Cameroon: The State’s Transfer of Powers to the Regions
By Pacôme VOUFFO (Download pdf version)
Cameroon: The State’s Transfer of Powers to the Regions
If there is one thing that is hardly debatable in legal science, it is the evolution of law through constitutional or legislative textual reform on a given issue. The issue of decentralisation in Cameroon is an illustration. The constitutional and legislative dynamics since independence reflect this, particularly with the inclusion of local authorities in the Constitution of 4 March 1960, the 1974 laws applicable to the Communes and their subsequent amendments , the constitutional reform of 18 January 1996 explicitly raising decentralisation to the constitutional rank , the laws of 22 July 2004 on decentralisation and today Law No. 2019/024 of 24 December 2019 to lay down the General Code of Regional and local authorities(CGCTD).
This Code enshrines an evolution in decentralisation law and sets out the terms and conditions for the exercise by the State of powers transferred to regional and local authorities in general and to the Regions in particular. From a legal point of view, this reframing does not seem to have aroused the interest of the doctrine in the same way as the question of the special regime for the North-West and South-West Regions, which has been addressed . In view of its scope, however, it is easy to admit that the legislator has made a significant change. It is necessary to examine the contours of this evolution in order to untangle the threads and consequently set the markers for understanding, following an approach based solely on the Regions as a framework for analysis and not on all the Regional and Local Authorities. Indeed, the choice of the Regions as the analytical framework is not insignificant. As the first level of decentralisation in Cameroon, the Region has only recently been established since its consecration in 1996. It is the characteristic of regionalism instituted since the constitutional reform of 18 January 1996. This regionalism is legally translated by the erection in 1996 of administrative provinces into Regions, headed by a President, an indigenous personality of the Region elected by his peers , and an elected Regional Council whose political colouring prints a mixture of traditional chiefs with the other departmental Councils. Compared to the Commune, therefore, the Region is a new feature of decentralisation which finds its basis in the controversy that took place during the 1996 reform on the form of the State between the supporters of the centralised State and those of the federal State. According to the doctrine, it is a point of agreement between these two (02) trends. When we know that regionalism as a technique for organising the unitary State is an advanced version of decentralisation that could border on federalism without being one, we can only subscribe to the idea that the Region is the point of agreement that would have federated the actors of the 1996 reform. With these considerations in mind, the attention given to the Region is justified.
Following this logic, it must be agreed that the exercise by the State of powers transferred to the Regions did not disappear with the advent of the CGCTD, as some authors have suggested. It was maintained, however, with a reform of the legal framework that underpins an evolution in this area. If yesterday, the exercise by the State of powers transferred to the local and regional authorities in general and to the Regions in particular was legally self-evident (I), in the current state of Cameroonian decentralisation law, it is now only a possibility (II).
The Competitive Exercise by the State of Powers Transferred to the Regions
The reform of the law on decentralisation in Cameroon through the adoption of the CGCTD reframed the competitive exercise by the State of the powers transferred to the Regions. This competitive exercise appeared to be an aspect of the paradoxes of Cameroonian decentralisation according to the formula of Cyrille MONEMBOU who did not hesitate to speak of “deconcentralisation ».
The 2004 Decentralisation Orientation Law was at the root of the problem through statements that revealed the State’s reluctance to relinquish the powers transferred to the Regions. Under the terms of Article 15 paragraph 2 of this law, “The powers transferred to the territorial authorities by the State are not exclusive. They are exercised concurrently by the State and the latter, under the conditions and procedures laid down by the law ». From this provision, it can be inferred that the State is exercising competences transferred to the Regions in a competitive manner, which veils the real implementation of the theory of decentralisation, one of the postulates of which is the relinquishment by the State of the competences transferred to the local and regional authorities in general and to the Regions in particular.
In practice, this competitive exercise resulted in the State adopting public policies that competed with those of the Regions in the same areas, or even in the same matters, that fell within the competence of the latter. Given the difficulties encountered by the local and regional authorities in general and the regions in particular in mobilising the resources needed to carry out their activities compared with the State, which has them at its disposal automatically, it is clear that this competition could only be harmful to the expression of the regions in the absence of conditions and procedures setting the framework for the competitive exercise of powers. The CGCTD erases this obvious fact by stipulating that the Regions must exercise the powers transferred to them exclusively. Paragraph 1 of Article 18 states that “Territorial collectivities shall exercise, on an exclusive basis, the competences transferred by the State“. It is only in exceptional cases that the State can still exercise the competences transferred to the Regions; and in this case, it should be noted that this is no longer a matter of course, but a simple possibility that is strictly regulated.
The Exceptional Exercise by the State of the Powers Transferred to the Regions
The State has not been totally divested of the right to exercise the powers transferred to the Regions. However, its intervention in this area is now strictly regulated. As soon as it transfers powers, since this operation of transferring powers falls within its competence, the State can only exercise them under certain conditions. According to paragraph 2 of article 19 of the CGCTD, “(…), the transferred competences can be exercised by the State: if the Government intends to intervene punctually within the framework of the harmonious development of the territory or in order to resolve an emergency situation; in case of deficiency duly noted by order of the Minister in charge of territorial collectivities, referred to by the Minister concerned with the transferred matter, the deliberating organ of the Territorial Collectivity by a majority of two thirds (2/3) of its members“. This is an exception to the principle of the exclusive exercise of transferred powers by the Regions.
The State can only intervene in transferred powers to exercise them in two (02) cases: the first case is that of a one-off intervention by the Government with a view to the harmonious development of the territory or with a view to resolving an ’emergency situation’. If the law is silent on the emergency situation, it should be assumed that only the Government will have the capacity to determine and establish the emergency situation. In any case, it is reasonable to assume that if the intervention is harmful to the interests of the region, the President of the regional executive can always exercise his right to refer the matter to the constitutional judge in the interest of his region.
The second case is that of a failure by the Region to implement the transferred powers. This failure is noted by the Minister in charge of the CTD who acts by decree either at the behest of the Minister concerned by the transferred matter, or at the behest of the deliberative organ of the Territorial Collectivity by a two-thirds (2/3) majority of its members. Two observations can be made in the latter case. On the one hand, the failure to act implies that the Collectivity is unable to exercise the transferred competence; the intervention of the State to exercise it is not then competitive. On the other hand, the Minister’s order is a unilateral administrative act, which can be referred to the, administrative judge in the event of excess of power.
The exercise by the State of the competences transferred to the Regions is now only a possibility and no longer a given as in the past. Nevertheless, the, lack of resources for the exclusive and efficient exercise of these competences transferred to the Regions may lead to shortcomings that could result in a kind of “recuperation” or reappropriation by the State of the competences transferred in several areas. In this context, this possibility could become obvious and very harmful to the effective implementation of decentralisation in Cameroon. We can therefore recommend two things: firstly, that the legislator should specify the urgent situations that the State can invoke for the competitive exercise of the competences, transferred to the Regions, and secondly, the simultaneous transfer of competences and resources to the Regions in order to prevent the State from not being able to exercise these competences and from intervening in the field of competences transferred to the local and regional authorities in general and the Regions in particular.