In their 2002 publication, Business Law in Africa: OHADA and the Harmonization Process, authors Boris Martor, Nanette Pilkington, David S. Sellers and Sébastien Thouvenot make a compelling case for why Cameroon, along with 13 other African nations, signed the OHADA treaty in 1993. OHADA is the French acronym for the Organisation for the Harmonization of Business Law in Africa.
“The reasons for the creation of OHADA are obvious. Many of the [business] laws in the Member States were out of date, some having remained unchanged since the colonial period. Many areas of the law were subject to uncertainly, and in some areas there were no relevant published laws. This made investment in these countries complicated at best and, at worst, almost impossible,” they wrote.
So, how does a treaty signed two decades ago become the genesis for the civil unrest that has led to bloodshed in the streets of major Anglophone cities in recent weeks?
That OHADA is now a thorny issue should not have come as a surprise, given Cameroon’s unique legal setup.
“Since the reunification of the two portions of Cameroon, successive Constitutions have indirectly sanctioned the co-existence of the English and French legal systems in the country. With respect to this, the 1996 amendment states in Article 68,” wrote Cameroon constitutional law expert, Professor Charles M. Fombad of the University of Pretoria in a December 2015 essay.
Article 68 states: “The legislation applicable in the Federal State of Cameroon and in the Federated States on the date of entry into force of this Constitution shall remain in force insofar as it is not repugnant to this Constitution, and as long as it is not amended by subsequent laws and regulations.”
Prof. Fombad further explains:
“Whilst from a constitutional perspective, the Cameroonian legal system remains bi-jural in the sense that the two distinct legal districts continue to co-exist, the coming into effect of the OHADA system seems to mark the beginning of a terminal decline of the common law legal culture in Cameroon. It has brought about at least three significant changes to the nature of the legal system. First, until the OHADA treaty came into force, the principles of English commercial law applied to all business and commercial matters in the Anglophone legal district whilst the French Commercial Code applied in the Francophone legal district. Since 1996, all business and commercial law matters are governed by the new regime set up under this treaty. According to article 10 of the OHADA treaty, the Uniform Acts automatically and directly repeal all existing legislation and supersede any future legislation on the same subject.
“Under this new regime, there are eight Uniform Acts that deal with commercial matters in Cameroon viz., general commercial law, commercial companies and economic interest groups, securities, simplified recovery procedures and enforcement measures, collective insolvency proceedings, arbitration, accounting law and carriage of goods by road. Secondly, since these Uniform Acts are substantially based on French civil law, it means in practical terms that the English commercial law principles, which previously applied in the Anglophone legal district, have now been replaced by French inspired commercial law principles. Finally, in spite of the article 31(2) of the Constitution stating that French and English are the official languages and the practice that laws take effect only when published in both languages, the OHADA Treaty and Uniform Acts were until recently only published in French and in fact, article 42 of the treaty stated that the working language was French. The introduction of the OHADA system, which ignores the bilingual and bi-jural nature of the country, has been viewed with considerable suspicion by the minority Anglophone speaking population who see this as part of a broader assimilationist and “Francophonization” agenda designed to eliminate all aspects of their inherited English culture. Some have not only questioned its constitutionality but even at some stage, some judges have controversially refused to recognize or apply some of the Uniform Acts until they were threatened with dismissal by the Minister of Justice. Be that as it may, it is clear that the future of the English common law in Cameroon’s mixed system as a result of these developments is uncertain.”