an offence
are; the actus reus and the mens rea.

i. Actus Reus: Means quality act. The Actus Reus of a crime may consist of an act
or an omission to carry out an act. This includes the conduct of the accused. For
any conduct to be criminal in law there must be the intention to commit the crime
as well as the actual commission of the intended offence.
ii. Mens Rea: This includes intention. Mens Rea is often used especially with
regards to a particular offence, but often to denote the entire mental element
required for an offence. It symbolizes the state of mind of the man who not only
foresees, but desires the consequences of his conduct.

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Criminal responsibility is provided for in section 74 of the Penal Code, titled; Punishment
and Responsibility. Section 74 (1) states that no penalty may be imposed except upon a
person criminally responsible. 74 (2) goes further to state that criminal responsibility shall lie
on him who intentionally commits each of the ingredient acts or omissions of an offence with
the intention of causing the result which completes it. 74 (3) states that except as otherwise
provided by law, no criminal responsibility shall arise from the result, though intended of an
omission.

N.B: Responsibility for a simple offence shall not require any intention to act, to omit or to
cause the result.

Section 74 is of prime importance, constituting the basic principle not only of the Penal Code
but of the whole of criminal law.

It is stated in section 17 that ‘no penalty or measure may be imposed unless provided by law’,
or in either case ‘accept in respect of an offence lawfully defined’. Therefore, no penalty may
be inflicted on a person who is not criminally responsible.

Part Three: DEFENCES TO CRIMINAL RESPONSIBILITY.

1. Accident and physical Compulsion: section 77 of the P.C states that no criminal
responsibility shall arise from accident or from irresistible physical compulsion.
2. Insanity: No criminal responsibility shall arise from the act or omission of a person
suffering from mental illness which deprives him of will-power or of the knowledge
that what he does is blame worthy. In order to act as a defence, two conditions are
necessary; (a) mental illness, (b), in consequence of this illness, either deprivation of
all will power and lack of knowledge that what is done is blame worthy. See section
78 of the P.C.
3. Intoxication: involuntary intoxication shall have the same effect as mental illness.
Intoxication may result from drinks or drugs. It is only a defence if it destroys the
capacity to have an intention. Section 79 P.C.
4. Infancy: No criminal responsibility shall arise from a person aged below ten years. If
an offence is committed by a person aged above ten and not more than fourteen, it
may attract special measures as may be provided by law.

If an offence is committed by one who is aged over fourteen and under eighteen years,
responsibility shall be diminished. But if one above eighteen years commits a crime, he shall
be responsible as an adult. See section 80 P.C.

5. Threats: No criminal responsibility shall arise from submission to threats not

otherwise avoidable of immediate death or of grievous harm. See section 81 P.C.
6. Provocation: Responsibility shall be diminished for an offence immediately
provoked by the unlawful act of another against the offender. For provocation to be
considered, it must be proportionate to the act. It must be of a kind to deprive an
ordinary person of self-control, must be immediate and there must be a reasonable
proportion between the provocation and the reaction. See section 85 P.C.

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7. Obedience of Lawful authority: No criminal responsibility shall arise from an act

performed on the orders of a competent authority to whom obedience is lawfully due.
This section shall not apply where the order is manifestly unlawful. See section 83
P.C.
8. Lawful defence: No criminal responsibility shall arise from an act dictated by the
immediate necessity of defence of the person acting or any other person or any right
of himself or of any other, of an unlawful infringement. The defence has to be
proportionate to the seriousness of the infringement threatened. For lawful defence to
be accepted, the following conditions must be fulfilled;
(a) The infringement must be lawful
(b) The defense must be dictated by an immediate necessity,
(c) There must be a reasonable proportion between the defence and the infringement.

AGGRAVATION OF RESPONSIBILITY.

A. Previous Conviction: When a new offence is committed within a period of time

running from the date of the final conviction and expiring within five years of release
of a sentence of a felony or misdemeanor, the maximum penalty provided, if of
limited duration shall be doubled.
B. Public Servant: Being a public servant shall aggravate the responsibility of any such
person guilty of any crime against which it is his duty to guard and to take action.

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Chapter Five:

SPECIFIC OFFENCES:

Distinction between a prisoner and a Detainee:

A prisoner is a person who has committed a crime and is convicted according to the
law and he/she is already serving an imprisonment term. While a detainee on the other hand
is one alleged to have committed a crime and is arrested and detained. In other words, the
person is awaiting trial for the day his case will be heard.

General Introduction:

Specific offences are the direct consequence of the social interaction of human beings living
in the society and of the state’s endeavor to regulate their behavior. Society has values some
of which the state considers worthy of protection. So the state, acting in the interest of the
society, lays down rules of conduct which individuals are required to observe. The rules are
extended to minimize and if possible, entirely prevent the infringement of individuals of
protected social values.

To secure the effective observance of the rules of conduct that the state prescribes, she
attaches to each rule an appropriate penalty which may be imposed on anyone who breaches
it. The threat of penalty induces citizens to comply with the state’s rules of social behavior.

When a citizen acts or fails to act in breach of a rule of conduct to which the state attaches a
penalty, we say that he has committed a specific offence to which a particular name is given.
For example, the state has laid down a rule of behavior which may be expressed thus; ‘You
shall not intentionally cause the death of another person’. To this rule, the state has attached
the penalty of life imprisonment. If a person intentionally causes the death of another person,
we say that he has committed a specific offence to which it has been given the name
‘murder’.

The rules of conduct laid down by the state and the penalties provided to enforce them affect
the reputation, honour, the liberty, the property and sometimes even the life of a citizen. Not
surprisingly therefore, some commentators confide ‘specific offence’ as the most important
part or branch of criminal law.

Sources of Specific Offences In Cameroon Criminal Law.

When we speak of the sources of specific offence, we mean on the one hand, the authorities
who have been empowered to define offences and lay down punishment of all types and on
the other hand, the documents in which the rules dealing with specific offences and their
punishment are to be found.

1. Authorities Who Define Offences and Punishments.

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The Cameroonian constitution of 18th January 1996 states in its preamble that ‘No one shall
be judged or punished except by virtue of a law.’ This statement enunciates a basic principle
of legality of offences and punishment. The Cameroonian Penal Code has taken over this
fundamental principle and enacted it as section 17 which reads as follows ‘No penalty or
measure may be imposed unless provided by law and except in respect of an offence lawfully
defined’.

Now under the Cameroonian Constitution, the National Assembly and Senate are the only
authorities with power to pass laws. To understand this better, we have to examine articles
26, 27 and 28 of the constitution and section 21 of the Penal Code. Section 21 classifies
offences into three categories; felonies, misdemeanors and simple offences. Given the
tripartite classification, article 26(2) of the constitution enumerates felonies and
misdemeanors among subjects which are reserved to the parliament and in respect of which,
therefore, punishment is alone competent to legislate. However, article 28 of the same
constitution provides that under certain conditions parliament may authorize the president of
the Republic to issue ordinances dealing with subjects who have been reserved to it under
article 26(2). The effect is that by issuing ordinances in compliance with article 28 of the
constitution, the President of the Republic may in place of parliament define felonies and
misdemeanors and create punishment of all types.

2. Documents Containing the Cameroonian Law of Specific Offences

The most important single document is the Penal Code. It was promulgated partly in 1965
and partly in June 1967. However, the penal code is not the only source of all offences
punishable under Cameroonian criminal law. It contains only offences of a general nature
which are not limited to specific domain of the public or private life of citizens or their
economic activities. The legislator frequently uses the criminal law and its sanctions as the
instrument for securing the observance by citizens of the prescriptions of other branches of
the law.

Hence we find in Cameroon, numerous enactments which regulate specialized areas of the
nation’s social, economic, political and cultural life. To ensure the observance of the
prescriptions of the enactments, it is common for the legislator to include with the latter
provisions which impose a penalty or a measure for the non-observance of those
prescriptions.

I. Offences Against the Person

General Aspects of offences against the person

The Cameroonian legislator has provided punishment for a variety of offences committed
against the life or the physical integrity of any human being. Under the heading of ‘Felonies
and Misdemeanors against the person’ Chapter 1, part III of book II of the penal code defines
eleven offences against the person, namely murder section 275, capital murder section 276,
simple harm section 280, slight harm section 281 e.t.c... Five aspects are general and common
to these offences.

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A: Drafting of the relevant provisions of the penal Code.

The draft men of the penal code have arranged the various offences against the person in
chapter 1, part III, Book II under the following headings;

- Intentional killing and harm

- Unintentional killing and harm
- Intentional force and interference.

To arrive at this tripartite classification, the draft men have made use of three factors, the
mental element which is the intention or the absence of intention. The result which is
either killing (death) or harm and the mode of commission which is the use of force or
interference. He utilizes these three factors two at a time.

Examples of crimes against a person are:

1. Homicide

Homicide is the general name given to all instances of killing of human beings. It is either
lawful or unlawful. Lawful Homicide occurs where the victim’s death results from an act or
an omission which takes place in the course of execution of the law or which the law has
provided that the conditions if any, which the law has prescribed for such act or omission
have been observed.

The best example of lawful homicide is the killing either by hanging or by firing squad of a
person convicted of a capital offence who has been sentenced to death by a competent court.
Lawful homicide is not punishable

In general, homicide is unlawful and criminal taking the killers state of mind as a criterion of
classification, unlawful homicide may either be voluntary or involuntary. It is voluntary when
committed intentionally and involuntary when committed unintentionally. Voluntary
homicide may have as its victim the person who kills another person. Where the killer
himself is the victim, it is known as suicide. It can take any of these forms; murder, capital
murder e.t.c. We shall examine some of them.

A. Murder:

Murder is the unlawful killing of any person. According to section 275 of the Penal Code,
defines murder as the intentional causing of another person’s death.

Ingredients of Murder:

There are five in number which include the fact that;

- the offender must have caused the death,

- that both the act or omission and the resulting death must have been intended,
- that the intended death must have actually occurred,

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- that the dead person must have been a living human being at the time of the
defendant’s homicidal act or omission and
- that the deceased person must be someone other than the one who caused the death.

Murder is punishable by virtue of section 275 with imprisonment for life.

B. Abortion

The Cameroon criminal law has made abortion an offence as can be seen in section 337 of
the penal code which provides that:

i. “any woman consenting to her own abortion shall be punished with imprisonment of
from 15 days to over one year or with a fine of five thousand to two hundred thousand
francs or with both such imprisonment and fine”
ii. “Whoever procures the abortion of a woman, notwithstanding her consent shall be
punished for from one to five years imprisonment and with a fine of from 100.000frs
to 2million fcfa”.

The Cameroonian penal code does not offer any definition of abortion. Falling back to the
ordinary meaning, it means the premature termination of a woman’s pregnancy.

Abortion for the purpose of the criminal law means the intentional destruction of the foetus
through the premature termination of pregnancy by artificial means or the provocation of the
premature delivery of the foetus with intent to cause death.

II. Offences Against private property.

A. Theft

Section 318(1) (a) stipulates as follows “anyone who intentionally causes loss to another by
theft ie intentionally removing his property without his consent, shall be punished with
imprisonment for from 5years -10 years or with a fine of 100.000- 1millionfrs.

Ingredients for theft are:

1. The existence of property;

2. Belonging to another;
3. Removal of the property;
4. Loss to the owner;
5. Intention to remove the property and by so doing to cause loss to its owner.
B. Misappropriation:

Misappropriation as defined by section 318 of the penal code occurs when one person causes
loss to another “by destruction, waste or conversion of any property capable of being
removed entrusted to him for the purpose of custody, return or any particular manner of
dealing with it”

Condition precedent to misappropriation:

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- There must be the existence of property belonging to another,

- The property must have been entrusted to the defendant for a specific purpose,
- The defendant uses the property or converts the property without permission.

It is punishable per section 321 of the penal code, with imprisonment of from 10- 20
years or with a fine of from 200.000- 2million or with both imprisonment and fine.

Chapter six:

THE COURTS AND THEIR JURISDICTIONS.

The preamble of the 1996 Constitution of the Republic of Cameroon provides that the
law shall ensure the rights of everyone to a fair hearing before the court and article 6 of law
15th December 2006 on the Judicial Organization Ordinance, corroborates same, that
judgments shall be pronounced in open court. This is an aspect of the broad principle of
judicial neutrality and the impartiality of the independent justice which must not only be done
but must be seen to be done.

Article 8(1) of the Judicial Ordinance provides that justice shall be administered free
of charge subject only to the fiscal provisions concerning stamp duty and registration. Judges
are employed and remunerated by the state to perform a public service which is that of
administering justice and receiving payments for litigations for services rendered. Providing
services free of charge does not however mean that cost will not be covered for litigations.
Such fees and expenses are borne finally by the party who fails in the action subject to the
given decision of the court.

The court structure in Cameroon is highly decentralized. The decentralization of the

court structure is intended to bring about cheap and quick justice for; the nearer the
institutions of justice are to an individual; the more he is secured in his personal life and
liberty, honour and property. He does not have to travel long distances to seek legal redress in
the law court. He does not have to pay high transport fare in order to arrive at the seat of the
court.

Article 12 (1) of the 2006 law states that ‘the judicial year shall begin from the 1 st of
January to the 31st of December each year’. Finally, article 2(1) of the above law states that
“Justice shall be administered on the Territory of the Republic in the Name of the People of
Cameroon.”

The court system in Cameroon fall under three grand categories i. e

1. The Courts of original jurisdiction;

 Customary court,
 Court of First instance,
 High Court.
2. Courts of Appellate Jurisdiction.
 The Appeal court,

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 The Supreme Court.

3. Courts with special Jurisdiction:
 Military Tribunal,
 The administrative courts,
 The audit bench,
 State Security court,
 Court of Impeachment.
4. The constitutional Council.
5. The special Criminal Court on Corruption.

A. COURTS WITH ORIGINAL JURISDICTIONS.

I. Customary Courts: They are also called native courts. The jurisdiction of the
customary court is limited to matters of status of persons, customary marriages,
divorce, custody, inheritance, adoption, filiation and also lands held by customary
community.
II. Court of first instance (magistrates’ court): The jurisdiction of the magistrates’
court is both civil and criminal. The court tries all offences except felonies.

The court has jurisdiction in civil, commercial, labour matters, where the amount does not
exceed 10 million. It is competent to rule on matters concerning urgent orders such as
injunction and orders on expatriate motions and to entertain actions for the recovery of
commercial debts through simplified recovery procedure.

The court of first instances according to section 14(1) of the 2006 Judicial Ordinance
provides the composition of the court as follows:

a) At the bench;
- The president,
- One or two magistrates,
- One registrar in-chief,
- Registrar.
b) For the preliminary inquiry (P.I);
-One or more examining magistrate,
One or more registrars.
c) At the legal Department;
- The state counsel,
- One or more deputy state counsels

Decisions from this court are appealable to the court of appeal.

III. High Court.

All felonies are tried by the high court. As per Section 21of the C.P.C. ‘A felony is an
offence punishable with death or with loss of liberty for a maximum of more than 10 years.

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A civil, commercial or labour case in which the claim is more than 10 million FCFA
is tried by the high court. The court is also competent to try actions and proceedings relating
to status, persons, civil status marriages, divorce and affiliation.

Section 16(1) of the 1972 Judicial Organization Ordinance states that the high court
has jurisdiction to issue orders, mandamus, prohibition, habeas corpus and restraining excess
and abuses of jurisdiction by inferior courts and public authorities.

Section 17(1) of the 2006 law states down the composition of the court as follows:

a. At the bench
- The president,
- One or more judges,
- One registrar in-chief,
- A registrar
b. For the preliminary inquiry (P.I);
- One or more examining magistrate,
- One or more registrars.
c. At the legal Department;
- The state counsel,
- One or more deputy state counsels

Decisions from this court are appealable to the court of appeal.

B. COURTS WITH APPELLATE JURISDICTION.

1. COURT OF APPEAL:

The court of appeal’s jurisdiction is exclusively appellate. It hears appeal on points of

law, facts or mixed laws and facts against judgments delivered by the lower court, including
appeals against the will of the investigating magistrate as well as appeal on matters such as
bail and rehabilitation.

The jurisdiction of the court of appeal in Anglophone Cameroon includes the court’s
power to quash and set aside a conviction, findings or judgment to reduce or increase a
sentence, to receive fresh evidence (additional Information), to order a new trail, to commit to
a mental hospital, to deal with case stated, to correct defective charges and to enlarge time to
over-rule its own previous decision, to criminal cases and to grant in certain cases leave to
appeal or appeal out of time.

Section 20(1) of the 2006 Judicial Organization Ordinance provides the composition of
the court of appeal as follows:

i. At the bench
- The president,
- One or more vice presidents,

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- One or more judges,

- One registrar in-chief,
- A registrar
ii. At the legal Department;
- A Procurer General,
- One or more deputies Procurer General,
- One or more legal assistance of the legal bench,
2. THE SUPREME COURT.

Technically speaking, the supreme court of Cameroon is not a court of ultimate appeal. It is a
court of cassation. It hears petitions alleging an error of law, on the judgment of the courts
below. It sole function is to ensure the judgments of the lower courts are in correspondent
with the law. When the court allows an appeal, it sends the case back to be retried (on facts
and laws) by the court jurisdiction whose judgment was set aside. When the court dismisses
the appeal, the previous judgment stands.

The Supreme Court reviews the judgment not the case since in Cameroon all cases
may be examined only at two levels i.e the court of first instance and the appeal court.

The Supreme Court is also empowered to resolve cases of positive and negative
conflicts. A positive conflict arises when two courts by law assume jurisdiction in the same
matter and a negative conflict arises when two courts of law decline jurisdiction in the same
case. In either situation, the parties refer the matter to the Supreme Court for it to decide as to
which court should exercise jurisdiction to the matter.

The Supreme Court also has jurisdiction to decide on the case i. e litigation involving
the state, local authorities or public corporations. This is done at first instance by the
administrative bench and on appeal by the full bench of the Supreme Court.

C. COURTS WITH SPECIAL JURISDICTIONS.

A court with special jurisdiction is one which deals with specific matters provided for by the
statutes or with a particular class of persons. In Cameroon, there are four courts plus the
newly created court on corruption with special jurisdiction.

a. MILITARY TRIBUNAL:
A military court is governed by ordinance N o 72/5 of 26th August 1972 as amended by
Law No 87/9 of 15th July 1987. The military court is competent to try all persons over
the age of 18 in respect of the following offenses;
- Offence of purely military nature, provided in the ‘Code de Justice Militaire’,
- Offence of all sorts committed by soldiers with or without civilian co-offenders or
accomplices either inside the military establishment or in the course of their
service,
- Offence related to fire arm legislation,
- Offence of any nature in which a soldier is involved, committed in an area subject
to a state of emergency.

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- Any offence committed with the use of a gun.

-
b. THE STATE SECURITY COURT:
It has jurisdiction to try persons over the age of 18 for felony and misdemeanor
against the security of the state and the punishment for the convict is imprisonment.
c. COURT OF IMPEACHMENT:
It is a creation of the 1996 constitution. Article 53(1) states that the court has
jurisdiction in respect of the act performed in the exercise of their office. The court
has jurisdiction to try presidents of the Republic of high treason, ministers, and
secretaries of states for the conspiracy against the security of the state.
d. THE CONSTITUTIONAL COUNCIL:

It watches over the constitutionality of laws. This is in accordance with article 46 of the
1996 constitution. It shall be the organ regulating the functioning of state institutions.

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,
- Conflict of powers between state institutions, between the state and religion and
between religions.

Matters may be referred to the constitutional council by the president of the republic,
the president of the national assembly, the president of the senate, one-third of the
members of the national assembly or one-third of senators.

e. THE ADMINISTRATIVE BENCH OF THE SUPREME COURT:

Section 40 of the constitution states that, the administrative bench shall examine all
administrative disputes involving the state and other public authorities. It shall;
- Examine appeal on regional and council election disputes,
- Give final ruling on appeals against final judgments passed by lower courts in
case of administrative disputes.
- Examine any other dispute expressly devolving upon it by law.
f. THE AUDIT BENCH OF THE SUPREME COURT.
Section 41 states that the audit bench shall be competent to control and rule on public
accounts as well as on those of public and semi-public enterprises. It shall
- give final rulings on final judgment passed by the lower audit court,
- Examine any other matter devolving upon it by law.

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Chapter Seven. LABOUR LAW:

General Introduction:

Around the 17th century, the sugar cane plantation in the West Indice which necessitated a
huge labour force provoked slavery and slave trade which involves mass exploitation of black
Africans to provide cheap labour for the plantation. A phenomenon which was bitterly
criticized by the 18th century thinkers was soon abandoned and a disguised form of it was set
up under the term forced labour. The colonial masters adopted the term forced labour arguing
that it was necessary to releave economic and social development (building roads, bridges,
setting up tea plantation, coffee and tobacco plantation). They felt that forced labour was
necessary in the interest of the public and on the continuous justification for this practice and
thus the slogan “He does not eat, who does not work” and this was eventually enshrined in
some of the constitutions of the colonial administrators. Upon a careful study of its effects by
the international Labour Organization, forced labour was eliminated in 1930.

In Cameroon, Labour legislation is governed by the 1992 Labour Code.

DEFINITION AND AIM OF LABOUR LAW:

Cameroonian labour law is that phase of Cameroon legal system that governs labour
relations between wage earners and employees as well as between employers and apprentices
under their supervision. See section 9 of the Labour Code.

Labour law in Cameroon is one of the areas of law where harmonization began since
after independence and is soon to be complete as the process has gone continental. However,
the labour legislator aims at:

1. Affording greater protection to the worker in his relationship with his employer. The
fact the Cameroonian legislator has spelled out special labour penal laws for the
protection of workers interest is one of its intentions to protect the weaker party
(worker) see section 166, 167 of the Labour Code.
2. Seek to balance competing interest. While the legislator seeks greater protection for
the worker, he also tries to safeguard the life of the enterprise for which the worker
depends on for wages. Perhaps is why the legislator has previewed some technical
measures that may be used by the employers in order to keep the enterprise alive.
Section 32 on lay-off, section 40 on dismissal on economic grounds e.t.c.

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3. Seek social and political stability since the relationship between the employer and the
employee is bound to generate differences that threaten peace amongst them, the
labour legislator had sort to overcome this, by providing institutions that can manage
the differences before they can reach crisis. See section 117, 119 of the labour Code.

Within the political sphere, there is need for stability which the legislator
seeks to reconcile the interest of the employer and employee for the sake of social
peace. The state or government may come in, in various ways so that in trying to
enforce their rights through workers syndicate and employer’s associations, they
should not go beyond a certain limit. This is the reason why government intervenes to
set out rules, regulations and procedures to be followed by those social partners in
attempting to promote and protect their rights.

SOURCES OF LABOUR LAW

They are grouped into internal and external sources

A. Internal Sources:
1. The Constitution.

The constitution of January 1996 has provided the basis for labour law in Cameroon.
The 1996 constitution in its preamble Para 6 provides that “All persons have equal
rights and obligations, and that the state shall provide all its citizens with the
conditions necessary for their development”. It further states that in Para 7 “Every
person shall have the rights and obligation to work”.

2. Legislation:

The major legislation on labour matters is Law N o 92/007 of 14th August 1992, to institute the
Labour Code. This code has repelled and replaced the 1974 code which amended the 1967
Code. All labour matters are generally covered presently by the 1992 code.

3. Customary Practices and Realities:

Before the coming of the foreign powers, labour law did not exist in Cameroon. In fact labour
was conceived by each family and clan depending on the customary practices and realities of
that given family or tribe. According to generalized African view, “Everyone is a worker”
quoting form Julius Nyerere, Tanzania in his book “Systeme Politique Africaine, states; “ In
the African traditional society, everyone was a worker, there was no employer, only with
colonization, a new conception was given to labour”.

4. Local Cases:

This has become a source of law since the advent of liberty and freedom of contract.

B. External Sources.

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i. The International Labour Organization (I.L.O) Conventions and

Agreements.

This is a major source of external norms on labour matters. The international labour was the
first United Nations specialized organ to be created that is in 1946. By 1994, Cameroon had
beaten a record in Africa by ratifying 47 conventions of the I.L.O. Cameroonian Labour
legislation is buttressed by the International Labour Organization.

ii. Bilateral and Multilateral Treaties.

This involves treaties and agreements concluded between Cameroon and her diplomatic
friends.

SCOPE OF CAMEROONIAN LABOUR LAW.

In attempting to delimit the application of labour legislation in Cameroon, preferences

must be made to the category of persons whom the labour law does or does not apply to and
also the territorial application of contacts of employment.

With regards to the category of persons, it is provided that the labour code
governs the labour relationship between wage earners and the employer as well as between
employer and apprentice under their supervision. (section 1(1). A careful reading of the
labour code reads;

- It sets out first to regulate the relationship between workers and employers. The
question one is tempted to ask is, who is a worker? Inspite various definitions
advanced by writers, the Cameroonian code defines a worker in its section 1(2) as
“any person irrespective of sex or nationality who has undertaken to place his
services in return for remuneration under the direction and control of another
person whether an individual or a public or private corporation considered an
employer”. We then realize that employer is defined only in relation to a worker.

The category of persons to whom the code shall not apply to are;

 Staff governed by the general rules and regulations of the public service,
 Judicial and legal services,
 National security,
 Prison administration,
 Civil servants and
 Auxiliary staff. E.T.C see section 1(3) of the labour code.

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As concerns the territorial application of the code, regardless of where the contract is
carried out, and the place of residence of either parties, every contract of employment to be
performed in Cameroon shall come under the ambit of the code. Section 24(1).

The above sub-section applies in case of partial performance of the contract initially
under other legislation. However, workers on secondment for a period not exceeding 6
months are exempted from the application of the rule. See section 24(2) of the Labour Code.

CONTRACT OF EMPLOYMENT

The contract of employment is the principal basis upon which the legal principles
governing the whole labour law are build. It may be for this reason that authors in this
discipline have attempted each a definition of a contract of employment.

Guynett Pit said a contract of employment means “a contract or service or

apprenticeship whether expressed or implied and can either be oral or in writing”. This
appears to be a view of what the relationship could be, but since the bottom line of the
relationship is based on remuneration of a person who puts his services the inclusion of the
word apprenticeship seems misleading. The labour Code in section 23 has squashed this
confusion as it provides that; “ a contract of employment shall be an agreement by which a
worker undertakes to put his services under the authority and management of an employer
against remuneration”.

In the Cameroonian case of C.D.C Vs. Akem Bissong Bensella, the court of appeal of
Buea was faced with the question of determining the nature or the relationship between the
appellant and the respondent on the facts of the case. In that case, the respondent was a
member of a peace keeping force, a vigilant group employed by the appellant company to
check the rampant theft of their produce. On one of such raid, the respondent was severely
attacked and he suffered injuries. He claimed the appellant compensation for failing to insure
against such risk, their employer, the appellant argued that they were not under an
employment contract with the respondent. In rejecting this argument, the court of appeal
upheld the compensation awarded in the lower courts.

THE CHARACTERISTICS OF CONTRACT OF EMPLOYMENT.

From the forgoing definition of a contract of employment, it is now clear that the
relationship poses certain characteristics or features. They are:

1. Contract intuitu personae (personal contract) :

The most glaring feature of the relationship is that it is a personal contract. This is with
regards to the worker. The worker as defined above, offers his professional skills to his
employer himself and not through the instrumentality of another. He cannot therefore
delegate his services to another person to execute them for him, unless of course with the
authorization of his employer. The rationale behind this characteristic is that the worker is

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employed on the basis not only for his skills, but also for some other features which another
person may not have, e.g morals.

2. An Onerous Contract.

As far as the above definition is concerned, it therefore implies that when a worker finishes
his services to his/her employer, the latter is under obligation to pay. What this entire means
is that if the services are gratuitous, we can hardly refer to a contract of employment.

3. A contract of subordination and control.

Under a classical employment contract, the employer gives directives as need arises to the
worker. It is not settled whether the basis of the contract of employment is subordination and
control. Maison J.N has summarized this by saying that; ‘A worker puts his labour force
under the control and authority of the employer and the latter gives him directives from time
to time on how his work should be done’.

4. Reciprocity of contract obligations.

One similarity and perhaps the only under ordinary common law contract and an employment
contract is that there must be consideration. In the contract, the worker is obliged to perform
his professional skills and the employer is under a reciprocal obligation towardstowards the
worker. The nature and form of payment is not so important. All what is important is that
there should be payment. Although under an ordinary common law contract, consideration
need not be adequate, remuneration in an employment contract must be of a certain minimum
standard. A prime ministerial decree of 17th February 1995 fixes the minimum wage of all
workers as defined by the code at 23.514 FRS present day is 36.270 frs. This implies that
although freedom of contract is widely recognized under the code which gives the contracting
parties the latitude to negotiate the amount of remuneration, it has been regularized.

SUBSTRATUM OF A CONTRACT OF EMPLOYMENT.

Despite the definition of a worker and the contract of employment by the code, the courts
have faced enormous difficulties in determining who a worker is or the scope of the
employment relationship. These difficulties have been further compounded by the fact that
some category of persons has been excluded from the ambit of the code. In attempting to
resolve these difficulties, and in determining the status of employees, the following test have
been developed to determine the contractual relationship between the employees and
employers.

In short, against J and W Henderson Ltd, the criteria were enunciated namely; power
selection, payment, control, dismissal and suspension and the nature of duty. In that case,
Lord Chief Justice Clark Copper attempted to restate the guideline of contract of employment
as derived from the authorities. He said the guideline of the contract of service may be stated
as follows;

i. The master has power of selecting the servant,

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ii. The payment of wages and remuneration,

iii. The master has right to control in a general manner the work to be done,
iv. Suspension or dismissal.
1. CONTROL TEST:

There is overwhelming evidence that for there to be a contract of employment, the worker
must be under the control of the employer and working under his directives. In the case of
Yemens against Noaks, Bramwell L.J said ‘A servant is a person subject to the command of
his master as to the manner in which he shall do his work’. In yet another case Walkers
against Crystal Palace Football Club 1901, Cozens Hardy MR are judging a footballer to be a
worker adverted to the requirements that he must obey the captain during games. Also in
Gibb against United Steel Company Ltd, Street Fredy formulated the following questions
‘who has the right at moment of the contract to control the manner of the performance of acts
of the servant?’

The test has its shortcoming. The control test could hardly have been used by the
employers against employees which command skills which the former does not have. E.g
pilots, engineers e.t.c. This criticism provoked the search for another test.

2. THE ORGANISATION OR INTERGRATION TEST.

It becomes more and more pressing for the court to overcome the difficulties inherent in the
control test. Denning L.J formulated the organization test. In Stevensons Jordans and
Harrison against Mcdonald and Evans, he said ‘ one feature which seems to run through the
instances is that under a contract of service, a man employed as part of the business whereas
in the contract of service his work though done for business, is not integrated into it, but only
accessory to it’. Practical examples emerging from the L.J’s position in the above case are
that a ship master and a reporter on the staff of the newspaper contributor are employed under
a contract of services.

3. THE COMPOSITE TEST.

With the growing complexity of worker employer relationship, coupled with the continuous
growth of industries’ complex situations are bound to arise. With its state of affairs, it is
crystal clear that there is no single test of labour relationship. A series of criteria though
inadequate in themselves have formulated for example many factors are considered such as
the need for the supervision of the worker, his education and skills, periodic and regular
payment, continuity of working hours, work done by a single person, fixed place of work
e.t.c. This test seems to be more complicated than others.

A major shortcoming of the test is that the test is based on the dependence of the
worker and his employer through the economic and legal nature of his employer’s status.

4. THE HIERARCHICAL TEST.

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Has been submitted that this is by far the most accepted and widely applied test. Here,
there is economic and judicial test subordination of the work.

- Economic aspect: Subordination is economic since the worker cannot

independently bear any risk. He depends on remuneration by the employer.
- Judicial Aspect: Subordination if judicial when the worker has to work according
to the instructions from the employer. This ties him well to the logic that ‘ he who
pays the piper, calls the tune’.

This is because workers work under the control of the direction of the employer making the
latter superior, here he controls and gives directives as to how the work shall be done, the
place of work, duration of work amongst other. In the local case of SNI et Procureur General
pres de cour d’appel de Yaounde against Jean Laustin Betayene. B was appointed by the
state, but paid by SNI. This subject to the latter’s authority held; there was a contract of
employment since the two criteria (remuneration and subordination) were present. The same
view was taken by the court of appeal of Abidjan when it said ‘The element of hierarchical
subordination is the most important criterion for the existence of the contract of
employment’.

5. ECONOMIC REALITY OR THE MULTIPLY TEST.

Since there is no test or series of criterion which can be decisive about who is an independent
contractor or an employee, English judges today adopted something like the American
Economic Reality. The functions are indications of factors considered by courts as attributes
of employees and independent contractors.

a. Ownership of tools and instrument of work.

- Independent contractors supply their own equipment
- The supply of equipment by the employer to the employee shows a contract of
employment. See Ready Concrete Ltd against Ministry of Pension.
b. Payment of wages and seek pay.
- If the risk lies on the employer, then it signifies a contract of employment.
- The independent contractor receives a lump sum and thus bears his risk, payment
of wages is usually in the form of a fixed amount.
c. Deduction of pay and national Insurance contribution, this shows contract of
employment.
d. A usual and a short term engagement shows a contract of an independent
contractor.

FORMATION OF CONTRACT OF EMPLOYMENT.

There must be negotiation formed under ordinary contract rules. There must be offer and
acceptance, consideration, capacity, intention for it to be legally binding. An offer is a firm
decision that the employer takes that he needs the services of somebody. A contract may be
express or implied.

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Proof of a contract of employment.

Proof is by means of section 23 (2) of the labour code which states that employment shall be
negotiated freely. Section 27 (1) goes further to state that a contract of specified duration
must be in writing.

The Contract of Employment Distinguished.

There are many forms of engagement under labour, which though look like a contract of
employment, do not actually constitute labour relations between the employee (worker) and
employer. This is due to the absence of some characteristics mentioned above and especially
that of subordination.

a) Independent Contractor:

An independent contractor is somebody who undertakes to do a specific piece of work in

return for a fixed price to be paid to him by the furnisher of the work. He is required to do the
work independently through his own initiative, or choose persons to assist him. He is bound
by general directives as to the nature of the finished product.

In the case of Henry Bah Fon against Ako Samuel Fru, the Bamenda court of appeal held as
follows “The respondent was given work and he was to be paid … for his labour, he was only
to produce the results which he did. There is no evidence that the appellant either directed
how the work was to be done or controlled it. He was to be paid for the job. Having regards
to the labour code, section 1(1) (2) and for the facts of this case, the respondent could not by
any stretch of imagination be termed a worker.’

Distinction between independent contractors is based on the production of a given piece of

work and is free to produce the required results the way he thinks fit. The worker on the other
hand places his labour at the disposal of the employer to be used according to his needs and
subject to his order and paid in function of time worked.

TYPES AND DURATION OF LABOUR CONTRACTS.

Formally, only two types of labour contracts existed by virtue of section 30 of the 1974
Labour Code, these were contract of employment of unspecified duration and contract of
employment of specified duration.

The 1992 code has increased this number of contracts of employment by adding special
contracts.

1. Contract of Employment of specified Duration:

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Section 25(1)a defines a contract of employment of specified duration as one whose

termination is fixed in advance. By both parties, and may not be concluded for a duration
of more than two years renewable once. There are two types of contract of employment of
specified duration;

- A contract whose termination is subject to the occurrence, which does not depend
exclusively on the will of the parties, of a future but certain event that is precisely
indicated;
- A contract concluded for the execution of a specific task.

Only contracts fixed in advance may be renewed and not concluded for more than two years
renewable once i.e a total of 4 years after which it becomes a contract of unspecified
duration. Every contract of employment of specified duration exceeds three months, or
requiring the worker to live away from his usual place of residence, shall be written. A copy
of the contract shall be forwarded to the labour inspector of the area. See section 27(1).

A contract of employment concerning a worker of foreign nationality must be endorsed by

the minister in charge of labour relations. The application for endorsement shall be made by
the employer. Where such endorsement is refused, the contract shall be null and void. If the
minister of labour fails to announce a decision within two months immediately following
reception of the application of endorsement, the contract shall be deemed to have been
endorsed. A contract of specified duration shall be renewed once with the same company
after which it becomes one of unspecified duration. If relations continue after the expiration
of renewals, the contract becomes one of unspecified duration. See section 25(3) of the
Labour Code.

A contract of employment of specified duration may not be terminated before its expiration
date except in the case of gross misconduct, force majeure, or by written consent of the
parties.

Contract of Employment of Unspecified duration.

When a contract of specified duration continues after the expiry of the fixed duration, it
automatically becomes a contract of employment of unspecified duration provided that such
continuation is not of a very short period of time.

Section 25 (1) b defines a contract of unspecified duration as a contract whose termination is

not fixed in advance and may be terminated at any time by the will of the worker or the
employer, provided prior notice is give.

Characteristics of contract of unspecified duration.

- Each party by law has the discretion to terminate the labour relation at any time
provided notice is given. Notice as per section 34(1) L.C provides that termination
of a contract of unspecified duration shall be subject to the condition that previous

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notice is given by the party taking the initiative of the termination. Such notice
shall be in writing and shall set out the reasons for the termination.
- There is job continuity,
- There is a lot of subordination.

Execution of Notice.

The importance of notice before termination of a contract of employment is to enable the

worker secure a new job for himself and the employer to get a new worker. During this
period, the parties are still bound to respect their obligations. Also, the worker is entitled to a
day off with full wages each week to enable him seek a new employment; see section 35(2).

Notice must be given before termination of a contract of unspecified duration as per section
34. Section 36(2) provides an exception to this rule which is gross misconduct. In cases of
gross misconduct on the part of the worker which could be insubordination, abuse like the
case of Cecilia Wara Awah against Cameroon Bank Ltd, embezzlement, violence, threat,
theft and gross misconduct on the part of the employer which could be unreasonable
modification, non-payment of salaries. Another factor could be force majeure which could be
natural or an act of the state (administrative closure). Occupational and non-occupational
disease certified illness.

New Categories or types of Contracts.

These categories form part of the 1992 Labour Code. They are inscribed in section 25(4) L.C.

a. Contract of Temporary Job

Section 25(4) defines it as a contract which has as objective the replacement of an absent
worker or one whose contract has been suspended, or the completion of a piece of work
within a specific time limit and requiring additional man power.

A temporary job contractor shall mean any individual or corporate body whose sole activity
consists in temporarily providing users with workers whom they recruit and pay. The contract
of employment between the temporary job contractor and a worker provided to a user must
be in writing. Each worker placed at the disposal of a user must conclude a written temporary
transfer contract with the temporary job contractor. The duration of such contract shall not
exceed one year with the same user.

b. A contract of Occasional Job.

Section 25(4) defines it as a job aimed at coping with unexpected growth in the activities of
the company as a result of certain economic conditions or entailing urgent works to prevent
imminent accidents, organizing emergency measures or repairing company equipment,
facilities or building which are dangerous for the workers.

As per article 4 of Decree N o 93/577/pm of 15th July 1993, states that these kind of contracts
shall not exceed 15 days renewable once in the same company.

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c. Contract of seasonal job:

Section 25(4) of the labour Code states that this type of job is one generated by the cyclical or
climatic nature of company activities. This type of contract is adopted for agricultural
activities. Companies use considerable man power during activity period known as campaign.
This type of contract is also used in companies of cyclical nature such as toy fabrication
companies, e.g during x-mas and New Year festivals. According to section 4 and 6 of Decree
No 93/577/pm of 15th July 1993, the duration of such contracts is fixed at more than six
months yearly renewable.

Particular Forms of Contract of Employment.

i. Probation and engagement for trial:

Although the 1992 code just like the 1974 code does not define probation, it is a preliminary
and temporary agreement. It is a trail period set by the parties to appraise in particular the
workers quality of services and his output, as concerns the employer and as concerns the
worker, the working, living, wage, safety and hygiene conditions as well as the climate under
the employer if they can work together.

Characteristics of probation.

 It is conditional and uncertain: This is explained by the fact that the worker does not
know whether he/she shall be retained after the trail period. If the employer or
employee is dissatisfied with each other, the contract will be terminated more or less
automatically and without liability (financial sanction).

Section 28(1) states that there shall be probationary hiring where prior to signing a final
contract, the employer and the worker agree to appraise the workers quality of services and
his output.

 This type of Contract must be in writing: If not, it will be treated as an ordinary

contract of employment. (Section 28(2)) of the Labour Code.
 Probationary hiring period does not have to exceed six months including any renewal,
save in the case of managerial staff for whom the period may be extended for eight
months.
 The time required for recruitment, travelling, training and probation shall not be
included in the maximum duration of the trail period.
 Where the employer terminates the contract before the expiry date, section 28(4) puts
the cost of repatriation of the displaced worker on the employer regardless of the
reason of termination of that work done during the trial period.
 Where the employer is unsatisfied, he may love to terminate the contract. The worker
must be notified in writing of such a state of affairs, if not, it shall be deemed to have
been satisfactory.

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 Where the worker’s contract is maintained after the trial period, and no new contract
is drawn up, section 28(5) stipulates that in such a case, the parties shall be deemed to
have entered into a final contract taking effect from the beginning of the trial period.

2. Apprenticeship Contracts.

Section 45 defines this contract as one whereby the head of an industrial, commercial or
agricultural establishment or a craftsman undertakes to give or cause to be given to another
person complete and systematic training and whereby the latter undertakes in return to obey
the instructions which he receives and to perform the task assigned to him for the purpose of
his apprenticeship.

Strict interpretation of section 45 shows that there is no labour relationship between the
employer and the employee although the apprentice is like any other worker, the degree of
control here is higher and more, the purpose is different. The objective here is to ensure a
professional training.

Conditions for its existence.

 The apprentice must be 14 years and above and the master must be at least 21 years
and must be a professional or expert in the domain.
 The contract as mentioned earlier must be in writing see section 46 of the Labour
Code. The spirit of the law in this regard is that by putting the contract in writing,
the abuses or negative consequences resulting from informal apprenticeship
(carpenter, brick layer, tailor e.t.c) are avoided.
 Under normal circumstances, an apprenticeship contract should not be concluded to
run beyond four years unless of course there has been interruption in the execution
of the contract from the date it was concluded.
 As a classical contract of employment, the apprenticeship contract is a contract of
intuitu personae. The one who enters the contract as an apprentice must be the one
to be trained. The master too is required to train the apprentice himself. In a good
number of cases the contract is concluded without references to remuneration.

Characteristics.

 An apprenticeship is a contract intuitu personae requiring not only the personal

performance of the apprentice, but equally the employer. He is not bound to serve
the masters successor as was thought of following Baxter V. Burfield.
 Remuneration is not part of the contract. Decree N o69/287 of 20th July 1969
governing apprenticeship provides that not only may there be little or no
remuneration, but the latter may even be required to pay the master some dues.
 Under common law, the apprentice unlike the worker may not terminate his contract
nor may the master dismiss him.

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 The contract cannot exceed four years. At the end of an apprenticeship, a certificate
is issued and it be proceeded by a professional examination organized by the
ministry of Labour.
 The contract of apprenticeship can be terminated prematurely if one of the parties
die or where the apprentice persistently refuses to learn.

3. Contract of professional training.

Its objective is to give the trainee, holder of a professional diploma or higher education
diploma, a training appropriate to the company, and is mostly done in big companies such as
SONEL. BEAC. Here they want to combine training with practice. It lasts from 2-3years and
is compulsory for all candidates of this profession and can be followed by an examination.

Execution of the contract of Employment

Like any contract, the contract of employment confers on the parties certain reciprocal rights
and obligations which they will have to respect in the execution of their agreement. These
obligations may be express or implied, whatever form the parties may choose to record their
contract in.

Obligations of the parties.

The reciprocal obligations of the worker and the employer originates more from statute and
collective agreements than from the contract of employment itself which, even if written can
only add to statutory and conventional provisions. Quite often therefore, these obligations
will be implied not express.

Duties of the worker.

1. Duty to serve:

The employees’ central obligation is to work under the contract of employment. The worker
promises to put his labour force under control and authority of the employer. He must
therefore be ready and willing to work within the terms of his contract. Besides the contract
of employment being a contract ‘intuitu personae’ the worker must furnish his services
personally and may not, without authorization of the latter delegate his functions to someone
else. The consequence of this obligation is that, a strike is prima facie a breach of contract.
See Simmons V. Hover Ltd (1977)

It is therefore evidence that a worker who is absent without justification will not be entitled to
remunerations see section 61(3) of the Labour Code. If it is proved that the worker is ready
and willing to work, he will be entitled to remuneration, even if he actually did not work. See
Collier V. Sunday Referee Publishing Co. Ltd (1940).

The employee is bound to show professional consciousness in the execution of his duties.
Hence the quality of his work must correspond to the professional qualifications for which he

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was employed. He must demonstrate due care in the use and maintenance of his employer’s
materials and equipment.

2. The duty of subordination or to obey orders:

In general, an employee is bound to obey all lawful orders of the employer. It is the
prerogative of the employer to dismiss the worker if he refuses to comply.

In obeying the employer’s orders, the employee must exercise reasonable care, unless the
employees’ functions were altered in due course. This duty of care results from the implied
warranty by him of competence to do the job for which he was employed. In fact, this duty of
care extends to the manner in which he handles the employer’s property entrusted to him. So
in Superlux V. Plaisted (1958), the defendant worker who had been in charge of a team of
vacuum cleaner salesman was held liable to his employer for the loss of fourteen of the
cleaner, he had negligently allowed to be stolen from his van.

3. Duty to indemnify.

The employee is by a general implied term entitled to an indemnity for cost clause and
expenses incurred in carrying out his duties. See Reformation Development Corporation Ltd
(1914). The duty to indemnify the other party for negligent loss or injury is a reciprocal duty
arising out of the duty of care. So the worker will be liable to indemnify the employer for
loss to the latter negligently caused by him, while the employer will indemnify the worker for
injury caused to or by the latter in the course of his employment. See Lister V. Romford Ice
and Cold Storage Co. Ltd (1957). The worker, a carriage driver, negligently knocked down
his father, and co-worker in a private road. Damages were paid to L’s father by the
employer’s general insurers, who brought an action against L for contributory negligence
settled at 100%.

4. The Duty of Fidelity:

Several duties owed by the employee are comprised under the rather vague rubric of fidelity.
In any case, the worker’s overall duty of trust and confidence to his employer is one of those
that follow him even after the termination of the labour relation. During the contract, the
worker must work only for the employer. He must respect the employer’s trade secrets, as
well as disclose certain information falling within the scope of his contract to the employer.

5. The duty to account:

The employee must account to his employer for all money and property received during the
course of his employment and can be disciplined in the event of any dishonest borrowing
from the till (money owner). See the case of Sunclair V. Neighbour. The principle was stated
further in Boston Deep Sea Fishing and Ice Co. V. Ansell (1888) where the defendant who
was managing director of the plaintiff, Co. A, also owed shares in Co. B, which supplied ice
to A and received bonus on these shares for all sales gained. Such secret profits were in
breach of his duty to account to the plaintiff and he was held lawfully dismissed. As lord

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Denning explained in Reading V. Attorney General, ‘to constitute a breach of contract the
real source of the profit must be assets the employee as such controls, the facilities he enjoys
or the position he occupies and not merely provides an opportunity to profit, as opposed to
playing a prominent part in the production of the profit.’

In other words, there must be some abuse of confidence by the worker.

6. The duty to disclose misdeeds:

Whilst there might be no duty on the employer to disclose his own conduct, he has a duty to
report the misdeeds of others especially where he is senior enough to realize that what they
were doing was wrong and he was responsible for reporting on their activities.

Rights of the Employee.

1. Entitlement to sick pay.

An employee who is sick is entitled to sick pay from his employer. Notice of sick must be
given to the employer within a reasonable time. Failure to notify him will result to a loss of
sick pay.

2. Maternity leave and pay.

Employed expectant mothers will be entitled to have time off for antenatal care, to receive
maternity pay, to return to work and not be dismissed, provided that the pregnancy had been
medically certified.

3. Trade union membership:

Every employee has the right of no dismissal taken against him as an individual by his
employer for the purpose of;

- Preventing him or deterring him from being or seeking to become a member of an

independent trade union or taking part in its activities at any appropriate time or
penalizing him from doing so.
- Compelling him to become a member of a trade union, or
- Enforcing a requirement that if he is not a member of a trade union, then he must
make certain alternative payments.
4. Time-off work:

Employees will be entitled to time off-work for the following purpose;

a) Trade union activities,

b) Looking for work,
c) Public duties,

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d) Antenatal care.
5. Insolvency:

An employee has the following rights on the insolvency of his employer;

a. Any basic award of compensation for unfair or wrongful dismissal,

b. Any reasonable sum by way of reimbursement of a premium paid by an apprentice,
c. Payment during suspension of the contract of unspecified duration,
d. Any amount of leave pay,
e. Time-off for trade union duties and for looking for work.
7. Leave and Travel:

Besides the daily and weekly rest periods, any worker has a certain reasonable period of time
to deal with his personal business. This can only be done if the worker is granted leave from
his employment. Customarily, the employer was apt to treat the employees departure on leave
as an opportunity to replace him, particularly if he was not satisfied with his services. While
this might have been to the advantage of the employer, the employee suffered considerably.
What is more is that the employee went on leave without pay.

The labour code in attempting to improve the lot of worker in this respect, stipulates that he
worker is entitled to an annual paid leave at the rate of one and a half day for each month of
actual service.

In computing leave periods by unavailability for reasons of illness through industrial

accidents or occupational diseases shall be taken a periods of service. Young persons and
mothers are entitled to longer periods of leave. Any worker who has successfully worked for
a period of five years is entitled to enhance period of leave. In this case, the monthly period is
increased to two working days. A worker may choose to take his leave annually or take it in
bits through the year or not take it at all for the year. There are many reasons why a worker
may choose to postpone his leave. A worker who is dismissed or whose contract of specified
duration comes to an end, is entitled to whatever leave that has not been taken during the
period of employment and he will be entitled to payment in lieu.

A worker is entitled to travelling allowance during his leave period to his place of ordinary
residence, if it is at the behest of his employer that he is not working in his place of ordinary
residence. If he has not travelled, he is not entitled to the allowance. Workers in this case
consider travelling allowance as their just dues and it is immaterial to them whether they
travel or not. It is not the employer then to constraint the employee to travel home or leave on
threat of withholding his travelling allowance.

8. Right to remuneration:

The right appears to be the reward for the services rendered by the employee.

9. The right to a decent working environment:

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The working environment must not present any threat to the health of the employee outside
the office or factory, the employer should provide resting and relaxation facilities.

10. The right to the respect of dignity:

The employee should not be subjected to any insults or scorn in the place of work or outside
of it. This right also entails the respect of private life.

Duties of the Employer.

1. The duty to procure work for the worker:

Corresponding to the worker’s duty to be ready and willing to serve, is the employer’s
obligation to procure for the worker the type of work provided for under the agreement. Such
work must therefore correspond with professional qualification for which the worker was
recruited, so that if the employer were to give the worker functions far greater than his
professional capabilities, or flagrantly lower than his qualification, refusal to do the work will
not amount to gross misconduct entitling the employer to resign the contract for breach.

Where the worker is obliged to work away from his normal place of residence, section 66(1)
obliges the employer to provide him with lodging or, failing this, to pay him a housing
allowance. This often arises where the worker has been transferred. Such accommodation
shall be adequate and must correspond to the family status of the worker and shall satisfy the
condition to be determined by an order of the Minister of Labour issued after consultation
with the national Labour Advisory Board. The employer will be bound to pay the worker
concerned housing allowance if no house is provided. See section 66 (2) and the minimum
rate and method of payment shall be fixed by the order maintained in section 66(1).

Now, if the contract does not provide for the possibility for transfer either expressly or by
necessary implication from the nature of work, the worker is not obliged to accept such
transfer. Should the employer dismiss him for such refusal, it is the employer who will be
guilty of breach of contract, thus unfair dismissal plus damages paid.

2. Duty to remunerate the worker:

One of the main obligations of the employer is to pay the worker the agreed wages for work
done. Now, it has been held that once the worker is ready and willing to work, he is entitled
to his wages whether or not he actually works. The question thus arises; Does the employers
obligation to procure work for the employee give rise to a proprietary right to work in the
latter? In other words, can the worker even though he is being paid the agreed wages
complain that he is not being given work as such? Asquith J. did not think so. In Collier’s
case, this is what he had to say; ‘provided I pay my cook wages regularly, she cannot
complain if I choose to take any or all of my meals out’. In other words, it is that the worker
receives the agreed wages.

But section 2 of the Labour Code provides that the right to work shall be recognized as a
sacred right to every citizen. One will therefore suppose as did Lord Denning M.R in the case

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of Langstone V. A.U.E.W 1974, that, the worker is entitled to effectively be made to work.
With regards to Asquith J’. dictum, in the Collier’s case, this is what he said; we have
repeatedly said in this court that a man has a right to work, which the court will protect… I
would not wish to express any decided view, but simply state the argument…In these days,
an employer while employing a skilled man is bound to provide work. By which I mean that
the man must be given an opportunity of doing his work when it is available and he is ready
and willing to do it’. His lordship was merely ‘stating the argument’, but it is submitted all
the same that a skilled worker should be given the opportunity to use his skill.

Deductions.

a. An employer may deduct the cost of food supplied and eaten on his premises, medical
attention, the rent of dwellings occupied by the employee.
b. Trade union contributions, income tax and insurance contributions. The employer
must pay the employee’s contributions under social insurance fund, trade union fund
and income tax fund. He is then entitled to recover the employee’s contribution by
deduction from his pay. There must be a written authorization by the employee for the
employer to effect all these contributions.
c. Debts to third parties. An employer may at the request of the employee deduct from
his wages a debt to a third party owed by the employee.
d. Attachments of earnings. The court may make an attachment order requiring a debtors
employer to periodically deduce from the debtors earnings and to pay them to the
collecting officer of the court.
e. Loss caused by the employee to the employer. When an employee spoils materials or
goods by bad workmanship or negligence, the cost will be deduced from his wages.
f. Contributions to friendly societies instituted within the framework of rules and
regulations enforced.
g. Cash advances made by the employer to the employee.

3. Duty to indemnify the Employee.

Here, the employer shall be vicariously liable if the prejudice or injury arises from work done
in the interest of the employer. Where the employees’ action is ultra- vires, the employer will
only indemnify if the employee by so acting believed he was doing it for the interest of the
employer. See section 30 of the Labour Code. However, if the employee incurs liability for
an unlawful act, he will be liable if he knew that the act was unlawful.

4. Written statement of terms.

Employers are entitled to give all employees written information about the main terms of the
employment, so that they have a clear understanding of their rights and obligations under
their employment contract. The written information must include; names of the employers
and employees, date when the employment started and when it will end, whether any
employment with a previous employer counts as part of the continuous employment with the
current employer, and if so stating the date of previous employment, title of the job and full

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details of pay, hours of work, leave, sick pay, pension scheme, insurance contributions, detail
of disciplinary rules, grievance procedure and personnel, notice of termination etc.
Alternatively, the employer may refer the employee to some document which he has
reasonable opportunities of reading in the course of his employment.

5. Itemized pay statement.

Employers are required to issue itemized pay statement of wages to the employee. This
statement is issued before or at the time of any payment of wages. This statement must
contain particulars of the gross, any variable and fixed deductions and the net pay.

6. Discrimination.

Employers are under a duty not to discriminate against potential or existing employees on the
grounds of sex, marital status, colour, race, nationality especially in;

i. the arrangements he makes for the purpose of determining who shall be offered
employment;
ii. The terms in which he offers the employment,
iii. Refusing of deliberately omitting to offer the individual employment,
iv. The way in which an employer affords the individual access to opportunities or by
refusing or deliberately omitting to afford the individual access to them,
v. Dismissing or subjecting the individual to any other kind of detrimental treatment.
7. Duty to issue certificates on expiry of contract of employment, regardless of the
reason for its termination.

The employer shall serve to the work at the time of his departure a certificate stating only the
date of his arrival and departure and the type and dates of various posts he has held. The
worker is entitled to this testimonial whatever the cause of his departure.

Conditions of Employment.

The duration of work:

The duration of work should be divided into two parts: The working time and the resting
time. There are statutory regulations of the framework within which the parties to a contract
of employment must operate in determining the hours of work and leave period.

1. Hours of work

An employer may not expect his workers to work unreasonable hours for his benefits. It is
provided in section 80 (1) of the Labour Code that the statutory hours of work in all public
and private nonagricultural establishments may not exceed 40 hours per week. The weekly
total of working hours does not include overtime work for which extra payment is provided.

In the case of agricultural and allied undertakers, the hours of work shall be based on
a total of 2400 hours/year within the maximum limit of 48 hours/week. See section 80(2) of
the Labour Code. The provisions regarding the hours of work are applicable to all workers,

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notwithstanding age, sex, mode of payment. The prolongation in this latter category results
from the fact that the work is of an intermittent character in the sense that the employees are
not occupied effectively throughout the working hours. The workers here exert lesser effort in
the execution of their work as compared to their counter-pacts in industries.

As to working days, Decree N o DF/249 and DF/250 of 10th July 1968, provides that in
every establishment, the working days will be between Monday and Saturday, with Sunday
as a rest day. The employer may decide under the decree to have five working days with
workers doing 8 hours per day. If he so desires, he may chose a sixth working day with
workers doing 7hours a day for five days and a half day of 5 hours usually Saturday. In any
case, which ever system the employer adopts, the employees must have at least 24 hours
continuous rest period. There is no general rule that all establishments must commence work
at the same hour. Section 2 of Decree N o DF/249 of 10th July 1968 only demands the
employer to indicate when work commences and when it ends.

2. Night work.

Whilst the normal working hours for most establishments and businesses is during the day
time, there are certain establishments and businesses which require that work be carried out
round the clock. In this case then, nights work is undertaken. Work done between 10p.m and
6a.m shall be considered as night work per section 81 of the Labour Code.

Section 4 of Decree No 68/DF/249 of July 10th July 1968 provides that employees in
night watch, surveillance and fire brigade services are expected to work for a maximum of 50
hours/week, while those employed in dispensaries, hospitals, clinics, pharmacies, kitchen and
laundry departments and petrol fueling stations have to work for 45 hours/week. See section
5(1) of the same decree, barmen, employees in a cafeteria and domestic servants have a
normal week of 54 hours.

Section 8 of Decree No 68/DF/250 of July 10th 1968 considers all work performed
after the normal working hours as overtime. Such overtime are acceptable only in
circumstances prescribed by law. E.g, where there is an exceptional increase in the demand of
an enterprise product or where an enterprise cannot accomplish the performance of a contract
within a stipulated time, if work is to continue at the rate of normal hours. In any case,
employers have the task of convincing labour inspectors of the reason why they will prefer
over time to the recruiting of supplementary labour. Indeed, an application must be sent to the
Divisional Inspector of Labour accompanied by evidence justifying the necessity of over
time.

It is only after confirming with workers’ representatives that the Labour Inspector
communicates his decision to the employer. Even where the decision is favorable, the
duration cannot surpass three months as section 12(3) of the Decree provides.

After calculating the normal hours per week, the duration of over time should be limited to a
maximum of 20 hours/week i.e to say that each worker would not exceed 60 hours/week.
Where overtime is authorized, each worker is obliged to conform, any refusal may justify the

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dismissal of the employee, for it would be regarded as an obstruction to the property of the
enterprise. However, an employee could justify refusal to effect overtime in the case where it
has not been regularly authorized. It should be noted that night work in industries shall be
prohibited for women and children, see section 82(2) of the Labour Code. Although this
prohibition shall not apply to women in executive duties, the women working in services not
involving manual labour (section 82(3) (a) and (b) ). In the normal run of things, night work
is not remunerated in the same way as work done during ordinary hours. For every ordinary
hour, a night work is treated as one and a half times or sometimes two times the ordinary
hour. The extra hours which results from this computation is taken to be overtime which
gives rise to extra wages. Decree No68/DF/249 of 10th July 1968 made under the provisions
of section 87(4) of the Labour Code orders that overtime remuneration is at the increase rate
based on the employers’ normal rate of pay 30% for the next 8 hours and 40% for the rest up
to 60 hours/week. A worker is not permitted to do more than 8 hours/day or more than
60hours/week overtime. In cases where collective agreements proved better term on overtime
it is the term of the collective agreement that is enforceable.

Employment of women and children

Although it is said that women and children may be employed on night work where the
minister in charge of Labour allows for it, employment of women and children as a whole do
give rise to certain difficulties. As a result of their status, women cannot be employed on just
any type of job/employment because there are those women who like to work and at the same
time raise families. Besides, with the shortage of man power in certain areas of work,
particularly in the sciences and engineering, there is great pressure on any woman who has
achieved education on their fields to put it to good use in a job. There has never been a taboo
against women going out to work in this country, as was the case in the more advanced
countries.

Under the labour Code, the Minister in charge of Labour and social insurance and the
minister of Public Health, may jointly make an order as to what work women and pregnant
women may be employed to do. A woman who has been employed in a job which is
prohibited for women may have to be taken off it, if she becomes pregnant. The reason
behind this piece of legislation is to safeguard the physical and material role of the woman.
This safeguard is particularly necessary during the period of pregnancy and after the period of
confinement of the woman. Under the code, a pregnant woman can terminate her contract of
employment without notice and will not be liable in damages under section 39 of the Labour
code.

In practice however, pregnant women do not normally terminate the contract of employment.
What they do is to suspend it. Employers, it should be noted would hardly have accepted this,
but for the fact that this right is granted them by the Labour Code. In the traditional fashion, a
pregnant woman would have been dismissed or constrained to resign from the job. Under the
code, a pregnant woman is entitled to 14 conservative weeks of maternity leave and this
period may be extended to 6 weeks provided illness was medically certified. During this

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period of temporal suspension, the woman is entitled to her whole salary (full salary) paid by
the National Social Insurance Fund in the case of Cameroon.

Child Protection.

The economic necessities of many families, propel children and young persons to assume
financial responsibilities which their counterparts in developed countries would not be
permitted to do/shoulder. In order to protect the youths of this country, on which the future
has to be built, employers are strictly prohibited to employ a child of less than 14 years, even
into apprenticeship. Note should be taken that the prohibition does not affect work in the
customary context, example children helping their parents in farms, e.t.c.

However, condition of shortage of labour in a location may necessitate the drifting of

children to fill the employment gap. While this might be feasible, it is every industry or
establishment that might benefit from the relaxation of the age restriction. The only
restriction may only be lifted by order of the minister in charge of employment. Even so, the
minister must take account of local circumstances and the jobs which the children may be
asked to do. The minister will not make his order if the work the children may be asked to do
is one that is not suitable for young people. E.g works that may cause physical deformity to
children will not be considered suitable. As a result of poverty, it shall be difficult for some
time to come to banish all child labour. Nonetheless, attempts have to be made to eradicate it.

Duties of the employer.

1. Duty to provide a competent staff:

One of the primary duties of the employer is the ‘provision of competent staff men’.
Negligence by the employer in the choice of employees would afford a ground of action more
especially when a worker sustains injury due to lack of skills or negligence as a fellow work
man.

2. Duty to provide proper system of work and effective supervision.

A system of work is a practice which is permanent and continuous and not merely a method
which is casual and emerging in the days work. It may include a physical lay-out of the job,
the sequence in which the work is carried out, the provision of warning and notices, and the
issue of special instructions. An employer’s duty under this head is to take reasonable care for
the safety of his employees.

3. Duty to warn against danger.

The employer has the duty to warn his employees or keep them on guard against all
dangerous places or machinery in the factory or work place. In the case where the employee

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sustains injury because of a danger in the work place which the employer did not warn
against, the employer will be liable to pay the work man compensation.

Termination of Contract of Employment.

It simply means the contract relationship has come to an end because of breach, frustration,
lapse of time, performance e.t.c. It comes to an end like any other ordinary contract. The
employer or work man can terminate. It can be mutual or unilateral whether the contract is
specified or unspecified. The termination can be lawful or unlawful.

I. Lawful Termination of contract of employment.

The labour code stipulates that a labour contract should not exist forever. Once is terminated
by the employer, it termed dismissal but if is the worker, it is known as resignation.

1. Termination by will of the parties:

The parties can agree in advance to when the contract will come to an end. With a contract of
unspecified duration, termination can be done either by the employer or the worker and there
must be notice.

2. Discharge by performance:

This occurs when the contract has been fully executed.

3. Unilateral termination:

It concerns a contract of unspecified duration. It can be terminated at any time. It is the most
unstable type of contract of employment. So in order to terminate the contract, notice should
be made as stated in section 34 of the labour code. In the notice, the reason why there should
be that termination should be stated.

4. Discharge by mutual agreement:

After labour relationships have started, whether specified or unspecified, both parties can
decide on whether to terminate it.

II. Discipline of the establishment.

If the worker commits a grievous offence, the contract of employment will be terminated, but
if it is not grievous, it will be suspended.

- Incapacity of the worker:

It could be professional or physical. Where the work man is employed to do something and
he cannot do it, it is professional incapacity. Here, the employer has the right to put an end to
the contract.

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With physical, it is when one is too weak to do something. The employer has the right
to terminate the contract.

- Gross misconduct:

Misconduct is conduct which is so serious which will warrant summary dismissal.

Instances of gross misconduct:

 Insubordination: Refusing to do what the employer has given the person to do or

where the worker is violent at the work place or always absent from work. The
employer has the right to put an end to the contract.

Gross misconduct can also be on the part of the employer. If the act is grievous enough, the
work man has the right to terminate the contract and in this case, no notice is given, e.g
failure to pay salaries for a long time.

III. Lawful Termination

- Force Majeure:

This concerns both types of contracts of employment. They are acts of God or something
which is unseen. It will extend to where the work man is ill and this illness exceeds 6 months,
then the contract will be terminated.

Force majeure affecting the work man:

Once it is an ordinary illness and the doctor diagnosis it that he cannot get well, the
contract is terminated. But where it an occupational contract, it will only be suspension of
contract..

- Death:

If a work man is ill and because of the illness, and dies, the contract of employment comes to
an end.

IV. Causes arising out of the employment.

1. Condemnation of a worker to a term of imprisonment: If a work man is guilty and
sent to prison, the contract of employment comes to an end.
2. Non-occupational disease.
3. Death.
V. As concerns the establishment.
- Frustration
- Dissolution, closure of an establishment by the government, and not an act of God
terminates the contract of employment.
VI. Economic and technical re-organization of the establishment
- Redundancy: It is the involuntary and permanent lost of job because of excess
man power. Redundancy and retrenchment are synonyms. The principle of
redundancy is ‘last in, first out’.
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- Bankruptcy and Liquidation: It has been argued that bankruptcy is not a force
majeure. They terminate contracts of employment.
VII. Termination by act of the state.
- The Cameroonization of employment: The state intervenes in so many ways to
terminate the contract of employment, sometimes to protect the work man and
equally to protect the employer and the state.
- Imprisonment and exile: If a work man is accused for committing a criminal act,
and later tried an guilty, he will be sent to prison and at that stage, the contract of
employment comes to an end.

Sometimes, the state can exile one after committing an act, the contract of employment
comes to an end.

Chapter Eight: HUMAN RIGHTS

General Introduction:

The struggle for human rights has a long and checked history precisely because it’s all about
the need to protect the individual against the abuse of power by monarchs, tyrants or the state.
Man’s struggle for the recognition and protection of human rights by the state was spelled by
certain philosophical and religious ideas traceable from to European thinkers.

In the United Nations Chatter, the principle of the U.N ‘reaffirmed faith in fundamental
human rights in the dignity and worth of the human person in the equal rights of men and
women, and of nations large and small.’ One of the stated purposes for the global organization
is to ‘achieve international cooperation in promoting and encouraging respect for human rights
and fundamental freedoms for all without distinction as to race, sex, language and religion.’

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Human rights are rights inherent in mankind’s nature and without them, mankind cannot live
as human beings. They allow mankind to fully depend and use their human qualities at all
times. They are the foundations of human existence and co-existence. They also allow mankind
to use their conscience and to satisfy their spiritual and other needs. Human rights thus
constitute the most cherished of all rights which is the right to be human. Because human rights
are at the center of all development, they have become the hallmarks of democratic societies.
The denial of human rights is not only an individual and personal tragedy, it also creates
conditions for social, political unrest sowing the seeds of violence and conflict.

THE IDEA OF HUMAN RIGHTS.

I: Sources of Human Rights

Section 1: Definition of key concepts.

a. Rights.

A right is a proper claim to something or an authority to do something or an interest. Its

something one may do or have by law, a legal authority or a claim. English law defines rights
as an interest recognized and protected by law respect for which is a duty and disregarded for
which is a wrong.

b. Morals.

Morality or morals have to do with principles of right or wrong behavior, standards of

behavior based on the principal sense of what is right or just and not on legal rights and
obligations. Moral rules remind us that certain types of behavior are moral or wrong. A moral
rule is not the same thing as a legal rule although both are rules of human conducts.

c. Freedom.

This means the condition of being free, the state of being unrestricted in one’s action. In other
words, it is a right to do as one pleases without interference. A synonymous term is liberty.
The idea of freedom in human rights law suggests a claim to be left alone.

d. Rule of Law.

The rule of law is a fundamental principle in human right law. The Universal Declaration of
Human Rights and Freedom and other Human Right instruments stress this fact. The

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principle means that within the state, rights must themselves be protected by law. Any dispute
about rights must not be resolved by the exercise of some arbitrary discretion. A dispute must
be consistently capable of being submitted for adjudication to a competent, impartial and
independent tribunal. The tribunal must be capable of applying the procedures that will
ensure full equality and fairness to all the parties.

e. Justice.

The ordinary English dictionary defines justice as a right and fair behavior or treatment,
quality of being reasonable or fair. A lawyer may define justice as upholding of rights and the
punishment of wrongs by law or he can still define it as giving each person his due. One thing
is certain, man desires and has always desired justice be it personal, social, political or
economic. Ideal or perfect justice is difficult to attain in life. What man strives for is relative
justice not perfect. Respect for human rights and good laws assist to that end.

SECTION 2: SOURCES OF HUMAN RIGHTS

A. Influence of Theology.
1. Christian Doctrine: According to the Christian teachings, the source of law was God
himself. It was he who gave Moses the Ten Commandments on Mont Sinai. Gods’
law is hierarchically higher than man- made law and prevails over it whenever there is
a conflict or inconsistency between the two. It must be obeyed under pain or
punishment. Law for the Jews meant the moral or religious law prescribed by God or
developed by God himself with the power of divine reasoning.
2. Islam: The word Islam means submission to God. Islam emphasizes the uniqueness of
Allah and the workings of God in the daily lives of human beings. It is a religion and
a way of life based on the commandments of Allah contained in the Koran of Prophet
Mohammed. For Muslim, the Koran is the eternal and direct revelation of God
brought by Archangel Gabriel to the prophet Mohammed who epitomizes a life lived
according to God’s will.
B. Influence of Culture.
1. European Circular Ideas.

European circular ideas are rooted in individualism, i.e to say the doctrine of the
autonomy of the human individual. The idea of individual autonomy was supported by

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conceptions of popular sovereignty and social contract. The rights inspired in those ideas
were rights of autonomy and freedom.

2. African Cultural Ideas.

The concept of human rights is not a new idea that was imported into Africa during the
colonial period. Pre-colonial Africa had a coherent system of human rights though the
ideology which inspired the system may have been different from that which inspired the
development of human rights elsewhere. The notion of human rights was an integral part
of traditional African legal thought. Traditional African societies shared certain
fundamental principles and features of universal truths, values of morality and
reasonableness. Africa emphasizes on community spirit and not individual as the
Europeans do.

II: PARTICULAR FEATURES AND CLASSIFICATION OF HUMAN RIGHTS.

Section 1: Common Characteristics of Human Rights.

Introduction: Human rights are the fundamental rights of individual in society. They are
benefits deemed essential for individual and in some cases collective wellbeing, dignity
and fulfillment. They reflect a common sense of justice, fairness and decency. The very
concept of human rights has two basic meaning.

1. Moral rights derived from natural law, a God ordained higher law or
2. Juridical rights derived from man-made laws, democratically established according to
communities legislative processes.
A. Human Rights are Universal and inherent:
Human rights are inherent in every human being in every society. They exist
everywhere and anywhere that human beings are found. They do not differ depending
on status, race, gender or age. They are a gift of nature and like all other natural gifts
such as air, wind, rain and water are inherent in all human beings equally and in equal
measure by virtue of their humanity.
The universality of human rights does not mean that human rights are
recognized, protected and enforced to the same extent and in the same manner all over
the world, what is universal is the concept of human rights as worthy intrinsic human

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values, values that are good in themselves and uprooted in the universal
consciousness of human kind, values that transcend the sovereign rights of states.

B. Human Rights are inalienable, imprescriptibly and fundamental.

Human rights are inborn or innate rights in man and so cannot in principle be taken away
from him by anyone, by any means and for whatever reason. These rights cannot be
transferred, waived or loss. They are claimed as of right and not by appeal to grace, charity,
brotherhood or love.

Human rights are fundamental in that other rights depend on them.

C. Human rights are interdependent and indivisible and are not in a hierarchy.

Human rights are conceived and perceived in a holistic manner. All categories of human
rights are equally important and are indivisible and are interdependent. The full realization of
one category of rights is impossible without the enjoinment of the other categories of rights.
The concept of the unity of all rights is implicit in the universal declaration of human right
that mixes together all fundamental human rights and freedoms in general term. The unity,
interdependent and indivisibility of human rights are re-iterated in several U.N General
Assembly Resolutions. All human rights form a mutually dependent whole e.g without
education and food; it is difficult to see how a person can be protected effectively against his
plight.

D. Human rights are claimed upon the state.

The state bears the burden to satisfy human right claims. The government must act to protect
the individual’s rights against private invasion and government must protect the individual
from assault by his neighbor or attack by a wild beast and must ensure that he has food and
health facilities. The state may arrange to satisfy the individuals’ claims by maintaining the
domestic laws and institutions that give him the necessary rights and remedies against his or
her neighbor.

E. Human Rights are Distinguishable from other rights.

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Two main features distinguish human rights from all other rights. First as already noted,
human rights are not acquired, not transferable, not disposable and not extinguishable. They
inhere universality in all human beings throughout their lives in virtue of their humanity
alone and they are inalienable.

Secondly, the primary correlative duties concerning human rights fall on the state and its
public authorities, not on individuals Three important consequences flow from these two
distinguishing features;

i. The norm of non-discrimination is central to human right law,

ii. The role of law is a fundamental principle of human rights law within the state.
Human rights must be recognized, protected and enforced by law;
iii. The state must provide effective remedies for human rights violations.

SECTION 2: CLASSIFICATION OF HUMAN RIGHTS.

1. Civil and Political Rights.

The first generation of human rights is said to represent the civil and political rights set up in
article 2-21 of the United Nations Declaration of Human Rights and Freedoms and later given
a binding effect in the international Covenant on civil and Political Rights and is said not to
require any state intervention, i.e the state must keep its hands up and not interfere because
the enjoyment of their rights demands that the state adopts a hands up policy. They are
sometimes referred to as negative rights. These rights were conceived in the west and took
the form of freedoms which defined areas of conduct said to be beyond the scope of state
regulation or interference whether though the enactment of laws or otherwise. Thus under the
first generation rights, the correlative state obligation is absolute and immediate. This is so
because rights are said to be cost free. Their enjoyment does not require from the state any
intervention or expenditure or almost little expenditure.

2. Economic, Social and Cultural Rights:

The second generation of rights is said to comprise the economic. Social and cultural rights
enshrined in article 22-27 of the Universal Declaration of Human Rights and Freedoms and
giving binding binding legal character in the International Covenant on Economic, Social and
Cultural Rights. The stated purposes of these rights are to ensure social justice, freedom from
want and participation in social, economic and cultural aspects of life. Many academic levels

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see them as positive rights on the reasoning that they are rights that demand an active state
role to ensure their enjoyment. Commentators sometimes refer to this category of rights as
costly rights, i.e to say their realization demands a lot of resources. It is probably for this
reason that the correlative state obligation here is qualified as progressive depending on
resources.

3. Peoples or collective rights.

Third generation human rights are the most recent. They are said to reflect the idea of
solidarity or universal brotherhood. Indicated in article 28 of the Universal Declaration of
Human Rights and Freedoms, these rights are said to comprise the right to self-determination,
the right to an ethnic group or a people to a physical existence as such, the rights of certain
groups or minorities to maintain their own identities or the right to development and peace
and a healthy environment.

Question: Write and present the measures legal and institutional, international and national
which have been put in place to protect and protect our human rights and freedoms.

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