JUDGE DIVINE NJIKANG METIEGE IS A PRESIDING AND EXAMINING MAGISTRATE AT THE MBENGWI (MOMO DIVISION) HIGH COURT OF FIRST INSTANCE. THIS DOCUMENT WAS FIRST PRESENTED ON AUGUST 8, 2013 DURING THE MONTHLY JUDICIARY CLUB MEETING IN MBENGWI. However, some modifications have been made from when the document was presented to the Judicial Panel.
THE CIVIL STATUS REGISTRATION AND VARIOUS PROVISIONS RELATING TO THE STATUS OF PHYSICAL PERSONS AND THE LEGAL CONSEQUENCES AS IT RELATES TO BIRTHS, MARRIAGES AND DEATHS.
Law N0 2011/011 of May 6, 2011 amending and completing certain provisions of Ordinance N0 81/02 of June 29, 1981 on the organization of the Civil status Registration and Provisions relating to the status of physical persons is the instrument to determine the legal status of persons in Cameroon. In this regard, it creates and extinguishes status such as births, marriages and deaths. These different statuses are evidenced by issuing of certificates drawn up by a civil status registrar. Given the legal implications that arose from these statuses, the Law N0 2011/011 of May 6, 2011, in articles 4, 5 and 6 obliges every Cameroonian, whether residing in Cameroon or elsewhere, to declare his/her birth, deaths and marriages with the competent civil status registrar of his/her area. Failure to comply with these mandatory provisions, constitute a criminal offence punishable under section 370 of the Penal Code. This also applies to foreigners residing in Cameroon.
From these legal implications flows a bundle of rights, obligations and consequences.
BIRTHS
ARTICLE 30-33 (NEW) of the Law is to the effect that, every birth shall be declared to the civil status registrar of the place of birth within 60 days following such birth. Where a child is born in the hospital or other medical institutions, the head of the hospital or in his absence, the doctor or any person who attended the birth shall be bound to declare the birth of the child within 30 days of such birth. If the birth was not declared within the period stated above, the parents of the child have an additional period of 60 days within which, he/she must make the declaration before the civil status registrar of the place of birth.
ARTICLE 32 (NEW) is to the effect that births declared after the expiry of the periods referred to above, may be registered at the instance of the competent State Counsel seized of the matter, who shall move the competent court within the six months of the birth.
ARTICLE 33 (NEW) Stipulates that if a birth was not declared within six months, it can be registered by the civil status registrar only by way of a judgment of the competent court, and in accordance with the conditions laid down in article 23 and 24 of the Law. (Applications for rectification or reconstitution of civil status certificate shall be brought before the competent court under which falls the civil status registry in which the certificate was or ought to have been drawn up. Such applications shall state, inter alia, the full name of the applicant, the full name, affiliation, date and place of birth of the person whose certificate is to be rectified or reconstituted. Detail reasons justifying reconstitution or rectification, full name ages and place of residence of witnesses, and the civil status registry where the certificate was or ought to have been drawn. The court seized of the application under the above condition must, before any decision is taken, forward the application to the Legal Department for purposes of inquiry and to ensure that:
1) another civil status certificate of the same type does not already exist for the same person; and,
2) to ensure that the witnesses presented by the application are likely either to have been actually present at the birth, marriage or death they are attesting to, or, to furnish proof of the same, that, the declaratory judgment sought will not have the effect of fraudulently changing the full name, affiliation, date of birth or death, in marital status.
The inquiry (is necessary) but shall not be obligatory in the case of applications concerning minors less than 15 years old.)
If a person is found in possession of two birth certificates only the oldest in date shall be taken into consideration without the prejudice to any legal action.
A birth certificate is indicative of the fact that a human being has been born alive. It also informs of a person’s affiliation if he or she is an illegitimate, recognized, adopted or legitimate child. These are different statuses which must be reflected in a birth certificate at every giving time. As a matter of fact, a person’s birth certificate should be able to reveal his/her complete identity. Unfortunately, in Cameroon today, the situation is the reverse. It is therefore important for the lawmakers to enact bills, which ought to be signed into law, to rectify the said problem because birth certificates can hardly be relied upon for information. This is so because the birth certificates only provide inadequate information (like the place of birth) of individuals and not specifics like the hospital of birth. Firstly, the paternity often given to the wrong person, since tradition hold that a child born out of wedlock belongs to the grandfather or the relative who is raising the child up, to enable them claim family allowance from social insurance fund.
As such, the natural or biological father is hardly ever known. This is another aspect the lawmakers must rectify because it contravenes the provision of Article 34(2) which demands that, a space for father should be left blank where the natural father is unknown. In this way, it is easier for the natural father’s name to be inserted as soon as he recognizes or legitimizes the child as per Article 41 and 44 of the Law which states that, the recognition or legitimation of a child born out of wedlock shall be established by court decision. The same shall apply to cases of adoption. However, delivery shall be equivalent to recognition of the child by the mother and marriage celebrated after recognition shall imply legitimation of the children recognized as born of the spouses. A point to note is that recognition and legitimation, excepting adoptive legitimation shall be based on the blood relationship. Once the relationship has been established, no one may raise objection to recognition. Court judgments on recognition, legitimation and adoption shall be inscribed as marginal notes on the birth certificates.
Recognition of children born out of wedlock may be done by declaration made before the civil status registrar during birth registration. In such a case, the declaration of the presumed father shall be accepted by the civil status registrar after consent of the mother and in the presence of two witnesses. The civil status registrar shall identify the parents and shall transcribe the declaration into a register numbered and initialed by the president of the court of First Instance and kept for that purpose. Such declaration shall be signed by the father, the mother, witnesses and the civil status registrar before the birth certificate is drawn up. If one of the parents is a minor, his consent shall be given by the father, mother or guardian. Consent shall be given verbally before the civil status registrar or in writing dully legalized and annexed to the register. This procedure shall not apply when there is a dispute especially if paternity is claimed by several persons before the establishment of the civil status certificate.
Moreover, anything to the contrary creates a cloud on the parentage of the child and it is tantamount to forgery contrary to, and punishable under Section 314 of the Cameroon Penal Code i.e. forgery. S.314 (1) is to the effect that, whoever forges or alters, whether in its substance or in the signature of parties or witnesses or in its date, any private document having effect of an obligation, discharge or disposition shall be punished with imprisonment for from three to eight years and with fine of from 50.000FCFA to 1.000.000FCFA.
S. 314(3) of the Cameroon Penal is to the effect, whoever makes use of such a document shall be punished in like manner as if he forged the document.
Secondly, today, most birth certificates in Cameroon reflect the wrong ages. The tendency is for people to change their ages following the indication of the time because of the laxity, on the part of both court and the civil status registrar in the issuance of birth certificates. It is therefore not strange to see one person with ten birth certificates which may indicate that she had her first child at the age of three. Strange!! Isn’t it?
The importance of age cannot be over emphasized. One’s age has a bearing on his civil right as to voting, his personal right as to when to contract a marriage etc. Age also determines one’s criminal responsibilities and a person’s capacity to enter to some contracts. In effect, one’s age is such a determinant factor in all areas of life. That explains why people have a multiplicity of birth certificates just to put themselves within the demand at the time. This attitude is criminal, and is contrary to the provisions Article 2 of the Law which is to the effect that a birth, marriage and death certificates, once issued is intangible and final. This means that once you have been issued a birth certificate it cannot be changed nor the facts altered except by a court decision. Age affects the foreigner’s right to Cameroon nationality. A foreigner born in Cameroon has a right to elect Cameroonian nationality 6 months before attaining majority before the court. This is because Cameroon does not recognize dual nationality as of this moment.
We are therefore calling on the courts (Magistrates and Registrars) to make sure that, all, the required documents have been produced such as marriage certificates and a delivery certificates before establishing a birth certificate or a declaratory judgment. Another point of note is for these officers to ensure that the birth certificates or declaratory judgment is within their jurisdiction as per Article 30 of the Law, to ease investigation. Today, a proper investigation still remains a dream because; the provisions of Article 30 which states that, a birth shall be declared to the civil status registrar of the place of birth within 60 days following such birth, are never respected..
Furthermore, where a child has been recognized, legitimized or adopted, these facts should be inscribed as marginal notes on the birth certificate, mentioning the court’s decision or marriage certificate which has empowered them to do so. See Article 41(3) Court judgments on recognition, legitimation and adoption shall be inscribed as marginal notes on the birth certificates.
As earlier mentioned, a person’s birth certificate should speak for itself, because it has its bearing and gives rise to legal implications on paternity, maintenance, nationality, and inheritance.
An illegitimate child has the right to maintenance and education from the natural father. Initially, the law provided them with no legal safeguards. However, a recognized child has similar rights but very limited rights of inheritance in cases where the parents remain unmarried. Legitimate and adopted children have the same absolute rights to all the items mentioned above such as rights to maintenance, custody, control and inheritance.
MARRIAGE
A marriage certificate, which is a proof of marriage, signifies that one has graduated from a single status to a married status. A marriage shall be celebrated by a civil status registrar of the place of birth or residence of one or both of the spouses to be as indicated in Article 48 of the Law. The following are therefore the content of a marriage certificate:
1) Name of the main or secondary civil status centre or name of the centre to which it is mainly attached
2) Name surname, date and place of birth, nationality, profession and domicile of the husband
3) Consent of the parents in case of minor children
4) Place and date of the celebration of the marriage
5) Mention of the type of marriage: whether it is polygamy or monogamy,
6) Mention of management of property either community or separation of property,
7) Name and surname of witnesses,
8) Name and surname of the civil status registrar and secretary,
9) Signature of the spouse’s witnesses and the civil status registrar and secretary.
*Mention of the marriage shall be made in the margin of the birth certificate of each of the spouses in compliance with article 19 of the Law and by the initiative of the competent civil status registrar. Failure to forward a copy of such registration shall be punished by a fine of five hundred francs (500FCFA) to be imposed by the competent state Counsel. In case of divorce, mention of it shall be made on the birth and marriage certificate of the spouses on the initiative of the legal department.
Article 19 (NEW) (1) States, “where reference to a civil status certificate must be made in the margin of a certificate already registered, this shall be done automatically or at the request of one of the parties.”
(2) “The civil status registrar who drew up or registered the certificate, to which the reference shall be made, shall forthwith make such reference in the register in his possession and forward an extract to the court of first instance territorially competent and a copy to the national civil status centre.”
(3) “Where the certificate on to which marginal notes must be made was drawn up or registered in another civil status registry, notice shall be given within 15 days to the civil status registry preserving the certificate and to the national center.”
It automatically becomes an offense for spouses married monogamously to contract another marriage without first dissolving the previous one. Only a polygamous marriage authorizes a man to contract as many marriages as he deems fit, while a woman can only be married to one man at a given time. A marriage certificate therefore, affects the party’s capacity in a monogamous marriage of remarrying when the marriage has not been dissolved. Any attempt to apply one’s self contrary to these laws so inscribed constitutes the crime of bigamy, an offense contrary to and punishable under Section 359 of the Cameroon Penal Code (BIGAMY). Whosoever is in a polygamous contractual marriage, who contracts a monogamous marriage before the dissolution of all previous marriages or being married under the codified law, contracts any marriage before dissolution of that former marriage, shall be punished with imprisonment for up to two months to a maximum of two years in prison and ordered to pay a fine of 25.000FCFA to 500.000FCFA. It is important to know that the burden of proving any dissolution of any previous marriage is on the accused.
A civil status registrar should investigate the marital status of a person through publications of banns before contracting any marriage between parties. Many women are known to have suffered the undesired effects of a marriage that never was.
A marriage is a contract from which flow rights and duties. One of such rights is the co-habitation. As such, where one party abandons or deserts another, he/she is liable to criminal sanctions under section 358 of the Cameroon Penal Code for desertion. Section 358 of the Penal Code states that, any spouse or parent who without just cause evades whether by desertion of the family home or otherwise however, the whole or part of his/her moral or material obligations towards his/her spouse or children shall be punished with imprisonment for three months to one year or with a fine from 5.000FCFA to 500.000FCFA or with both such imprisonment and fine. Where a spouse alone is deserted, no prosecution may commence without his/her complaint.
Marriage gives right to inheritance. One spouse can inherit from the other. Marriage further gives rise to property rights depending on the choice at marriage. Joined or separate property.
DEATH
The death of a person signifies that he is no more alive and this is legally proven following the issuance of a death certificate. A death certificate on the other hand can only be issued on the strength of a doctor’s attestation, or a declaratory judgment. The death certificate extinguishes the status of the person showing that he no longer alive.
Article 78 (NEW) of the Law is to the effect that deaths must be declared to the civil status registrar of the place of its occurrence, burial, residence or both of the deceased within 90 days by the family head, a relative of the deceased or any other person having known for certain that the person so described is deceased. In case of death in a medical institution or penitentiary, the head of the institution must make a declaration within 90 days following the death.
What is the content of a death certificate? A death certificate shall contain the following:
1) The name of the main or secondary civil status centre failing which, the main centre to which it is attached.
1) The name, surname, date and place of birth, sex, matrimonial status, profession and residence of the deceased.
2) Date and place of birth.
3) Name, surname of the father and mother of the deceased.
4) The name, surname, profession and residence, relationship and domicile of the declarant.
5) Name, surname, profession and residence of witnesses,
6) The date the certificate was drawn up.
Where the body of the deceased person is found and cannot be identified, a death certificate shall be drawn up, by the civil status registrar of the place where the body was found on the declaration of the judicial police officer. If the deceased cannot be identified, the death certificate shall give the fullest description possible and refer to the investigation carried out by the police
A death certificate also puts to an end person’s criminal responsibilities and his/her rights to vote. Unfortunately, there are many dead persons whose rights and benefits are still flowing not as deceased, but as though they were alive simply because their death certificates never got to the right quarters. A proper example is that of the “antelope exercise” carried in the public service some years ago, where so many ghost workers were uncovered. Amongst these groups, were persons who had died years ago but because of the absence of death certificates in their files, they were continuously paid their salaries as though they were alive. In other words, it is only the production of a death certificate that can legally extinguish his right to a salary.
Another point of note is the fact that a death certificate should only be issued to the right persons. The civil status registrar and the courts should always investigate as to who wants a death certificate to be established for a dead person. There have been some cases where people who have either forged death certificates for their own selfish aims. There is the case of Peter Akwe Massango, who resides in TOMBEL, South West Region, whose salary was automatically stopped because somebody had established a death certificate that indicated that he was deceased and same was included in all legal files, simply to hurt him.
It is our fervent desire therefore, that in issuing out these certificates, the civil status registrar and the courts alike, should be very diligent and every fact should be properly investigated. It should be known that every act of theirs has far reaching effects and the legal implications are numerous. And, the government should establish an electronic or computerized recording and filing of all these three (deaths, marriage and birth) documents, which could be easily verified by any agency. This will reduce or eradicate any such falsification of these documents and ease up verification of copies presented to any agency by comparing it with the original in a government established registry.
After carefully examining some of the provisions of this Law, it is obvious that there are many limitations, which lawmakers need to review in order to give judges clear guidelines during sentencing and to erase ambiguities of the law at its present state.
Article 41(2) States that “Recognition and Legitimation, excepting adoptive legitimation, shall be based on blood relationship. Once the relationship has been established, no one may raise objection on the recognition”. The law though, does not explain the process and procedure of establishing a blood relationship. We have seen situations where a man wishes to legitimize a child he presumed to have had with a woman out of wedlock but the woman vehemently refuses to give her consent (or the mother of the child claims that the man seeking for a relief is not the biological father of the child) to blood testing. It is usually the desire of the courts to accommodate the wishes of the man to carry out a DNA Test to confirm that the child is, indeed, his. However, he may be unable to do so because of the cost involved in carrying out the DNA Test. And, because the courts too are not in the position to absolve the cost of the test for him, the man, who is without financial means, may end up losing the child to a mother who is desperate to keep him out of the child’s life. The courts, in this regard, are powerless. The issue here is at whose expense should the test be done if the applicant or petitioner cannot afford the cost? Is it at the expense of the court, state treasury? This is the issue that the Law is silent on that lawmakers need to address. And since the fate of the child is extremely important here, and also because of the desire of the court to unite the child with both parents, the lawmakers must therefore address this lapse in the law so as to enable the courts to interpret and apply the law as it well should. The lawmakers must put the interest of the child above any financial limitations which the suppose father may have.
The present law makes consent of the mother mandatory but not that of the father. We have experienced situations where a man is refused paternity of a child he had out of wedlock because the mother of the child has refused to give consent due to the fact that he lacks the financial means to play the role of a father to the child. The lawmakers must address the issue because lack of money by the father should not be the singular factor to determine parenting capability; other factors like emotional and social bonding, are also relevant factors binding a child and his father.
The law is equally silent on the issue of runner-away fathers, who only surface to claim paternity after the woman has suffered to bring up the child alone. My humble opinion is that a runner away father, who only comes to claim paternity after a reasonable period of abandonment minus criminal sanctions as laid down in Section 358 of the Cameroon Penal Code, be ordered by the courts to compensate the woman or guardians (alimony or child support), calculating from the period of birth (of his absence) to the period he shows up to assume his fatherly obligations. However, if the man does not have the financial means to repay the mother of the child during the period of neglect and abandonment, should paternity be refused him of his biological child? We call on the law makers to look for solutions of these difficulties. It will be helpful for lawmakers to research on this issue how other countries have addressed this problem and import the best of solutions if they cannot formulate theirs.
The law in its article 55 states that, “the state Counsel may for serious reasons demanding immediate action grant a total or partial waiver of the publication of banns. A waiver of publication of banns shall be requested through a reasonable letter of either spouse-to-be, their father, or guardian in case of minors”. Most legal departments have forms which they only fill and hand to Applicants who come to apply orally for a waiver of publication. I propose that the State Counsels should carry out proper investigations and to always order the Applicants to write a reasonable letter explaining why they need a waiver and the urgency of it. A waiver should be an exceptional measure.
The Law in article 10 (4) is to the effect that secondary civil status centre may be created in certain council areas and civil status registrars and secretaries appointed to head them. The law does not explain the required qualification for one to be eligible. We have come across civil status registrars who do not know how to read and write but they are exercising their functions through a 3rd party. This causes one to wonder which criteria was considered before the appointment. The Law should specify the criteria and qualification of appointment or should mandate that civil status registrars are well knowledgeable of the law.
The law in its article 55 states that, “the state Counsel may for serious reasons demanding immediate action grant a total or partial waiver of the publication of banns. A waiver of publication of banns shall be requested through a reasonable letter of either spouse-to-be, their father, or guardian in case of minors”. Most legal departments have forms which they only fill and hand to Applicants who come to apply orally for a waiver of publication. I propose that the State Counsels should carry out proper investigations and to always order the Applicants to write a reasonable letter explaining why they need a waiver and the urgency of it. A waiver should be an exceptional measure.
The Law in article 10 (4) is to the effect that secondary civil status centre may be created in certain council areas and civil status registrars and secretaries appointed to head them. The law does not explain the required qualification for one to be eligible. We have come across civil status registrars who do not know how to read and write but they are exercising their functions through a 3rd party. This causes one to wonder which criteria was considered before the appointment. The Law should specify the criteria and qualification of appointment or should mandate that civil status registrars are well knowledgeable of the law.
Some of these weaknesses and limitations are worthy of a review by the lawmakers.
1) LAW N0 2011/011 OF 6TH MAY, 2011 TO AMEND AND COMPLETE CERTAIN PROVISIONS OF ORDINANCE N0 81/02 OF 29TH JUNE 1981 ON THE ORGANISATION OF CIVIL STATUS REGISTRATION AND VARIOUS PROVISIONS RELATING TO THE STATUS OF PHYSICAL PERSONS,
2) THE CAMEROON PENAL CODE
3) DOCUMENT PREPARED BY FIDA AFTER A TRAINING PROGRAM FOR CIVIL STATUS REGISTRARS IN BUEA 1998
