Le régime juridique des étrangers au Cameroun

CHAPTER II : CAUSES

We tried to show in the preceding developments that according to the legal category to which they belong (regular, irregular, refugees and stateless people) the foreigners have specific problems. It is important to know that the evils of which they suffer are, actually, related to the uncertainty of the Community legislation (Section 1) and of the State of right (Section 2).

SECTION 1 - THE WEAKNESS OF THE COMMUNITY LEGISLATION

The guarantee of the personal freedoms can prove to be difficult since standards (Paragraph 1) and the institutions (Paragraph 2) relating to it which rises from the Community legislation present gaps.

Paragraph 1 - The laconism of the texts

The insufficiency of the rules which define the condition from abroad in the levels regional (A) and sous-régional (B) constitutes a source of the violations observed in Cameroun.

A) Regional standards

The contents of the texts founders of the regional right (1) as that of the instruments which fix of them measurements of application (2) present gaps prejudicial at the statute of the non-national ones.

1) Standards creating the UA

Such as it arises from the preamble to its Deed of partnership, the UA takes as a starting point the the principles and objective statements in the Charter by the late OAU like in the treaty establishing the African Economic Community (ECA). For this reason, we can quote freedom of movement of the nationals of the States left and their right of establishment in the regional territory. Unfortunately, the Deed of partnership did not devote this fundamental principle explicitly. Also, we have the impression that the Heads of States much more thought of the development of a right specifically treating economic questions and resolution of the conflicts in Africa, rather than with the problems that their respective nationals in another Member State can meet. It is thus not astonishing that the foreigners originating in the area in fact, encounter difficulties in Cameroun.

These normative failures are also observable in the rules which determine the policies of implementation of the missions of the UA.

2) Standards fixing the conditions of achievement of the objectives of the UA

Article 3 (8) of the Deed of partnership specifies that the UA has inter alia missions, the promotion and the protection of the humans right, which include the rights from abroad as guaranteed by the African Charter of the humans right and of the people.

It is important to stress that this instrument presents two major defects. In first it does not proclaim the right of any human person to the private life ; also we wonder why the foreigner is not entitled it to a life deprived in Africa ? As a second, the text in question, did not envisage intangible rights ; how to interpret this silence ? With our opinion, if this last question had been suddenly put before the African Commission of the humans right and of the people, three interpretations would be possible. First of all, there is no intangible right at the regional level ; however, such a conclusion appears a little too hasty because it can legitimate infringements of the basic rights of the non-national ones. Then, all the rights are intangible ; although this opinion benefits the immigrants much, it is, nevertheless, unrealistic person. Lastly, the Commission will refer to the PIDCP ; indeed, since the regional texts are supposed to conform to the universal standards, it will apply its article 4 (2) which sanctions the intangible rights. However, this last interpretation also has a fundamental limit because certain African States did not ratify the PIDCP. This being, we wonder about the attitude of the Commission vis-a-vis the following situation : how will react T indeed it within the emanating framework of a complaint from abroad in connection with the violation of an intangible right by a State not part to the Pact ?

In the final analysis, we note that it is rather complex to interpret the silence of the African Charter. For this reason, with as many gaps in the drafting of a regional text relating to freedoms of the human person and more especially from abroad, we can only question us, like made the many doctrinary ones, on the real intention of its writers : « Heads of State (...) they did not write this Charter to go against the humans right ? The African Charter serves the humans right yes or not ? »^163(*). Consequently, this legal instrument does not profit truly the abroads amenable to the UA and even less to the thirds which reside at Cameroun.

Certain sous-régionales standards unfortunately fell under this logic.

* ¹⁶³ Matter of TITI NWEL (Pierre), during the exchanges and debates, IN  MAUGENEST (Denis) and POUGOUE (Paul-Gerard), Human right in Africa Power station-conference of Yaounde (November 9-11, 1994), Yaounde, UCAC-Karthala, 1995, pp.241-246.