Practice Relating to Rule 155. Defence of Superior Orders
Cameroon’s Disciplinary Regulations (1975) provides: “The subordinate is relieved from his penal responsibility when he obeys his commander’s orders and in conformity with the provisions of Article 83-1 of the Penal Code.”
The Regulations adds, however: “If the order is manifestly illegal … the subordinate engages his penal responsibility according to the provisions of Articles 82-b and 83-2 of the Penal Code.”
The Regulations further states: “If the subordinate is constrained by force or physical threat, he shall be totally relieved of his penal responsibility.”
Cameroon’s Disciplinary Regulations (2007) states:
Article 21: Penal responsibility
The subordinate is released from his penal responsibility when he obeys orders of his superior, in conformity with Article 83-1 of the Penal Code.
If the order is manifestly illegal or stipulates the commission of an illegal act, in the meaning of Article 17 of the present Regulations, the subordinate engages his penal responsibility, according to the provisions of Articles 82-b and 83-2 of the Penal Code.
The subordinate who believes he is being presented with an illegal order has the duty to communicate his objections to the authority which has given them; he expressly indicates the illegal signification he gives to the disputed order. He receives any useful explication and necessary interpretation from his commander.
If the order is maintained:
- concerning acts contrary to the laws and customs of war, the subordinate has the absolute right not to execute the order.
In case of error, the subordinate cannot be exonerated of the sanctions which are implied in the non-execution of the order and its consequences.
If the subordinate is compelled by force or physical threat, he shall be completely relieved of his penal responsibility.
Cameroon’s Penal Code (1967) provides:
Article 83 – Obedience to lawful authority
(1) Criminal responsibility cannot be incurred for an act carried out pursuant to the orders of a competent authority to which obedience is legitimately due.
(2) The provisions of the preceding paragraph are, however, not applicable if the order is manifestly illegal.
In 2003, in its third periodic report to the Committee against Torture, Cameroon stated:
121. Under article 3 of the Criminal Code [Penal Code (1967)], obeying an order from a legitimate authority constitutes grounds for absolute discharge. For such an excuse to be invoked, however, the order itself must be legal. Thus the carrying out of a manifestly illegal order is prohibited, as is the exercise of excessive zeal in enforcing the law; responsibility rests with the perpetrators, whether in normal times or in a state of emergency. The law in this regard applies to all and, in every case where it is reported that a manifestly illegal order has been carried out, the perpetrators have been prosecuted and convicted. …
127. Likewise, in strictly judicial terms, it is fully accepted that, for public officials or civil servants, obeying the orders of a superior can never constitute a justification or an excuse. As the Cameroon Supreme Court, in its authoritative ruling No. 4 of 7 October 1969, ruled in a leading case:
“It is neither justification nor excuse for civil servants or officials to claim that they were obeying the orders of their superiors. Likewise, an accused person cannot invoke the orders of his employers in an attempt to exonerate himself from responsibility for an offence. Such a situation, if it were to be established, would not absolve the accused from responsibility, since no defendant can escape the penal consequences of his own personal actions unless he was compelled to take them by a force which he was unable to withstand.”
128. In respect of members of the military and other law-enforcement officials, it is important to modify the principle established in article 83, paragraph 1, of the Criminal Code, according to which, “criminal liability cannot be incurred for an act carried out on the orders of a competent authority to whom obedience is legitimately due”. Such an excuse, which provides grounds for absolute discharge, may be invoked only if the order itself is not manifestly illegal.