Do the measures in response to COVID-19 conatained in the announcements and special declarations of the Government amount to "LAW"?
Where
is the place of the statements/announcements and special declarations prescribed
by the Government in the Cameroonian legal hierarchy of norms?
A
brief recap on the announcements/special declarations on measures taken by the Government:
To
limit the spread and the impact of the coronavirus pandemic in Cameroon, the President
of the Republic of Cameroon prescribed 13 protective measures[1] on
17th March 2020 affecting several sectors of activity such as
education, trade, transport, and many others. The Government further prescribed
additional measures on 9th April 2020[2].
Regardless
of these measures, the rate of progression of this pandemic was still very high.
Due to this unpleasant situation, the President of the Republic prolongated these
measures taken on 17th March and 9th April 2020 for a renewable
period of 15 days.
However,
even though the main aim was to limit the spread of the pandemic, these
measures led to alterations in the economic and social activities in the State.
The most affected sectors as identified by the Government are transport,
hotels, restaurants and trade in general.
The
Groupement Inter-Patronal du Cameroun (“GICAM” for short) published a
report[3] on
22 April 2020 showing the real impact of the pandemic on businesses in Cameroon.
In this same report, companies addressed several requests to the public
authorities such as the deferral of social security charges and taxes, cash
flow financing at a reduced interest rate and requested for incentives.
Faced
with the worries of corporate entities and the population due to the economic
and social distortions caused by COVID-19 and its response measures, the Prime
Minister, under instructions of the Head of State, will, in a special
declaration of 30th April 2020[4],
publish the measures of relaxation and support decided by the Head of State.
Does the measures in the announcements/statements
and special declarations prescribed by the Government in response to COVID-19
amount to Law?
1.
There is a need to position these measures in the Cameroonian hierarchy of
legal norms, to know whether these measures amount to “LAW” under the
Cameroonian legal norms.
2.
A Law can be defined as a body of rules and conduct with binding legal force
and effects, prescribed, recognized and enforced by a controlling state authority[5]. If
a law is violated, the party concerned will be subject to civil liability or
criminal sanction.
For
a legal norm to be considered as a law, it has to either create a law or modify
an existing law.
3.
With regard to laws in Cameroon, there exist a hierarchy of legal norms[6]
which classifies laws in different categories. Below is a brief reminder on the
hierarchy of norms in Cameroon:
|
1 |
The constitution |
|
|
2 |
International
Conventions (International Agreements and Treaties duly ratified) |
|
|
3 |
Laws |
|
|
4 |
Ordinances |
|
|
5 |
Regulations |
i.
Decrees (Presidential
and Prime Ministerial) |
|
ii.
Orders (ministerial,
regional, divisional, municipal) |
||
|
6 |
Jurisprudence |
|
|
7 |
Custom |
|
4[7].
From the point of view of administrative law, for the State administration to
carry out its activities, it brings up administrative acts which are intended
to change the legal order. Through
the legal action it takes, the administration willingly introduces changes in
the existing legal situations.
Due
to the power conferred to the administration by the constitution[8],
the administration can take action through unilateral administrative acts
(actes administratifs unilatéraux) which are legally enforceable.
Few
examples of these unilateral administrative acts are; ordinances, decrees,
orders, directives, circular letters etc[9].
Again,
announcements/statement and special declarations do not fulfil the criteria of unilateral
administrative acts as hence cannot be considered as part.
5.
Statements/announcements and special declarations are not classified in the
hierarchy of norms and hence cannot be classified as a category of Law.
In
support of this point of view, you will notice that only a few of these
measures taken through statements/announcements and special declarations were
enforced through legally enforceable administrative acts (ordinances, decrees,
orders, circulars etc) which are categorised in the legal norm. For example:
- - Presidential Ordinance N°
2020/001 of 03 June 2020 amending and completing certain provisions of the Law
N° 2019/023 of 24th December 2019 on the finance law of the Republic
of Cameroon for the financial year 2020;
- - Regional order N°
011/AR/C/SG/DAAJ of 02 AVR 2020 prohibiting the consumption on the spot of
alcoholic, hygienic and traditional drinks and wines in the Littoral region;
- - Circular letter N° 20/169/CF/MINFI/DGI/DLRI/L
of 13 May 2020 specifying the modalities for the application of fiscal measures
in response to COVID-19;
- - Ministerial Order N° 0824
MINSANTE DU 09 April 2020 establishing measures for the prevention and control
of coronavirus in Cameroon;
- - Municipal Order N° 02/AM/MDV/CAB/2020 making the wearing of protective
masks against the COVID-19 pandemic mandatory the populations of the city of
Bertoua.
All
measures which were duly enforced through administrative acts like those cited above
can be said to amount to law because they either create a law or modify and/or
complete an existing law.
ULTIMATE
QUESTION!!!!!!!!!!!
Under
what legal category can the statements/announcements or special declarations of
the Government be classified?
[1] https://www.cameroon-tribune.cm/article.html/31170/fr.html/lutte-contre-le-coronavirus-les-13-mesures du gouvernement.
[2] See Special Declaration of the
Prime Minister, Head of Government of 9th April 2020
[3] See GICAM report of 22nd
April 2020 on the impact of COVID-19 on companies in Cameroon
[4] See Special Declaration of the
Prime Minister, Head of Government of 30th April 2020
[6]
Hans Kelson’s hierarchy of norms
[7]
Patrick Edgard (A-E), « Traité
de droit administratif du Cameroun (Théorie générale et droit administratif
spécial », L’Harmattan, pg 64
[8] Articles 8, 12(2)(3) and 12(5) of
the Constitution which provides for the regulatory power of the Executive by
recognizing the regulatory power of the President, the Prime Minister and Ministers
respectively to take measures to which change the legal order. This power is
also delegated to the deconcentrated and decentralized authorities
[9]
Patrick Edgard (A-E), « Traité
de droit administratif du Cameroun (Théorie générale et droit administratif
spécial », L’Harmattan, pg 81
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