PECUNIARY SENTENCE UNDER CAMEROON PENAL LAWS

Posted by Elma Jonah March 22, 2019

TOPIC: PECUNIARY SENTENCE UNDER CAMEROON PENAL LAWS

Ayuk Nkwa Pascal

ABSTRACT

Pecuniary sentences are recognized under the Cameroon Penal Code and other penal laws of the country. Once a person is sentenced to pay a fine, the convict must pay such an amount or serve an imprisonment term in place of the fine. The term of imprisonment would depend on the amount involved. This means that there is imprisonment in default of payment provided for under the Cameroon Penal Code. Section 556 of the Criminal Procedure Code is to the effect that the fines and costs shall be paid to the Registrar-in-Chief of the court that delivered the judgment. Before payment, the Registrar-in-Chief shall issue to the convict without costs, a copy of the judgment containing a break-down of the pecuniary sentence which he has to pay. The general objective of this paper is to assess how pecuniary sentences are enforceable in Cameroon. In Cameroon, there are problems faced in the criminal justice system. And so in order to better dispense justice in the country this paper recommends that Members of the Bar Council should be represented in the Higher Judicial Council and there should be a strict application of separation of power in the country.

INTRODUCTION

There are a number of theories of punishment that explain why a blameworthy conduct is punished. Some theories like retribution explains that the reason why an offender should be punished is because the offender deserves the punishment whereas other theories like the utilitarian objects of punishment justify punishment by looking at the future; and so according to the utilitarian objects of punishment, the offender needs to be punished so as to reduce the incidence of crime in the future. This means that there justifications for punishing an offender; this punishment can be by way of imprisonment and/or fine. According to the Black’s Law Dictionary the word ‘pecuniary’ means something of or relating to money; monetary. The Black’s Law Dictionary defines ‘sentence’, as the judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer. Pecuniary sentence therefore is the judgment that a court formally pronounces after finding a criminal defendant guilty to pay a certain amount of money known as fine.

FINES UNDER THE CAMEROON PENAL CODE

Cameroon’s Penal Code provides for three types of punishments; Principal penalties which include death penalty, imprisonment, fine, dissolution for corporations, temporal or final closure; accessory penalties which include forfeitures, publication of judgment, closure of establishment, placement under judicial supervision and confiscation of “corpus delicti” and alternative penalties which include community service and reparatory sentence. And thus fines is one of the principal penalties prescribed for offences in Cameroon.

According to Section 25-1(1) of the Cameroon Penal Code a ‘fine’ shall mean a financial penalty by virtue of which a convict, natural person or corporate body, pays an amount of money, specified by Law, into the Public Treasury. Pecuniary sentence is equally applicable to corporations operating within the territory of Cameroon. Cameroon has recognized the need for corporate criminal liability in specific areas of law. Such limited and marginal acknowledgement of corporate criminal liability, became necessary due to the development of new forms of crime and the necessity to fight such new forms of crimes especially with the development of modern technics of information and technology, the need for the protection of the environment and the fight against terrorism as such lead to the multiplication of legal instruments consecrating the criminal liability of corporations . And thus Section 25-1(2) of the same code provides that “The maximum amount of fine applicable to corporate bodies shall be five times that provided for natural persons.” Where a corporate body is guilty of an offence punishable with imprisonment only, the fine to be paid shall be from CFAF 1 000 000 (one million) to CFAF 500 000 000 (five hundred million) .

According to Section 92(2) of the Penal Code, where the offence is by law punishable with loss of liberty only, the court may substitute a fine of up to CFAF 1 000 000 (one million) for misdemeanour or up to CFAF 25 000 (twenty-five thousand) for a simple offence. The Penal Code in its Section 68 further provides that “The offender’s death shall not prevent enforcement of pecuniary sentences against his estate or closure of an establishment, or confiscation.”

PECUNIARY SENTENCE UNDER CAMEROON CRIMINAL PROCEDURE CODE

Pecuniary sentence is provided for under the Cameroon Criminal Procedure Code in its Section 556. This section provides that “(1) Fines and costs shall be paid to the Registrar-in-Chief of the court that delivered the judgment. (2) (a) Before payment, the Registrar-in-Chief shall issue to the convict without costs, a copy of the judgment containing a break-down of the pecuniary sentence which he has to pay as provided for in section 558 (2) a). (b) After payment, the Registrar-in-Chief shall: (i) issue to the convict a receipt from a receipt book with counterfoil and when the decision becomes final a copy thereof without costs; (ii) forward to the Legal Department a copy of the receipt and an extract of the judgment when it becomes final. (3) Civil awards shall be recovered at the instance of the party concerned from the date following the day on which the decision becomes final.”

Any person who is not detained and against whom an imprisonment warrant has been issued for non-payment of the pecuniary sentence may either forestall or terminate the execution of the said warrant by payment of the pecuniary sentence .

IMPRISONMENT IN DEFAULT AS A MECHANISM FOR THE ENFORCEMENT OF PECUNIARY SENTENCE

According to Section 557 of the Criminal Procedure Code , imprisonment in default of payment shall be a procedure which aims at compelling a convict to execute a pecuniary sentence pronounced against him or make restitution ordered by a court in a criminal case. It shall be applicable without prior notice at the instance of the Legal Department in the event of non-execution of a pecuniary sentence or non-restitution of property. It shall consist of a term of imprisonment during which the debtor shall be obliged to work. This therefore means that where a person has been convicted to pay a fine, such a person must pay the fine if not would be made to serve an imprisonment term and the number of months or years would depend on the amount involved.

Where imprisonment in default of payment is ordered against a prisoner, it shall be enforced on expiry of the previous imprisonment unless he furnishes sufficient sureties to guarantee the payment of the pecuniary sentence within a period of two (2) months from the date of recognizance . The judgment shall fix the breakdown of the pecuniary sentence to be paid to the state or to the civil party, as well as the duration of imprisonment in default in accordance with the provisions of section 564 . (b) Where the pecuniary award is made to the state, an imprisonment warrant shall immediately be prepared and signed at the time of delivery of the judgment and forwarded for execution to the Legal Department . Where the award is for the civil party and the judgment has become final, an imprisonment warrant shall issue at the instance of the civil party who has not been satisfied .

Any person who is not detained and against whom an imprisonment warrant has been issued for non-payment of the pecuniary sentence may either forestall or terminate the execution of the said warrant by payment of the pecuniary sentence .

After the execution of the imprisonment warrant, the convict may request its suspension by furnishing a surety guaranteeing payment of the pecuniary sentence within a period of two (2) months from the day following the signature of the recognizance by the surety . Where at the time of his arrest, the convict has furnished a surety; the judicial police officer charged with the execution of the warrant shall hear the surety and include his statement in the report . A copy of the file of the arrest shall be forwarded to the President of the court and another to the Legal Department of the court that issued the imprisonment warrant .

The President of the Court of First Instance of the place of execution of the warrant shall rule in chambers on the application, after hearing the convict and the proposed surety . Such a ruling shall not be subject to appeal . Where the application is granted, the President shall explain to the surety the consequences of his recognizance and shall request him to sign a document by which he shall undertake to pay the debt or failing that, to be subjected to imprisonment in default in place of the convict on expiry of the time limit provided for in section 560 . After the surety has read and signed the recognizance, the President shall cause the debtor to be released forthwith . The provisions of section 185 (1) (b) are applicable if the surety cannot read and write . Notice of the ruling shall be served forthwith on the Superintendent of Prison and a copy each shall be forwarded to the President and the Legal Department of the court that issued the imprisonment warrant . Where a surety is not accepted, the convict may make new proposals as many times as he wishes . (4) Imprisonment resulting from failure of the surety to abide by his obligation shall be terminated before the expiry of the prescribed period, only when total payment has been made.

In case of part payment of the debt, the duration of imprisonment in default shall depend only on the balance due . The period of remand served by an accused sentenced only to a fine shall be deducted from the duration of imprisonment in default. This deduction shall be made by the President of the court at the time he signs the imprisonment warrant .

According to Section 564(1) of the Criminal Procedure Code, in matters of fines and costs, the duration of imprisonment in default shall be fixed as follows:

 Twenty (20) days for amounts not exceeding 10.000 francs;

 Forty (40) days, for amounts higher than 10.000 francs but not exceeding 20.000 francs;

 Three (3) months, for amounts higher than 20.000 francs but not exceeding 40.000 francs;

 Six (6) months, for amounts higher than 40.000 francs but not exceeding 100.000 francs;

 Nine (9) months, for amounts higher than 100.000 francs but not exceeding 200.000 francs;

 Twelve (12) months, for amounts higher than 200.000 francs but not exceeding 400.000 francs;

 Eighteen (18) months, for amounts higher than 400.000 francs but not exceeding 1.000.000 francs;

 Two (2) years, for amounts higher than 1.000.000 francs but not exceeding 5.000.000 francs;

 Five (5) years, for amounts exceeding 5.000.000 francs.

In matters of damages to the civil party, the periods provided for in sub-section (1) shall be reduced .

Even though an imprisonment in default of payment can be passed on a convict who has failed to pay a fine, it should be noted by that an order of imprisonment in default of payment shall not be passed against a person less than eighteen (18) years of age or more than sixty (60) years old, or against pregnant women at the time of its execution . An order of imprisonment in default shall not be executed simultaneously against husband and wife even for the recovery of sums relating to different sentences . On the expiry of the time limit for prescription of the sentence, no imprisonment warrant shall be issued any longer for the recovery of fines and costs .

No imprisonment warrant for the recovery of damages or for restitution may be issued ten (10) years from the date following the date when the judgment became final . The execution of an imprisonment warrant issued before the expiry of the period of ten (10) years shall be enforceable until the prescription of the debt . According to Section 569 of the same code, imprisonment in default shall not be pronounced against persons declared vicariously liable and insurers.

In the case of Nduh John and Mudang Johnson Vs. The People , the court held that there are two reliefs available to a convict against whom an imprisonment warrant has been issued. First he may forestall or terminate the execution of the warrant by payment of the pecuniary sentence. Secondly if the warrant has been executed and he is incarcerated, he may suspend execution of the warrant by furnishing a surety guaranteeing payment of the pecuniary sentence within 2 months from the day following the signing of the recognizance by the surety.

EFFECTS OF IMPRISONMENT IN DEFAULT

Any person imprisoned by virtue of an order of imprisonment in default shall be subject to the same prison regulations as those convicted under the ordinary law . A convict who has been subjected to imprisonment in defau1t shall not be absolved from payment of fines, costs and damages, or from making restitution for which imprisonment in default has been executed . (b) The Legal Department or the civil party may at any time attach movable or immovable property of the convict up to the amount of the debt in accordance with the Procedure for the enforcement of civil judgments . The time limit for taking of the action provided for under subsection (1) (b) shall be thirty (30) years, to run from the day after the imprisonment in default has ended . When the duration of imprisonment in default has been served no other order of imprisonment shall be made for the same debt .

BIBLIOGRAPHY

BOOKS

Atoh Walter, Fair Trial a Nightmare in the Judicial System in Cameroon. Part Two. The Time Law Firm, 2015.

Barrister Tanyi Joseph Mbi, Law without Boundaries: Compensation for Illegal Detention, Center for Human Rights Education, Training and Research (CHETAR), 2007.

Bryan A. Garner, Black’s Law dictionary, (9th edition), (USA, Thomson Reuters, 2009).

Herbert L. Packer, The Limits of the Criminal Sanction, Stanford, Stanford University Press, 1968.

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, UK, 1789.

K. Daly, Aims of the Criminal Justice System, Griffith University, California-USA, 2012.

ARTICLES

Atoh Walter M. Tchemi, “Critique on Sections of the Cameroon Criminal Procedure Code, Cameroon, International Journal of Scientific and Research Publications, Volume 6, Issue 9, (September 2016),

Comfort Fuah Kwanga, “Corporate Criminal Liability in Cameroon: The Dawn of A New Era”, University of Douala, Douala, Cameroon, Commonwealth Law Review Journal (CLRJ) Volume 4, 2018.

E. Eban, ‘‘Criminal liability of the police in Cameroon: prospects and challenges’’, African journal of Criminology and Justice Studies: Vol.5, No.1&2, (2008).

Margot A. Hulbert and James P. Muivale, ‘Defining Justice’ Fernwood Publishing.

Metiege Divine Njikang, “Access to Justice in Cameroon”, Nanje School of Creative Thinking, August 25, 2009.