May 12, 2018
Our National Day is by the corner just again: for the 46th anniversary. From ongoing debates, the pivotal issue appears to be whether to celebrate or not: the controversy between joy and sorrow; honesty and fraud; legality and illegality; legitimacy and make-believe… We wish to hasten to say that we do not pretend/propose to preach the case for or against here. Solely looking at the law!
Let us proceed from the assumption that “The Constitution of the Federal Republic” was real and valid. The crux of the matter, then, would be whether there has been faithful compliance even with that document. Another way of seeking to know the legality/constitutionality of the 1972 referendum, resulting in the abolition of the federation.
There is no doubt that, as per that constitution, it was competent of “the people of Cameroon […] to exercise […] national sovereignty […] by way of referendum”. But the question is whether it was a special prerogative or it was a general prerogative.
There is no gainsaying that it was a general prerogative: the exercise of sovereignty in general. And that’s where the rule of “generalibus specialibus non derogant” comes into full force/play. In ordinary parlance, the rule is that exception is the law. Pragmatically, if the law is that nobody should write on this wall except Ayah, the law, in fact, is that only Ayah should write on this wall.
Applying that rule to the issue under consideration, it admits of no debate that the exercise of sovereignty “by way of referendum” is the general rule; and Section 47 (1) of the constitution to the effect that it was unlawful (unconstitutional) to abolish the federation is the exception. May it be repeated in superfluity that, where the general is at variance with the particular (exception), it is the particular(exception) that prevails. Logically then, the 1972 referendum (the general) to abolish the federation was at variance with Section 47(1) of the constitution (the particular/exception); and, therefore, Section 47(1) must prevail. To put it otherwise, the referendum was unconstitutional.
It stands to reason that, even assuming Foumban was legal/right, everything was whittled down by the 1972 referendum, and that constitutes the genesis of today’s bloodshed, destruction, and the shaky “one and indivisible” status. The “route cause” as it were.
And so, for the resolution of the present ordeals, it was, perhaps, high time we started thinking properly and acting honestly!
Justice Ayah Paul