The Sentencing System under Cameroon Criminal Law

By Ferdinand Doh Galabe, Esq.,

©All Rights Reserved, January 2018

It is commonly advanced that the classical ends of criminal law in the modern society are to give fair warning of the nature of conduct considered to be offensive, to express disapproval of certain reprehensible conducts, to prohibit and prevent crime to protect society at large, to provide deterrence by punishing reprehensible conduct, to provide reparation to victims of crimes, to differentiate, on reasonable grounds, between serious and minor offenses, to provide mechanisms for behaviour reform and rehabilitation and to safeguard conduct which is without fault from condemnation as criminal, etc.

In Cameroon, when an offense is alleged to have been committed, the law provides rules of criminal investigation, preliminary inquiry, prosecution and trial of the alleged offense. At the conclusion of the trial proceedings, if the accused is convicted or found guilty, the judge or court passes a sentence in compliance with the criminal law and procedure in force[1]. The institution of criminal proceedings aims at procuring a penalty or sentence and/or preventive measure against the offender who is judicially established as culpable. It is the legal framework of such sentencing which is the subject of this write-up.

In a 1987 report, the Canadian Sentencing Commission defined sentencing as, “the judicial determination of a legal sanction to be imposed on a person found guilty of an offence.[2]”

Section 388 of the Cameroon Criminal Procedure Code provides for the sentence to be handed down immediately upon closure of the hearing or within fifteen (15) days thereafter. The verdict must state the offence(s) for which the convict is found guilty, the relevant sections of the law applied, the sentence pronounced and where necessary the civil award[3]. Essentially a sentence is a penalty ordered by the court at the end of a criminal trial. In fine, the role of criminal justice is to intervene whenever personal or state interests have been infringed to restore equity by properly weighing each party’s interests on the scale of justice. The ends of justice should not always be limited to retribution, but to peace and reconciliation.

The Cameroon criminal law[4] classifies offenses in three broad categories:

• felonies which are offenses punishable with death or imprisonment ranging from more than ten (10) years to life imprisonment and fine,
• misdemeanours are offenses punishable with imprisonment of from more than ten (10) days to up to ten (10) years and fine of more than 25,000 FCFA, and
• simple (minor) offenses are offenses punishable with imprisonment for up to ten (10) days or fine of up to 25,000 FCFA.

Section 17 of the Penal Code (PC) enshrines a very crucial principle of criminal law, that no penalty or measure not specifically provided, prescribed and lawfully defined may be imposed, while Article 26 (2) of the Cameroon Constitution expressly gives powers to Parliament, to the exclusion of the executive and judicial branch of the state, to define crimes, institute penalties, define criminal procedure and grant amnesty. This implies that any rules or regulations made by the executive branch of the state or judges in the course of determining criminal matters, instituting new crimes or penalties are unconstitutional ab initio.

That said, the principles of sentencing are to be found mainly in seventy-six (76) sections in Book I of the Cameroon Penal Code (PC), particularly from Section 17 to Section 93. This portion of the PC provides for four categories of penalties and measures:

• principal penalties (death, imprisonment, fine, dissolution, and closure of establishment),
• alternative penalties (community service & reparatory sentence),
• accessory penalties (forfeitures, publication of judgement, ban on exercise alongside closure, judicial supervision, & confiscation of corpus delicti), and
• preventive measures (banned occupation, preventive confinement, post-penal supervision and assistance, confinement in a health institution, and confiscation).

After looking at these penalties and preventive measures, we shall also look at:

• recognizance (including preventive recognizance for juveniles),
• concurrent and consecutive sentences,
• suspension and remission of sentences (suspended sentence without probation, suspension with probation or probation, release on licence, suspension of post-penal measures, and pardon),
• the expungement of sentences (rehabilitation and amnesty),
• the effects on sentencing of irresponsibility and diminished responsibility,
• the effects on sentencing of mitigating and aggravating circumstances, and
• the selection of sentences and the principle of proportionality in sentencing.

Chapter One

Principal Penalties

Per Section 18 of the PC, principal penalties are applicable to both natural persons and corporate bodies and they include, for natural persons, capital punishment, imprisonment (loss of liberty) and fine, while for corporate bodies, they include, dissolution, temporary closure, final closure and fine.

• Natural Persons

1.1.1 Capital punishment or Death penalty

Capital punishment or death sentence is the putting to death of a convict by the state as punishment for a capital offense or crime[5]. Section 23 of the PC provides for the manner of the execution of the death sentence to be indicated in the judgement of the court which should be either by shooting or hanging. The general rule is that this is to be executed publicly, unless the President of the Republic indicates otherwise in his decision not to commute the death sentence. Section 22 of the PC lays down conditions precedent to execution, which are however, not the subject of this brief write-up.

1.1.2 Imprisonment or Loss of Liberty

Section 24 of the PC defines imprisonment as loss of liberty during which the convict is obliged to work. The court may waive the requirement to work by a reasoned judgement.

As a general rule the enforcement of sentences of imprisonment will be carried out only after the judgment has become final, although exceptionally where the offender/convict is in custody or an imprisonment warrant has been issued against him at the time of the judgment and in the circumstances authorized by the Criminal Procedure Code, he will remain in custody.

The law requires the enforcement of sentences of imprisonment against pregnant women or women who just delivered to be carried out only six (06) weeks after delivery. If a pregnant woman is already under custody, then she shall remain in remand in custody until the expiry of the six (06) weeks period after her delivery. This means that she cannot be imprisoned until six (06) weeks after she delivers.

The law on sentencing equally protects children by providing for serving of imprisonment term of less than one (01) year in shifts between husband and wife, who have a fixed common residence, where both are convicted for the same or different offenses and are not in custody at the time of their sentence, provided they have a child under the age of eighteen (18) years.

The loss of liberty sentence is computed, where expressed in days as twenty-four (24) hours, where expressed as one (01) month as thirty (30) days, and where the sentence is expressed in months or years it is reckoned by calendar date.

The law provides for the sentence to start running from the day when the convict is taken into custody and in case of a concurrent sentence passed on different dates, to start running the day on which the convict was first taken into custody, except where the sentence is suspended.

The duration of the sentence doesn’t reckon in its computation the period of unlawful liberty in case of escape. Minors serve imprisonment sentence in special establishments and in the absence thereof they are separated from adults during the duration of their sentence.

Section 551-555 of the Cameroon Criminal Procedure Code (CPC) contains supplementary provisions on imprisonment. The provisions differentiate the carceral conditions under which an accused may be remanded in custody and those of a convict. They prescribe different categories of prisons for different categories of convicts, regard being had to the nature of the offence, the length of the sentence, the gender, the age, the mental and physical health and the behaviour of the convict. They also prescribe prison conditions to be such that the convict can be socially rehabilitated.

Section 53 (1) PC provides a crucial rule on imprisonment sentencing which is to the effect that in computing the imprisonment term, the judge should deduct therefrom the period in which the convict was remanded in custody.

1.1.3 Fine

Section 25-1 PC defines a fine, as it relates to natural persons, as a pecuniary penalty by which a convicted natural person is sentenced to pay an amount of money specified by law into the public treasury.

Section 556-572 CPC contains additional provisions, especially with regard to payment of fines to be made at the registry of the court which delivered the judgement and imprisonment in default of payment which is a mechanism of forceful execution by bodily restraint. It consists of serving a prison term in default of payment during which the convict is obliged to work. Payment terminates imprisonment, while provision of a surety who enters recognizance leads to the convict’s release.

Section 563 CPC provides for the period of remand in custody to be deducted from the period of imprisonment in default, where the accused has been sentenced to a fine only. The deduction is made by the judge at the time he signs the imprisonment warrant.

Imprisonment in default of payment of fine is fixed as provided by Section 564 (1) CPC, for example, for amounts not exceeding 10.000 FCFA, twenty (20) days of imprisonment in default. Imprisonment in default may not be passed against minors of less than 18 years or persons aged more than sixty (60) years or against pregnant women or executed simultaneously against husband and wife or against persons declared vicariously liable and insurers.

Section 53 (2) provides for the court to relieve wholly or partially a convict who was remanded in custody who is subsequently sentenced with fine only.

1.2 Corporate bodies

In July 2016, a new Penal Code was adopted by the Cameroon parliament and promulgated by the President of the Republic enshrining in law corporate criminal responsibility. This is in synergy with the principle of Section 1-1 PC that all persons shall be subject to the criminal law. Alternatively, the Cameroon Constitution enshrines equality of all persons before the law and the right of all persons to sue and be sued. Previously corporate bodies could be vicariously liable for the acts or omissions of their agents, henceforth, when a corporation is found guilty of a crime, the following principal penalties may be pronounced against them; closure of establishment, dissolution, and fine.

Since a corporate body has neither body or mind, it implies that it can neither act or form an intention of any kind except through its directors or servants. This argument has been overruled by the counterargument that when directors and servants are acting in the corporate body’s business, their acts and intents are deemed the corporate body’s, for the purpose of corporate criminal liability and thus the company is held liable, not for the acts of its directors or servants, but for what are deemed to be its own acts[6].

In 1944 Lord Denning stated the principle of corporate criminal liability in the famous case of H.L. Bolton (Engineering) Co., Ltd v T.J. Graham & Sons, Ltd., (1957) 1 Q.B., as follows: “a company may in many ways be likened to a human body. It has a brain and a nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.”

In the much later case of Tesco Supermarkets, Lts. V Nattrass[7], the court held that the company may be criminally liable for the acts only of: “…the board of directors, the managing director and perhaps other superior officers of a company (who) carry out the functions of management and speak and act as the company.”

Lord Reid thought that the company may be criminally liable for acts of persons who are in actual control of the operations of a company or of part of them and who are not responsible to another person in the company for the manner in which he discharges his duties in the sense of being under his orders.

Lord Diplock thought that the question was to be answered by identifying those natural persons who by the memorandum and articles of association or as a result of action taken by the directors or by the company in general meetings pursuant to the articles of association are entrusted with the exercise of the powers of the company.

Also, per the criminal procedure law of Cameroon, the personal appearance of the accused is required during trial, but it is evident that corporate bodies will not be able to comply with this requirement or their legal representatives will be required to appear. What will happen when a fine is imposed on the corporate body who doesn’t pay on the spot as required by Section 557 of the Criminal Procedure Code? How will imprisonment in default of payment be executed against the corporate body? Other questions remain unsettled by the law, such as the mode of summoning a corporate body to appear in court and how criminal records of corporate bodies shall be kept.

1.2.1 Final Closure of Establishment

Section 25-3 PC provides the final closure of business or professional premises where a corporate body is situate resulting in the prohibition of the accused corporate body from carrying out the activity through which the offence was committed.

Per Section 34, when the court orders closure of establishment of any premises devoted to any gainful activity which was used to commit an offence, the closure shall carry with it a ban on the exercise of the same business or industry or activity in the same premises, and the ban includes persons to whom the premises may be subsequently transferred by sale, lease or concession.

Section 18 tacitly excludes natural persons from the sentence of closure of establishment.

1.2.2 Temporary Closure of Establishment

Where the sentence of closure is temporary, it may not exceed five (05) years and may not be suspended regardless of whether the corporate body is a first-time offender, or whether a previous conviction has been expunged.

Although in the previous law the principal penalty of closure of establishment applied to natural persons, Section 18 PC implicitly reserves it to corporate bodies exclusively.

1.2.3 Dissolution

Since like natural persons corporate bodies can commit capital offense and corporate criminal responsibility has been enshrined in the new penal law, it goes without saying that capital punishment should also be passed against them as it is passed against natural persons. Section 25-2 has provided for dissolution in lieu and place of the death sentence.

The law provides that such a sentence may be passed against corporate bodies which act in violation of their object clause (ultra vires).

When the court dissolves a corporate body, it refers it to the competent high court for winding up at the instance of the legal department.

1.2.4 Fine

Section 25-1 PC defines a fine as a pecuniary penalty by which a convict whether a natural person or a corporate body is sentenced to pay an amount of money specified by law into the public treasury.

Fines applicable to corporate persons are five (05) times those provided for natural persons, for example, where a fine of 25,000 FCFA is legally prescribed for natural persons, the judge shall pass a sentence of fine of 125,000 FCFA for corporate bodies.

Moreover, since moral persons are a legal abstraction and cannot serve prison sentences, the law has provided for offences committed by moral persons punishable with imprisonment only to be commuted by the judge to a fine of from one (01) million to five (500) hundred million FCFA.

Chapter Two

Alternative Penalties

The term alternative used in the context of the penal law alludes to penalties which are passed instead of the traditional principal penalties of imprisonment or fine. All crimes punishable with crime only may be replaced with an alternative penalty. There are basically two alternative penalties which are community service and reparatory sentence. The intent of the legislator is to combat prison crowding.

The availability of alternative sentences obeys a two-years imprisonment sentence threshold provided by the legislator. Hence, offenses punishable with imprisonment of up to two (02) years may not be replaced by community service, as offenses punishable with imprisonment of more than two (02) years may not be replaced with reparatory sentence.

Strangely, the law provides for a regulation to follow, laying down the implementing text, contrary to the constitution which reserves penal law-making to parliament.

The law excludes certain categories of offenses from alternative sentences, specifically: offenses against the law of arms, sexual offenses, and bodily injury offenses.

2.1 Community Service

Community service is executed, without remuneration, for the benefit of a public corporation, a private corporation in charge of a public service mission or an association performing community service. The law requires that the convict give his prior consent to his imprisonment or fine sentence being alternated with community service.

Community service sentence is fixed in the court’s judgement between two hundred (200) hours to two hundred and forty (240) hours. It appears it is a sentence which the legislator wants the convict to serve within a maximum period of two (02) months.

The community service comes in an alternative judgement in the sense that it states an alternative unsuspended prison sentence to be served in default of performance of community service.

2.2 Reparatory Sentence

The intent of the legislator is to provide an opportunity for an offender to make amends to the victim of his offense in some categories of crimes not considered to be too serious. In such a sentence, the court orders the convict to indemnify the victim by providing pecuniary or monetary payment for the victim’s damage or loss within a prescribed period and under conditions laid down by the court. It is an alternative judgement stating an alternative unsuspended prison sentence to be served in default of performance of reparatory sentence.

It is very tempting to confuse the bottom-line of the reparatory sentence with the civil claim or the special obligation that the court has discretion to impose on a convict to compensate the victim for damage caused by his offense provided in Section 42 (6) PC.

Chapter Three

Accessory Penalties

Accessory penalties are those that accompany, or which are added to principal penalties. They include: (1) forfeitures, (2) publication of judgement, (3) ban on exercise of the same business, industry or activity in the premises of the closed establishment, (4) judicial supervision, and (5) confiscation of corpus delicti.

3.1 Forfeitures

Forfeitures entail the loss of certain rights, property or money as a result of conviction for an offense. They include six (06) rights:

• removal and exclusion from public service, employment or office,
• incapacity to be juror, assessor, expert referee or sworn expert,
• incapacity to be guardian, curator, deputy guardian or committee, save of offender’s own children, or member of a family council,
• prohibition on wearing decorations,
• prohibition on serving in the armed forces,
• prohibition on keeping schools, teaching in schools, holding any position of responsibility related to education or child care,

A life sentence goes pari passu with all the above forfeitures. Felonies also carry with them these forfeitures for the period of the sentence and ten (10) years after their expiry or release on licence unrevoked. The court may relieve from forfeitures or reduce the duration of the forfeitures to not less than two (02) years by a reasoned judgement.

Where a judgment with forfeitures is delivered in default of the convict, the forfeitures shall take effect from the date of publication of notices to that effect.

Section 121 provides for limitations on reduction on the period of forfeitures in case of crimes against the security of the state.

3.2 Publication of judgement

This accessory penalty is applicable to both natural and moral persons. Publication, usually of the verdict only, is for up to two (2) months for felonies and misdemeanours and fifteen (15) days for simple offences on any media platform ordered by the court at the convict’s expense.

3.3 Ban on exercise

Provided by Section 34 refers to ban on exercise of the same business, industry or activity in the premises of the closed establishment.

3.4 Judicial supervision

Judicial supervision, per Section 34-1 PC is applicable to corporate persons and consists in the appointment of a judicial representative to supervise, on behalf of the court, the convicted corporate body in respect of an activity of which the offence was committed. The judicial representative renders account of his supervision to the competent state counsel. The corporate body is relieved of the measure at the end of the judicial representative’s mission and based on his report upon the state counsel seizing the court which ruled on the penalty.

Despite the above-cited provisions, per Section 246-250 of the Cameroon Criminal Procedure Code (CPC), judicial supervision is applicable to natural persons and may be ordered by the examining magistrate, the trial court and the Inquiry Control Chamber against the defendant or accused. When an order of judicial supervision is made against a natural person, the judge or court orders him/her to either comply with one or more of the special and general obligations of Sections 41 and 42 PC or to comply with one or more of the conditions provided in Section 246 CPC. The court may equally, in lieu and place of judicial supervision, simply remand the defendant or accused in custody.

The judge or court may vary some or all the obligations under the judicial supervision or simply revoke it entirely, either suo motu, or at the accused or defendant’s motion.

Where the person under supervision violates any of the obligations under supervision, the judge or court may issue an arrest or bench warrant against him or remand him in custody, without regard to the imprisonment sentence to which the defendant or accused may be liable.

3.5 Confiscation of corpus delicti

This penalty concerns strictly felonies and misdemeanours in relation to property used as an instrument of commission of a crime or proceeds of a crime. Such property may be confiscated under simple offenses where a law provides for such confiscation.

Sections 118 – 120 PC specifically mandates the ordering of confiscation of property found in the offender’s possession not belonging to the offender, property which the offender cannot show lawful title to or even property lawfully acquired by the offender, where the offender is convicted of offences against the security of the state (hostilities against fatherland, espionage, treasonable offences, failure to report, secession, civil war, propagation of false information, revolution, armed band, insurrection, etc.).

3.6 Other Accessory Penalties contained in Specific instruments

Other accessory penalties provided in other instruments include:

• temporal or final exclusion from public contracts,
• prohibition from issuing cheques other than those necessary for withdrawal of funds by the company itself directly from the bank,
• prohibition from the use of bank cards.

Chapter Four

Preventive Measures

As above-mentioned, some of the objectives of criminal law are to prevent crime and protect society at large and, to subject to public control persons whose conduct suggests that they are disposed to commit crimes. Preventive measures are intended to fulfil just this purpose, by eliminating or substantially reducing risk of crime commission by setting in place the necessary precautionary mechanisms to avert crime commission.

The PC provides for the following five (05) preventive measures: (1) banned occupation or prohibition, (2) preventive confinement, (3) post-penal supervision and assistance, (4) confinement in a health institution, and (5) confiscation.

These measures are mostly geared at averting recidivism or threatened crimes and are pronounced by the court when there is reason or cause, leading the court or judge to think that recidivism or criminal conduct is possible without preventive measures, hence their implementation has nothing to do with the guilt or conviction of the person subjected under them.

4.1 Banned Occupation or Prohibition as a Preventive Measure

This measure applies both to natural persons as well as corporate bodies. It is distinct from the accessory penalty of ban on exercise of the same business, industry or activity in the premises of the closed establishment provided by Section 34 PC which accompanies closure of establishment.

In this case the court bans the convict from continuing to carry out the occupation which is in direct relation to the offence where the court has cause to apprehend recidivist behaviour or where the convict has recidivist tendencies.

The law provides for the ban to be between one (01) year and five (05) years, after the completion of service of the principal sentence or penalty.

Where the measure is ordered against a corporate body, the latter shall be prohibited, for a specified period, from directly or indirectly undertaking one or several activities contained in its object clause.

Where the convict re-offends or repeats the offence, within the period of five (05) years following execution or expiry of sentence, and where the crime was a felony or misdemeanour, the ban is pronounced by the court for life, besides a sentence double the maximum sentence provided for the offence.

4.2 Preventive Confinement

It is a measure to protect the public from criminals and entails the confinement of an offender for from five (05) to twenty (20) years under a work and social reformation programme during which the convict is confined in a special establishment or in default of that separately from convicts serving a prison sentence.

This measure applies to persons who commit repeat offences within a ten (10) year interval, taking into consideration the recent or newly committed offence. The category of persons contemplated by the law upon whom preventive confinement may be applied are recidivists who within a ten (10) years interval prior to their latest offence, have been convicted of:

• two (02) felonious charges punishable with imprisonment or with death commuted into imprisonment;
• one (01) felonious charge and two (02) misdemeanours each punished with more than one (01) year imprisonment;
• four (04) charges of misdemeanour each punished with imprisonment of more than one (01) year.

The computation of the ten (10) years interval excludes principal sentences already served and preventive measures entailing personal restraint.

Preventive confinement exempts persons aged less than twenty-five (25) years and more than sixty (60) years, at the expiry of their principal sentence.

4.3 Post-Penal Supervision and Assistance

This preventive measure is analogous to the penalty of judicial supervision provided in Section 246-250 CPC to the extent that the judge or court orders the offender to comply with one or more of the special and general obligations of Sections 41 and 42 PC, just as in judicial supervision under the CPC.

Under Section 40, where the circumstances warrant and for reasons to be recorded in the judgement, offenders sentenced to imprisonment for more than one (01) year may be subjected by the court to up to five (05) years of post-penal supervision and assistance, consisting of subjecting the offender to general and special obligations provided in Sections 41 and 42 PC.

Compliance with these general or special obligations is supervised either by a magistrate appointed for that purpose or by a police authority in case of repeat offenses of felony or misdemeanour.

The general obligations include, residence, appearance, supervision of means of subsistence, control of change of employment or residence, notified absences, control of travel abroad of the convict.

The special obligations include, imposed residency, prohibited presence in specified places, employment or training, obligatory control measures or treatment, maintenance, compensation for damages, driving prohibition, prohibition to visit specified places, prohibition to wager, alcohol consumption prohibition, and prohibition to entertain specified persons.

Section 121 (3) PC provides that the duration of measures may be extended to ten (10) years in case of offences against the security of the state.

4.4 Confinement in a Health Institution

Confinement in a health institution is reserved for offenders acquitted of a felony or misdemeanour punishable with two (02) years imprisonment on a defense of insanity but who represent a danger to society and addicts or persons suffering from mental illness who have been convicted of a felony or misdemeanour punishable with two (02) years imprisonment or more whose liberty represents a danger to the public. The maximum period of confinement is two (02) years for addicts and five (05) years for cases of mental illness.

The confined person is relieved of the confinement by the court which orders his confinement when a medical authority attests that his liberty is no longer a public danger.

4.5 Confiscation as a Preventive Measure

It is critical to differentiate confiscation as a preventive measure from confiscation as an accessory penalty which concerns strictly felonies and misdemeanours in relation to property used as an instrument of commission of a crime or proceeds of a crime.

The preventive measure of confiscation under Section 45 PC applies to the confiscation of anything whose manufacture, custody, sale or use is unlawful. It is immaterial whether the thing preventively confiscated belongs to the offender or whether prosecution does not result to conviction.

Chapter Five

Recognizance & Concurrent & Consecutive Sentencing

5.1 Recognizance

We are already familiar with the recognizance required for bail under Section 222 et seq., CPC, however, recognizance here is a special measure which applies to persons who by their conduct or words have exhibited an unambiguous intention to commit a crime liable to disturb the public peace. The president of the competent court orders such persons to enter into a recognizance with or without solvent sureties in such sums as he may fix, regard being had to the obligee’s resources, to refrain from commission of any offence of the like nature for a judicially specified period which may not exceed one (01) year, except where the person concerned is a habitual offender, in which case the period of recognizance can go up to three (03) years.

The measure is equally available for minors aged less than 18 years, for whom parents, guardians or custodians may enter recognizance, engaging themselves to forfeit the specified sum where the minor commits any similar act within the specified period. The obligor may not forfeit the said sum if he proves that he took all necessary steps to avoid the minor’s commission of the offence.

Failure to enter recognizance when ordered results in immediate custody which may not exceed the period of recognizance. Where the recognizance is entered during custody, the obligee shall be set free. Where the obligee is not a minor, the court may alternatively order in lieu of custody, pursuant to Section 42 (1) & (2) PC, that the obligee should take up residence in a place specified by the court and not to be present without special temporary permission in specified places.

If the obligee breaches his recognizance and is convicted of the crime or any similar crime apprehended in the recognizance, the court shall order the forfeiture of the sum fixed which shall be enforced against the obligor as though it were a fine, that is by bodily restraint or other means provided by the civil law.

5.2 Concurrent & Consecutive Sentences

Whether sentences “run” back to back (consecutive), or are served at the same time (concurrent) is a question that the Penal Code has clearly regulated. Indeed, the Penal Code enshrines a general rule against consecutive back to back principal sentences but provides for circumstances where sentences may be allowed to be served consecutively, that is back to back.

5.2.1 The Rule Against Consecutive Sentencing

Per Section 51 (1) PC where a person is prosecuted and convicted for several felonies, or misdemeanours, or for several related simple offenses, the most severe sentence for one of the charges under which he is convicted shall be pronounced against him.

Likewise, if at the outset of separate trials several imprisonment and/or fine sentences on felony or misdemeanours are pronounced against the convict, Section 51 (2) PC gives the court entertaining the latter trial, the discretion to order such sentences to run concurrently – that is the sentence of the earlier trial and that of the later trial, as though they had been tried jointly. Where such an order for sentences to run concurrently is not made by the judge trying the subsequent matter(s), and the sentences are ordered to run chronologically (consecutively) instead, the law provides that the convict may, however, not serve more than the maximum sentence prescribed for the most severely punished offence.

In the computation of the sentence term, the judge considers reductions in sentences resulting from remissions. The law forbids the court from ordering sentences to run concurrently with other sentences which had already become final before the act or omission in respect of which the subsequent sentence is passed.

An example of a concurrent sentence could be the conviction of an accused who intentionally set a house on fire with the intention of killing an occupant, both for arson & destruction (Section 227 PC) and attempted capital murder (Sections 276 & 94 PC). The more serious sentence which is the capital offence of attempted capital murder, will be the sentence which the convict will serve although he was convicted for both offences, which is death.

5.2.2 Consecutive Sentencing

As an exception to the rule against consecutive sentencing, sentences pronounced for simple offenses do not run concurrently unless the court so orders. Also, accessory penalties, alternative penalties and preventive measures run consecutively as between themselves, unless the court orders otherwise.

Accessory penalties as well as confinement in a health institution are immediately enforceable, while preventive measures are enforceable only at the expiration or suspension of principal penalties.

Consecutive imprisonment which may be exceptionally ordered are executed in the chronological order in which the imprisonment warrant is notified to the convict, so that the latter sentence passed may not begin to be served until expiry of the former jail term.

Where an accessory penalty or the preventive measure of confinement in a health institution against insane persons is passed, they begin to run from the date they become final, while the other preventive measures of ban on occupation, preventive confinement, post-penal supervision & assistance, and confiscation begin to run only from expiry or suspension of the principal sentence.

Where preventive measures run consecutively, they shall be enforced in the following order, firstly confinement in a health institution, secondly preventive confinement, and lastly post-penal supervision and assistance.

It happens that while a person is subjected under a preventive measure which is ongoing, he commits a felony or misdemeanour for which he is convicted and sentenced. When this happens, the law mandates the suspension of these preventive measures until the convict has served the sentence for which he has been convicted again.

Chapter Six

Suspension & Remission of Sentences

6.1 Suspended Sentence

The suspension order, which takes effect from the date when judgement becomes final, operates to stay enforcement of an imprisonment sentence for a period between three (03) years and five (05) years and does not apply where the offence is punishable with imprisonment only and the court has substituted or commuted the imprisonment with a fine[8]. In such a case the fine sentence may not be suspended. The prerequisites for suspending a sentence are the following:

– that the convict either has no previous imprisonment sentence or such sentence has been expunged,

– that the offense for which suspension is ordered is a felony or misdemeanour for which the court has pronounced a maximum sentence of five (05) years or a fine,

From the foregoing, it is evident that the persons contemplated by the measure are those upon whom the court may not naturally be too severe on because they are not recalcitrant and may be worthy of a second chance in view of their particular circumstances.

The law prohibits the suspension of some penalties, such as alternative penalties. Likewise, the law prevents suspension of sentence from having any effect on accessory penalties or preventive measures resulting from the conviction.

If during the suspension period the convict does not commit any offence punished with a sentence of imprisonment, upon the expiry of the period he shall be rehabilitated[9] by the expungement of the conviction of felony or misdemeanour and the automatic expiry of any accessory penalty or preventive measure pronounced against him, except preventive measures of confinement in a health institution or closure of establishment. Where there are several convictions, rehabilitation shall apply to all convictions.

If during the suspension period the offender is sentenced to imprisonment following the commission of a felony or misdemeanour offence for which suspension on probation is not ordered, the suspended sentence as well as the new sentence shall be served consecutively, with the suspended sentence being served first.

6.2 Probation or Suspension with Probation[10]

Probation is a measure which subjects an offender to general obligations of residency, appearance, supervision of means of subsistence, control of change of employment or residence, absences, control of travel abroad of the convict and/or additionally to special obligations of imposed residency, presence in specified places, employment or training, obligatory control measures or treatment, maintenance, compensation for damages, driving prohibition, prohibition to visit specified places, prohibition to wager, alcohol consumption prohibition, and prohibition to entertain specified persons[11].

While general obligations are consubstantial to probation, special obligations may only be added by order of the court in appropriate cases. Compliance with these obligations is supervised by a magistrate who is assisted in his duties by honorary probation officers. The supervising magistrate may at any time and for reasons to be recorded in writing, suspend all or any of the special obligations or vary them, although they may not become more burdensome upon variation.

Suspension with probation, which is for a period between three (03) years and five (05) years, may be ordered in the same conditions as suspension – provided the jail term is six (06) months or more. Suspension with probation may equally be granted to offenders with a previous prison term suspended without probation or with a previous unsuspended sentence of imprisonment for less than six (06) months.

Where the offender infringes any obligation during the probation period, the court may order the enforcement of the sentence. The order of enforcement does not revoke any previous suspended sentence.

Where the probationary period expires without any infringement on the offender’s part, the conviction shall be expunged, and an end shall be put to accessory penalties and preventive measures, except confinement in a health institution or closure of establishment[12].

6.3 Release on Licence

Per Section 61, it is premature or early release of an imprisoned person or one subjected to a restrictive preventive measure. It is an administrative, and not a judicial measure the modalities of which are defined by decree – granted or revoked by decree.

This provision opens the door for the executive branch of the state to interfere in penal law-making contrary to Article 26 (2) of the Cameroon Constitution which expressly gives such powers to parliament, to the exclusion of the executive and judicial branch of the state, to define crimes, institute penalties, define criminal procedure, etc. Accordingly, the Cameroon Bar Association has recommended that a law be enacted instituting the judge competent to grant and revoke release on licence.

Section 63 PC tightens the situations in which release on license may be granted, for example, where a principal penalty has been pronounced against a person, he may be released on licence only after serving half (1/2) of his sentence or the aggregate of the consecutive sentence. Recidivists are excluded from a possible grant of release where they have not served at least two-third (2/3) of their principal sentence. Section 693 (2) CPC provides that release on licence from preventive confinement should not be granted before service of five (05) years of the sentence.

Where the offender is released on licence which is not subsequently revoked, such release shall become final once the sentence expires. Unlike other measures, release on licence can have suspensive effects on orders of confinement in a health institution, of preventive measures of post-penal supervision and assistance and banned occupation imposed in pursuance of a principal penalty.

The suspension of measures of confinement and other preventive measures becomes final five (05) years after the expiry of the principal penalty. Release on licence may be revoked where the offender is subsequently convicted for felony or misdemeanour or where he breaches any of the general or special conditions of the licence. Where the licence is revoked the offender shall serve the full term of his sentence.

6.4 Suspension of Post-penal measures

As already mentioned, post-penal (preventive) measures are those provided in Sections 40, 41 and 42 of the PC, including special and general obligations, which may be suspended or varied by the court which ordered them at the proposal of the supervising magistrate appointed to superintend the offender. This power cannot, however, be exercised to make the supervision more burdensome for the offender.

Suspension may equally be revoked in the same circumstances and the duration of the suspension is considered in the computation of the duration of the measure. It was indicated earlier that the preventive measure of post-penal supervision and assistance is analogous to the penalty of judicial supervision provided in Section 246-250 CPC. Accordingly, it is not far-fetched to conjecture that the rules applicable on one are equally applicable on the other as seen specifically in Sections 247, 248 and 249 CPC.

6.5 Pardon

6.5.1 Legal Basis of Pardon

Abraham Lincoln is popular for saying that, “I have always found that mercy bears richer fruits than strict justice.” Accordingly, for ages now, criminologists and lawmakers have theorised that if one of the scales of justice is cumbered with the strict rudiments of law, the other is to be weighed with mercy. It is this assertion that arguably forms the basis for the theory of pardon[13] in criminal law today. The Cameroonian legislator has followed this global trend in criminal law by enacting presidential pardon in its law.

Per Section 66 PC pardon is the partial or total and/or conditional or unconditional commutation[14] or remission[15] of a penalty or preventive measure or of the obligations of a probation order.

Article 8(7) of the Cameroon Constitution provides that the President of the Republic shall exercise the right of clemency (pardon) after consultation with the Higher Judicial Council[16].

Traditionally, in Cameroon pardon is granted exclusively by presidential decree which defines the categories of persons eligible[17]. According to the law, once such a decree is passed, eligible persons are to seize the Minister of Justice with an application for release on the heels of the presidential pardon. It is only after this application is processed that eligible persons are released.

Per Section 14 et seq., of the 1982 law organising the Higher Judicial Council, prior to the decree granting pardon, applicants seize the Minister of Justice with an application for pardon and the minister transmits the file alongside his opinion on the grant or rejection of the application for pardon to the Secretariat of the Higher Judicial Council. Where the application for pardon concerns the death penalty per Section 22 (1) & (2) PC, the opinion shall be expressed by the Higher Judicial Council and not the Minister.

The President’s decision rejecting the application for grant or decree granting pardon are notified to the applicants and enforced by the Minister of Justice[18].

6.5.2 Legal Effects of Commutation & Remission of Sentences

Section 1 (1) of the above-mentioned 2014 decree remitting and commuting sentences provides that persons originally sentenced to death shall have their sentences commuted to life imprisonment, while Section 1 (5) provides for total remission of the remainder of sentences for convicted persons, serving a prison sentence, who have already served more than ten (10) years imprisonment for misappropriation of public funds.

Although traditionally the presidential decree granting pardon exempts several offenses from its application[19], there is no law exempting any crime from pardon.

Section 578 CPC provides that criminal records are nullified or expunged uniquely by a judgement of acquittal, review procedures, or amnesty and rehabilitation. Therefore, pardon does not lead to expungement or to the withdrawal of index cards entered on criminal records recording sentences and preventive measures.

Section 680 (5) CPC provides that the partial or total remission of a sentence shall amount to its partial or total execution.

Likewise, Section 577 provides that the index card of a criminal record should mention pardons.

Chapter Seven

Expungement of Conviction

7.1 Rehabilitation

7.1.1 The Rule of Rehabilitation

Per Section 69 PC, the principal purpose of rehabilitation is expungement of conviction for felony or misdemeanour. It equally terminates accessory penalties and preventive measures, except for confinement in a health institution or closure of establishment. Rehabilitation applies to multiple convictions. Rehabilitation may be granted as of right where so provided by law or by court judgement.

The offender applying for grant of rehabilitation must show proof that he has paid all costs and damages pronounced against him or that he was imprisoned in default of payment. The law also provides for provision of proof of discharge of liabilities in case of a conviction for fraudulent bankruptcy. Where the applicant cannot pay damages pronounced against him to the civil claimant, he shall pay same into the deposit and guarantee fund and show proof of such deposit.

Section 679 CPC provides that an application for rehabilitation may be lodged only after five (05) years in case of conviction for felony and three (03) years in case of a sentence of loss of liberty or fine, and where the applicant has previous convictions the application may be filed only after ten (10) years for felonies and six (06) years for sentences of loss of liberty or fine.

Per Section 680 CPC rehabilitation is deemed to be as of right where an offender has not had any further sentence of imprisonment for felony or misdemeanour and he may be rehabilitated on the expiry of a period of five (05) years for a sentence of fine, ten (10) years for a single sentence of imprisonment of up to six (06) months, fifteen (15) years for a single sentence of up to two (02) years, twenty (20) years for a single sentence of up to five (05) years, and fifteen (15) years for an aggregate sentence of more than one (01) year but less than two (02) years. Further, concurrent sentences are counted as a single sentence. Persons who have been convicted after rehabilitation may apply for rehabilitation only after the expiry of a period of fifteen (15) years.

Section 71 PC provides for application for rehabilitation to be made after five (05) years where the applicant was convicted for felony and three (03) years in case of misdemeanour with the time limits running from the day after release or payment of fine. Persons with previous convictions may apply only after ten (10) years for felonies and six (06) years for misdemeanours.

The law does not provide for grantees of rehabilitation to be restored previous decorations or reintegrated in any orders forfeited or reinstate in public service or employment, rank or ministerial offices or any restitution of career. Others rights shall be restored such as parental authority, guardianship, electoral rights, and capacity to testify as witness.

Grant of rehabilitation does not terminate police supervisory and security measures against the ex-convict nor result in reimbursing of pecuniary penalties.

The grantee may, after rehabilitation, apply for review of judgement to establish his innocence.

7.1.2 Application for Rehabilitation

According to Section 684, the application for rehabilitation is addressed to the state counsel of the place of residence of the convict indicating where the applicant has lived since his release. The application shall include: a copy of the judgement, an extract of the convict’s criminal record, proof of payment of fines, and costs and damages.

The state counsel then prepares a file which he transmits to the Procureur General of the competent appeal court together with his opinion on the grant or rejection of the rehabilitation. To this effect, the state counsel procures a copy of the judgement, an extract of the disciplinary conduct records of the convict from the prison where he was serving his sentence, and an extract of the convict’s criminal records.

The Procureur General of the Court of Appeal then seizes the Court of Appeal with the application for rehabilitation which gives its ruling within two (02) months from date it was seized, after a public hearing during which the Procureur General and the convict and/or his counsel are heard.

In case of rejection of the application, the applicant can refile only after three (03) years, except where the ground for rejection was that the application was filed in disregard of the time limit provided in Section 680 CPC.

Where the application is granted, the conviction shall be expunged, and the index of the convict’s criminal record shall no longer mention any conviction and the rehabilitation is recorded in the margin of the judgement of conviction.

The law allows applications for rehabilitation to survive the decease of the applicant or the convict which may be followed by the convict’s spouse, ascendants or descendants or the legal department in case of the applicant’s passing.

7.2 Amnesty

The English word amnesty derives from the Greek word “amnêstia” which literally means “memory loss” or “to forget”. Historically, this exceptional measure is usually taken to restore civil tranquillity by appeasing the socio-political climate. It expunges conviction with the result that they are erased from the records of the ex-convict’s criminal record.

Article 26 (2) of the Cameroon Constitution expressly gives powers to parliament to grant amnesty. In Cameroon, the last time parliament granted amnesty was in 1991 via Law No. 91/002 of April 23, 1991 in the context of a political crisis. In that case, it was used to liberate “political criminals”. It may be personal as well as impersonal.

Section 73 (1) PC provides, “without prejudice to any civil right, an amnesty shall expunge a conviction and shall put an end to the enforcement of all penalties, whether principal or accessory, and of all preventive measures pronounced in consequence of the conviction, save confinement in a health institution and closure of establishment.”

Basically, an amnesty law can do anything, except relieve from confinement in a health institution and closure of establishment. Section 73 (5) even grants parliament discretion to restore any decoration or order forfeited, restoration to public service, employment, office, and positions in public office.

In principle, amnesty bars commencement or continuation of prosecution[20], although pecuniary sentences which have become final remain due unless otherwise provided by the law.

The grantee of an amnesty law may however proceed to seek review of his conviction with a view to establish his innocence.

In view of Kelsen’s hierarchy of norms, one may ask what happens when an amnesty law violates other laws such as the Penal Code or the Criminal Procedure Code? Will it abrogate the conflicting provisions of the older laws?

Another problematic issue concerning amnesty laws, as with many other laws, in Cameroon is the fact that they are drafted in a way that many details are left to be specified by decree. This is a clear instance of abandonment of parliamentary prerogatives in the hands of the executive branch of government which appears to defeat the purpose of the devolution of such powers to parliament in the first place.

Chapter Eight

Effects of Irresponsibility, Diminished Responsibility, & Aggravating and Mitigating Circumstances & Selection of Sentence

8.1 Effects of Irresponsibility & Diminished Responsibility

A person’s criminal responsibility is established when it is proved that he intentionally committed each of the ingredient acts or omissions (actus reus) of a lawfully defined offence with the intention (mens rea) that the effects of his acts or omissions should result to the realisation of an offence. It is only when a person’s criminal responsibility is so established that a penalty may be imposed on him.

The law has however, provided defences which will result to a person’s criminal irresponsibility[21] leading to his discharge or acquittal or diminish[22] his criminal responsibility which eventually leads to commutation of sentence, with death penalty or life imprisonment commuted to imprisonment for from two (02) years to ten (10) years, felonies commuted to imprisonment for from one (01) year to five (05) years and misdemeanours commuted by half maximum and or to a minimum sentence of five (05) days or to one (01) FCFA in case of misdemeanour.

Section 87 (2) PC provides for circumstances where responsibility is diminished for several reasons or where there are in addition mitigating circumstances. In such cases, the minimum sentence is ten (10) years for felonies punishable with death, and five (05) years for felonies punishable with life imprisonment, and at least one (01) year in other cases of felony.

8.2 Effects of Aggravating & Mitigating Circumstances

The test of mitigation or aggravation[23] circumstances is either an objective one when provided by law, such as where one is a civil servant, and a subjective one where the judge is directed by law to select an appropriate sentence in view of circumstances and practical considerations[24].

Generally, aggravating circumstances will lead to a doubling[25] of the maximum sentence punishable under the crime, while for mitigating circumstances, which may be expressly excluded by law, in case of felonies the minimum sentence pronounced is ten (10) years of imprisonment for offences punishable with death, five (05) years imprisonment for offences punishable with life imprisonment and at least one (01) year for other felonies. The court may accompany such reductions with a fine of up to two million FCFA.

Where mitigating circumstances are found in cases of misdemeanours or simple offences, the court has the discretion to reduce the sentence to five (05) days and a fine sentence to one (01) FCFA.

8.3 Selection of Sentences & Judicial Discretion in Sentencing

Section 93 PC guides the court on sentencing by providing criteria which will determine the penalty finally imposed by the court. These criteria are:

– the circumstances of the offence;

– the danger which the offence may represent to the public;

– the circumstances of the offender;

– the likelihood of the offender’s reformation;

– the practical means of executing the sentence;

The law specifies that the sentence of penalty or measure must vary within the limits prescribed by law. For the sake of illustration, let us take the military offence of flag desecration provided by Section 43 of the 2017 Military Justice Code. The ingredient acts of the offence are the desecration by words or gestures of the national flag by whosoever or failure by servicemen to pay respect to the national flag. In the former case the punishment is imprisonment for from three (03) months to three (03) years, while in the case of servicemen the punishment is imprisonment for from six (06) months to five (05) years.

The proper exercise of judicial discretion, bearing in mind the criteria laid down in Section 93 PC, is for the judge to sentence whosoever to a minimum imprisonment term of three (03) months and a maximum imprisonment term of three (03) years.

Section 30 of the Military Justice Code further provides that the sentences and measures applicable in military offences, the criminal responsibility regime[26], as well as the conditions for the adjustment of sentences[27] by the judge are those provided in the Cameroon Penal Code. This implies the application of Book I of the Penal Code, especially the penalties, measures and the effects of mitigating and aggravating circumstances on sentencing.

Therefore, where an adult person is found guilty of flag desecration contrary to Section 43 of the 2017 Military Justice Code, which is a misdemeanour punishable with three (03) months to three (03) years imprisonment, and mitigating circumstances are found, the court may, pursuant to Section 92 (1) (2) PC reduce the imprisonment to five (05) days or substitute imprisonment with a fine of up to 1 million FCFA. Where no mitigating circumstances are found, the court has discretion to sentence the convict to any sentence between three (03) months and three (03) years. The court may accompany such sentence with preventive measures.

The judge cannot order community service or reparatory sentence in the case of flag desecration because it is punishable with imprisonment of up to three (03) years, thus exceeding the two (02) years threshold provided by law for alternative penalties. The preventive measure of recognizance may be ordered where applicable and the judge may equally suspend the sentence with or without probation as the case may be, if the convict is a remorseful first-time offender.

One thing is certain, the inevitable outcome of discretionary sentencing is the various sentences that may be passed by different judges or courts for the same crime. This can result to treating litigants unequally before the law, which is unconstitutional and is a technical violation to the right to a fair trial. Whether consciously or unconsciously, the reality is that all offenders are not treated equally before the law; discrimination in sentencing is widespread. Moreover, the law provides clear guidelines on sentencing in particular offences, nevertheless, in most cases the judge exercises a degree of discretion in sentencing.

It is trite that judicial discretion does not operate in a vacuum. Lord Mansfield had this to say about judicial discretion in the case of R. v Wilkes (1770) 4 Burr, 2527, 2539: “Discretion when applied to a court of justice means sound discretion guided by law. It must be governed by rule not by humour; it must not be arbitrary, vague or fanciful; but legal and regular.”

In the Australian case of R v Veen[28], the High Court captured the challenge judges face during sentencing in these words: “… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment … the purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.  They are guideposts to the appropriate sentence, but sometimes they point in different directions”.

Be that as it may the sentencing judge must try to strike the balance between delivering retribution for the community; deterring other would-be criminals from breaking the law; rehabilitating the offender to prevent re-offending and protecting the community from the harms of anti-social, criminal behaviour[29].

In R v Neal[30], affirming the principle of equality before the law, Brennan J emphasized that, “The same sentencing principles are to be applied…in every case, irrespective of the identity of the particular offender or his membership of (any) group.” This is so much more important as it maintains public confidence in the judicial system as a legitimate social institution[31].

8.4 The Principle of Proportionality in Sentencing

It is an accepted principle in every criminal justice system in the world that the amount of punishment should reflect the degree of the injury caused by the crime, hence the severity of punishment should necessarily be directly proportionate to the seriousness of the offence committed. Accordingly, a rhetorical question has been posed following the syllogism that if punishment is the price paid for evil which is crime, what then is the fair and just price to pay for each crime and how does justice ensure that this balance is kept always? Where this balance is not reflected in sentences handed down by the courts, it arouses a sense of injustice in litigants and the public at large.[32]

The best illustration of the enshrining in law of this principle is to be found in Article 49 (3) of the EU Charter of Fundamental Rights of December 7, 2000 which provides that, “The severity of penalties must not be disproportionate to the criminal offence”. This principle is tacitly enshrined in Cameroon criminal law by the statutory brackets provided for the punishment of various offences beyond which the judge cannot rule. This institutionalises limits on punishment.

[1] Section 59 CPC.

[2] Canadian Sentencing Commission 1987, 153.

[3] Section 389 CPC.

[4] Section 21 Cameroon Penal Code. Section 65 of the Criminal Procedure Code provides for time barring of prosecution for the various categories of offenses as ten (10) years for felonies, three (03) years for misdemeanours and one (01) year for simple offenses.

[5] There are more than twenty-eight (28) capital offences under Cameroon penal law provided in the Penal Code, the Military Justice Code (2017), the 2014 law on terrorism, Section 4 of the 1989 law on toxic and dangerous waste, the 1983 law regulating police authorities within seaports, Section 9 of the 1995 law on radioprotection, etc. They include, for the main: hostility against fatherland (S.102 PC), treason (S.103 (a) PC), espionage (S.103 (b) PC), sabotage (S.103 (c) PC), secession (S.111 (2) PC), provocation of civil war (S.112 PC), concert against the security of the state (S.124 (3) PC), assault on public servant (S.156 (5) PC), depredation by band in time of war (S.236 (3) PC), capital murder (S.276 PC), aggravated theft with use of force occasioning death or grievous harm (S.320 (2)), murder of children under 15 years (S.350 PC), murder of ascendants (S.351 PC), aggravated kidnapping occasioning death of minor (S.354 (2) PC), and under the 2014 terrorism law we have: acts of terrorism (S.2 (1) and  S.2(2)), financing of acts of terrorism (S. 3), laundering of proceeds of terrorism (S.4), recruitment and training of terrorists (S. 5), military offenses under Law No. 2017/012 of July 12, 2017 laying down the Military Justice Code include: desertion in war time and/or with conspiracy to join the enemy (S. 34 (4)), abstraction of items in zone of operations from wounded, sick or dead service men and violence (S.51 (2)), treason (S.61), collusion with the enemy (S.62), espionage (S.63), hiring in enemy force (S.64), and use of aircrafts to cause death of persons per Section 10 of Law No. 2017/013 of July 12, 2017 relating to sanctions on violations of civil aviation security, etc. It should be noted that the criminal law provides for the punishment of attempts (S.94 PC), conspirators (S.95 PC), co-offenders (S.98 PC), accessories (S.97 & 98 PC) in like manner as the principal offender(s).

[6] Corporate criminal liability was established for non-feasance and misfeasance in Britain through two leading cases; Birmingham & Gloucester Rail Co. (1842), 3 Q.B. 223 and Great North of England Rail Co. (1846), 9 Q.B. 315.

[7] (1972) A.C. 153.

[8] Section 92 (2) PC.

[9] See Section 676 CPC.

[10] In the French terminologies suspension of sentence is termed “sursis simple” while probation is termed “sursis avec probation”, hence the former could safely be referred to as ordinary suspension while the latter could be termed probationary suspension.

[11] Sections 41 & 42 PC.

[12] Section 676 CPC.

[13] The French text translates pardon as “grâce”, from English word grace which refers to the act of being gracious or acting graciously towards someone who is at fault or forbearance which alludes to one restraining himself, out of kindness and tolerance, from inflicting just retribution to a transgressor or offender. Pardon itself alludes to forgiveness which in turn refers to releasing someone from a debt.

[14] Commutation is substitution of a more severe judicially pronounced penalty or preventive measure or obligations under a probation order against a convict with a less severe one.

[15] Remission literally alludes to a partial or total cancellation or extinguishment of a penalty, preventive measure or other obligations under a judicial order or judgement. Historically it referred to freeing someone by pardon or forgiveness (inferring blotting out of sins in religion).

[16] See Sections 11 (1), 14-17 of Law No. 82/014 of November 26, 1982 laying down the organisation and functioning of the Higher Judicial Council.

[17] See Sections 1 and 4 of Decree No. 2008/175 of May 20, 2008 Commuting and Remitting Sentences. See also the presidential pardon decree signed on February 18, 2014.

[18] The prerogatives of the Minister of Justice are provided in Section 1 (2) pgph 3, Section 8, Section 30 of Decree No. 2005/122 of April 15, 2005 organising the Ministry of Justice.

[19] Section 4 of the 2014 pardon decree excludes absconding convicts, recidivists, capital murder, corruption, aggravated theft occasioning death, drug trafficking, arms traffic, torture, etc.

[20] Section 73 (2) PC and Section 62 (1) (C) CPC.

[21] Accident & physical compulsion, insanity, involuntary intoxication, infancy, threats, obedience to lawful authority, lawful defence and state of necessity.

[22] Partial insanity, minors between 14˃˂18 years, compulsion, and provocation.

[23] Previous convictions, status of civil servant or membership in the liberal professions or holders of public ministerial offices such as bailiffs, notaries, auctioneer, business agent, employees, etc.

[24] Section 93 PC.

[25] Section 88 & 89 PC.

[26] Section 74 et seq., PC.

[27] Section 77-93 PC.

[28] (No 2) (1988) 164 CLR 465, 476.

[29] Justice Jerry Connolly, Human Rights Aspects of Sentencing, Supreme Court of Australian Capital Territory, page. 5.

[30] (1982) 149 CLR 305, 326.

[31] Justice Jerry Connoly op. cit.

[32] Julian V. Roberts, David P. Cole, Making Sense of Sentencing, University of Toronto Press, 1999, page 10.