Case Summary and Outcome

The Supreme Court of Cameroon, sitting as the Constitutional Council of Cameroon, declared a petition filed by Global Concern Cameroon, for a declaratory judgment regarding internet shutdowns, inadmissible for lack of locus standi. The petition was filed because of two internet shutdown incidents imposed by the government across the two English-speaking regions in Cameroon: South-West and North-West. In its decision, the Court justified its ruling that the petition was filed by a person who does not fall under the persons empowered to refer matters to the Constitutional Court as stipulated by Section 47(2) of the Constitution of Cameroon. This section exclusively entitles the following persons to submit petitions to the Court: President of the Republic, President of the National Assembly, President of the Senate, one-third of the members of the National Assembly or one-third of the Senator, and Presidents of Regional Executives.

---

Facts

In 2017, the two English-speaking regions, South-West and North-West of Cameroon suffered a blanket internet shutdown for three months imposed by the government. After that, and for more than 100 days between late 2017 and early 2018 the two regions faced an internet shutdown once more but this time partially, resulting in all social media platforms becoming inaccessible across the two regions.

The government justified these shutdown incidents for security reasons as a result of a series of organised protests by both the lawyers’ syndicate and teachers’ syndicate in these regions against the policies adopted by the government concerning the legal and educational sectors, which ended with numerous arrests.

The shutdown had a multilayered impact on the two regions by adversely affecting all residents of the regions who represented around 20% of the total population of the Country and all internet users. They did not only curtail access to social media platforms, but also blocked access to information and emergency services, and different services offered by banks, hospitals, and schools as well. This caused the people residing in these regions more than $2 million dollars of loss and prevented the media based in these regions from efficiently covering matters of public interest.

All this took place although Cameroon ratified several human rights instruments, particularly the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR)—in addition to the fact that the Constitution of Cameroon recognises and affords protection to fundamental human rights, including the right to freedom of expression and the free flow of information.

Consequently, several human rights civil organisations challenged the constitutionality of the total and partial shutdowns before the Court, arguing that the shutdowns violated the constitutionally protected rights to freedom of expression, access to information, and protection against discrimination.

The defendants on the other hand sought an adjournment to prepare a statement of defence.

The Constitutional Court set the 30th of July 2018 to rule on the matter.

---

Decision Overview

The Court, in this case, presided by Mr Clement Atangana, delivered the decision unanimously. The main issue the Court had to determine was whether the internet shutdowns in the South-West and North-West Regions of Cameroon were constitutional and consistent with the right to freedom of expression and access to information and the right to protection against discrimination based on language guaranteed and protected under the Preambular Article of the Constitution read with Article 65 of the Constitution.

These Articles read in their relevant parts:

Preambular Article

“We, people of Cameroon, Declare that the human person, without distinction as to race, religion, sex or belief, possesses inalienable and sacred rights;  Affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights, the Charter of the United Nations and The African Charter on Human and Peoples’ Rights, and all duly ratified international conventions relating thereto, in particular, to the following principles:  – all persons shall have equal rights and obligations … – the freedom of communication, of expression, of the press, of assembly, of association, and of trade unionism, as well as the right to strike shall be guaranteed under the conditions fixed by law…”.

Article 65

“The preamble shall be part and parcel of this Constitution.”

The plaintiffs argued that it was righteous to submit the petition before the Constitutional Council which is empowered by the law to have jurisdiction in matters of constitutionality, including looking into the constitutionality of laws and all acts, such as Ministerial Orders. They then outlined that the internet shutdown issue interferes with the rights to freedom of expression, access to information, and freedom from discrimination which are constitutional rights as per Article 65 of the Constitution. They also argued that the facts of the case present a prima facie case of a constitutional nature because, since the petition “seeks … the determination of the constitutionality of these impugned [shutdown] orders, the action falls directly within the jurisdiction of the Constitutional Council and should be declared admissible”.

The plaintiffs further stressed that due to the fact that the Council enjoys exclusive jurisdiction to address matters of constitutional nature, there could be no other court or tribunal that can entertain the matter, thus, they have locus standi to seek a constitutional redress from the Council, and that “this right cannot be validly circumscribed by law, even by the Constitution itself”. Consequently, the plaintiffs argued that Section 47(2) of the Constitution should be declared unconstitutional as it limits the right to pursue a remedy before the Constitutional Council to “the President of the Republic, the President of the National Assembly, the President of the Senate, one-third of the members of the National Assembly or one-third of the Senators, and Presidents of Regional Executives.”

In response, the defendants did not argue back and requested an adjournment in order to submit a defence submission.

Before delving into the merits of the case, the Court first examined the matter of admissibility, referring to Section 47 (2) of the Constitution. The related parts provide the following:

“Matters may be referred to the Constitutional Court by the President of the Republic, the President of the National Assembly, the President of the Senate, one third of the members of the National Assembly or one third of the Senator, Presidents of Regional Executives may refer matters to the Constitutional Court whenever the interest of their Region is at stake”.

In this regard, the Court noted that by interpreting Section 47 (2), it is clear that submitting petitions before the Constitutional Council is “the exclusive jurisdiction of the personalities listed in this section”. And given that the petition in hand was not filed by any of those exhaustively listed but by a representative of Global Concern Cameroon, this renders the petition inadmissible for lack of locus standi.

The Court then considered Section 59 of Law no. 2004/004 which sets the organisation and functioning of the Constitutional Council. This section reads as follows:

“(1) where the petition is overtly inadmissible the Constitutional Council shall rule by reasoned decision, without adversarial investigation.

(2) The ruling shall be immediately notified to the petitioner and the parties”.

Accordingly, the Court held that it would not look into the case further since the law does not require a full hearing in such matters.

In conclusion, the Court declared the petition inadmissible given that Global Concern Cameroon lacked locus standi as per Section 47 (2) and ordered the publication of the decision in the official gazette.

---