PRELIMINARY INQUIRY PROCEEDINGS UNDER THE CRIMINAL LAW OF CAMEROON
By Divine Afuba, LLM, London School of Economics, London
- INTRODUCTION: DEFINITIONAL ISSUES
One of the peculiarities of the Criminal Procedure Code (CPC) of Cameroon is that it does not define certain key terms. A good example is the expression “public policy”: this expression is not defined.
The CPC does not define a preliminary inquiry (PI), so we must look to case law to attempt a definition and an explanation of the concept.
In an attempt to draw a line between a PI and a trial, this is what the Inquiry Control Chamber (ICC) of the Court of Appeal of the North West Region had to say in the case of Ayissa Awah Stella, Ayissi Beatrice v. The People and Francis Kimbuh Muh :
“It is also elementary that a preliminary inquiry is an investigation and the examining magistrate is not expected or required by law to form an opinion on the credibility of the witnesses or the truth of the parties’ case. In fact the first duty of an examining magistrate is to determine whether or not the complaint or the holding charge laid before him, prima facie discloses a case that deserves to be investigated by conducting a preliminary inquiry. His next duty which comes at the closure of the preliminary inquiry is to determine whether or not the available evidence discloses a case (even if considered slight) that requires a trial. Proof of that case however is at trial …”
In another case, the same ICC stated:
“Preliminary inquiry is a criminal hearing usually conducted by a magistrate to determine whether there is sufficient evidence to prosecute an accused person. If sufficient evidence exists, the case will be set for trial … We must emphasize here that an examining magistrate is not a trial magistrate or judge therefore he cannot assume the jurisdiction of a trial court; if he does that it would tantamount to exceeding his jurisdiction. His jurisdiction is limited to an investigation of the offence, which entails the discovery of the truth …”
So in a PI, the examining magistrate (EM) – the judicial officer competent to carry out a PI – is only concerned with knowing whether there is enough evidence capable of proving the essential ingredients of the alleged offence; he is not concerned with the guilt of the defendant.
According to section 24 of the 2006 Law on judicial organization, the EM is a magistrate of the bench. However, he shall not be competent to try matters in respect of which he carried out a PI. During the PI, the EM is assisted by a registrar: section 25(2)(a) of the 2006 Law on judicial organization.
- HOW DO YOU TRIGGER A PRELIMINARY INQUIRY?
2.1. The Holding Charge
A PI is carried out by the EM where the state counsel requests him to do so. The judicial act by which the state counsel requests the opening of a PI is called a holding charge: section 143 CPC.
The holding charge preferred by the state counsel must be in writing and must be made against a known or unknown person. It must be dated and signed by the state counsel; it must contain the statement of the offence committed and state that prosecution has not been discontinued: section 144 CPC.
The holding charge is forwarded to the EM through the President of the Court.
At any stage of the PI, the state counsel may request the EM by an act called an additional holding charge to perform any act which he deems necessary for the discovery of the truth and in particular to prefer new charges: section 145(2) CPC.
Where the EM does not consider it necessary to act as required by the state counsel, he issues an order called an order of refusal of further inquiry, which he notifies to the state counsel within 24 hours: section 145(4) CPC.
2.2. The complaint with a civil claim
Pursuant to the stipulations of section 157 of the CPC, any person who alleges that he has suffered injury resulting from a felony or misdemeanor may, when lodging a complaint with the competent EM, file a claim for damages. The complaint in which a victim claims damages sets the criminal action in motion.
The above provisions do not apply to simple offenses or to offenses the prosecution of which is solely reserved for the legal department: section 157(3) CPC.
The victim who triggers the PI must deposit at the court registry an amount of money for defraying the cost of the proceedings. The amount is fixed by order of the EM. An additional deposit may be set during the pendency of the proceedings: section 158 CPC.
NB: where a complaint involving a civil claim results in a no-case ruling, the defendant may bring a civil action for damages against the complainant for malicious prosecution: section 162 CPC. This means that there is an inherent risk in triggering a PI by way of complaint with a civil claim.
- UNDER WHAT CIRCUMSTANCES CAN A PI BE CONDUCTED?
A PI is obligatory in cases of felonies, unless otherwise provided for by law: section 142(1) CPC
It shall be discretionary in cases of misdemeanors and simple offenses: section 142(2) CPC
It shall be obligatory in respect of felonies or misdemeanors alleged to have been committed by minors aged less than 18 years: section 700(1) CPC
It shall be obligatory where a judicial officer is likely to be charged with the commission of an offence. In such a case the competent Procureur Général requests the President of the Supreme Court to appoint an investigating magistrate – and not an examining magistrate – who conducts a PI: sections 629 and 631 CPC.
A PI shall also be obligatory where a military judicial/legal officer is likely to be charged with an offence that falls under the jurisdiction of the ordinary law court: sections 629 and 631 CPC as read with section 24 of the 2008 Law on Military Justice.
- CONFLICTS OF TERRITORIAL JURISDICTION: WHICH EXAMINING MAGISTRATE IS TERRITORIALLY COMPETENT TO CARRY OUT A PI?
The 2006 Law on judicial organization lays down clear rules on the organization of courts. So for instance, it enacts in its section 14(1)(b) that the court of first instance shall be composed of one or more examining magistrates for the PI.
In its section 17(1)(b), it provides that the high court shall be composed of one or more examining magistrates for the PI.
What this means is that the territorial competence of the EM to conduct a PI is concomitant with the territorial competence of the court to which the EM is attached. Section 161 of the CPC is to the effect that “where the examining magistrate seised of the matter is not territorially competent, he shall, after the submissions of the legal department, rule on his lack of jurisdiction and shall request the civil party to seek redress elsewhere.”
But note the wording of section 27 of the 2006 Law on judicial organization:
“As concerns felonies, the examining magistrate of a high court shall be competent to carry out preliminary inquiries throughout the area of jurisdiction of the said high court. However, the examining magistrate of a court of first instance located elsewhere other than at the seat of the high court shall be competent to carry out preliminary inquiries for felonies and related misdemeanors committed within his area of jurisdiction.”
This provision was interpreted in the South West Region court of appeal case of Chief Tabe Tabe Moses v. The People of Cameroon & 48 Others to mean that unlike the court of first instance proper which is incompetent to try felonies and must decline jurisdiction, an EM of a court of first instance has jurisdiction to conduct a PI even in respect of offences classified as felonies, but will have to commit the matter to the high court where a felony is found to have been so committed.
One very important aspect of this case is that it sets guidelines for resolving conflicts of jurisdiction. The court observed that courts should not be hungry for jurisdiction and that a court may expound on, but not expand its jurisdiction. Where there are competing or concurrent claims to jurisdiction, the courts will look at the following considerations:
- the geographical location of the commission of the offence
- the person who committed the offence
- the gravity of the offence
The court mentioned that in case of conflict, by deduction of the reasoning in sections 140(2), 294 and 295 of the CPC, priority should be given to the jurisdiction where the offence was committed.
- AN OVERVIEW OF THE PI PROCEDURE
PIs are secret and anyone participating in the proceedings is bound by professional secrecy. But this secrecy does not apply to the legal department and the defense. However, the EM may, if he considers it necessary for the discovery of the truth, hold some of the proceedings in public or cause the state counsel to publish some of the facts which have been brought to his knowledge: section 154 CPC.
Some highlights of the PI procedure include the following.
5.1. Commencement of proceedings
As soon as the holding charge is received, the EM is bound to make an order of commencement of proceedings: section 147 CPC.
The EM shall carry out all acts considered necessary for the discovery of the truth and can prefer a charge against any person considered to have participated in the commission of the offence as principal offender, co-offender or accomplice: section 150 CPC.
5.2. Powers of the EM during the PI
Section 151(2) of the CPC mandates the EM to investigate all elements that are favourable or unfavourable to the defendant. In order to discharge this important duty, the law grants the EM vast powers. Some of these powers are set out below.
5.2.a. The power to order visits to the locus in quo and carry out searches and seizures: sections 177 – 179 CPC
The EM may visit any area within his jurisdiction to carry out all measures of investigation necessary for the discovery of the truth, and in particular to conduct searches and seizures.
He may also visit areas outside his jurisdiction after notifying the state counsel of the area concerned.
The law grants the EM the right to question any person whose statement is likely to lead to the discovery of the truth. He is also competent to search a house and carry out seizures.
The jurisprudence of the courts in Anglophone Cameroon is clear on the fact that before the final ruling on the PI any person can apply to the EM for the release of any article seized by a judicial police officer in the course of a PI. The ICC of the South West Region court of appeal had this to say in the case of The people of Cameroon v. Tantoh Felix Ngang:
“Now we must quickly state here that we do not know of any law in the Criminal Procedure Code which states that before the final ruling on a preliminary inquiry a party or any other person cannot file an application to the examining magistrate for the release of articles seized by judicial police officers as a result of inquiries related to the preliminary inquiry. There is also no law which states that the examining magistrate should refuse to entertain such an application when filed. Therefore, in our view, a deliberate refusal by an examining magistrate to entertain such an application will amount to a breach of the fundamental right to a fair hearing … It is to be remembered that articles are not and should not be seized and kept by judicial police officers or even by the examining magistrate for fun. We think that the examining magistrate who is empowered by the law to conduct all the investigations necessary for the discovery of the truth is competent to sit in all interlocutory proceedings during the preliminary inquiry, including applications for the release of articles seized by judicial police officer.”
5.2.b. The power to remand in custody: sections 218 – 222 CPC
At any time before the committal order, the EM can issue a remand warrant against the defendant if the offence is punishable with loss of liberty. The remand ruling is notified to the state counsel and to the defendant.
The exceptional measure of remand in custody is available only in respect of felonies or misdemeanors and shall be necessary for the preservation of evidence, the maintenance of public order, the protection of life and property or to ensure the appearance of an accused person before the EM or the court.
The EM must specify the remand period in the remand warrant. It should not exceed 6 months. It can however be extended for at most 12 months in the case of a felony and 6 months in the case of a misdemeanor.
5.2.c. The power to grant bail: sections 222 et seq of the CPC
There are two types of bails: self bail and conditional bail.
The EM may grant bail at any time before the close of the PI and of his own motion. Where bail is not granted as of right or by the EM of his own motion, it may be granted on the application of the defendant or his lawyer, and after the submission of the state counsel, when the defendant enters into a recognizance to appear before the EM whenever convened, and when he undertakes to inform the EM of his movements.
5.2.c.ii. Conditional bail
Any person lawfully remanded in custody may apply for bail to the EM. Bail will be granted if he fulfils one of the conditions stated in section 246(g) of the CPC in order to ensure his appearance before the EM, any other judicial authority or the judicial police.
Conditional bail may be cancelled on the application of the legal department or the civil party, or by the court seised of the matter.
5.2.d. Power to intercept record and transcribe correspondences: section 245(4) of the CPC
Under section 245(4) of the CPC, the EM is authorized to intercept, record and transcribe all correspondences of the defendant sent by means of telecommunication. The decision to intercept must be in writing and contain all the elements for the identification of the means of communication to be intercepted the offence which has led to this measure as well as the duration of the said measure. It can be taken for a maximum period of 4 months and may be renewed only under the same formalities and duration.
The EM or judicial police officer commissioned by him may order the installation of an interceptive device by any qualified agent.
The EM can, by ruling, also direct the superintendent of a prison to send him all or part of the correspondences received or sent by a defendant, with the exception of those between the defendant and his lawyer.
Unless the president of the Bar Council is informed by the EM, no interception can be effected on the telephone lines of a lawyer’s office or residence.
The taking of photographs in private places shall be subject to the same formalities.
5.2.e. Power to place the defendant on judicial supervision: section 246 of the CPC
Section 246 of the CPC enshrines the EM’s power to subject the defendant to judicial supervision. This would include any of the following measures:
- limiting movement to a specific area
- prohibiting the visiting of certain places
- abstaining from driving all or specified vehicles
- submitting to medical examination, treatment or care
- refraining from receiving or communicating with certain persons
- refraining from carrying out certain professional activities
The EM may, either of his own motion or on the application of the defendant, order the revocation of judicial supervision.
Where the defendant violates any judicial supervision obligation, the EM may issue a bench warrant, arrest warrant or remand warrant against him.
5.2.f. Power to order for further investigations by way of rogatory commission: section 191 of the CPC
By virtue of section 191 of the CPC, the EM may give a rogatory commission to any other EM or judicial police officer to carry out any acts of the PI. The EM or police officer so commissioned shall exercise all the powers of the EM within the limits of the rogatory commission.
The rogatory commission shall be communicated by all means with written proof and shall state the essential information such as: the charge, name and function of the EM, nature of the offence. It may only order an inquiry into acts having a direct bearing on the offence mentioned in the charge.
Any witness summoned to be heard during the execution of a rogatory commission shall appear and take oath before testifying, failing which, the commissioned judicial police officer shall inform the EM who shall then issue a bench warrant against the witness.
5.2.g. Power to order for expert opinion: section 203 of the CPC
Where a technical problem arises the EM may of his own motion or upon application by any party, order an expert opinion and appoint one or more experts. The expert shall take an oath to perform his duty on his honour and in good conscience: section 204 of the CPC.
Experts shall be chosen from a national list and as long as his name has not been struck off the national list, an expert shall not be required to take oat each time he is commissioned.
5.3. The rights of the defendant during the PI
5.3.a. The right to be informed of the accusation against him: section 167 of the CPC
This right is a fundamental feature of the criminal trial. Section 167 of the CPC states that on the first appearance of the suspect, the EM must verify his identity and thereafter must inform him of the case against him and the provisions of the criminal law violated. Such information is known as the charging of the defendant.
The EM shall also inform the defendant during his first appearance that he is now before an EM and shall not thereafter be heard by the police or the gendarmerie on the same facts except by rogatory commission, and that if the PI confirms the charges preferred against him, he shall be committed for trial before the competent court: section 170 of the CPC.
The preferring of the charge shall be the exclusive prerogative of the EM and shall not be the subject of a rogatory commission except to another EM.
The EM is not bound by the statement of offence given to the facts of the case by the police.
5.3.b. The right to silence: section 170(2) of the CPC
The law permits a defendant to remain silent during a PI until the arrival of his lawyer so as to better prepare his defence.
5.3.c. The right to counsel: section 172 of the CPC
The defendant has the right to appoint a lawyer to defend him whenever he appears before the EM.
The lawyer shall be notified in writing of the date and time of appearance at least 48 hours before the said appearance, if the lawyer resides within the seat of the court, and at least 72 hours if he resides outside the seat of the court.
The PI case file shall be placed at the disposal of the lawyer 24 hours before each interrogation or confrontation.
Where the lawyer who has been summoned does not appear, the PI shall continue in his absence and these facts shall be mentioned in the report.
5.3.d. The right to cross-examine witnesses and the state counsel: sections 175 and 176 of the CPC
The defendant has the right to directly cross examine witnesses and co-defendants. Section 176 of the CPC provides that after informing the EM of his intention to do so, the state counsel may be present at the interrogations and confrontations of the defendant, as well as at the hearing of the civil party and the witnesses. The defendant has the right to directly cross examine him.
5.4. Closure of the PI (Sections 256 et seq of the CPC)
Where the EM deems that the PI is ended, he forwards the file to the state counsel for his final submissions. The state counsel has five days to return the file and his submissions to the EM.
The EM then determines whether or not any offence is sustainable on the evidence against the defendant and pronounces either a total or partial no-case ruling or a committal order. Where the facts constitute a simple offence, a misdemeanor or a felony, the EM issues a committal order and forwards the case before the competent court. Where he determines that the facts do not constitute an offence or that the author of such an offence is not identified or that there is insufficient evidence, he issues a no-case ruling.
A no-case ruling immediately sets the defendant free unless he is detained for some other cause. It also revokes any measures of judicial supervision taken against him. Furthermore, at the pronouncement of the no-case ruling, the EM rules on the restitution of articles seized.
The EM is duty bound to notify all interested parties of his ruling.
It has been stated on high authority that the powers of the EM are limited to issuing a committal order or a total or partial no-case ruling:
“In the instant case, the examining magistrate was called upon to investigate the matter of aggravated theft of 39 cows by the appellants and rule in accordance with section 256(3) and (6) of the CPC. The claim for the restitution of cows was never brought before the examining magistrate and those cows cannot be classified by any stretch of imagination as articles seized as contemplated by section 258(2) of the CPC. Therefore, the examining magistrate had no legal basis to make a final order for the restitution of 24 cows to the 2nd respondent. By so doing he was acting as a trial court which was wrong. His duty was to discover evidence and determine whether it is sufficient to prosecute the appellants and not to make final orders on a non-existent claim and when the criminal matter was not even ripe for trial.”
Pursuant to section 22(new)(b) of the 2006 Law on judicial organization (as amended), the court fo appeal has jurisdiction to hear appeals against the rulings of the EM. In fact, section 267 of the CPC provides that the decisions of the EM may be subject to appeal before the Inquiry Control Chamber (ICC) of the Court of Appeal.
5.5.1. Limitations on the right to appeal
The law imposes strict limitations on the type of rulings that can be subject to appeal.
According to section 268 of the CPC, the legal department can only appeal against the following rulings of the EM:
- rulings regarding acts of inquiry considered to be a nullity by the state counsel
- rulings regarding acts of inquiry that adversely affects the interests of a party or the proper administration of justice, with the exception of orders listed in section 257(1) of the CPC
- rulings regarding the 48 hour time-limit for appeals
According to section 269 of the CPC, the defendant may only appeal against rulings in respect of remand in custody, judicial supervision, requests for expert or counter-expert opinion and of restitution of articles seized.
Finally, per section 270 of the CPC, the civil party may appeal only against rulings in respect of the refusal to commence a PI, the inadmissibility of an application to be a civil party in a criminal case, the rejection of an application for expert or counter-expert opinion, the restitution of articles seized and no-case rulings.
5.5.2. Organization of, and procedure before the ICC: sections 272 et seq of the CPC
Note the following:
- the legal department and other parties shall be present at the hearings of the ICC and a registrar shall also be present
- an appeal to the ICC is made by way of an unstamped application in 4 copies and addressed to the president of the ICC. A copy of the ruling subject to appeal is attached to the application
- under pain of being declared inadmissible, the appeal application shall clearly state and argue the grounds of appeal
- a report acknowledging receipt of the appeal application and a copy of the application is served on the procureur général of the Court of Appeal and on the other parties
- the procureur général and the other parties have 48 hours to file their submissions
- the procureur général and the other parties shall be informed in writing of the hearing date
- a minimum time-limit of 48 hours for cases of detention and of 5 days for all other cases shall be observed between the date of service and that of the hearing. During this period counsel for each party may consult the file at the ICC registry and produce a memorandum which shall be forwarded to the legal department and to the other parties
- the ICC shall hear and determine the appeal within 30 after receiving the application
- in cases of remand in custody, the ICC must deliver its ruling within 10 days after receiving the application
- the ICC may order any further inquiry it deems necessary
- when the ICC quashes a ruling relating to the closure of the PI, it may of its own motion hear and determine the PI de novo
- where the ICC ascertains that the EM did not decide on certain facts on which it was seized or that the holding charge failed to bring to the knowledge of the EM all the facts contained in the police report, the ICC shall order that information concerning all offences emanating from the police report be given to it
- in cases of appeals against a committal order or a no-case ruling, where the ICC finds that the facts do not constitute an offence, or that the defendant has remained unknown, or where there is insufficient evidence against the defendant, the ICC shall deliver a no-case ruling. Where necessary, it shall rule on the restitution of articles seized. The defendant who is in custody shall be released forthwith
- where the ICC finds that the facts constitute a felony, misdemeanor or simple offence, it shall refer the case to the competent court. In case of simple offences, the defendant, if remanded in custody, shall be released immediately
- only the procureur général and the civil party shall be competent to appeal to the Supreme Court against rulings relating to the closure of the PI
- in case of annulment of a committal order or no-case ruling, the ICC may, in the interest of the proper administration of justice, appoint another EM or another magistrate of the same court to continue with the PI
- appeals against a ruling delivered during a PI other than that relating to a committal order or a no-case ruling shall not suspend a PI.
 SLR 2 (2014) page 6
 Supra, pages 31-32
 Simon Tabe Tabe, “A look at preliminary inquiry under the Cameroon Criminal Procedure Code” in Ewang Sone Andrew (ed), Readings in the Cameroon Criminal Procedure Code, Yaounde, 2007(PUA) pages 54-55
 Law No 2006/015 of 29 December 2006 on judicial organization, as amended by Law No 2011/027 of 14 December 2011
 Law No. 2008/015 of 29 December 2008 to organize military justice and lay down rules of procedure applicable before military tribunals
 SLR 4(2016) page 2
 This section enacts that where more than one state counsel are seised of the same matter, priority should be given to the state counsel in whose jurisdiction the offence was committed
 This section enacts that a court shall have jurisdiction over a case where it is the court of the place of commission of the offence, the court of the place of residence of the accused, or the court of the place of arrest of the accused
 This section enacts that a court that is competent to try the accused shall also be competent to try co-offenders and accomplices, except where the law provides otherwise
 SLR 2 (2014) at pages 26-27
 The application could also be made to the judicial police officer, the state counsel or the court seised of the matter
 That is, the applicant could deposit a sum of money, the amount and conditions of payment which are set by the EM, or the applicant could provide one or more sureties. The surety shall be responsible for the appearance of the person released on bail: section 228
 Section 227 CPC
 Section 248 CPC
 Section 250 CPC
 However, in the case where a rogatory commission is given to a judicial police officer, section 152 of the CPC interdicts the EM from giving such commission to the said police officer in order to carry out on the EM’s behalf, the preferring of a charge against the defendant, interrogation and the issuing of court processes
 Sections 191 and 193 CPC
 Section 195 CPC
 Sections 206 and 207 of the CPC
 Section 168 CPC
 Where during the PI the EM discovers fresh facts which constitute another offence, he transmits the case file of the PI to the state counsel for further submissions before proceeding to prefer an additional charge or count. He may also amend the charge where the PI permits a new statement of offence to be made on the facts. Furthermore, he may prefer charges against any person who took part in the commission of the offence. See section 169 CPC
 Section 258 CPC
 Section 261 CPC. Note that a no-case ruling shall not bar the re-opening of the inquiry if new facts are discovered, per section 259 of the CPC
 Veranso Liberious Afonsi & Ors v. The People & Adamu Dewa, SLR 2 (2014) pages 36-37
 Section 275(1) CPC
 Section 275(2) CPC
 Section 276 CPC
 Section 279 CPC
 Section 282 CPC
 Section 283 CPC
 Section 284 CPC
 Section 285(3)
 Section 286 CPC