Opinion; Subjects: CAMEROON, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-11488 (E) 220312 230312
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-first session, 29 August–2 September
2011
No. 32/2011 (Cameroon)
Communication addressed to the Government on 26 January 2011
Concerning: Mr. Pierre Roger (alias Lapiro) Lambo Sandjo (alias Mbanga)
The State is a party to the International Covenant on Civil and Political Rights.
1.
The Working Group on Arbitrary Detention was established by resolution 1991/42
of the former Commission on Human Rights, which extended and clarified the Working
Group’s mandate in its resolution 1997/50. The Human Rights Council assumed that
mandate in its decision 2006/102 and extended it for a three-year period in its resolution
15/18 of 30 September 2010. In accordance with its working methods, the Working Group
transmitted the above-mentioned communication to the Government.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of their
sentence or despite an amnesty law applicable to them) (Category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (Category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (Category IV);
United Nations
A/HRC/WGAD/2011/32
General Assembly
Distr.: General
29 February 2012
English
Original: French
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(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation; or
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (Category V).
Submissions
Communication from the source
3.
According to the source, Mr. Pierre Roger (alias Lapiro) Lambo Sandjo (alias
Mbanga) (hereafter Mr. Lapiro de Mbanga), a Cameroonian national, born on 3 November
1957, residing in Mbanga (P.O. 167), Cameroon, is widely known in his country as a singer
and songwriter, and as a political activist and a member of the opposition party, the Social
Democratic Front.
4.
On 9 April 2008, Mr. Lapiro de Mbanga was reportedly arrested by the Mbanga
gendarmerie on instructions from the governor of Littoral Province, Cameroon, on the basis
of a detention order. The accusations against Mr. Lapiro de Mbanga were based on articles
74, 97, 187, 227, 232, 236 and 316 of Cameroon’s Penal Code, which criminalize the
following acts: gang looting; destroying public property; obstructing public roads; offences
against public property; and unlawful assembly.
5.
According to the information received by the Working Group, Mr. Lapiro de
Mbanga was first held in Mbanga’s central prison and then transferred to Nkongsamba
prison to be present for the handing down of the decision in June 2008. Mr. Lapiro de
Mbanga was reportedly transferred again in January 2009 and is now being held at New
Bell prison in Douala, Cameroon. Mr. Lapiro de Mbanga’s health is said to have seriously
deteriorated. He is said to suffer from typhoid fever, backaches and chronic respiratory
infections.
6.
On 24 September 2008, the Moungo regional court reportedly found Mr. Lapiro de
Mbanga guilty of aiding and abetting, through his participation, unlawful assemblies,
obstruction of public roads and gang looting. Mr. Lapiro de Mbanga was sentenced to 3
years’ imprisonment and fined 280 million CFA francs. On 24 June 2009, the Littoral
Region appeals court upheld this sentence and ordered Mr. Lapiro de Mbanga to pay an
additional fine of 540,693 CFA francs.
7.
In December 2007 President Biya announced his intention to amend the Constitution
to extend the president’s term of office and prolong presidential immunity. This proposal
provoked riots in the streets of Douala, Yaoundé, Bamenda and other cities. In some cases
these riots allegedly involved looting and destruction. The Government accused the Social
Democratic Front and its leaders of organizing and instigating these riots. A number of
people were detained. In May 2008, President Biya granted amnesty to hundreds of people
accused of participating in the February 2008 demonstrations and of other crimes. While
most of the riot organizers and participants were freed in May 2008, Mr. Lapiro de Mbanga
did not benefit from this amnesty because his case had not yet been heard. Mr. Lapiro de
Mbanga was later tried and found guilty of aiding and abetting criminal acts. The
Independent Commission against Corruption and Discrimination is reported to have
requested a presidential pardon for Mr. Lapiro de Mbanga. The latter has always
maintained that he is innocent.
8.
The rights to freedom of communication, freedom of expression, freedom of the
press, freedom of assembly and freedom of association are guaranteed in the preamble to
the Constitution of Cameroon. According to the information received by the Working
Group, while Mr. Lapiro de Mbanga has been an active member of the Social Democratic
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Front since 2007, he has always expressed his opposition to the Government of Cameroon
in a peaceful manner, through writing and singing. Mr. Lapiro de Mbanga has also received
several awards for his political activities, including a Canal d’Or prize on 9 April 2010 and
the Freedom to Create Imprisoned Artist Prize on 25 November 2009.
9.
According to the source, on 25 February 2008, the day of the demonstrations, Mr.
Lapiro de Mbanga was at his home in the town of Mbanga. He left his house to buy fuel
and was reportedly stopped by the local authorities, who asked him to intervene to calm the
people participating in the riots. Mr. Lapiro de Mbanga is said to have intervened in a
diplomatic fashion.
10.
The source adds that when Mr. Lapiro de Mbanga was returning home he was
contacted by Mr. Makembe, a representative of Société Plantation de Bananeraie Mbanga
(SPM), one of the properties attacked by the demonstrators during the riots. Mr. Lapiro de
Mbanga intervened again to calm the demonstrators and stop the rioting. Mr. Makembe
then asked him to negotiate with the demonstrators on behalf of SPM. As a result, on 25
February 2008, Mr. Lapiro de Mbanga organized a meeting with union leaders. The
demonstrators allegedly expressed their desire not to destroy the plantations as a result of
information received from Mr. Lapiro de Mbanga. It was also decided that SPM would
provide fuel for the taxis of all members of the union.
11.
On the evening of 25 February 2008, the deputy police commissioner reportedly
congratulated Mr. Lapiro de Mbanga on having put a stop to the rioting and vandalism. On
26 February, after a meeting in the office of the deputy police commissioner, Mr. Lapiro de
Mbanga was again approached, this time with a request to intervene at a school that was
being looted. While Mr. Lapiro de Mbanga was filming the incident so that the perpetrators
could be identified, he was allegedly kidnapped by the demonstrators and taken to Muyuka,
where, according to the source, he was threatened and subjected to physical violence. Mr.
Lapiro de Mbanga was freed that same day.
12.
Before the riots, in December 2007, soon after President Biya’s statements about
amending the Constitution, Mr. Lapiro de Mbanga had released the song “Constipated
Constitution”, which quickly became popular.
13.
According to the information received by the Working Group, the Government
alleged that Mr. Lapiro de Mbanga had used his influence through music to incite the
population to commit crimes. On 24 September 2008, the Moungo regional court found Mr.
Lapiro de Mbanga guilty of aiding and abetting gang looting, obstructing public roads and
unlawful assembly on public roads. The court sentenced him to 3 years’ imprisonment and
a fine of 280 million CFA francs (the equivalent of about 600,000 US dollars) for damage
caused to SPM and other properties. Mr. Lapiro de Mbanga appealed the decision,
presenting proof of his innocence, including by asserting that the police investigation had
violated the Code of Criminal Procedure, in particular article 90; article 116, paragraphs 3
and 4; article 117, paragraph 2; and articles 122 and 124, and that the first-instance trial had
involved a procedural error.
14.
The court of appeal ordered Mr. Lapiro de Mbanga to pay an additional fine of
540,693 CFA francs (approximately 1,100 US dollars). On 15 December 2009, Mr. Lapiro
de Mbanga lodged an appeal with the Supreme Court. According to the source, the
Supreme Court postponed the hearing several times.
15.
On 4 September 2009, Mr. Lapiro de Mbanga petitioned to be released pending trial.
According to the information received, the Supreme Court never acted on this request.
16.
In the light of the preceding information, the source maintains that Mr. Lapiro de
Mbanga’s detention is arbitrary. The source refers to article 14, paragraph 1, of the
International Covenant on Civil and Political Rights, according to which “All persons shall
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be equal before the courts and tribunals. In the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by law.” In
particular, article 14, paragraph 3 (e), stipulates that everyone charged with a criminal
offence shall be entitled “to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him”.
17.
According to the information received, Mr. Lapiro de Mbanga was not able to enjoy
his right to a fair trial and was found guilty of aiding and abetting riots even though he had
not taken part in the said riots. Whereas most of the organizers of the riots were sentenced
to 18 months’ imprisonment and were later freed, Mr. Lapiro de Mbanga was allegedly
sentenced to 3 years’ imprisonment.
18.
According to the information received, Mr. Lapiro de Mbanga is being held in New
Bell prison. The source maintains that Mr. Lapiro de Mbanga’s detention is arbitrary
because it stems directly from his exercise of his right to express his views and political
opinions freely and peacefully and his right of assembly, and that his right to a fair trial has
not been respected.
19.
The Working Group was notified that Mr. Lapiro de Mbanga had been freed on 8
April 2011, after serving his entire prison sentence, to stave off demonstrations planned by
his supporters on his behalf.
Communication from the source
20.
In its reply of 19 April 2011, reiterated on 14 July 2011, the Government
acknowledges that Mr. Lapiro de Mbanga is a well-known artist and has supported the
cause of human rights, which explains the international community’s interest in his case.
According to the Government, Mr. Lapiro de Mbanga was arrested by agents of the
National Gendarmerie because of his involvement in protests linked to a strike by
transporters in February 2008 in the town of Mbanga. Acts of violence, vandalism and
looting there caused serious damage to agricultural enterprises, breweries and a national
highway. Some witnesses stated that the singer was responsible for organizing these
activities.
21.
The Government also states that one of the affected enterprises filed suit against
persons unknown, not against Mr. Lapiro de Mbanga. The detention order resulted from the
investigations that were conducted. Mr. Lapiro de Mbanga was not arrested while
committing the acts he is accused of, but rather after the authorities had been able to collect
tangible proof. The crimes of which he was accused of being an instigator and accomplice
included unlawful assembly (gatherings of at least five people on public roads with the goal
of disturbing the peace); unlawful demonstrations; obstructing public roads; an act of arson;
the use of violence against public property or property deemed to be in the public domain;
destruction of property; and gang looting. His sentence included 3 years’ imprisonment and
additional financial penalties, all in conformity with the Penal Code. The court of appeal
confirmed the prison sentence and increased the amount of fines and costs to be paid
(sentence of 24 June 2009).
22.
The Government adds that Mr. Lapiro de Mbanga had access to the services of a
defence lawyer throughout the proceedings. The other prisoners were freed under a
presidential pardon on 20 May 2008, but Mr. Lapiro de Mbanga could not be pardoned
because his trial was not yet over. Mr. Lapiro de Mbanga was not tortured or subjected to
any cruel, inhuman or degrading treatment. He was not imprisoned for political reasons or
because of his opposition to changing the Constitution but because he had committed
ordinary crimes.
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Communication from the source
23.
On 3 May 2011, the Working Group received comments on the Government’s reply
in which the source confirmed that Mr. Lapiro de Mbanga had been freed. The source
informed the Working Group that the courts had demanded the payment of a fine
equivalent to more than a half million US dollars. In case of non-payment, Mr. Lapiro de
Mbanga would have to spend an additional 5 years in prison. The source adds that Mr.
Lapiro de Mbanga continues to receive threats.
Discussion
24.
In accordance with paragraph 17 (a) of its working methods, the Working Group
reserves the right to render an opinion, on a case-by-case basis, regarding whether the
deprivation of liberty was arbitrary, notwithstanding the release of the person concerned.
25.
The facts detailed in the preceding paragraphs clearly demonstrate the following:
(a)
Mr. Lapiro de Mbanga is a well-known Cameroonian artist, lawyer, human
rights defender, activist in the Social Democratic Front party, which is in opposition to
President Paul Biya’s Government (which has been in power since November 1982), and
composer of songs with political content such as “Constipated Constitution”, which led a
number of people to express their opposition to a constitutional amendment proposed by the
Government;
(b)
In December 2007 President Biya indeed announced plans to change the
Constitution so as to extend his term of office;
(c)
That his announcement sparked a wave of demonstrations starting in
February 2008, in his region, not only in the town of Mbanga but also in Yaoundé, Douala,
Bamenda and other cities. Several of these demonstrations led to disturbances, fires and
public disorder. These demonstrations were certainly of a political nature;
(d)
The political nature of these demonstrations is confirmed by the fact that very
soon afterwards, in May 2008, the President declared an amnesty for all the organizers of
these events, who were freed. It is clear that these amnesties were instituted in order to
restore social peace when the person in question had been sentenced for political activity;
(e)
The political nature of the crime is confirmed by the sentence. The crime of
calling for unauthorized demonstrations is punishable by 3 years’ detention, but if the
demonstration is of a political nature, detention is substituted for imprisonment, according
to article 234 of the Penal Code, read in conjunction with article 232;
(f)
However, Mr. Lapiro de Mbanga did not benefit from the amnesty because
he had not yet been sentenced when the law was promulgated, a circumstance obviously
beyond his control;
(g)
The Government in its reply acknowledges Mr. Lapiro de Mbanga’s role as a
defender of human rights: “Lambo Pierre Roger, by virtue of his activity as a musician,
falls into the category of human rights defenders”;
(h)
The Government does not deny the statement by the source that, when the
incidents began, several public servants (deputy police commissioner), as well as
representatives of firms that reported being harmed by the demonstrators’ excesses (a
representative of SPM) called on Mr. Lapiro de Mbanga to calm the demonstrators. This
fact has been sufficiently corroborated. The source, in comments on the Government’s
reply, gives references accompanied by evidence that was analysed during the trial. One
witness stated: “I confirm that around 7 p.m. I invited the above-named person to my home,
where there were several members of the town leadership, including the commissioner for
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public security and a gendarme, among others.” Other witnesses stated in similar terms that
Mr. Lapiro de Mbanga had tried to put a stop to the demonstrations;
(i)
According to the source, the witnesses also affirmed that Mr. Lapiro de
Mbanga’s actions had always been aimed at finding peaceful solutions to conflicts;
(j)
The song “Constipated Constitution” was simply a political statement and did
not incite anyone to violence, which is consistent with Mr. Lapiro de Mbanga’s personal
and political history.
26.
The Working Group refers to article 9 of the Universal Declaration of Human Rights
and to article 9, paragraph 1, of the International Covenant on Civil and Political Rights.
According to the latter: “No one shall be subjected to arbitrary arrest or detention.” Also,
“No one shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law.” Furthermore, article 6 of the African Charter on
Human and People’s Rights states: “Every individual shall have the right to liberty and to
the security of his person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be arbitrarily arrested or
detained.”
27.
Mr. Lapiro de Mbanga’s deprivation of liberty results directly from his exercise of
his right to peacefully express his opinions, a right protected by article 19 of the Universal
Declaration of Human Rights and article 19, paragraph 1, of the International Covenant on
Civil and Political Rights, which Cameroon has ratified, and his exercise of his right to
freedom of association (article 22 of the International Covenant on Civil and Political
Rights and article 20, paragraph 1, of the Universal Declaration of Human Rights). The
source also states that the deprivation of liberty results from his exercise of the right to have
access to public service in his country, which is enshrined in article 21, paragraph 1, of the
Universal Declaration of Human Rights and article 25, paragraph 1, of the International
Covenant on Civil and Political Rights.
28.
On the basis of the information in the preceding paragraphs, it can only be
concluded that Mr. Lapiro de Mbanga was imprisoned for the legitimate exercise of his
rights under articles 3, 9, 10, 11, 18, 19, 20 and 21 of the Universal Declaration of Human
Rights and articles 9, 10 and 14 of the International Covenant on Civil and Political Rights.
His detention is thus arbitrary and falls within category II of the categories applicable to the
consideration of cases submitted to the Working Group.
29.
Mr. Lapiro de Mbanga’s trial was conducted largely with due respect for the
principles of due process; for example, he was detained under an order issued by a
competent authority after an investigation was conducted while he remained at liberty.
However, the following circumstances indicate that there were serious violations:
(a)
Absence of an effective remedy for challenging the legality of the deprivation
of liberty stemming from his being found guilty: the Supreme Court indefinitely postponed
the handling of his appeal;
(b)
The Supreme Court also did not rule, in September 2009, on Mr. Lapiro de
Mbanga’s request to be released pending trial;
(c)
In its submission of 14 July 2011, the Government stresses that Mr. Lapiro de
Mbanga called the national food crops development authority (MIDEVIV) to ask for
500,000 CFA francs, which could constitute extortion. However, the court ruling does not
use this act as a basis for finding Mr. Lapiro de Mbanga either guilty or innocent of
extortion. The Working Group believes that if the act had in fact been committed, this could
not be proved. Mr. Lapiro de Mbanga’s deprivation of liberty was not motivated by this act.
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30.
The information in the preceding paragraph indicates that Mr. Lapiro de Mbanga’s
deprivation of liberty is also arbitrary and falls within category III of the categories used by
the Working Group. The absence of a remedy to challenge the legality of the detention
constitutes a serious violation of international norms regarding the right to a fair trial. Mr.
Lapiro de Mbanga’s rights under articles 10 and 11 of the Universal Declaration of Human
Rights and article 2, paragraph 3, article 9, paragraphs 3 and 4, and articles 10 and 14 of the
International Covenant on Civil and Political Rights were ignored.
Disposition
31.
Mr. Lapiro de Mbanga’s deprivation of liberty is arbitrary and results from a
violation of his rights under articles 3, 5, 7, 8, 9, 10, 11, 18, 19, 20 and 21 of the Universal
Declaration of Human Rights and articles 2, paragraph 3, 9, 10 and 14 of the International
Covenant on Civil and Political Rights, and falls within categories II and III of the
categories used by the Working Group.
32.
Having submitted this opinion, the Working Group calls on the Government of
Cameroon to take a decision regarding:
(a)
Reparations for the damage caused by the arbitrary actions described in this
opinion;
(b)
An immediate amnesty, pardon or other means of preventing renewed
detention for the same acts, given that the imposed fine has not been paid;
(c)
Protective measures to safeguard Mr. Lapiro de Mbanga’s right to security.
[Adopted on 1 September 2011]