Joseph Mbi Tanyi
26 June 2006
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Vacancy of the office of the President of the Republic may be occupied either on a temporary or permanent basis, pursuant to section 103 of Law No. 92/010 of 17th September 1992 to lay down conditions governing the vacancy of the election to the Presidency of the Republic.
Temporary Vacancy
Section 104 of the above cited law is to the effect that, where the President of the Republic is temporarily unavailable, he shall charge the Prime Minister, or where the latter is unavailable, any other Member of Government, with carrying out his duties
within the framework of an express delegation of powers.However, section 10 (111) of the Cameroon constitution of 18th January 1996, states; "Where the President of the Republic is temporarily unable to perform his duties, he shall delegate the Prime Minister and, should the latter also be unable, any other Member of Government to discharge his duties within the framework of an express delegation of some of his powers."
A careful examination of both text will show that, the constitutional provisions applies where the President is temporarily UNABLE to perform his duties and only some of his Presidential functions can be delegated either to the Prime Minister or any other Member of Government as the case may be, whereas the former only applies where the President is temporary unavailable before the Prime Minister or any other of Member of Government can act in the place President upon an express delegation of powers.
The constitution and the law referred to above are both silent as to what amounts to being temporal unavailable and temporarily unable and for how long should such situation last taking into consideration the fact that the Presidential mandate in Cameroon is seven years. Can the President validly delegate the Prime Minister or any other Member of Government to perform some of his functions for a temporal period of two years ?
Permanent vacancy
The provision of section 105 of law No. 92/010 OF 17th September 1992 to lay down conditions governing the vacancy of the election to the Presidency of the Republic states;
"Where the Presidency of the Republic becomes vacant as a result of death, resignation or permanent incapacity, the powers of the President of the Republic shall be exercised as of right by the President of the National Assembly until a new President is elected .Where the latter is in turn unable to exercise these powers, his assistant who shall be selected on the basis of precedence in the National Assembly shall exercise such powers."
During this period the President of the National Assembly or his assistance may not amend the constitution nor reshuffle the government , organized a referendum nor be a candidate for Presidential elections.
It case of death or permanent unavailability of the President of the Republic, the President of the Supreme Court shall be the only competent personality to ascertain the permanent unavailability or death of the President of the Republic.
In the event where the President of the Republic resigns, he shall duly do so by informing the nation in a message to be published in the official Gazette of the Republic He shall thereafter tender his resignation to the President of the National Assemble and he is permitted to remain in office until a new President is elected and taken oath of office not less than 21 days and more than 40 days after the post becomes vacant. This is the tenor of law the referred to above.
Under the Cameroon constitution 18th January 1996, article 6(iv) thereof states, "Where the Presidency of the Republic becomes vacant as a result of death, resignation or permanent incapacity duly ascertained by the Constitutional Council, the President of the Senate shall of right act as the interim President until the new President of the Republic is elected "
The interim President of the Republic shall (the President of Senate or his Vice may neither amend the constitution nor the composition of the Government. He may not organize a referendum or run for the office of the President of the Republic.
It is my considered opinion and without prejudice that either by design or omission under the constitution and the text referred to above , the President of the Senate or his Vice and the President of the National or his Vice are both technically empowered or has the discretion to either amend the constitution and the composition of the Government, organized a referendum and even run for the office of the President when acting as the interim President of the Republic. Save error or omission the use of the word MAY instead of SHALL in legal drafting means discretional.
This loophole if not cautiously redressed or corrected by the parliament shall definitely be exploited by a smart and power hungry President of the Senate, Constitutional Council, National Assembly or Supreme Court as the case may be in the days ahead.
After a decade the creation of the Senate and the Constitutional Council referred to in the constitution is still a nightmare. The provisions of law No. 92/010 of 17th September 1992 to lay down conditions governing the vacancy of the election to the Presidency of the Republic shall continue to be applicable.
Joseph Mbi Tanyi is Director legal aid/ literacy Center for Human Rights and Democracy in Africa (CHRDA www.Chrda.org).
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