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Marafa Hamidou Yaya: An Ordinary Prisoner

Below is the introductory statement by the Minister of Communication, Issa Tchiroma Bakary, during a press conference on July 15, 2016 in Yaounde as government’s response to the opinion of the UN Working Group on Arbitrary Detention with regard to Mr. Marafa Hamidou Yaya.

“Distinguished Journalists, Ladies and Gentlemen,

 I wish you all a warm welcome to this encounter during which as I promised you, we shall be discussing an issue that recently captured public opinion at both national and international level.

The issue at hand is, as you may have noticed, the opinion issued on June 02, 2016, by the United Nations Working Group on Arbitrary Detention, at the end of its 75th session which held in April, in relation with the criminal lawsuit filed by the State of Cameroon against Mr MARAFA HAMIDOU YAYA.

 As you are certainly aware, Mr MARAFA HAMIDOU YAYA was sentenced to a 20-year term imprisonment on May 18, 2016, for intellectual complicity and embezzlement of public funds to the tune of some 29 million US Dollars ─ about 14.5 billion CFA Francs ─, a sum which was meant for the purchase of a Boeing Business Jet 2, known as BBJ-2, for the trips of the Head of State. This ruling was issued at the end of this procedure which has today become final, given that it was a verdict of the Supreme Court.

While the proceedings were underway in Cameroon, Mr MARAFA HAMIDOU YAYA reported to United Nations Working Group on Arbitrary Detention, in order to be granted the status of political prisoner rather than ordinary litigant.

Mr MARAFA opines that none of the charges levied against him within the framework of the lawsuit filed against him for the embezzlement of public funds are grounded, holding that his only crime is to have expressed his presidential ambitions.

After examining Mr MARAFA's request and received the response of the State of Cameroon to the letter of allegations on the alleged arbitrary detention of Mr MARAFA, the UN Working Group on Arbitrary Detention issued an opinion asking for his immediate release, with the possibility of a new lawsuit, on the grounds that in the opinion of the Working Group, Mr MARAFA should indeed be detained arbitrarily.

But allow me to utter a word on the legal status of this UN Working Group.

 The UN Working Group on Arbitrary Detention was set up in 1991 by the UN Commission on Human Rights and tasked with:

 1. Enquiring on the cases of detention imposed either arbitrarily, or in any other way that is not consistent with international norms enshrined in the Universal Declaration of Human Rights or international law instruments accepted by the States involved, provided however that no final judgment has been issued in those cases by national courts in keeping with national law;

2. Requesting and collecting, under the instruction of its procedures, information from governments and intergovernmental and non-governmental organizations, as well as information from the individuals involved, their families or their representatives;

3. Submitting comprehensive reports to the Commission during its annual session.

It should be noted that the United Nations Working Group on Arbitrary Detention is not a conventional body, that is to say an international body established by a treaty, be it a convention or a covenant and whose composition emanates from the will of State parties to the said convention or covenant.

This body is what is known in the UN terminology as a specialized body.

Besides, the Working Group is not a court, and even less, a supranational jurisdiction.

The more so, with regard to the deprivation of liberty on which it works, the United Nations Commission on Human Rights which set up this body and on behalf of which it works, has established, in its resolution No. 1997/50, that : the deprivation of liberty is not arbitrary if it results from a final decision issued by a national jurisdiction and in keeping with national legislation and international norms laid down in the Universal Declaration of human rights and international instruments accepted by the states involved.

With regard to grounds of the opinion issued by the Working Group, it stated that Mr MARAFA HAMIDOU YAYA's detention is arbitrary and that on this ground, the Cameroonian Government had the obligation to put an end to it, with the possibility of a new trial in which all the rights of the defendant will need to be fully respected if the prosecutor has valid reasons to pursue trial.

It is certainly important to note at this level, that the Working Group has clearly dismissed the requestor, that is to say, Mr MARAFA HAMIDOU YAYA, on his claim that aims to misrepresent the proceedings that led to his condemnation for embezzlement of public funds, into a political cabal against him.

Indeed, the United Nations Working Group on Arbitrary Detention said they could not conclude that the proceedings against Mr. MARAFA HAMIDOU YAYA wereinitiatedas retaliation to his political ambitions.

The Working Group went on stating that it could not speculate and that in this case, it could not follow the defendant in such allegations.

But how then is it that the Group, notwithstanding the foregoing, concludes that Mr MARAFA HAMIDOU YAYA is detained "arbitrarily"?

 The Working Group argues that Mr MARAFA would not have been entitled to a fair trial, and tables at least four reasons to evidence such allegation:

- First of all, the group holds that the prosecution was initiated late as compared to the moment when the charges levied against him would have been established;

- Secondly, the proceedings went on although the defendant, that is to say, Mr MARAFA, had requested for the disqualification of one of the judges;

- Moreover, the Working Group also considers as unfair, the untimely submission of the elements of the legal file, including any prosecution evidence;

- And finally, the Group argues that the proceedings should have been discontinued following a transactional agreement concluded in 2006 between GIA, mandated by Yves Michel FOTSO, the then General Manager of the defunct Cameroon Airlines, and the State of Cameroon, in an operation aiming to purchase a presidential aircraft.

The analysis of the grounds used by the Working Group to support its Opinion however seems not to have accounted for the elements of answer provided by the State of Cameroon to the request of the said body, in conformity with its own working procedure.

As a matter of fact, with regard to what the Working Group considers as the late initiation of proceedings, it is worth mentioning that in accordance with the Cameroonian law, the embezzlement charges levied against Mr MARAFA were not covered by any prescription at the time when the abovementioned proceedings were initiated.

 As for the argument onthe disqualification of the judge as requested by the defendant, it should be emphasized that the disqualification procedure is governed under Cameroonian law by Articles 591 and following of the Criminal Procedure Code. This provides thatthe person requesting for disqualification of a judge must first of all have the status of prosecuted person.

Yet, in this case, Mr MARAFA before his indictment on April 16, 2012; did not have the status of party to the proceedings being conducted by the Investigating Judge of whom he was requesting the disqualification. His request was premature and inoperative as was rightlyunderscored by the national judges who reviewed his request of immediate release based in part on that ground.

On this specific point, the Working Group's position is questionable, in as much as, while the Group agrees with the State of Cameroon that the above-mentioned rule is applicable only when a person acquires the status of prosecuted person, the same Working Group favorably welcomes Mr MARAFA's allegations on this regard.

With regard to the untimely submission of elements of the legal case to the other party, the Working Group fails to take into account the remarks of the State of Cameroon which clearly state that the case file was indeed put at the defendant's disposal who, when, summoned many timesto appear before the court for the purposes of judicial investigation, deliberately refused to appear, probably in order to take advantage of his absence as a procedural issue.

Once his refusal to appear was established, the President of the Mfoundi High Court drew up a report of the default on July 3, 2012. From that moment, it was then up to Mr. MARAFA's Counsel to read through the documents at any time, in accordance with Article 413 of the Criminal Procedure Code.

As for the non discontinuance of public action, for which the defendant alleges that he was prosecuted in Cameroon criminal courts despite the friendly settlement reached in 2006, the State of Cameroon told the United Nations Working Group that, under Cameroonian law, the discontinuance of the prosecution is governed by Article 62 paragraph 1 (f) of the Criminal ProcedureCode, which provides that the settlementdiscontinues the public action when such discontinuance is expressly provided for by law.

Assuming that the transaction had been valid, it would not have served as a ground for discontinuance, simply because at the time, there was no legal ground for the discontinuance of public action as a result of a settlement between the parties to the case.

In a nutshell, and although it is established that the opinions of the UN Working Group are basically advisory with no binding force on the parties concerned, one can still regrettably note that the Working Group has been very superficial in considering the arguments presented by the State of Cameroon in this case.

As a matter of fact, the Group acknowledges that the State of Cameroon duly filed in its response in September 2015 with a significant amount of evidence. Curiously, we notice that in spite of this state of affairs acknowledged by the Working Group itself, the arguments contained in the said evidencearesummarized in just a single paragraph in the Opinion.

On the contrary, the defendant's talking points are put forward in 32 paragraphs.

 Distinguished Journalists,

 As you can notice, it was of utmost importance to present the reality of this case which reveals that the substantial elements of the case between Mr. MARAFA HAMIDOU YAYA and the State of Cameroon.

Mr. MARAFA has indeed been prosecuted and convicted by the Cameroonian courts to their highest level, because of the charges levied against him on the embezzlement of public funds which were meant for the purchase of an aircraft to be used for presidential trips.

The different trials in which he was involved, from the Mfoundi High Court to the Supreme Court, through the Special Criminal Court, were conducted in strict compliance with national laws.

It is therefore evident that Mr. MARAFA is nothing else than an ordinary prisoner. The Cameroonian judiciary which convicted him for embezzling public funds sentenced him to a 20-year imprisonment term, acting in total independence, on the basis of the Constitution which is the fundamental law of our country.

 Thank you for your kind attention.”

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