Confusion started when the decision setting up the trial panel signed on March 28, 2019 indicated that the presiding magistrate would still be Judge Col. Mem Michel. The defence was taken aback as a Lieutenant Colonel of the Marine Corps walked in when the court opened on Friday March 29, 2019. From about 11am when the court opened to about 8pm, when it rose, the unannounced trial judge moved from one legal blunder to another with determined recklessness.
According to Cameroun's Criminal Procedure Code, when a judge is withdrawn from a matter, the new judge must start the matter de novo (afresh). Great was the consternation in court when Lt. Col. Noname decided to continue the trial process without even as much as identifying the accused. After reading the names of about eight lawyers for the defense, the judge decided it was time to arraign the appellants. It was a wrong turn taken too early in the day, as the lead counsel for the defence, Fru John Nsoh jumped to his feet, furious like a mother bear deprived of her cub. The Barrister at law duly reminded the court that there was an appeal pending and that the Yaoundé Military Tribunal could not proceed with the matter until that matter, as well as the motion also filed in the same court recusing the previous panel had been determined. Also, the learned man at law informed the court that all preliminary objections raised in limini litis must be addressed before the matter can proceed as provided for by the Criminal Procedure Code. But, as former Bar president, Etta Besong observed, it would appear the new judge came with a "cahier de charge", (with specific instructions). If not, why would a judge who was assuming the bench for the very first time insist on arraigning accused persons he hardly knew, even against fierce opposition from the defence and in total disregard of the law? It was at this point that Lt. Col. Noname had what is most likely to be the embarrassment of his legal profession, and this on his very first day as a trial judge; Barrister Veronique Fien asked to know which law gave him the authority to continue a case he should start de novo. The Navy Lt. Colonel had it wrong on all counts, seeking to impose his status as president of the court, and obviously, the unhidden might of the military.
Concerning recusals, the Code of Military Justice in its Section 23 states: " Members of the bench of the Military Tribunal may be (challenged) recused under the provisions as to form and substance provided for in the Criminal Procedure Code (CPC).
According to the above mentioned CPC, the bench or a member thereof may be recused "where he or his spouse is involved in any incident tending to show friendship or hatred toward any of the parties and likely to cast a doubt on his impartiality." In stating that the language of the Military Tribunal is French in open court, Judge Col. Mem Michel actually showed preference for the prosecution against the appellants whom he is supposed to protect, and this in flagrant violation of the constitution and more specifically, the CPC which provides in Section 354(I) that "where an accused person speaks a language other than one of the official languages understood by members of the court,...the presiding magistrate shall of his own motion appoint an interpreter". The defence have interpreted this provision to mean that since the accused persons speak and understand only English, and English and French being the two official languages of the court in Cameroun, the court must therefore address the appellants in English and not French. Worse, in stating repeatedly that the accused persons need not take part in or understand arguments on preliminary objections concerning their matter, and also denying them the opportunity to speak during the preliminary objections, Judge Mem's bench had more than shown impartiality in the case and deserved to be recused.
In deciding to proceed with the matter before him in violation of the Nationality Code which requires that the judge should stay proceedings until the issue of nationality so raised is determined by the competent court, Judge Col Mem once more showed that he had interest in the case and justice was the least of his preoccupations. Section 41 of the Nationality Code specifically instructs the judge to, suo moto, (on his own volition) suspend hearings until the question of nationality is settled by a competent court. The code also has determined that competent court to be the court of first instance of the place of residence of the accused. Not only did the Military Tribunal refuse to extradite Sisiku Julius AyukTabe and his team to Nigeria, but in usurping the office of a civilian court to determine the status of the accused persons, Colonel Mem demonstrated beyond doubt his impartiality. The place of residence of the accused persons having been determined to be Nigeria, the competent court in matters of nationality here above is the Federal High Court in Abuja, Nigeria.
It should also be noted that the Mem led bench in all recklessness admitted faulty documents tendered by the prosecution as if usurping the office of a civilian court was not enough violation. Contrary to Sections 313 and 314 of the CPC, the documents on the nationality of the accused tendered by the prosecution were not signed by a "competent" authority. Actually, they were not signed at all.
Worst of all, the bench under recusal declared that it had jurisdiction over the accused even after establishing that they are refugees and asylum seekers thereby demonstrating clear interest in the matter and openly showing friendship for the prosecution. That this was done in violation of the constitution of Cameroun and of the 1951 Convention on refugees shows that justice is not to be expected from Yaoundé.
The points above are certainly only a few of what the counsel for the defence could have filed as grounds for the appeal that is now pending in the Yaoundé Appeal Court, the which appeal the new trial judge sought to forcefully set aside and proceed with the hearing of the substantive matter.
Concerning the appeal filed by the defence against the interlocutory ruling by Judge Col. Mem on account of which hearing had to be suspended automatically, the new presiding Judge stated that he didn't see any appeal in the court file. Though the defence insisted they had filed it, and though the Court Registrar was present, the judge didn't bother to crosscheck with him. Rather, he kept insisting that there was no evidence of an appeal in the file. Barrister Yong told the judge that the file was not even supposed to be in court since it had to have been moved to the APPEAL COURT. To the utter disgrace of the profession, the Marine officer proceeded to arraign the appellants and this brought confusion in court as the entire defence team of about a hundred lawyers blocked the court. For close to 40minutes, the defence lectured the bench in stock exchange style, on court procedures and CPC procedures. So what are the provisions of the CPC concerning appeals on interlocutory rulings?
Section 437(1) states that appeals on procedural matters determined by the court shall be admissible. 437(ii) compels the appeal court to rule on the matter within seven days upon reception of the file. Section 22(ii) of the Code of Military Justice states that ".....the Military Tribunal shall by a separate decision rule on any objection made on grounds of public policy". It further states that " Public policy objections shall be all objections which if accepted would end the proceedings pending before the court".
Section 3(I) of the CPC states that the sanction against any rule of criminal procedure shall be an absolute nullity when it is:
(a) Prejudicial to the rights of the defence as provided by legal provisions in force.
(b) Contrary to public policy.
Section 3(ii) states that nullity as referred to in (I) above shall NOT be overlooked. The code further provides that nullity may be raised at any stage in the trial and by any of the parties, and compels the judge to raise it of its own motion once it is realised.
The appeal filed by the defence hinges on several points of public policy infringement by the Military Tribunal, hence, nullities.
In ruling that the Military Tribunal has jurisdiction to try refugees and asylum seekers, the court violated the 1951 Convention on refugees duly ratified by Cameroun and Nigeria. Section 32(I) of the convention restrains contracting parties from expelling refugees lawfully from their territories save on grounds of national security and public order. (III) further requests that states should allow such refugees reasonable time within which to seek legal admission into another country.
The defence having been able to prove beyond reasonable doubt that the accused persons are refugees and asylum seekers, puts the court in a situation of absolute nullity. How then did the trial judge instead of, on his own volition, declare a nullity, rule that his court had jurisdiction over persons protected by international instruments?
Section 33 of the 1951 convention states that "No contracting state shall expel or return (refouler) a refugee in any manner WHATSOEVER to the frontiers of a territory where his life or freedom shall be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion."
On account of the foregoing, the Yaoundé Military Tribunal finds itself in a great legal messy puddle.
At the look of things, it is going to need much more than stripes and stars to prosecute Sisiku AyukTabe and his companions. The defence team is definitely on top of the game; so far, Senior Barrister John Fru Nsoh and his men have shown proof that they have what it takes to defend their clients; mastery of the law as well as courage. While the prosecution has relied on brute military intimidation without success, the bench has already been reconstituted twice. Yet it doesn't look like the court will be getting done with preliminary objections anytime soon.
Having abducted and illegally ferried the accused persons across international borders to the very country from which they ran for their dear lives, and being tried by a military tribunal, is anybody under any illusion that Yaoundé can dispense justice? Can truth come out of falsehood? Is it possible to establish legality on after the commission of illegalities through the violation of laws, local and international? If Yaoundé can not, who will help her walk away from this ruinous threat of judicial thuggery?