Sentencing for the offence of misappropriation of public funds: the flawed and problematic approach of Cameroon’s Special Criminal Court
| Date | 28 March 2023 |
| Pages | 427-445 |
| DOI | https://doi.org/10.1108/JFC-12-2022-0307 |
| Published date | 28 March 2023 |
| Author | Avitus Agbor Agbor |
Sentencing for the offence of
misappropriation of public funds:
the flawed and problematic
approach of Cameroon’s Special
Criminal Court
Avitus Agbor Agbor
Faculty of Law, North-West University, Potchefstroom, South Africa
Abstract
Purpose –Over a decade since theSpecial Criminal Court (SCC) was established in Cameroon,hundreds of
individuals have been indicted, triedand convicted. Sentences have been imposed, most of which include a
term of imprisonment (principal punishment/penalty) and confiscation as accessory penaltyor punishment.
Research focus has not been directed at the sentences which, as argued in this paper, are inconsistent,
incommensurate with the amounts of money stolen and a significant departure from the Penal Code. This
paper aimsto explore the aspect of sentencing by the SCC.
Design/methodology/approach –To identify, highlight and discuss the issue of sen tencing, the
paper looks at a blend of primary and secondary materials: primary materials here include but not
limited to the judgements of the SCC and other courts in Cameroon and the Penal Code. Secondary
materialsshallincludetheworksofscholarsinthefields of criminal law, criminal justice and penal
reform.
Findings –A few findings were made: first, the judges are inconsistent in the manner in which they
determine the appropriate sentence. Second, in making that determination, the judges would have been
oblivious to the prescripts in the PenalCode, which provides the term of imprisonment, and in the event of a
mitigatingcircumstance, the prescribed minimum to be applied.Yet, the default imposition of an aggravating
circumstance (beinga civil servant) was not explored by theSCC. Finally, whether the sentences imposedare
commensuratewith the amounts of monies stolen.
Research limitations/implications –This research unravels key insights into the functioning of the
SCC. It advancesthe knowledge thereon and adds to the literature on corruptionin Cameroon.
Practical implications –The prosecution and judges at the SCC should deepen their knowledge of
Cameroonian criminal law, especially on the nature of liberty given to judges to determine within the
prescribed rangeof the sentence to be imposed but also considerthe existence of an aggravating factor –civil
servant.They must also consider whether the sentences imposed befit the crime for which they are convicted.
© Avitus Agbor Agbor. Published by Emerald Publishing Limited. This article is published under
the Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate
and create derivative works of this article (for both commercial and non-commercial purposes),
subject to full attribution to the original publication and authors. The full terms of this licence may be
seen at http://creativecommons.org/licences/by/4.0/legalcode
Funding: Funding for this research was provided in full by the Research Unit of the Faculty of
Law, North-West University, Potchefstroom Campus, South Africa. The author expresses his
profound gratitude to the Director of the Research Unit, Professor Mitzi Wiese. The author also
thanks immensely the project leader, Dr Natasha Ravyse (Leader: Justice in Practice, Faculty of Law,
North-West University); without her support, the author would not have been in a position to put
together the necessary materials to write and publish this article.
Flawed and
problematic
approach
427
Journalof Financial Crime
Vol.31 No. 2, 2024
pp. 427-445
EmeraldPublishing Limited
1359-0790
DOI 10.1108/JFC-12-2022-0307
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1359-0790.htm
Originality/value –The paper is an original contribution with new insights on the manner in which
sentencingshould be approached by the SCC.
Keywords Special criminal court, Sentences, Confiscation, Punishment, Criminal responsibility,
Public servant, Mitigating circumstances, Aggravating circumstances
Paper type Research paper
1. Introduction
For most legal systems inthe world, prohibiting a conduct as a crime requires a prescription
as to what penalty to be followed if such conduct is perpetrated. A term of imprisonment is
imposed upon an accused convicted of a crime: that is a typical feature of criminal law,
criminal justice and the definitionof a crime.
The investigation, prosecution of and conviction for any crime in a legal system requires the
interplay of substantive criminal law, criminal procedure and criminal justice. Substantive criminal
law deals with the legal principles that govern the general criminal law of a legal system, as well as
the prescription of specific conduct with a criminal sanction (term of imprisonment, fine or both)
that may be imposed on a convicted person. As such, the prosecution of any crime will likely evoke
numerous legal principles. Cameroon’s legal system is not different. Likewise, prosecuting the
offence of misappropriation of public funds or property: it touches on the imposition of individual
criminal responsibility spelt in Section 74 of the Penal Code; participation (as a principal offender, co-
or joint offender, accessorial liability, etc.); and aggravation or mitigation of criminal responsibility.
Beyond prosecution, there is conviction. Specific legal principles are defined in Cameroonian
criminal law: the principal penalties and the imposition of accessory penalties.
This paper examines the imposition of one of the principal penalties by the Special Criminal
Court (SCC): loss of liberty [1]. It investigates the different terms of imprisonment imposed o n
individuals convicted for misappropriation of public property: an offence which is categorised
as a felony in Cameroonian criminal law. It argues that the determination and imposition of
prison terms are not in accordance with the provisions of the law. The SCC judges, by limiting
themselves to the mitigating factors, assessed in favour of the convicts and ignoring the
mandatory prescription to consider aggravating factors, ultimately (likely inadvertently) failed
to consider the gravity of the crime for which they were convicted; trivialised the offence of
misappropriation of public funds despite the colossal amounts of funds stolen; exuded
numerous inconsistencies in sentencing; and did not unleash the deterrent goal of criminal law
and justice that would discourage many others from engaging in similar conduct.
This paper is structured into three parts: part one looks at Cameroon’s legal framework on
substantive criminal law of principles relating to the prosecution of felonies and misdemeanours,
within which falls the offence of misappropriation of public funds or property. This part is
followed by a theoretical discussion of the notion and aims of punishment in Cameroonian
criminal law. The third part looks at the issue of sentencing, firstly, from a broader perspective,
referencing judicial pronouncements from other courts and secondly, the SCC, whose sentences
have been inconsistent and unreasonable in a view of the gravity of the offence for which tho se
individuals have been convicted. By relying extensively on the legislative architecture and
decided cases, the paper takes an evidence-based approach in corroborating the foregoing theses
in the hope that it brings unprecedented insights and incisiveness to the relevant stakeholders in
the criminal justice, most specifically, the prosecution and judges at the SCC.
2. The aims of criminal law and elements of punishment: a synopsis
As argued by Hart, it is challenging to think of a criminal law statute that serves only for a single
purpose: in criminalising an act and imposing a sentence on the offender, different goals are
JFC
31,2
428
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