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THE APPLICABILITY OF OHADA IN CAMEROON

OHADA is the acronym for the French “Organisation pour l’harmonisation en Afrique du droit des affaire” which is translated into English as “Organization for the harmonization of corporate law in Africa”.

OHADA was established by a Treaty on the harmonization of business law in Africa (OHADA) signed on October 17th 1993 in Port-Louis (Maurituis Ireland) and revised in Quebec (Canada) on October 17th 2008. It is intended to facilitate cross border trade between OHADA member states.

After the United Nations organized plebiscite in Southern Cameroon saw the vote to join La Republique du Cameroun, both territories were post-independence referred to as West and East Cameroon respectively.

In line with colonial heritage, the common law remained the applicable law West of the Mongo by virtue of Ordinance NO. 5 of 1924, which made all ordinances enacted in Nigeria after February 1924 to be applicable in Cameroon under British mandate.

The common law regions of Cameroon described as North West and South West Regions (West Cameroon) applied the current English law by virtue of section 11 of the Southern Cameroons High Court Law 1955.

In 1924, all the French laws applicable in French Equitorial Africa were made applicable to the mandated territory of Cameroon by decree of 22 May 1924. This introduced the French Civil and commercial codes which remained a primary source of civil law in French Cameroon (East Cameroon) until the introduction of the OHADA Treaty in 1993.

 

The Federal constitution adopted on 1st September 1961 and subsequent unitary constitution of 2nd June 1972 as revised by law NO. 96/06 of 18th January 1996 was among others, meant to protects and preserves the linguistic and legal cultures with French and English as the official languages.

However, the Port-Louis Treaty had adopted French as the working language of OHADA Article 42(old). This raised serious criticism from common law jurists as this was going to see the difficulty by jurists to access the corridors of justice faced with laws and procedures purely in a language which they don’t master.

This provoked sound ruling from seasoned magistrates like Justice Ayah Paul Abine, then president in the High Court of Meme who in the case of Akiangan Fombin Sebastien VS. Fotso Joseph and Ors ruled that a treaty which is basically French suffers from self-exclusion from the English Speaking Provinces of Cameroon.

This followed other political agitations in the English Speaking Regions that pushed the government to in the year 2000 initiate a procedure before the Permanent Secretariat of OHADA, which saw the revision of the treaty, amending Articles 42 & 63 and this was signed in Quebec on 17th October 2008 bringing in English, Portuguese and Spanish as official languages in additional to the French language.

The OHADA law is still applicable with difficulties in the Common Law orientated regions, as not all the uniform acts have been translated into English, particularly the most recent uniform acts as well as the recent amendments to the old.

As at date, OHADA includes nine validated uniform acts, which include; Uniform Acts on General Commercial Law, Mediation, Arbitration, Harmonization of Corporate Accounting and financial information insolvency law, commercial companies and economic interest groups, organization securities, cooperative societies law, contract of carriage of goods by road, organizing simplified recovery procedure and measures of execution.

Author: Jude Njie Mokom (Managing Partner)

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