L’importance de la traduction dans une organisation internationale ne peut être surestimée. L’Article 42 (ancien) du Traité de l’OHADA 1993 instituait un monolinguisme qui rendait toute traduction de texte OHADA non officielle et dépourvue de toute valeur juridique. Avec les modifications apportées au Traité en 2008 à Québec prévoyant quatre langues de travail, notamment le Français, l’Anglais, l’Espagnol et le Portugais, la traduction devient un outil de travail incontournable pour assurer une meilleure application et vulgarisation dans l’espace de l’OHADA. Or la traduction au sein de l’OHADA, traduction juridique par essence, relève de la catégorie des traductions techniques ou spécialisées, faisant ainsi appel à certaines techniques traductologiques bien établies. Le multilinguisme instauré au sein de l’OHADA, bien que permettant de prendre en compte la diversité linguistique des Etats membres, est source de quelques préoccupations. En effet, il y’a lieu de se poser quelques questions, notamment, quelle approche traductologique faut-il adopter dans le cadre de ces traductions ? Comment gérer les difficultés d’ordre terminologiques ? Comment obtenir les traductions qui assurent une meilleure communication tout en respectant, autant que possible, les spécificités de chaque système juridique en présence, notamment le Civil Law et la Common Law ?
The importance of translation in an international organization cannot be overemphasized. Translation enables the understanding and application of international instruments in all member States irrespective of legal or linguistic backgrounds. In the specific case of OHADA, translation is crucial as reflected in the modification of the OHADA treaty in 2008. Indeed, translation enables to accommodate the communication needs of investors who are increasingly attracted by OHADA member States owing to the conducive business climate created by OHADA ; it also facilitates cross-border trade between OHADA member States and their English-speaking neighbours and promotes legal integration sought by the founding fathers of OHADA.
Historically, legal translation has been practiced between various legal systems or countries wishing to form a closer legal, political or economical relationship. The history of legal translation can be traced as far back as 1271 BC. The first artefacts are the translation of the peace treaty between Egypt and the Hittite Empire and the translation of the Corpus Iuris Civilis into several languages of the world after its initial translation from Latin into Greek . The pioneer legal translators who had the task of translating these volumes certainly had serious difficulties, but unfortunately their efforts and solutions were not put into writing to guide the future generations of legal translators. As a result, legal translation or the study of legal translation as a separate discipline is only recent and has been encouraged by the harmonization efforts in various parts of the world. Examples include Europe with the European Union and Africa with the Organization for the Harmonization of Business Laws in Africa (OHADA) which is the focus of this article .
In the context of OHADA in particular, legal translation has not been the subject of detailed discussion perhaps because of the official monolingualism of the 1993 Port-Louis Treaty. The new legal context provided by the 2008 amendments to the Treaty may stimulate discussions on legal translation in the context of OHADA. Such discussions may provide solutions to some practical issues that are likely to hinder the proper translation, dissemination and application of this law in non-French speaking member States.
This paper examines the stakes and challenges of legal translation with particular focus on OHADA, discusses relevant issues and attempt solutions. The article also dwells on specific phenomena in the area of legal translation such as the specific nature of legal language and the challenging issues of terminological and textual equivalence. It further analyses relevant theoretical issues as well as identifies the constraints in the translation of OHADA laws. Finally, it discusses some translation techniques and approaches and explains their relevance or non-relevance with regards to the translation of OHADA laws. It ends with a discussion of pertinent issues relating to the uniform interpretation and application of OHADA laws in the Civil Law and Common Law jurisdictions of Cameroon.
It is expected that the solutions and recommendations at the end of this article will enable legal translators to successfully tackle some translation hurdles that are inherent in legal translation. It will also enable the OHADA policy-makers to take appropriate decisions concerning the translation of OHADA laws so as to ensure that the long-awaited multilingualism and bijuralism does not become a hindrance to the effective implementation of OHADA laws.
II) Genesis of the Problem
The issue of language and translation can never be neglected in an international organization such as OHADA which is composed of countries of different linguistic and legal backgrounds . As explained by Jean-Claude Gémar, language and law are inextricably linked. Yet, out of the sixteen Member States of OHADA, Equatorial Guinea and Guinea Bissau speak Spanish and Portuguese respectively. With regards to Cameroon which offers a contextual approach to the understanding and application of OHADA, it is constitutionally a bilingual and bijural country. The Federal Constitution adopted on 1st September 1961 and the subsequent Unitary Constitution of 2nd June 1972 as revised by Law No. 96/06 of 18 January 1996 protects and preserves the linguistic and legal cultures by providing for French and English as the official languages with the same status . Article 68 of the 1996 Constitution also provides for the continuance of the laws of the pre-independence period in so far as they do not conflict with the Constitution or have not been amended by legislation or regulatory process.
However, in spite of this linguistic and legal diversity, the Port-Louis Treaty adopted French as the working language of OHADA. Article 42 (old) stipulated : “French shall be the working language of OHADA.” This official monolingualism raised criticisms especially from Common Law jurists. Indeed, articles 42 (old) and 63(old) were seen by some commentators as limiting the membership to French civil law countries exclusively. Yet, the dream of the founding fathers of OHADA was to lead to the legal integration of all States of the African Union irrespective of their linguistic or legal contexts. Pertinent arguments were raised to support the exclusion theory notably the difficulty that a Common Law jurist will have to plead a case before the CCJA, the difficult access by a non-French speaking citizen to the CCJA, inexistence of relevant documents in English, lack of trainings on OHADA laws in favour of Common Law practitioners, to name a few.
A renowned Nigerian jurist, Honourable Justice Mohammed Baba Idris opined that :
The Nigerian Government would be very reluctant to adopt any treaty that excludes English as a working language. Similarly, the Nigerian National Assembly would be very slow to adopt any such treaty pursuant to the powers conferred upon it by article 12 of the constitution to enable the laws to have effect as laws of the Federation of Nigeria.
In Cameroon, the effect of article 42 (old) was the resistance to apply OHADA laws in Common Law jurisdictions. The leading case is Akiangan Fombin Sebastien v. Fotso Joseph & others , where Justice Ayah Paul clearly stated that a treaty which is basically French suffers from self-exclusion from the English speaking provinces of Cameroon . The same reactions were recorded throughout the Common Law Regions of Cameroon with hostile and anti-OHADA slogans.
This situation almost took a different and undesired turn with the delicate political situation of Cameroon at the time when the first OHADA Uniform Acts came into effect. Indeed, the Southern Cameroons National Council (SCNC) and lawyers associations, among other groups, complained of marginalisation and attempts by French Cameroon to wipe out the English cultural, legal and linguistic heritage . In the case of Kevin Ngwang Gumne v. The State of Cameroon , a case before the African Commission on Human and People’s Rights (ACHPR), Kevin Ngwang Gumne pointed out in his communication that “The People of Southern Cameroon remain distinct with an official language that is English and different education, legal and cultural systems.” He complained that the Cameroon membership into OHADA, whose sole working language was then French, and whose antecedents appeared to include the Civil law system, was further proof of such marginalization.
Considering these political realities at the time, the Cameroon Government initiated in 2000 a procedure before the Permanent Secretariat of OHADA for the revision of article 42 of the Treaty .
Fortunately, and in order to ensure equitable and fair treatment of all Member States, the revised version of the OHADA Treaty, signed in Quebec on 17 October 2008 addressed this issue by providing in article 42 (new) that OHADA’s working languages include French, English, Spanish and Portuguese. Article 63(new) also provides that the Treaty shall be written in French, English, Spanish and Portuguese. Articles 42 (new) and 63 (new), while reflecting the OHADA membership, reaffirm the Organisation’s preparedness to receive all African States and its commitment to “accomplish new progress towards the establishment of African Union” . It is worthy of note however that this reform should not be perceived only from the linguistic perspective. It is first and foremost an attempt to establish a link between Civil Law and Common Law countries.
This reform establishing multilingualism in OHADA was seen by Common Law jurists as a welcome development. It is also a serious burden on the Organization with the potential of creating difficulties if not properly managed. Indeed, given the new context, OHADA documents and laws will henceforth have to be produced in the official languages of all member States namely French, English, Spanish, and Portuguese. An official of the OHADA Permanent Secretariat confirms that given the new legal framework, translation in OHADA is “no longer optional, but a legal obligation”.
What is important to note here is that translation is a key component in the present context as it directly affects the interpretation and implementation of OHADA Uniform Acts in Member States. Inadequate translations will adversely affect the interpretation and application of OHADA laws in non-French speaking and non-Civil Law countries including the two Common Law English-speaking Regions of Cameroon. To further reiterate the strategic role of translation in the new context, Tumnde states that the “adequacy of the new article 42 will depend on the quality of the actual translations.” This strategic role of translation in the implementation of OHADA laws justifies the need to address areas of particular concern. This is the thrust of this paper that covers OHADA laws and documents as a whole. Indeed, the problem of translation is an all-embracing difficulty that affects all OHADA laws and documents.
III) Challenges of Legal Translation
Although there have been several unofficial translations of OHADA Uniform Acts, the users have persistently complained of poor quality and their negative impact on the understanding, interpretation and implementation especially in Common Law jurisdictions. Tumnde observed that they are “too literal, inadequate and rather nebulous.” The problem of legal translation in the context of OHADA has often been posed in terms of lack of terminological equivalence. The issue has been on how purely Civil Law terms/concepts could find acceptable equivalence in the Common Law system so as to enable Common Law jurists to understand and implement the law in the same manner as their colleagues of the civil law system.
It is worth noting, however, that equivalence in the science of translation is not only terminological. Indeed, considering that legal translation takes place between two technical language systems each one having specific norms and conventions, textual equivalence is also an essential requirement for adequate legal translations. As such, textual equivalence cannot be isolated from terminological equivalence. In legal translation, functional equivalence between the source text (ST) and the target text (TT) can be achieved only if both terminological equivalence and textual equivalence, with all the syntactic, semantic and pragmatic implications are respected. Textual equivalence, however, per se is hard to achieve given the specific nature of legal language.
III.1) Nature of Legal Language
Legal language is a technical language and as such, unlike other languages in general use, it has specific features or norms which must be considered for effective translation. Kieler differentiates between general language and specialized or technical language. Legal language is included in the category of technical or specialized language owing to its specific vocabulary as well as its specific syntax, pragmatics and style. The following paragraphs will examine these features seriatim.
III.2) Legal Vocabulary
The vocabulary of the legal language is system-bound. This means that there is no universal legal language describing universal concepts as is the case in biology or mathematics. Legal vocabulary may be as a result of political, social, economical and cultural evolution of a given society or the experiences and aspirations of the people. As such, translating a legal term may often mean translating a whole legal civilization. For example, legal terms or institutions, such as, the “Queens Bench” which had an influential role in the development of the Common Law can be translated only within the context of the English political structures at the time. This situation contrasts with the scientific language. In mathematics for example, a theorem is universally true whether it is used in Africa, in the Middle-East or elsewhere in the world. Civil law has a specific vocabulary which is different from the Common Law vocabulary and other legal systems’ vocabulary. In the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution, for example, expressions such as requête, saisie-arrêt, saisie-revendication, saisie appréhension, juge des référés, juge de contentieux d’exécution are purely civil-law bound. Similarly, expressions such as writ of fi. fa. and equity are essentially common-law.
Cao argues that every legal language reflects the history, the evolution and the culture of the corresponding legal system. For example, in the English law tradition, the notion of equity was developed from the fifteen century by the Court of Chancery in order to render more just the strict application of the Common Law rules. The Judicature Act 1873-1875 effected a fusion of the Common Law and Equity courts and both Common Law and equitable remedies could thereafter be obtained in the same court. This example reveals the historical relationship between Common Law and Equity. Also, some courts of law, such as, the Chancery Division, the Crown Court and the House of Lord can only have a meaning in the context of Common Law.
The link between legal language and legal system is a source of difficulty for legal translators who must from time to time exercise in comparative law to better analyse and understand the content or the legal meaning of each word in a given system. This is an essential stage in translating documents between two legal systems such as Civil Law and Common Law to take the case of OHADA.
From the above, it can be said that the major concept to be considered when translating especially in the context of OHADA is to bear in mind that the language of the law is a system-bound language and as such, there can only be a perfect match between the language of the Civil Law and that of the Common Law if the appropriate Common Law vocabulary is used in exchange for the Civil Law vocabulary.
III.3) Stylistic Features of Legal Language
With regard to the style of legal language, Justice P. Viau stated the position as follow :
Deux langues, c’est d’abord deux styles (...), lois françaises et lois anglaises sont conçues différemment ; les même idées ne se dissimulent pas de la même façon derrière les mots dont le sens et la portée sont parfois difficile à cerner.
Indeed, legal language is characterized by its formal and impersonal style as well as the complexity and the length of sentences and structures. This feature is a hurdle for effective understanding of the legal language by a layman and as such, presents a difficulty for a translator who does not have a legal background. Tetley defines the style of Civil Law codes and statutes as concise, while he describes the style of the Common Law statutes as precise. The legal English used in Common Law texts is based on inductive thinking and on an empirical approach to legal problems, which is intended to restrict interpretation possibilities to the minimum. This style is due to the origin of the Common Law itself which is case-law based by essence, meaning that legal norms derive from practical cases before the court. This is opposed to Civil Law which is abstractly drafted by a government organ, such as, the parliament.
In addition, English law language is characterised by a string of words with similar meanings such as “costs, charges and expenses”, “null and void”. This can be seen in the following translation of article 7 (2) of the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution :
ST : La décision portant injonction de payer est non-avenue si elle n’a pas été signifiée dans les trois mois de sa date de délivrance.
TT : The injunction to pay shall be null and void where it is not notified within three months from its date of issuance.
A translator may fail to produce the natural flavour of the Common Law language if not properly prepared to translate a single Civil Law word in the ST by multiple words with similar meaning in the target text as observed in the above example.
III.4) Syntactical Features of Legal Language
Each legal language has its own syntactical features. Cao points out that the legal English uses complex structures, multiple negations, propositional phrases and passive voice. Generally, the performative markers “shall” and “may” are used to translate the present tense as in the following translation of article 5 of the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution :
ST : Si au vu des documents produits, la demande lui parait fondée en tout ou en partie, le président de la juridiction compétente rend une décision portant injonction de payer pour la somme qu’il fixe.
TT : Where upon examination of the documents produced, the request seems well founded in part or in whole, the president of the competent court shall issue an injunction to pay a sum that he shall determine.
III.5) Semantic Features of Legal Language
Concerning semantic issues, it suffices to note that some expressions which are used in ordinary language become pregnant with meaning when used in the legal parlance. For example, the term payment in legal parlance has a wider meaning than in ordinary usage, where it is generally used to designate the performance of an obligation to pay a sum of money. In legal parlance, a buyer who pays the price and the vendor who delivers the goods sold both effect payment. Therefore, in legal parlance, payment is used to designate the execution of an obligation simplicita regardless of the object of that obligation.
From the above paragraphs, it can be observed that the Civil Law and the Common Law languages obey different syntactic, stylistic and pragmatic norms. Legal translators must respect these norms in order to produce a translation that is communicative, natural and adequate taking into account the function of the translation in the target language. Failure to do so can only result in unintelligible and unnatural translations with limited impact.
IV) Terminological Issues
The translation of legal terms/concepts requires particular attention because it consists primarily of abstract terms that are deeply and firmly rooted in the legal culture and intellectual tradition of legal systems involved in the translation operation . It is at this level that the implementation and practice of OHADA laws may vary significantly between Civil Law and Common Law if strategic terms/concepts are not adequately rendered. As such, the most obvious challenge in the translation of OHADA laws from French Civil Law into English Common Law is the finding of appropriate or acceptable common law equivalents for purely civil law terms and concepts.
Unfortunately, owing to the degree of unrelatedness between Civil Law and Common Law, the search for equivalent terms/concepts is a herculean task for legal translators. This difficulty is exacerbated by the fact that some Civil Law terms either do not have direct equivalence in the Common Law system (such as the terms requête d’appel or créancier chirographaire) or only have close equivalence with meanings which are not exactly the same as in the ST (see for example assignation in Civil Law and summons in Common Law especially as used in article 170 of the Uniform Act). In some cases, entirely different terms/concepts in the Civil Law system have a very close resemblance with a similar sounding term in the Common Law thereby creating the risk of « false friends » or « false cognates. » Another case is the total lack of equivalent terms/concepts in the Common Law system. For example, under the law of contract, the conditions for the validity of a contract are not the same in both systems. The requirement of la cause for example under Civil Law is unknown at Common Law while the requirement of consideration at Common Law is strange to Civil Law jurists. Similarly, some recovery procedures such as the injunction to return or to deliver provided by the OHADA Uniform Act are unknown to Common Law jurists.
These discrepancies between Civil Law and Common Law are a source of difficulties and render the translation of OHADA laws more challenging. The ideal translation in this context is the one that renders the incompatible legal terms without any material losses in terms of content. This corresponds to what Šarčević refers to as functional equivalence, defined as a term in the target legal system designating a concept or institution, the function of which is the same as that in the ST. According to Weston , functional equivalence is the ideal method of translation of legal texts. A survey carried out by Joanna J. Rek-Harrop reveals that 100% of legal translators resort to functional equivalence to resolve problems of terminological incongruities. As it can be seen, the quest for functional equivalence in legal translation is a priority for legal translators when faced with terminological stress. This must be a conscious exercise to produce a target version that is meaningful and coherent in the target legal system. Some translation techniques may also be relevant in this respect.
V) Other relevant Translation Techniques
De Groot proposes additional solutions to terminological problems. According to him, when translating legal terms and concepts between legal systems, the first stage consists in studying the meaning of the source text term or concept in the source legal system and comparing with the target’s terms or concepts in the target legal system. After comparing the terms and concepts in both legal systems, a closer equivalent term, that is, a term with the same legal content must be found in the target legal system.
However, if no acceptable equivalent term can be found as it is often the case with unrelated legal systems, such as, Civil Law and Common Law, the translator must resort to one of the subsidiary solutions, such as, using the source language term in its original or transcribed form, using a paraphrase or creating a neologism, borrowing, or using calques.
V.1) Using SL Terms or Concept in its Original Form (The Purist Approach)
This translation strategy has the merit of protecting the integrity of the ST term. When the translator cannot find the appropriate term/concept in the target legal system, he may opt to keep the source legal language term/concept as it is. This approach is foreignizing in essence.
The inconvenience of this method is that it may create reluctance especially to common law jurists who may not be comfortable with frequent resort to Civil Law terms. Also, it may reinforce the suspicion and the feeling of linguistic and legal marginalization in some Common Law jurists from Cameroon, the group currently most affected and who initially perceived OHADA as an “instrument of French and Francophone Cameroonian neo-colonialism” .
Another shortcoming of this strategy is that it constantly refers the target users of translation to the source legal system to find out the meaning of the terms/concepts which are left in their original form.
V.2) Use of neutral terms accompanied sometimes by definition for additional clarification or original term in bracket
This translation method is closer to the one described by Dickerson when she refers to terms with special meanings assigned by OHADA. In essence, this means that Common Law terms can be considered, but given special OHADA meaning. This method will require a carefully designed terminological data bank with these OHADA terms and specific meanings defined by the Organization. For this method to be successfully implemented, both Common Law jurists and their Civil Law counterparts must be involved in the process. There must also be adequate training in favour of the direct users, namely, judges, lawyers, bailiffs, and translators who will have the ultimate task of appropriately using these various terms in their translations.
From the above survey by Rek-Harrop, 98% of legal translators resort to neutral terms sometimes accompanied by definition for additional clarification or original term in brackets. As it can be seen therefore, this translation method can be significantly helpful to resolve terminological stress especially if the process is carefully conducted.
In a specialized language, borrowing means the adoption of a terminology unit from one language or legal system for use in the target language or target legal system . The French dictionary Le Robert defines it as “un acte par lequel une langue accueille un élément d’une autre langue.” English law makes extensive use of Civil Law terms such as force majeure, damage , etc. 33% of legal translators resort to borrowing in case of terminological problems. It is worth noting that the frequent recourse to this strategy has the disadvantage of rendering the translation unnatural in the target language. It may also render understanding difficult especially if the borrowed term has not been adequately established in the target system.
Another frequent method of borrowing used in the translation of OHADA documents is the use of functional or close equivalent terms in the Common Law system followed by the borrowed term in bracket. Example : execution or enforceable right (titre exécutoire), forced sale (saisie-vente), forced attribution (saisie-attribution), seizure and assignment of wages and salaries (saisie et cession des rémunérations) . This approach can be very commendable in that it maintains a balance between the source legal language and the target language while trying to be as communicative to the target reader as possible. It also seeks to avoid loss of meaning which may occur in cases of absence of direct equivalence terms/concepts. In addition, it avoids the risk of misinterpretation.
When borrowing is used without the functional or close equivalence in the target legal system, it should be systematically explained in the footnote. The same principle applies for neologisms which may not readily be understood by the target text readers.
In an attempt to fill the terminological gaps between the Civil Law and the Common Law, translators may sometimes have to use neologisms, that is, using a term in the target legal language that does not form part of the existing target legal language terminology, if necessary with an explanatory footnote or explanatory note. Only 9% of legal translators sampled by Rek-Harrop consider this method efficient in legal translation.
V.5) Definition and paraphrases
Definition and paraphrases may appear in some cases as the most effective methods of compensating the lack of equivalence in the target legal language. This consists in presenting the legal information in the neutral language that facilitates understanding . However, these methods require a certain degree of research, legal training and relevant background knowledge on the part of the translator. Indeed, poor definition and paraphrases can be as damaging as false equivalence. Therefore, a translator who opts for these methods must ensure that he is properly documented in the relevant field and that he has a proper understanding of the subject-matter. In any case, it is always advisable to seek the assistance of an expert. In practice, descriptive paraphrases are highly used by legal translators. 95% of legal translators recognize its usefulness in cases of terminological difficulties.
It must be borne in mind that when a particular term/concept (borrowed, paraphrased or defined) is employed, it should be consistently used throughout the translation. Indeed, language consistency plays an important role in technical translation as it is assumed that the difference in terminology implies the difference in meaning. Therefore, the use of different terms to render the same SL term/concept may be more confusing and damaging to the translation.
VI) Discussion of some theoretical issues in legal translation
The choice among these translation techniques will depend on the approach adopted. Generally, there are two approaches in legal translation summarized by Schleiermacher in the following terms : “The translator can either leave the writer in peace as much as possible and bring the reader to him or he can leave the reader in peace as much as possible and bring the writer to him.” The legal translator therefore has to make a conscious choice between foreignising, that is, taking the reader to the writer through various translation strategies like borrowing or keeping the civil law terms as they appear in the source text. Alternatively, he can opt to domesticate the ST by taking the writer to the reader through translation strategies that are target-system friendly and that facilitate assimilation by the TT reader.
Both foreignisation and domestication have advantages and inconveniences. Starting with foreignisation, it has the advantage of avoiding distortion and loss of meaning. It therefore enables the translator to remain faithful to the source legal language . Apostles of the foreignisation approach maintain that the TT must remain as close as possible to the ST. The TT must be ST bound . To further support the foreignization approach to legal translation, Eugene Nida brings in the notion of formal equivalence by stating :
It is essential that formal equivalence is stated primarily in terms of a comparison of the way in which the original receptors understood and appreciated the text and the way in which receptors of the translated text understand and appreciate the translated text.
Šarčević also advocates that what matters in legal translation is the fidelity of the translation to the original, not the beauty or elegance of the target language.
It is admitted in this paper that foreignization can resolve several language-related difficulties by enabling the translator to stay as closer or as faithful to the Civil Law text as possible. However, frequent resort to ST terms/concepts in the target legal language or the use of neologisms should be limited to the minimum.
Indeed, too much foreign terms/concepts in the target text can render it incomprehensible and incoherent. This situation would be regrettable because it would significantly influence the trading relationship between the OHADA Member States and other Common Law countries such as the United States, the United Kingdom, Ghana and Nigeria, to name a few. These trading partners may not be able to properly understand a law which is written using too much foreign terms/concepts. In addition, given the political context of the OHADA’s only English-speaking member, Cameroon, the foreignization approach may not be appropriate or, if it has to be used, should be limited in usage in the translation of OHADA documents.
With regards to domestication, its advocates the use of completely contrary arguments to support the need to use target text oriented methods . According to them, the focus should be on the target legal language rather than the source legal language. In order words, the translator should strive to take the writer to the reader or the target audience following the Schleiermacher’s principle . The taking into consideration of Common Law terms, concepts and principles may be an attempt to apply this method in the context of OHADA translation. However, this method should be carefully applied to avoid divergence in interpretation and implementation in Civil Law and Common Law jurisdictions. Indeed, in our considered opinion, “full domestication” or naturalization may be a source of unnecessary implementation difficulties, especially as Civil Law and Common Law are unrelated legal systems with terms and concepts which are unfamiliar or even unknown to each one of them. This may lead to a target text which is nonsensical, unintelligible and incomprehensible to the target readers. Therefore, if domestication has to be used, it must be done with tact to ensure that the same legal information in the Civil Law text is conveyed to the Common Law jurists.
Consequently, the ideal approach in the case of OHADA is the one that aims at achieving the same legal effect for the TT users as for the ST users, while remaining as faithful as possible to ST. This means that the content of the ST should be produced as accurately as possible in the TT in keeping with the spirit of the law. To achieve this noble objective, it is essential to reconcile both the communicative and receiver-oriented approaches with the requirement of fidelity to the ST. This approach corresponds to the functional equivalence approach described by Peter Newmark . If this approach is properly implemented, the author of this article believes that the product might be a hybrid system of law resulting from cross-fertilization of the Civil Law and Common Law systems.
VII) Some Thoughts about Harmonizing Legal Practice in Civil Law and Common Law Jurisdictions of Cameroon
The task of interpreting and applying Uniform Acts uniformly in both Civil Law and Common Law jurisdictions is rendered more difficult considering the degree of unrelatedness. Gémar recognizes that the greatest obstacle to the uniform interpretation and implementation is undoubtedly the incongruity of legal systems. He posits that the fact that each legal system has its own rules of classification and interpretation, sources of law, methodological approaches, designation of competent legal authorities to perform given judicial acts, and procedural rules render the uniform interpretation and application difficult, or even impossible in practice.
The following examples are enough to illustrate this point. In Civil Law jurisdictions, actions are ordinarily commenced in court by assignation while in Common Law jurisdictions, actions are commenced by the writ of summons. So, summons is often used to translate assignation. But in reality and as it is used in article 170 of the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution, the term assignation is not the direct equivalent of summons in common law. Assignation in Civil Law is an extra-judicial act while a writ of summons is signed by a judge, a magistrate or other legal officers empowered to sign summonses.
Besides, it is very strange in the Common Law jurisdictions of Cameroon to seise the Court of First Instance and the Court of Appeal in case of an execution dispute using a writ of summons. The certificate of non-appeal drafted on the 22nd September 2011 by the Registrar-in-Chief of the Court of First Instance of Buea in relation to the case of Charles Abi Enonchong (suing as Administrator of Late Chief Dr. H.N.A. Enonchong) illustrates the difficulties faced in the use of these terms. He wrote :
I, the undersigned, do certify that no “writ of summons” (assignation) has been filed in this court registry within a 30 days spell in keeping with Section 3 of Law No. 2007/001 of 19th April 2007 alongside the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution.
Indeed, the normal practice under Common Law and which still applies in the Cameroon Common Law jurisdictions is that such disputes are referred to the President of the Court of First Instance of the place of residence of the debtor by way of motion on notice. It may have been proper for the Registrar-In-Chief to use the term “motion” instead of the term “writ of summons” which translate “assignation” no doubt, but does not conform to the practice.
Finally, the Civil Law and the Common Law have different legal officers who have the competence to perform certain judicial acts. This is the case with the “Président de la juridiction statuant en matière d’urgence” in article 49 of the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution :
ST : La juridiction compétente pour statuer sur tout litige ou toute demande relative à une mesure d’exécution forcée ou à une saisie conservatoire est le Président de la juridiction statuant en matière d’urgence ou le magistrat délégué par lui.
TT : The competent authority to rule on all disputes or petitions relating to a forced act of performance or sequestration shall be the President of the Court ruling in urgent proceedings or the judge delegated by him.
The main problem with this translation is that if the term “Président de la juridiction statuant en matière d’urgence” can be understood in the Civil Law system, its English translation, though very literal, is confusing in Common Law system where urgent matters are entertained at all levels by the President of the Court of First Instance, the High Court, and the Court of Appeal . There is no exclusive jurisdiction in Common Law which entertains urgent matters.
These examples reveal that the practice or implementation of OHADA laws can hardly be exactly the same in Civil Law and Common Law jurisdictions. Some degrees of variance are inevitable. Therefore, we are justified to ask the following question : what is OHADA harmonizing ? The law or the practice ? This question may form the basis of further research initiatives. This article however suggests that Common Law jurisdictions should be allowed to practice and implement the OHADA laws within the spirit of their own legal tradition without defeating the overall objective of the OHADA Treaty namely clarity, transparency and predictability.
The advantage of this flexible approach is that it will give additional reasons to Common Law jurists of other countries to convince their respective governments to ratify the OHADA Treaty.
Another difference in the designation of legal officers in Common Law and Civil Law jurisdictions is found in Article 42 of the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution. This Article stipulates that in the absence of the occupant of the premises, or where the occupant denies access, the bailiff or process-server may put a guard at the doors to prevent any misappropriation. In the unofficial English version, process-server is used to render the French term agent d’exécution. This rendering is questionable because it seems to confer on the process-server the powers to carry out execution, in the same capacity as the bailiff.
In French, agent d’exécution is a moral entity which has been licensed to carry out executions. He performs the same duties as the bailiff. In contrast, a process-server at Common Law does not carry out execution. His job in the judicial system is limited to the service of court processes. He is not a bailiff. A process-server may even be a local chief or any other person appointed by the court. The Supreme Court (Civil Procedure) Rules provides :
Service of a petition, notice, summons, order or other documents of which service is required shall be made by the Sheriff or a Deputy Sheriff or by an officer of the court or by a constable or by a person appointed therefor either especially or generally, by a native authority or a native court ; unless in case the court otherwise directs.
In addition to the variances discussed above, it may be noted that when the ST and the TT belong to different legal and language systems, there is a threat that text or part thereof will be interpreted according to conflicting legal systems. This problem was already pointed out by Maurice Kamto in his commentary of the 2008 revision to the Treaty , he pointed out that the institution of four working languages within OHADA will lead to legal conflicts resulting from the existence of several versions of the same law and often from translation problems. In an attempt to solve this problem, paragraph 3 of article 42 provided that “in case of differences in the translation, the French version shall prevail.” This is the normal practice in international organisations where a reference language is distinguished from the working or official languages.
Unfortunately, the Cameroon delegation which took part at the Council of Ministers’ meeting in Dakar on July 31st and August 1st ,2008, before execution of the revised treaty, expressed worries concerning the unconstitutionality of this paragraph. Because the constitution of Cameroon adopts English and French as official languages with equal status , they argued that ratifying the modified treaty with paragraphs 3 will be unconstitutional as it establishes the supremacy of the French language over the English language. They also argued that they can only ratify the new treaty with paragraph 3 after modifying their constitution to establish the supremacy of French over English. However, such a solution would be too risky for the political stability of the country. After several consultations, Member States finally agreed to merge paragraphs 2 and 3 of the draft. The resulting paragraph now reads vaguely as follows : “before translation into other languages, documents already published in French shall have full effect. In the event of differences between various translations, the French version shall prevail.” This paragraph suggests that laws that are published in various languages are authentic, but in case of differences in translations, the versions of the language in which the law was adopted shall prevail where appropriate .
It is still not clear whether this latter reformulation has solved the problem of conflicting interpretation between several versions of the same laws that may result from various translations. Whatever the case, it cannot be ignored that translation will play a fundamental role in the way the OHADA laws will be interpreted and implemented in various jurisdictions especially in non-French speaking jurisdictions. The CCJA should thus be prepared to handle some of these cases when article 42 (new) becomes fully operational in all OHADA Member States.
The problem of divergent translations of the same texts will therefore certainly give additional work load to the CCJA which has exclusive jurisdiction to interpret OHADA laws. Therefore, it may be essential for this institution to develop special rules of interpretation for ascertaining the common meaning which best reconciles all language versions having regard to the object and purpose of a given Uniform Act. These rules of interpretation will enable OHADA legal translators to anticipate some translation issues as they already know what interpretation the CCJA will give to a particular term/concept used. This will also facilitate interaction between OHADA legal translators and the CCJA judges and will create an atmosphere conducive for adequate translation of OHADA laws.
VIII) Harmonizing the Law and Practice between Civil Law and Common Law : Difficulties relating to Divergent Rules of Interpretation
Judicial interpretation deals with the attitude of the judge when faced with ambiguous or unclear provisions or an apparent inconsistency between provisions in the text or even a case of silence of the law. Comparative studies reveal that historically, the attitude of Civil Law judges in these circumstances is different from the attitude of their Common Law counterparts. These differences in approach are worth highlighting as they have a direct link with the way the OHADA law is applied in the Civil Law and Common Law jurisdictions of Cameroon especially.
Judges trained in the Civil Law tradition consider that their duty is to apply the law and nothing else. Interpretation is therefore viewed primarily as an exercise that consists in discovering the express or implied intent of the legislature. This interpretation approach can be traced from the history of the Civil Law system where the statutes and the codes are the foundation of the Legal system, just as cases are the foundation of the Common Law system .
Unlike in the Common Law system where judges are actively involved in the law-making process, Civil Law judges have a more restricted role. The methods of interpretation often resorted to include the exegetic with frequent recourse to the travaux préparatoires and the teleological. The exegetic method makes use of the legislative history while the teleological looks at the social objective of the statute. Within the framework of an interview conducted, judges in the Civil Law jurisdictions of Cameroon confirm that they widely resort to these interpretation approaches .
In Common Law jurisdictions however, the situation is quite different. When a term is ambiguous or the meaning is unclear, the judge simply refers to other decided cases with similar facts following the doctrine of binding precedent or stare decisis. Thus in London Tramways v. London County Council , the House of Lords held that it was bound by its own decisions. However, in Davis v. Johnson , a case which involved the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976, Lord Denning M.R., while reiterating the principle of binding precedent, asked the question as to whether the court was bound by the two previous interpretations of the Act by the same court. He answered in the negative, stating that : “On principle, it seems to me that while this court should regard itself as normally bound by a previous decision of the court, it should be at liberty to depart from it if it is convinced that the previous decision was wrong.”
As it can be observed therefore, the problem of interpretation goes beyond purely legal bounds. It has more to do with the legal systems’ history and culture ; Hence, the relevance of this topic especially in the context of Cameroon which has both Common Law and Civil Law jurisdictions. Indeed, if the rules of legal interpretation differ in these jurisdictions, it seems logical to think that the law cannot be applied uniformly. As a result, a case with similar facts may be decided differently depending on the jurisdiction in which the decision was made. This is a serious obstacle to the uniform application of OHADA laws.
Faced with this difficulty, it may be asked whether the solution lies in harmonizing interpretation approaches in both jurisdictions. This appears to be a difficult option because it will mean reversing the whole foundation or civilization of these systems. The better solution, it appears, consists in allowing each jurisdiction to practice the OHADA law according to its legal culture and tradition. Another related question is which interpretation rule will the CCJA apply in case of ambiguity or inconsistency ? Indeed, if the CCJA applies Civil Law oriented approach, our proposed solution will be irrelevant as any case that leaves from the Common Law jurisdiction for interpretation will have little chances to prosper.
There is need therefore to review the composition of the CCJA to include Common Law judges who will be better equipped to deal with cases regarding the Common Law system. It will also be a goodwill gesture from OHADA to show its actual openness to Common Law jurisdictions and to facilitate trade with Common Law countries.
Indeed, OHADA is at the crossroad and the immediate challenge is to ensure the effective implementation of its laws in its member States and to create favourable conditions for the membership of other Common Law countries such as Ghana and Nigeria just to name a few. The ideal is to ensure coherent application of OHADA Uniform Acts in all member States irrespective of differences in legal traditions and languages.
Translation is crucial for attaining this objective. However, and as this research has revealed, legal translation is a challenging exercise described by researchers as a “category in its own right.” There are several reasons for this : conceptual or terminological equivalence between the source and the target text is often not straightforward between the Civil Law and the Common Law systems. This is especially so given the stylistic, pragmatic and semantic specificities of each legal language. In this case, we observe that the skill and knowledge of the translator as well as his ability to skilfully manipulate some prescribed translation techniques make the difference between a deficient and a good translation.
Also noted is the fact that legal translators must be alert to the use of « false friends » or « false cognates. » These are terms in the source language that closely resemble a similar sounding term in the target language. At times their meaning can be entirely different. They must therefore avoid the complacency which leads to the use of false cognates and reconcile stylistic differences between the source and the target languages.
In a nutshell, translations between Civil Law and Common Law must reconcile the often competing goals of producing clear and readable documents that can be assimilated easily by the reader with the rendering of translations that faithfully transmit the substance of the source text. The constant tension between these two goals requires a great deal of experience, skill, perseverance, knowledge and integrity. For this reason, it is imperative for OHADA to set up a translation unit with qualified and skilful legal translators. These translators should receive a summary training on OHADA laws, the art of legal translation as well as the translation approach to be used in OHADA.
To ensure maximum performance, the translation unit thus established should be supplied with adequate material resources such as translation tools/software, legal encyclopedia, terminological databases, specialized dictionaries, bilingual lexicons, and internet access to ease research. At the same time, OHADA should encourage the production of original OHADA books and documentation in English by Common Law jurists and scholars, and should facilitate collaboration between translators and OHADA law experts from both Common Law and Civil Law jurisdictions.
The importance of continuing training and scholarship grants cannot be over-emphasized. Indeed, OHADA will equally be expected to ensure the continuing training of its translators especially through scholarship grants for study in some countries like Canada which already boast of a solid experience in the translation within a bijural and bilingual environment.
Finally and still within the framework of creating linkages between Common Law and Civil Law, something must be done as a matter of urgency to ease the understanding of OHADA laws in Common law jurisdictions, create favourable conditions for harmonious co-habitation or ease their membership to the Organisation. This may involve using neutral words with special meanings assigned by OHADA, recruiting Common Law judges in OHADA institutions especially the CCJA, reviewing the training programmes at ERSUMA to include English programs in favour of Common Law jurists and taking into account Common Law concepts and principles in the drafting of OHADA Uniform Acts.
The experience of Cameroon in this regard is worth considering. Indeed, the architects of law reform in Cameroon have, to some extents, taken cognisance of the fact that any meaningful reform cannot be made in a bijural setting if it takes no account of the peculiarities of both systems in the country, notably the Common Law and the Civil Law. Hence, the country has successfully adopted the Criminal Procedure Code which reconciles both Common Law and Civil Law concepts and principles. Cameroon’s (non-OHADA) Civil and Commercial Procedure Code which is being finalized is also a combination of both Common Law and Civil Law . There is need for capacity-building sessions that can enable judges to compare bilingual legal terminology so as to enrich the process of legal interpretation. While waiting to see the outcome of this innovative approach in Cameroon in the long run, such an exercise can help build stronger bridges between the two legal systems of Cameroon. Ultimately, this country’s legal history can cease to be a burden and become a positive factor for development and economic growth.
This is an example worth emulating by OHADA in a bid to ensure a harmonious cohabitation and efficiency. This means that OHADA must genuinely and effectively open up to the Common Law system. This exercise is mutually enriching for both systems, and it is already foreseen that at the end, the result may be a kind of legal cross-fertilization with a hybrid system of law in Africa. We long to see how OHADA will succeed in the noble and challenging task of reconciling the two main legal systems in the world. Comparative law will certainly play a key role in this development for, as an author observed : “au fur et à mesure que la mondialisation s’étend, le droit comparé devient de plus en plus nécessaire.”