1. Introduction
The
“Social Contract”! This famous intellectual construct dear to John LOCKE and Jean-Jacques ROUSSEAU has stood the test of time. For them, it was a matter of
“finding a form of association which defends and protects the person and property of each associate with all the strength of the community, and by which each, uniting with all, obeys only himself and remains as free as before” . In this way, all contracting parties are equally bound by the terms of the contract. The Universal Declaration of Human Rights states that
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.To this end, these Central African societies
| [2] | Gérard CORNU defines society as "a group of members of a nation or State, considered as the subject and support of a collective interest" in Vocabulaire juridique [legal vocabulary]. (2009). PUF, p. 870. |
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have devised a system for regulating conflicts and pacifying social relations in order to avert the risk of implosion
. Hence the need for
a “judge in the city” | [4] | ERRERA, R. (2013). Et ce sera justice... Le juge dans la Cité [And i twill be justice… The judge in the city]. Collection Le Débat. Gallimard. |
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. Avenger of our cowardice, compensator for our lack of imagination, the judge is the
“guardian of our social pact and of the principles of the Republic” .The judge, part of the jurisdictional body, is a permanent institution invested with the most terrible of powers whose majesty must be strong and prestigious
| [6] | BADINTER, R. (1995). Une si longue défiance [such a long mistrust]. Pouvoirs, 74, 8. |
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| [7] | GARAPON, A. (1995). La question du juge [The judge’s question]. Pouvoirs, 74, 16. |
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. A certain jurisdictionalization of collective life is thus taking shape. Social conflict is no longer exclusively a matter of private interests. Social conflictuality has conquered administrative lands. This is why, on the basis of the separation of powers, it was necessary to create an institution capable of
“hearing administrative acts”, especially since its revolutionary interpretation led to the principle of the separation of administrative and judicial authorities.
The legal underpinning of this principle is crystallized in the Law of August 16 and 24 1790, article 13 of which states: “Judicial functions are distinct and will always remain separate from administrative functions. Judges shall not, under penalty of forfeiture, disturb in any way whatsoever the operations of administrative bodies, nor summon before them administrators for reasons of their functions”. In practical terms, this principle has two consequences: legal courts are prohibited from dealing with the administration, and courts are prohibited from hearing administrative disputes, and from judging the administration. This is how the dual jurisdictional system was devised, to which Cameroon and Congo have subscribed with their own specific features.
In Cameroon, the relationship between administrative jurisdiction and the passage of time can be readily assessed in the light of the country's twofold political and institutional evolution.
In the Congo, on the other hand, the evolution of administrative jurisdiction has not been linear. It existed before the country's independence in 1959, disappeared after independence (1961) and reappeared with some hesitation in 1962. It was confirmed in 1983.
If everything and everyone is now subject to the law
| [7] | GARAPON, A. (1995). La question du juge [The judge’s question]. Pouvoirs, 74, 16. |
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, we have now moved from the State as master of justice to the State as subject to the law. Contemporary justice is marked by an inflation of litigation
| [8] | SCARANO, J. P. (1996). Les institutions juridictionnelles [Judicial institutions]. Ellipses, p. 44. |
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. Today, the judge's mission is much more plural and complex than it was in the time of Baron De la Brède. This is how Cameroonian and Congolese administrative judges are emerging, revitalized by current legislation. As Bernard AKERE MUNA rightly points out
: “Africa must re-establish a renovated judicial system to make it compatible with a dynamic society, by introducing different structures and methods for conflict resolution” | [9] | AKERE MUNA, B. (2008). Le défi de la démocratie en Afrique: Instauration de la démocratie dans des sociétés multiethniques et multi tribales [The challenge of democracy in Africa: Establishment of democracy in multi-ethnic and multi-tribal societies]. Tama Brooks, p. 109. |
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.
As the link between equality and legality, the administrative judge cannot be insensitive to the socio-political pulses and convulsions that mark the life of the State, and therefore the proof that the judge must not only be an expression of the State itself, but also a weapon of society
. Lord Justice AWASOM Florence insists that we must never forget the social dimension of Justice. All in all, the aim is to
“raise the quality, effectiveness and efficiency of the public justice service to meet a demand for justice that is constantly growing in terms of both quantity and quality” . How can we effectively and appropriately resolve the most intense conflict in society?
| [12] | SAUVÉ, J-M. (2014). Speech at the Annual Meeting of Presidents of Administrative Jurisdictions. |
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How can the growing number of disputes generated by the activities of public authorities be settled sustainably, i.e. at a high level of quality and at a cost that can be borne by the budget?
Cameroon and Congo, two sister Republics because they border on each other, share the same cultures - foremost among which is the Fang-Beti culture - and operate more or less in the same legal tradition, are experiencing a crisis in their Administrative Judges. This should come as no surprise, given that the notion of crisis has become commonplace in the public arena, having spread to all sectors of society. As Edgard MORIN lamented “The crisis of the concept of crisis is the beginning of the theory of crisis”.
For General Loup FRANCART, by destabilizing a system, a crisis is first and foremost “a rupture, revealing new realities”. Thus, crisis is no longer simply the result of the realization of an external threat, it is also a product of society, highlighting the concept of a crisis without an enemy. Pierre DRAI echoes this reading when he says of the judge's crisis that it “attaches itself to our condition as demanding and impatient men”, in other words, the judge ontologically bears the seeds of his own crisis.
If we consider a crisis in terms of disturbances, deviations from a standard, what are the characteristics of the crisis of the administrative judge in the contentious areas of Cameroon and Congo?
There are two areas to consider: a crisis of legitimacy and a crisis of identity.
2. The Unveiled: A Crisis of Legitimacy
“Justice is very often approached emotionally, reactively and defensively. It is described as an institution 'in crisis', 'abandoned', 'disaster-stricken', etc.” | [7] | GARAPON, A. (1995). La question du juge [The judge’s question]. Pouvoirs, 74, 16. |
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Pierre DRAI, then First President of the Paris Court of Appeal, gave a speech at the formal hearing on January 6, 1988, on
“the judge and his legitimacy”. The judge's legitimacy, is the confidence of the litigant; it is this confidence that authorizes him to exercise the formidable power to judge
| [13] | GAUDEMET, Y. Crise du juge et contentieux administratif en droit français [Judge’s crisis and administrative litigation] in ANDERSEN, R., DELPÉRÉE, F., FAVOREU, L., GAUDEMET, Y., LENOBLE, J., PERROT, R., TERRÉ, F., & VAN COMPERNOLLE, J. (1990). La crise du juge [Judge’s crisis]. LGDJ. Collection "La pensée juridique moderne", p. 90. |
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. The combination of these two realities, as applied to Cameroon and Congo, contributes to the divorce between the judge and public opinion.
The new Cameroonian and Congolese administrative judges, in their fragility and vulnerability, have to face up to the dogma of judicial infallibility. Public confidence in the judicial system is the major problem to be resolved. Subject to all kinds of epithets, the Judge is in crisis
| [14] | Read ANDERSEN, R., DELPÉRÉE, F., FAVOREU, L., GAUDEMET, Y., LENOBLE, J., PERROT, R., TERRÉ, F., & VAN COMPERNOLLE, J. (1990). La crise du juge [Judge’s crisis]. LGDJ. Collection "La pensée juridique moderne", 170. What's more, the crisis we're talking about here has a negative connotation. |
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.
It is clear that the administrative judge is operating in a difficult context. This difficulty is driven by both the public and the Administration. In the first case, he is seen as a double agent, in that as part of the Administration, he is supposed to judge it. In the second, and this is the curiosity of the analysis, the administrative judge in our “non-democratic” societies, is curiously considered by the Administration as a pebble in its shoe. If he has ever had to ask himself the question: what do people think of me? He will find the answer in the following pages.
2.1. A Context Made Difficult For the Administrative Judge by the Public
From box-office to secret state missions, the administrative judge in Cameroonian and Congolese litigation appears under the sieve of their respective societies as a double agent. As an agent and judge of the Administration, it is clear that it is very difficult for administrative judges to escape the original suspicion that is grafted onto their egos.
Theoretical and even institutional discourse, which does not really convince the public, reveals that the Administrative Judge is an institution whose primary mission is to ensure that the Administration complies with the law. However, it is a fact that, before being an administrative judge, he is a judge, and is therefore suffering from all the symptoms of his crisis. All of which makes the administrative judge look like a wolf in sheep's clothing.
2.1.1. The Ordinary Figure of the Administrative Judge Tainted
The administrative judge is first and foremost an (ordinary) judge, before being administrative as he is considered in the societies in which he moves. To this end, he is statutorily tainted by the original sin.
“In societies that readily give in to the temptation of "victimization", the search for the guilty is becoming more pressing by the day. Judges are no exception to this trend” | [15] | DIPANDA MOUELLE, A. Speech delivered on February 03, 2006 at the ceremony to install a new member of the Court and swear in young magistrates. |
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. The judge is accused of all evils. From time immemorial, the harshest and most radical sentences have been passed on them, conveying contempt for their work down the ages. Thus, placed before public opinion, the judge's activity is exposed. The judge is exposed to direct and sometimes violent public criticism. The gaze of public opinion exposes operational shortcomings, the illegibility of procedures and the fragility of decision-making circuits. The audience for justice is no longer a sparse courtroom. Judges are neither immune to invective nor mockery. They are often accused of being corrupt, submissive, biased, against liberty, negligent, incompetent and likened to the mafia by certain individuals, among others. They also denounce the slowness of the judiciary, pointing out that the time taken by the justice system does not take into account the time of the litigant or the time of the economy. The
Doing Business reports confirm this last point. The judge, the only visible figure in the judicial system, fuels media storms. Misunderstandings and criticisms highlight the shortcomings of his communication system. His fragile status as an impartial decision-maker is severely undermined
| [16] | SALAS, D. L’image du juge et sa place dans la société se sont profondément transformées. Son rôle explose, mais sa fragilité est d’autant redoublée [The image of the judge and his place in society have been profoundly transformed. Its role explodes, but its fragility is all the more redoubled]. Available from: http://www.revue-projet.com/articles/2004-11-l-avenir-incertain-du-juge/ [Accessed 5 October 2016]. |
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.
The litany of shortcomings thus highlighted is based at the very least on the nature of the criticism levelled. Some of them are exaggerated, even excessive, all the more so as they are generally made without any prior research into the real causes of this state of affairs.
All in all, the judge's credibility is undermined, leading to a crisis of confidence on the part of those subject to trial. The corollary is undoubtedly that the judge himself becomes the target of those he is called upon to judge. In fact, the judge is only a judge because he is wanted by society, so it is logical that society should be the guardian of the guardians it has chosen. It is therefore incumbent on the judge to undergo, without fear, regret, bitterness or anger, the objective (and very often subjective) criticism of those whose freedom, honour or property he has to dispose of. Antoine GARAPON corroborates this point of view when he states that the judge must accept “to be questioned, to appear (...); it is to expose oneself to public scrutiny, it is the very possibility of scrutiny and questioning”. This evil is so deeply entrenched that the President of the Republic of Cameroon, His Excellency Paul BIYA, noted on December 31, 1998, during his New Year's address to the Nation: “There are still many examples where justice is not dispensed as it should be. That is to say, swiftly, impartially and in strict compliance with the laws and procedures in force.... These shortcomings run the risk of casting suspicion on the entire institution. However, as the judiciary is now vested with "power", it has a particular responsibility”. This concern, expressed a little less than twenty (20) years ago, is a legitimate demand on the part of litigants and reveals a strong expectation on the part of the public.
Considered as the guardian of the legality of administrative action, the administrative judge, whether Cameroonian or Congolese, faces specific problems.
2.1.2. The Specific Figure of the Administrative Judge Reproached
In Cameroon and the Congo, the administrative judge is ontologically subject to particular frustrations and invective. Essentially, they are regarded by the average citizen as an outgrowth of the State, the rulers and the aristocracy.
In North-West Cameroon, people say that the Administrative Court was set up to defend the interests of the CPDM. In the West, the administrative judge is seen as the protector of the State's interests. Congolese citizens, on the other hand, see them as judges at the service of the State. This perception pollutes and dilutes the close relationship between one of the guardians of the social pact and its sovereign.
For society, the existence and function of the administrative judge are a mockery of the Administration's interests. A double agent, he pretends to be an impartial third party, when in fact he is merely a wolf. This view of the administrative judge is the consequence of the choices made in the 1970s. The truth is that, in an authoritarian political-institutional context marked by political monolithism or characterized by a Marxist-Leninist ideology
| [17] | DU BOIS DE GAUDUSSON, J. (1992). Trente ans d'institutions constitutionnelles et politiques: points de repère et interrogations [Thirty years of constitutional and political institutions: benchmarks and questions], Afrique Contemporaine, 164, p. 52. |
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, the law did not seem capable of providing a liberal foundation for society.
For some observers, fear paralyzes the processive spirit of the Congolese and (to a lesser extent) Cameroonians. In the days of the single-party system, this fear was explained by what Pierre François GONIDEC
calls the "fear of reprisals"
| [18] | GONIDEC, P. F. (1968). Les droits africains: évolution et sources [The African Laws: evolution and sources]. LGDJ, p. 212. |
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. For litigants, it was a question of avoiding
“displeasing the political power” | [17] | DU BOIS DE GAUDUSSON, J. (1992). Trente ans d'institutions constitutionnelles et politiques: points de repère et interrogations [Thirty years of constitutional and political institutions: benchmarks and questions], Afrique Contemporaine, 164, p. 52. |
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totalitarian and intolerant of any challenge, even if strictly inherent to its legal acts. Added to this was what Jean DU BOIS DE GAUDUSSON calls
“the mystique of the leader” | [19] | DU BOIS DE GAUDUSSON, J. (1990). Le statut de la justice dans les Etats d'Afrique francophone [The statute of justice in French speaking African states], in DU BOIS DE GAUDUSSON, J., & CONAC, G. La justice en Afrique [Justice in Africa]. Afrique Contemporaine. La Documentation Française, 156, 11. |
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. It crystallizes in a reverential fear that turns the victim away from administrative activities and the legal system.
Moreover, in both Cameroon and Congo, there is a problem of legal education, in both its substantive and processual dimensions. This lack of
“legal awareness” | [20] | BOCKEL, A. (1971-1972). Le juge et l'administration en Afrique noire, introduction à l'étude du problème [The judge and administration in Black Africa]. Annales Africaines, 28. |
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justifies the idea of
“popularizing” justice and the law launched by GRANGER
| [21] | GRANGER, R. (1965). Problèmes d'application du droit moderne dans les pays en développement [Problems of applying modern law in developing countries]. Annales de l'Université de Madagascar, 2, 116. |
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and taken up by Joseph-Marie BIPOUN WOUM. This led Dean MOUDOUDOU Placide to conclude that
“subjecting the administration to jurisdictional control is a difficult undertaking, and one that has never been perfectly achieved” | [22] | MOUDOUDOU, P. (2003). Droit administratif congolais [Congolese administrative law]. L'Harmattan, p. 79. |
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Administrative judges are sometimes the source of the criticism levelled at them. In this case, the Congolese judge's rulings often fail to inspire confidence in litigants. How can it be accepted that in similar cases, the judge awards damages to some and denies them to others. A state of affairs that vindicates Jean Marie BRETON, who expressed himself as follows: “
In Africa today, the judicial institution has lost most of its credibility and the confidence of individuals, because the vision they have of it, rightly or wrongly, does not correspond to what they expect, and because the vision that the effects and consequences of the judge's intervention fall far short of the results expected in the submission of the administration and the State to the respect of equal rights for all” | [23] | BRETON, J-M. (2003). Légalité et Etat de droit: statut et perception du juge de l'administration. Contribution à une réflexion transversale [Legality and rule of law: statute and perception of the administration’s judge. Contribution to transversal reflection]. Afrilex, 03, 91. |
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, the crisis of confidence between Congolese administrative judges and the public is fuelled by
the "poor quality" of the decisions handed down, and a rather shaky jurisprudence
: “when all is said and done, the litigant does not have a perfect judge who is aware of the problems underlying the disputes referred to him” | [23] | BRETON, J-M. (2003). Légalité et Etat de droit: statut et perception du juge de l'administration. Contribution à une réflexion transversale [Legality and rule of law: statute and perception of the administration’s judge. Contribution to transversal reflection]. Afrilex, 03, 91. |
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It has to be said that the public, at whose service the Administrative Judge is, expect more from him, in that he carries out a sensitive public service mission, managing balances, protecting individual rights and freedoms, and securing transactions, all undeniable guarantees of a State governed by the rule of law. This does not alter the administration's perception of the Administrative Judge as a pin under its foot.
2.2. A Difficult Context Maintained by the Administration to the Detriment of the Administrative Judge
All disputes involving a public entity (the State, decentralized local authorities, public administrative establishments) or a private entity entrusted with a public service (such as professional orders, sports federations, etc.) fall (unless otherwise provided by law) within the jurisdiction of the administrative judge. The latter is a judge of the Administration in the functional sense, not in the organic sense. As such, the welcome it has been given and the place it occupies are illustrative of the consideration it is given: that of the grain of sand
| [24] | ABA'A OYONO, J-C. (2009). Chronique du grain de sable dans la fluidité jurisprudentielle à la chambre administrative du Cameroun [Chronicle of the grain of sand in the jurisprudential fluidity in the administrative bench of Cameroon]. Juridis Périodique, 78(2), 62. |
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prejudicial to the socio-political, economic and cultural development of our States. What is the basis for this state of affairs, and what are its illustrations? This questioning will undoubtedly determine the genotype and phenotype of this grain of sand.
2.2.1. Reasons for the Administration's Distrust of the Administrative Judge
With the decentralization of administrative justice, the justiciability of the Administration's activities in the general interest has increased. Administrators are no longer petty emperors within their own jurisdiction. Administrators wrongly see the administrative judge as a threat to their power. If, in the past, relations between administrative and judicial authorities have not always been a honey bowl, today, with the institution of the Administrative Judge, they are more watered down.
The fear is forged in the mold of the rejection that the contemporary administrative authority must reassure itself today, more than in the past, that its decision respects the formal and substantial canons of the enactment of a decisive administrative act. Such an important requirement is not always well received. If a regulatory act issued by the President of the Republic or the Divisional-Officer, via the decentralized authorities at local level and technical level, is liable to be annulled and even reformed by the Administrative Judge. So, it's clear that the administrative authority is no longer free to decide as it pleases, very often in defiance of the block of administrative law.
Moreover, the administrative authority considers that the annulment of its act by the administrative judge is an attack on its person and therefore a humiliation it suffers. This philosophy is rooted in the spirit that hangs over the Cameroonian and Congolese administrations: the patrimonialization of State functions. This is at odds with the principles governing public administration. DAUNOU says it well enough, noting
that "administering is the work of one, “as he puts it in his explanatory memorandum; judging is the work of many. Let us add that judging between administrators and the administered is the work of several, none of whom administers” | [25] | DAUNOU, Rapport sur le projet (au nom de la Commission), séance du 23 pluviôse an VIII, M. U. 4 ventôse an VIII [Report on the project (on behalf of the Commission), meeting of 23 Pluviôse year VIII, M. U. 4 Ventôse year VIII], p. 615. |
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. This also reflects a sort of survival of the
“authoritarian tradition of colonial administration, largely taken over by independent States, which does not encourage the contentious approach” | [13] | GAUDEMET, Y. Crise du juge et contentieux administratif en droit français [Judge’s crisis and administrative litigation] in ANDERSEN, R., DELPÉRÉE, F., FAVOREU, L., GAUDEMET, Y., LENOBLE, J., PERROT, R., TERRÉ, F., & VAN COMPERNOLLE, J. (1990). La crise du juge [Judge’s crisis]. LGDJ. Collection "La pensée juridique moderne", p. 90. |
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In addition, the application of several provisions of Law no. 2006/022 of December 29, 2006 to lay down the organization and functioning of the Administrative Courts (Cameroon) can paralyze the office of the Administrative Judge in favour of the Administration. By way of illustration, article 51 (1) provides that: “The Administrative Court must rule immediately, in a separate preliminary ruling, on objections to jurisdiction based on article 2 above, without going into the merit of the case”. Before the Cameroonian administrative judge deals with either the merits or the urgency of the case, the defendant has the option of raising a plea of lack of jurisdiction. Having done so, the judge renders a preliminary decision in which he retains jurisdiction. Paragraph 3 of the same provision allows the defendant to lodge an appeal within ten (10) days of notification of the said decision. If he does so, the Administrative Judge's action will be paralyzed by this means of appeal.
Furthermore, under the terms of article 46 of the same text, the Attorney General, once he has been notified of the case, must propose a solution in his submissions within thirty (30) days. In practice, this time limit is almost never respected by the Attorney General, for various reasons. The Judge's paralysis is evidenced by the fact that he cannot exceed the said deadline. By way of illustration, we can cite cases both on the merits and in matters of urgency in which the Administrative Court in particular (that of Littoral) had not as of June 03, 2016 yet emptied its referral, on the grounds that the Attorney General's submission remained pending. These cases are:
1) appeal no. 03/RG/F/14 dated January 02, 2014, sent to the Attorney General’s Office on April 21, 2014;
2) appeal no. 88/RG/SE/14 of November 10, 2014, forwarded to the Attorney General’s Office on December 17, 2014;
3) appeal no. 72/RG/SP/15 of June 21, 2015, sent to the Attorney General's Office on July 14, 2015.
The above-mentioned fear is further fuelled by the transformation of political and social life in Cameroon and Congo, together with all the other French-speaking black African states, in the 1990s.
The Congolese administration still has the authoritarian legacy of the post-independence period. Today's administrative authorities (for the most part) stem from the period between independence (1960) and the establishment of democracy by the Sovereign National Conference of 1992. As a result, they find it hard to accept the existence or presence of a judge charged with sanctioning their actions. This is why Dean MOUDOUDOU Placide wrote that
“(...) the administration exercises public power in the name of the State, and it is difficult to imagine that it could be called to account for its actions, even if only from the point of view of legality, or for the activities of its agents, before a third party, who is moreover independent and impartial as a judge must be (...)” | [22] | MOUDOUDOU, P. (2003). Droit administratif congolais [Congolese administrative law]. L'Harmattan, p. 79. |
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. In other words, the idea of subjecting the Administration, which works in the public interest, to jurisdictional control appears at first sight to be unnatural. Illustrations to this effect are legion.
2.2.2. Manifestations of the Administration's Distrust of the Administrative Judge
The rejection of the administrative judge is manifested in various ways in and by the Cameroonian and Congolese administrations.
In fact, the question of the Administration's execution of administrative justice decisions is the thorny problem facing the administrative judge, and hence the entire administrative justice system. For example, the sanction at the end of a procedure for excess of power often requires the Administration, in addition in replacing the annulled decision, to carry out a “theoretical reconstitution of the past”. This is particularly the case when the annulled decision has halted or modified the course of an administrative situation. Enforcing the decision of the administrative judge “will then require the administration to reconstitute the past by endeavouring to restore it as it would have unfolded had the annulled decision not intervened”. This is something that public authorities are not always quick to do, even when a court decision has the force of res judicata. The latter implies a dual obligation: to take all measures to execute the legal decision, and not to undertake anything in contradiction with the said decision. Observation of the Administration's actions reveals refusals and delays in enforcement. This can often be seen as a sign of unwillingness on the part of the defendant administration.
In concreto, in a tacit manner, the Minister in charge of State property and land tenure in Cameroon has issued an act concerning the enforcement of administrative court decisions, which reads as follows: “(...) Following the practice of directly executing court decisions at the level of the Provincial Estate Services,
I remind you that all court decisions must first be approved by the Minister of Urban Planning and Housing before they can be enforced (...)”. Another Circular Letter dated 2018, was issued by the same authority with the following wording: “For the harmonious execution of court decisions and in order to prevent any disturbance of public order in the land sector throughout the national territory,
From now on, I invite you to forward to me within a week any legal decision referred to you prior to its execution (...)”. When questioned, an official from this ministerial department attempted an explanation that was difficult to sustain legally, according to which this ministerial decision was a “management procedure” for court rulings and not an obstacle to the principle of separation of powers. Further reflection raises the question of what the administrative authority means by “preventing any disturbance of public order”. It arrogates to itself the monopoly of the preservation of this public order, even though it has been established that the administrative judge is the sentinel of the normative and material activity of the Administration, and therefore in charge of controlling the content and use made by the Administration of the notion of public order.
The administrative judge has the power to modulate the effects of his decision over time, by deferring its execution, when in his opinion his decision is likely to undermine public order.
When all is said and done, isn't it a sacrilege to the memory of MONTESQUIEU, John LOCKE and all those great theorists of the separation of powers, for a minister to demand that before any court decision can be implemented, it must be approved by him?
Similar practices can also be observed in the Congo. This is the case of the National Defense public service, which is surrounded by a multitude of ordinances which prevent the administrative judge from even hearing disputes concerning the reconstitution of the careers of public servants, even though article 83 of the text organizing the Judiciary in the Congo empowers the administrative courts to hear all disputes concerning the reconstitution of the careers of all public servants. Faced with this situation, the Congolese administrative judge finds himself at a loss, and this may well be the reason for the hesitation and confusion in case law in this area, in that the decisions handed down are half and half.
In Cameroon, the
CMC v. Ministry of Culture case - which has made headlines around the world - is a truly pathological case because it reveals an administration convinced of its jurisdictional immunity and therefore of its
“omnipotence”. An untouchable administration that takes pleasure in the anonymity of the legal entity. The judgment handed down in this case by the Administrative Bench of the Supreme Court was categorically refused by the then Minister of Arts and Culture, Mrs Ama TUTU MUNA. The judgment had been notified to her by bailiff. Such an attitude of indifference and even distrust towards the decisions of the Administrative Judge leads us (perhaps legitimately) to believe that he is no more than
decorum among the institutions of the State. In this vein, we join Yves GAUDEMET in asking the following question: “
Of what legitimacy can a judge boast who is not, or so poorly, obeyed, especially when this contempt for res judicata is only possible for one category of litigants, that of public persons?” | [13] | GAUDEMET, Y. Crise du juge et contentieux administratif en droit français [Judge’s crisis and administrative litigation] in ANDERSEN, R., DELPÉRÉE, F., FAVOREU, L., GAUDEMET, Y., LENOBLE, J., PERROT, R., TERRÉ, F., & VAN COMPERNOLLE, J. (1990). La crise du juge [Judge’s crisis]. LGDJ. Collection "La pensée juridique moderne", p. 90. |
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What's more, in the contentious administrative procedure itself, the Attorney General's Office, the hand of the Executive Power in the Jurisdictional and sui generis party, is located downstream of the investigation of the case, which has been carried out by the Headquarters. The judge cannot override the submissions of the Attorney General. This can be easily understood from a reading of articles 45, 46 and 47 of Law no. 2006/022 of December 29, 2006 cited above. An analysis of the aforementioned Circular-Letter n° 002 of January 29, 2014 reveals that the bulk of Cameroon's administrative litigation falls into lap of what paralegals call reporting cases. Why should administrative litigation, and all administrative litigation, be subject to reporting? What is the Administration afraid of? These questions remain unanswered here, but highlighting them is part of a skilfully orchestrated plot between the Administration and the legislature.
In addition, carelessness with regard to the rules of protocol governing precedence at public ceremonies may seem trivial, but it is far from trivial. Indeed, during ceremonies such as the celebration of Unity Day on May 20th in Cameroon, the President of the Court of Appeal and the Attorney General to the said Court are seated in the front row alongside the Governor of the Region concerned, while the President of the Administrative Court is seated in the second row. This situation reflects the atmosphere of mistrust, rejection and even ignorance in which Cameroon's administrative judges operate. As a result, it is easy to understand that the Administration's wish is for its Judge to be subservient to it.
In comparative Law, we have the recent case of the Algerian influencer known as “Doualemn”. He was issued a ten-year residence permit on December 26, 2024. On January 7, 2025, the French Minister of the Internal Affairs, Mr. Bruno RETAILLEAU pronounced his expulsion from French territory according to the absolute emergency procedure and withdrew his residence permit. The Urgent Administrative Judge of Paris suspended this expulsion, considering that the person concerned, was not subject to the procedure followed by the Minister but to an ordinary expulsion one. Following this suspension, the Senior Divisional Officer of Hérault imposed an obligation on “Doualemn” to leave French territory accompanied by a ban on returning to France for a period of three years. In administrative detention, he contested these decisions before the Administrative Court of Melun according to the urgent procedure provided for by article L. 921-2 of the code of entry and stay of foreigners and the right of asylum (CESEDA).
Applying the law (article L. 432-12 of CESEDA), the Administrative Court of Melun has cancelled the orders of January 29 and 30, 2025 of the Senior Divisional Officer of Hérault, for error of law. He ordered the administrative authority to issue the applicant a temporary residence permit and to re-examine his situation within three months (in application of the article L. 614-16 of CESEDA). The State must pay to him, the sum of 1,200 euros for legal costs (under article L. 761-1 of the Administrative Justice Code).
However, the Minister of Internal Affairs on a TV show on LCI called “La Grande Confrontation - Face aux Français” Thursday, 6th February 2025, presented the facts and this administrative judgment as an evidence of the Government issues concerning the expulsion of the foreigners out of the French territory, without précising that, he is the one whom the action was illegal.
The word of an administrative judge has an impact that the abstraction of a law or regulation does not. This is why, while remaining the expression of the State's authority, it must above all be a perfume of fragrant myrrh for the strengthening of the proclaimed rule of law. This, despite the fact that Government Commissioner GAZIER, in his submissions preceding the Dehaene ruling of July 7, 1950 by the French Council of State, would have us believe him in these terms: “when, in a State, the constituent authority is deliberately equivocal, the legislative authority systematically deficient, the governmental authority perpetually hesitant, it is not the judge alone who can rectify the situation”. This would certainly explain the administrative judge's identity crisis.
3. The Concealed: The Identity Crisis of the Administrative Judge
In response to the above, Barthélémy MERCADAL no doubt warns society and the administration that: “To judge justice with pride is to wound it and thoughtlessly create a suspicion of illegitimacy towards the judge”. For, behind the fiction of the judge as the “mouth of the law”, there is a political and normative reality to the act of judging. In any case, this task of legitimization or relegitimization falls to the administrative judge only if he correctly reflects his specific role as judge of the Administration. The question the administrative judge must answer is: Who am I?
This question reveals the identity crisis facing this Judge. An identity crisis whose catalyst lies in the fact that the Administrative Judge of the right and left banks of the Sangha River is still genuinely unaware of his identity, and the extinguisher lies in the discovery of this identity.
3.1. A Catalyst for the Crisis: The Administrative Judge's Quest for Identity
“The administration needs its own judge”, emphasized French President Jacques Chirac. The administrative judge thus appears as an entity that imposes itself in the institutional edifice. What is the administrative judge's self-perception in Cameroon and Congo? What meaning does he give to his office? These questions will help to clarify the psychology of the administrative judge, so as to better apprehend his or her reflection, whether in Cameroon or Congo.
3.1.1. The Cameroonian Administrative Judge: A Judge with an Undulating and Hybrid Identity
The preceding developments have highlighted the crisis of confidence in the administrative jurisdiction as a whole. In view of this opinion, which is rooted in the popular subconscious, administrative jurisdiction is marked by
its “guilty relationship” with the active administration
. Under these conditions, the administrative judge must do extra work to nullify any suspicion of partiality, so that litigants will be inclined to take their case to him. We need to educate the public about the merits and raison d'être of the Administrative Courts in Cameroon.
First of all, it's worth pointing out that Cameroon's administrative judges are trained as private law specialists. While the judges of the Administrative Court were interested in administrative litigation issues, the judges of the Administrative Bench are strangers to them.
In truth, the vast majority of magistrates at the Supreme Administrative Jurisdiction are really vest with administrative litigation. Even if some of them have experienced it in one way or another, the fact remains that there is a strong dose of innovation. In accordance with the provisions of article 26 of Law no. 2006/016 of December 29, 2006 setting out the organization and functioning of the Supreme Court, some of which were amended and supplemented by Law no. 2017/014 of July 12, 2017, the Chief Justice of the said Court allocates the judges to the various Benches by order. This allocation does not necessarily take into account the substantial elements of academic and professional training.
Under these conditions, it's hard to understand why a senior judge with little knowledge of theoretical and practical, but very often technical, issues have been given the task of assessing the decisions handed down by his junior, who is more knowledgeable. This may explain the tendency for the praetorium to open up in the first instance, and to shrink in appeal and cassation. Another face of the system of jurisdictional dualism at the base and monism at the top in which Cameroon's administrative justice system operates.
In reality, the Cameroonian administrative judge is described as "undoyant", in view of his spiritual relationship with the Administration. The cross-fertilized thinking of the members of the administrative jurisdictions is such as to account for the emergence of two distant ideologies. The first reveals a face that is revolutionary in its components: a judge who teaches and a judge who serves the law. The second reveals a conservative figure in its double declination, judge-politician and judge-administrator.
For Dorcas MUKWADE NGANDO, the mission of the administrative judge is twofold. Firstly, it is pedagogical, in that the administrative judge in our context has to let administrative authorities know that they have gone wrong, and citizens know what to do about it. In this sense, Jean-Marc SAUVÉ emphasizes that administrative judges have a particular concern for teaching and listening
. Administrative judges are meticulous in the drafting of their decisions. They must take great care to give reasons for their decisions. Unlike the judicial judge, who has the air of a prince, imbued with his
imperium and heavy on reflection, the administrative judge is an extremely light-hearted servant.
On the other hand, ANABA MBO Alexandre believes that the role of the administrative judge is not to sully the administration, but to understand the administration's problems and spare it the necessary time.
Without being a politician, the judge is a politician, in that he or she must manage the balance between the general interest and private interests. In the same vein, Etienne RIGAL argues that: “Unlike politicians, we don't create standards. But law is a verb, words that can be understood in different ways. From the moment he interprets, the judge has a political mission”. If for NONGA Jean-Pierre, the administrative judge is the judge who maintains the balance in the administrative process, according to Lord Justice NGU NGWA, the administrative judge is a pseudo-administrator of high rank who must assess whether the sanctions taken against the Administration are adequate. It is not a question of upsetting the Administration, but rather of correcting it by making it understand that behind public power lies public servitude. As if to say with Lord Justice AWASOM Florence that the aim of the Administrative Court is not to embarrass the State.
As a result, it's easier to identify the spirit that drives Cameroon's administrative judge. Ambitious in appearance, he sees himself as a link between private interests and the general interest. Courageous when necessary, he is not, however, a proponent of professional immolation in the name of Herculean heroism. It is on this basis that he draws closer to his Congolese brother.
3.1.2. The Congolese Administrative Judge: A Judicial Judge Caught in the Trap of Administrative Litigation
One of the aims of the unitary jurisdiction system adopted by the Congo in the wake of its accession to international sovereignty
was “to assign all jurisdictional powers to a limited number of hierarchical units made up of multi-skilled magistrates guaranteed by a statute” | [22] | MOUDOUDOU, P. (2003). Droit administratif congolais [Congolese administrative law]. L'Harmattan, p. 79. |
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.
As a reminder, Congolese magistrates are trained in NSAM where they undergo a hybrid training (half administrative and half judicial) to such an extent that it is very difficult to qualify them according to whether they are judicial or administrative judges. However, it should be pointed out here that the primacy of subjects such as criminal procedure, criminal law and civil procedure in their training modules makes them predominantly judicial "polyvalent" judges. They are more judicial than administrative judges.
Indeed
, “does the ordinary judge have ordinary jurisdiction in all matters?” | [22] | MOUDOUDOU, P. (2003). Droit administratif congolais [Congolese administrative law]. L'Harmattan, p. 79. |
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. In practice, Congolese judges are more interested in judicial than administrative litigation. It is not uncommon to find that administrative litigation is marginalized by judges in favour of judicial litigation in Congolese courts.
As a result, the Congolese administrative judge is an ordinary judge insofar as his or her primary tasks relate essentially to judicial litigation. This reflects the Congolese administrative judge's multi-faceted conception of himself. This is reflected in the fact that, on many occasions, he has applied the rules of private law to the Administration. This was the case in Sitou, where the administrative liability of the hospital administration was at stake. It applied articles 1382 and 1383 of the Civil Code.
In our opinion, these sometimes-grotesque legal heresies of the Congolese administrative judge explain the fact that he or she is much more inspired by the judiciary than by administrative law. As a result, few Congolese judges are interested in public law. Even those who are originally trained as publicists, once appointed as judges, tend to focus more on building up judicial litigation to the detriment of administrative litigation, because "judicial litigation is more fruitful than administrative litigation", they say. Overall, Congolese judges believe that private law takes precedence over administrative law.
The mix of their training
“reveals the impossibility of understanding and mastering both private law, which is the judge's main task, and administrative law, which is an accessory activity” | [27] | ONDOA, M. (2002). Le droit administratif français en Afrique francophone: contribution à l'étude de la réception des droits étrangers en droit interne [The French administrative law in French Speaking Africa: contribution to the study of the domestic reception of foreign laws]. RJPIC, 3, 328. |
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. This is why, in judicial jurisprudence, Congolese judges show originality, but in administrative jurisprudence, there is a reproduction of French solutions applied in similar cases.
The reason for this is
“a lack of intellectual specialization in administrative litigation” | [27] | ONDOA, M. (2002). Le droit administratif français en Afrique francophone: contribution à l'étude de la réception des droits étrangers en droit interne [The French administrative law in French Speaking Africa: contribution to the study of the domestic reception of foreign laws]. RJPIC, 3, 328. |
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. Congolese administrative litigation falls within the jurisdiction of the judicial judge. As Dean ONDOA Magloire writes:
“incontestably, the judicial judge is the common law judge of administrative litigation in Africa” | [27] | ONDOA, M. (2002). Le droit administratif français en Afrique francophone: contribution à l'étude de la réception des droits étrangers en droit interne [The French administrative law in French Speaking Africa: contribution to the study of the domestic reception of foreign laws]. RJPIC, 3, 328. |
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His
“functional versatility” | [28] | WODIE, F. (1969). Commentaires sous CS-CA du 10 Avril 1968, Etat de Côte d'Ivoire contre Groupement français d'Assurances [Comments under SC-AB of 10th April 1968, State of Côte d’Ivoire vs Groupement français d’Assurances], Bulletin de la Cour Suprême. Imprimerie Nationale Abidjan, 17. |
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linked to the monistic jurisdictional organization, certainly contributes to the Congolese administrative judge's belief that he is more a judicial judge than an administrative judge.
The Congolese administrative judge
“is trained as a privatist and rules, sometimes as an ordinary judge, sometimes as an administrative judge within the administrative chamber of the Supreme Court or, quite simply, in the jurisdictions of the judicial order” | [27] | ONDOA, M. (2002). Le droit administratif français en Afrique francophone: contribution à l'étude de la réception des droits étrangers en droit interne [The French administrative law in French Speaking Africa: contribution to the study of the domestic reception of foreign laws]. RJPIC, 3, 328. |
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. Despite the structural separation of the chambers of the Supreme Court, the Congolese administrative judge remains a magistrate of the judicial order, and deals with administrative litigation through
“functional duplication”. He is thus a multi-purpose judge or an administrative-judicial judge, since he does not see himself as a judge of exorbitance, but rather as a judge of substitution.
Moreover, according to the President of the Supreme Court, Placide LENGA, we can only speak of an administrative judge if there is an autonomous administrative order. As the "administrative judge" is merely an ordinary judge officiating in a specialized jurisdiction, there can be no doubt that the Congolese administrative judge is a judicial judge caught in the trap of administrative litigation.
That said, the crisis will only really be over when the Administrative Judge discovers its true identity.
3.2. Extinguishing the Crisis: Discovering the Identity of the Administrative Judge
“Where should we place the center of gravity of an activity that oscillates between the blind application of a law whose origin escapes us, and the enlightened management of conflicts that the abstract norm by definition ignores?” | [29] | BOURETZ, P. (1995). Entre la puissance de la loi et l’art de l’interprétation: l’énigmatique légitimité du juge [Between the power of the law and the art of interpretation: the enigmatic legitimacy of the judge]. Pouvoirs. 74, 73. |
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. This is what Pierre BOURETZ had to say about the role of the judge.
ANABA MBO Alexandre almost answers him when he says of the administrative judge that he is
the law, the conscience and the science | [30] | ANABA MBO A. (2014/2015). Pratique du Siège des juridictions administratives [Practice of the administrative courts]. Course addressed to Administrative Pupil’s Magistrate, National School of Administration and Magistracy (NSAM) of Cameroon, unpublished. |
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. Such precision implies that the administrative judge must be an intelligent judge. If this is the case, he departs from the myth of the judge as oracle of the law. From being a mere
“mechanical legislator”, the office of the administrative judge must become a
technical legislator. The fact is, it is up to the administrative judge to serve both the law and to convince the parties by the solution he gives to their conflict. This, of course, without making decisions from the heart. This is why Socrates said:
“No, this is not why the judge sits, to do justice a favor, but to decide what is right. And the oath he has taken is not to favor those who appear to be favored, but to render justice in accordance with the law”. And Antoine GARAPON adds:
“To judge well, one must hear everything, but hear nothing else, see everything, but see nothing else” | [31] | GARAPON, A. (1997). Bien juger, Essai sur le rituel judiciaire [Judging well, Essay on the judicial ritual]. Editions Odile Jacob. Collection Opus, 314. |
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. And as Chancellor D'AGUESSEAU said, the litigant expects
“judgments from the heart” from his judges, whereas they can only offer him
“judgments from the law”.
However, the administrative judge is an entity of the legal system, whose ultimate goal is obviously the submission of the State to the law. To achieve this, however, he or she must be surrounded by statutory and functional guarantees.
3.2.1. Statutory and Functional Indicators of the Administrative Judge's Identity
The administrative judge is first and foremost a "judge" before being "administrative". Both statutory and functional indicators are likely to lead him serenely along the path to discovering his identity.
From a statutory point of view, the notions of independence, impartiality and integrity form the trilogy of I's that guarantee the litigant that the outcome of the dispute will be the work of a judge within the scope of his or her jurisdictional functions, without influence of any kind, whether extrinsic or intrinsic. Added to this is the enforcement of administrative justice decisions.
The independence of administrative justice refers to two elements: firstly, the management of administrative judges' careers by a body distinct from the Council of Magistracy as set up in Cameroon and Congo, which would not give rise to any prior control by a political authority; and secondly, the management autonomy that must be recognized for the administrative jurisdiction. This, without obliterating the creation of an administrative order distinct from the judicial order from top to bottom.
What's more, the judge's social status is also a key factor in determining his independence or dependence. The Cameroonian judge is a senior civil servant, severely selected, who receives an indexed salary which is very often far lower than that of the litigants he judges, a civil servant who finds it difficult to find accommodation when he is reassigned, who makes enormous efforts to remain dignified by appearances. Do we really have the power to deal with this reality? Can we objectively remain independent? Even if a judge's independence must be an independence of spirit, it must be stressed unequivocally that this spirit moves in a flesh which, if it is dependent, then the spirit by a placebo effect has a strong propensity to be so too.
Impartiality is recognized in Article 14 of the International Covenant on Civil and Political Rights of December 16, 1966, and is based on a dual principle. Firstly, it is subjective, in that it excludes any militancy, favouritism or ideological pretensions on the part of the judge. Secondly, it is objective, in that it proscribes any attitude that would lead the parties to presume a certain partiality on the part of the judge, or even a definite partiality
.
In addition to this, the judge must be serene when hearing cases, and unfounded media criticism of his integrity can undermine his serenity. If he loses this serenity, this independence to be able to decide without fear of reprisals, he will then have to withdraw from the case so that it can be taken up again before another judge, with all the costs and delays that this entails for the citizen and for democracy. So said François ROLLAND.
On the thorny issue of the judge's legitimacy, Chief Justice Alexis DIPANDA MOUELLE
distinguishes between the institutional and functional legitimacy of the judge. In this vein, the administrative judge, more than his status, must crystallize his acceptance by those subject to his jurisdiction and by public opinion, through his office. For the administrative judge, achieving this objective means “
making decisions legible, intelligible and legally certain” so that they are difficult to challenge. Through syllogistic reasoning, he leads the litigant to legal certainty. Intelligibility, accessibility, clarity and precision are the qualities of a good legal decision. This is why Denis SALAS insists that legitimacy
“is expressed on a daily basis in a professional practice that is willing to reflect on itself in the light of enlightened opinion”.
“In the name of the general interest, the primary purpose of administrative law is to establish and guarantee the exercise by public authorities of the exorbitant prerogatives of common law which are recognized to them” . For this reason, Cameroonian and Congolese administrative judges must have the means to intervene rapidly and ensure that their decisions are respected.
In functional terms, the administrative judge must be: loyal to the parties, maintain good relations with the media, well-trained, adaptable to information and communication technologies, and wise.
Fairness towards the parties implies the organization of
“a contentious debate without traps or surprises” | [34] | BRETONNEAU & DOMINO. (2013). Chronique de jurisprudence du Conseil d'Etat. De la loyauté dans le procès administratif [Chronicle of jurisprudence of the Council of State. Fairness in the administrative process]. AJDA, 32, 1276. |
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. This means that the parties must be given the opportunity to speak again after the public prosecutor's submissions. To this end, the judge must uphold the principle of adversarial proceedings. This is to reinforce the confidence that litigants have in him. To corroborate this, a former President of the Republic, speaking at the opening session of the French Court of Cassation, declared that
“to appreciate how justice is rendered, you have to ask yourself how it is perceived”.
Administrative judges have to deal with social issues. For this reason, they must maintain good relations with the media. The media play a vital role as intermediaries between the justice system and litigants. They report what is happening in the courts, and offer their critical reflections on the process. The duty and right to report carries with it the right to criticize the way the courts operate and the judgments they hand down. The right to disagree and criticize is an aspect of the democratic process. In the long term, exercising this right contributes to transparency and confidence in the judicial system. The disappointment is that media men are largely unqualified and obsessed with deadline, attention spans are limited and they have an innate preference for hot reporting over illuminating exposition, and for simplification over nuance
| [35] | MAURO, T. (2007). Five Ways Appellate Court Can Help the News Media. Journal of Appellate Practice and Process, 9(2), 312. |
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. Thus, inaccurate, biased or sensationalist reporting risks distorting citizens' perceptions of the justice system, and undermining their confidence in the rule of law that judges in general, and administrative judges in particular, must uphold. But how can we ensure accurate reporting of court decisions themselves?
The Right Honourable Beverley McLachlin, Chief Justice of Canada, suggests the use of “information officers, judgment summaries and briefings, (...). In the long run, confusing or misleading reports will undermine public confidence. Faithful reporting is, of course, first and foremost a matter for the journalists themselves, the vast majority of whom are professionals who simply want to report the facts correctly. The law, however, is a complex field. To understand its subtleties requires specialized knowledge and years of experience. What's more, the language of the law is often difficult for the uninitiated to grasp”. As a result, “the courts must operate in broad daylight, subject to well-defined judicial exceptions”.
Moreover, the transition from analog to digital heralds the advent of a new age, with many legal consequences. Thanks to the connection of digital networks (computing and telecommunications) at both global and local levels, communications are taking place remotely, without the use of paper. As a result, administrative courts must adapt. First and foremost, they must adapt their working methods, which would mean dematerializing their work. Secondly, in terms of communication methods. On this point, the Chief Justice of Canada, starting from the idea that, “the exponential growth of the new media phenomenon heralds a mutation of the group of people who report judicial news”, believes that “to be able to cope with the realities of the modern communications revolution, it is crucial that jurists understand these technologies and how they are used - a task that judges and lawyers may not find easy, as they are often accused of 'Luddism'. And once we have a good grasp of these new technologies and their various uses, we need to continue doing what we're doing today - discussing, reflecting and sharing our experiences and best practices”.
The current Chief Justice of the Supreme Court of Cameroon, Daniel MEKOBE SONE, would like to remind everyone that
“a well-trained magistrate is an error avoided” | [36] | MEKOBE SONE, D. Address on miscarriages of justice at the Supreme Court's solemn re-entry hearing for the 2016 judicial year. |
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. Administrative judges must feel challenged. He must be well trained to avoid judicial errors. Being well-trained here implies that the judge is familiar with national law, Community law and international law, as well as with comparative law. Globalization implies a dynamic interpenetration of rights and legal systems. In fact, we have found that administrative judges are very reluctant to call on external legal standards. This would contribute to the proper rendering of justice. This high magistrate, like a teacher to his colleagues, expressed himself as follows
: “We must seek to improve in the performance of our daily missions and in each link of the judicial chain”.Administrative judges must also be wise. This wisdom implies that we are not only looking for the jurist or arbitrator in the judge, but also the conciliator, the peacemaker in social relations, or even the animator of a public policy
| [7] | GARAPON, A. (1995). La question du juge [The judge’s question]. Pouvoirs, 74, 16. |
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. Indeed, as NOAH Vincent de Paul emphasized
at, “justice must have a human face”. It is a question of adapting the legal situation to the factual situation. The (administrative) judge must (no longer) be a
“constant and fixed voice of the law” (C. BECCARIA, 1764), but must speak the law by taking it into consideration and confronting it with human situations. In saying and clarifying the law, the judge must ask himself two fundamental questions
: “What does the text say?” and
“What does the text mean?” in order to give what Lord Justice NJUMBE Ernest calls
“the proper answer” rather than
“the correct answer”. In this sense, the administrative judge should develop a policy of opening up his
praetorium more in the contexts highlighted in this analysis. In this way, he should not be locked into the wording of the words used by the litigant, but try as far as possible to modulate them in technical language.
The authority of the administrative judge should therefore be combined with his ability to listen to the social body, because, for him, texts should not be the solution, but rather the means of finding the solution.
3.2.2. The Legal Indicator of the Administrative Judge's Identity
Although the Administrative Tribunals came into being clandestinely, their establishment represents the triumph of the rule of law over the police state.
GNEIST's Rechstaat, DICEY's Rule of Law, French theorists' Legal principle, the linguistic and certainly stylistic turns taken by the rule of law reveal an indissociable trilogy: “The King, the Law, Freedom”. Administrative action is thus subject to the rule of law. A rule that remains dead unless the judge brings it to life. In the same vein, Bernard-Raymond GUIMDO DONGMO insists that: what the legislator says is dead law, and it is the judge's duty to bring that law to life. The first piece of the puzzle is the law, the second is the judge. The latter ensures compliance with Hans KELSEN's pyramid structure of legal rules.
The submission of the State to the law - a quasi-exclusive defendant in contentious administrative matters - is made by the administrative judge through one main instrument: a complaint for abuse of power.
Jean-Marc SAUVÉ on the question of the relationship between the administrative judge and the rule of law states that:
“By assuming these missions, the administrative judge is one of the key players in the quality of public governance. He can and must contribute to ensuring that public affairs, managed in accordance with the law, are better and more efficiently managed. Respect for the law and effective public action are not mutually exclusive; they are mutually supportive” .Beyond solemn declarations on the rule of law and the often sophisticated institutional engineering in Cameroon and Congo, the administrative judge appears as their operational dimension, contributing to the internal regulation of society between private interests and general interest. By way of illustration, in a case referred to the administrative judge, the claimant is entitled in his contentious appeal to seek compensation of one billion (1,000,000,000) CFA francs. On the other hand, the State is facing a critical budgetary situation. The administrative judge will therefore have to manage the balance by rendering a decision that is legally, socially and financially acceptable. For if the State is in crisis, the domino effect will undoubtedly be felt by its citizens. If he excessively condemns the State to pay large sums of money, he will be a source of growth in the country's domestic debt.
The administrative judge, in his mission to build and consolidate the rule of law, should contribute to the international influence of his State. Indeed, the flow of international investment and financial assistance depends on the quality of the administrative judge's office. Cameroon and Congo are developing countries, and as such, they are looking to international financial assistance. Since the 1990s, the La Baule conditionality has been an instrument for spreading the rule of law in Africa. International investors are interested in protecting their investments in the host country. It is in this context that these investors consult the annual
Doing Business reports to measure the degree to which their investments are secure. Thus, we agree with Raymond CARRE DE MALBERG that
"the rule of law is designed in the interest of citizens, and has the special purpose of protecting and defending them against the arbitrariness of state authorities" | [38] | CARRE DE MALBERG, R. (1920). Contribution à la théorie générale de l'Etat [Contribution to the State’s general theory]. Sirey, 1, p. 488. |
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When all is said and done, the administrative judge is one of the guarantors of democracy through electoral litigation, and the cursor of the rule of law through the control of administrative legality, because in truth he must be a reference point for the lost, isolated, uprooted individual that our societies engender, who will seek in confrontation with the law, the right and the just, the ultimate landmark
| [7] | GARAPON, A. (1995). La question du juge [The judge’s question]. Pouvoirs, 74, 16. |
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. Alexis DIPANDA MOUELLE was well aware of this in his day, and did not fail to point it out in the following terms: “[…]
The control of the administrative judge is much bolder than that of other judges. More aware of the necessities of administrative action, he is also empowered to take the exact measure of what should not be tolerated” | [39] | DIPANDA MOUELLE, A. Justice, procédures juridictionnelles et protection des droits de l'homme en Afrique [Justice, judicial procedures and protection of human rights]. Papers of the Solemn Hearing and scientific day of the Supreme Court of Cameroon of February 23, 2012, pp. 4-9. |
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