The condition of foreigners in the family law of Cameroon

Author:Valeri Lesmont Bahoken
Position:Faculty of Law and Political Science, University of Douala, Cameroon
Pages:167-185
SUMMARY

The preamble of the constitution of Cameroon enshrines the principle of assimilation of foreigners into nationals through the Family law. However in concrete terms, this constitutional provision is undermined (limited, hindered) by a number of political and sociological constraints. The foreigner faces limitations in enjoying the said rights as well as in creating them. It is therefore necessary... (see full summary)

 
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The condition of foreigners in the family law of Cameroon
Senior lecturer Valeri Lesmont BAHOKEN
1
Abstract
The preamble of the constitution of Cameroon enshrines the principle of
assimilation of foreigners into nationals through the Family law. However in concrete
terms, this constitutional provision is undermined (limited, hindered) by a number of
political and sociological constraints. The foreigner fa ces limitations in enjoying the said
rights as well as in creating them. It is therefore necessary to amend the Cameroonian
legislation so that it complies fully with the exigencies (requirements, needs) of
fundamental rights, the construction of the universal human being (man in general), who
will be governed by the same rules everywhere.
Keywords: foreigner; national; constitution; infra-constitutiona l norms; public
order; enjoyment of rights; creation of rights.
JEL Classification: K36
1. Introduction
Generally, it should be recalled that there are three methods through which
governments regulate international private relations: the first consists in applying
directly to the contentious situation irrespective of the existing foreign element,
substantial or material rules of the domestic law; the second, to be designed besides
the domestic law is a substantive law ‘ specially fitted to situations having the same
foreign element affecting them’ and the third, the classic confrontational method
2
.
In view of regulating the status of foreigners, Cameroon like most of the countries
chose the first method the status of foreigners depends on a material and national
rule unilaterally adopted by the legislator.
3
1
Valeri Lesmont Bahoken, Faculty of Law and Political Science, University of Douala, Cameroon,
lesmontv@yahoo.fr .
2
Boye A. K..,Le statut personnel dans le droit des p ays africains, RCADI, 1993,1, pp. 251-419,
spec. p.290.
3
The following texts regulate the status of foreigners in Cameroon:
- Law n°97/012 of 10 January 1997 relative to the conditions for foreigners to enter, stay and leave
Cameroon;
- Law n°2005/006 on the status of refugees in Cameroon dated from 27 July 2005 ;
- Law n°2007/001 of 19 April 2007 appointing the judge of legal department to carry out and set
in Cameroon terms of action, legal decisions and foreign public actions as well as foreign
arbitration of sentences.
- Decree n°2007/255/PM of 4 September 2007 fixing detailed rules for the application of the law
n°97/01 of 10 January 1997 relative to the conditions for foreigners to enter, stay and leave
Cameroon.
- Decree n°2008/052 of 30 January 2008 amending and completing some provisions of decree
n°2007/255 of 4 September 2007 fixing detailed rules for the application of the law n°97/012 of
10 January 1997 relative to the conditions for foreigners to enter, stay and leave Cameroon;
- Decree n°2011/389 of 28 November 2011 on the Organization and Functioning of the
Management Body of the Status of Refugees in Cameroon.
Volume 6, Special Issue, October 2016 Juridical Tribune
168
Yet, as Professor Bernard Audit pointed out, ‘a well organised international
society should enact the status of foreigners applicable in all countries, without
prejudice of a more favourable arrangement by agreement, or even by voluntary
concession of the host country’
4
. But, looking at it on one hand, the rise of
nationalism is greatly due to migratory phenomena and on the other hand,
regarding economic considerations, we can assert without doubt that concerning
this matter, we are not drawing close to a universal agreement.
According to Article 2 of law n°97/012 of 10 January 1997 in relation to
the entry, sojourn and exit conditions for foreigners in Cameroon,‘...a foreigner is
anyone:
without a Cameroonian nationality;
with a foreign nationality;
Or, with no nationality’
In Cameroon law, a foreigner is that individual with a foreign nationality or
still, without any nationality. Nationality, it should be recalled, ‘is the political and
legal link that unites individuals to a state that constitutes the national community
and gives to the subjects the status of being members of the state’
5
. Finally, two
categories of people are concerned with the status of foreigners in Cameroon:
holders of foreign passports and stateless persons.
It is generally admitted that whatever be the societal forms, the foreigner is
always treated differently from the national. Foreigners do not enjoy the same
rights as the nationals, and are not assigned either to the same task
6
. Cheikh Anta
Diop demonstrated in his book, l'Afrique noire précoloniale, that this distinction in
treatment dates back from the ancient city. Indeed, it reads thus that, ‘patriotism, so
characteristic of ancient Rome and Greece, is understandable because the society
had not made provisions for foreigners who, because of this was the n°1 enemy,
without rights, who could have been killed with impunity, whose look only, soiled
liturgical objects’
7
. The foreigner, culturally different from the national, is seen as
an enigma and so making it sometimes difficult to predict their behaviour. In
modern societies, this feeling of strangeness grew with security constraints in spite
of the influence of fundamental rights.
8
Beyond these considerations, the status of foreigners today meets a
‘minimum standard’; for, as the International Court of Justice pointed out in the
Barcelona Traction, Light and Power Company Limited Case, ‘from the time a
State admits on its territory (...) foreign nationals, (...) it has the duty to grant them
the protection of the law and assume certain obligations as to their treatment’.
9
4
Audit B., Droit international privé, Paris, 6th ed., Economica 2010, n°1048, p. 884.
5
Loussouarn Y. et Bourel P., Droit international privé, 2nd éd., Dalloz, 1980, n°704, P. 788.
6
About the historic background of the statu s of foreigners, read for example, Loussouarn Y. and
Bourel P., op. cit., p.754 and s.
7
Cheikh Anta Diop, L'Afrique noire précoloniale, Présence Africaine, Second ed.,1987, p. 26.
8
Ibid., n°1049.
9
Order, C.I.J. Rec. 1970, p.3; On the protection of the foreigners' properties, v. CPJI avis n°7, prec.
Bindschedler, La protection de la propriété privée en droit international public, RCADI, 1956,
1.173; Petrén, La confiscation des bien etrangers et les reclamations interna tionales auxquelles
elle peut donner lieu, RCADI, 1963, 11. 847.

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