Preliminary Remarks on the Right to a Fair Trial Under the African Charter on Human and Peoples' Rights
By Dr. Ibrahim Ali Badawi El-Sheikh*
I. Introduction
The adoption of the African Charter on Human and Peoples' Rights and its entry into force(1) could represent a turning point in Africa's efforts to fully ensure justice in terms of equality, Rule of Law, and development. The Charter has been reinforced by the growing recognition in Africa that human-centered and sustainable development cannot be realized without ensuring human rights, democracy and the rule of Law.(2) Hence lies the importance of the Charter.
The African Charter on Human and Peoples' Rights spells out rights to be guaranteed by all States Parties to it.(3) Capital, if not the most important, among these rights is the right to fair trial. Without ensuring this right, there would be no real guarantee against any violation of the rights contained in the Charter, nor would the individuals have the sense of security that encourages them to participate fully in the life of the society.
The purpose of this paper is to explain the extent of the right to a fair trial in the light of the provisions of the African Charter and the action taken by the African Commission on Human and Peoples' Rights.(4) In the conclusion, a few suggestions will be made to enhance further elaboration on and implementation of the right to a fair trial in Africa.
II. The Right to Fair Trial in the African Charter on Human and Peoples' Rights
Article 7 of the Charter relates directly to the Right to Fair Trial. It stipulates that:
1. Every individual shall have the right to have his cause heard. This comprises:
(a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
(b) The right to be presumed innocent until proven guilty by a competent tribunal;
(c) The right to defence, including the right to be defended by counsel of his choice;
(d) The right to be tried within a reasonable time by an impartial court of tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
The formulation of article 7 as such does not explicitly refer to other relevant components of the right to fair trial as mentioned, for example, in the covenant on Civil and Political Rights or The Universal Declaration of Human Rights.(5)
However, the article does not exclude such components either. This article should be read and understood in the light of article 60 of the Charter, which clearly indicates that the application of the Charter shall be guided, among other things, by the Universal Declaration of Human rights, as well as other instruments adopted by the United Nations in the field of human rights.
The African Commission on Human and Peoples' Rights, bearing in mind the above mentioned understanding, adopted a resolution in March 1992 on the "Right to Recourse Procedure and Fair Trial ".(6) In this resolution, the Commission considered that the right to fair trial includes, among other things, the following:
2. A. All persons shall have the right to have their cause heard and shall be equal before the courts and tribunals in the determination of their rights and obligations.
B. Persons who are arrested shall be informed, at the time of arrest, in a language which they understand of the reasons for their arrest and shall be informed promptly of any charges against them.
C. Persons arrested or detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released.
D. Persons charged with a criminal offence shall be presumed innocent until proved guilty by a competent court.
E. In the determination of charges against individuals, the individuals shall be entitled in particular to:
1) Have adequate time and facilities for the preparation of their defence and communicate in confidence with counsel of their choice;
2) Be tried within in a reasonable time;
3) Examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
4) Have the free assistance of an interpreter if they cannot speak the language used in court.
3. Persons convicted of an offence shall have a right of appeal to a higher court. It is
clear that the said resolution spells out, by the way of interpretation, certain
additional components of the right to fair trial to complement what is explicitly
mentioned in article 7. Furthermore, the Commission in the said resolution points out
that the components of the fair trial, which are referred to in the resolution, are not
comprehensive or exclusive, but rather some, among others. Indeed in the same
resolution, the commission made it clear that it would, ". . . continue to be seized
with the right to recourse procedures and Fair Trial with the view of elaborating
further principles concerning this right."(7)
In further elaboration on the right to fair trial, the African Commission would have to note, in particular, the following components which are mentioned in article 14 of the Covenant on Civil and Political Rights and which are not referred to either in the provisions of the African Charter or in the African Commission's Resolution referred to above:
1. The right not to be tried or punished again for the same offence (article 14, para 7).
2. The right for compensation in case of miscarriage of justice (article 14, para 6).
3. The right of the accused to be tried in his presence (article 14, 3d).
4. The right of the accused to be informed of his right to legal assistance and have such assistance assigned to him without payment by him if he does not have sufficient means to pay for it (article 14, 3d).
5. The right of the accused not to be compelled to testify against himself or to confess guilt (article 14, para 39).
The Commission would have also to emphasize, explicitly, the concepts of fair and public hearing, making the judgement public, except where legitimate interests require otherwise and the competence of the courts.
In any case, the interpretation and the application of the right to fair trial has to be done within the wider context of the obligations of the African States under the African Charter. Reasonable interpretation and application of these would provide a just framework to guarantee the right of fair trial in the African Human Rights Regional System.
Article l of the Charter obliges States party to the Charter to, on one hand, recognize the rights contained in the Charter and, on the other hand, adopt legislative or other measures to give effect to them. States are free to "transform" or "incorporate" such obligations into their internal legal systems. However, the final test of fulfilling the obligations of the State is to give effect to the rights contained in the Charter. In this context one has to read article 7, Paragraph 1(a) of the Charter to mean the following:
l. The right of every individual to have his cause heard, is not confined only to the judicial organs, but also to other competent national organs, be it administrative, legislative or another organ. In other words, recourse procedures, including judicial ones, should be available to every individual to air his cause.
2. The right to complain and resort to "competent national organs", including the Courts, is destined to protect every individual against "acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force". The rights, which have to be protected are the ones contained in the African Charter, be they civil, political, economic, social or cultural. Other rights enforced by the State, under other treaties or national laws, will also have to be respected. Such formulations could be understood to mean that no restriction or derogation is permitted from any of the rights recognized or existing in a State Party to the Charter on the pretext that the African Charter does not recognize such rights or that it recognizes them to a lesser extent.
3. The right to fair trial relates to both civil rights and obligations as well as to criminal charges and proceedings. Article 7 (1) (b), (c), and (d), and paragraph 2 enumerate certain principles relevant to the adjudication of criminal matters which a competent "court" or "tribunal" has to observe.
4. The Right to Fair Trial and Recourse Procedures in general would be meaningless if the State could not ensure access to the courts on one hand, and an effective remedy on the other. The African Commission, rightly in its Resolution on the Right to Recourse Procedure and Fair Trial, considered, "That every person whose Rights or Freedoms are violated is entitled to have an effective remedy."(8) The Commission however, in the same resolution, stopped short of stating that the needy should be provided with legal aid.(9)
Under Article 26, the African States are duty bound to guarantee the independence of the judiciary, which is a basic requirement for a fair trial. The Charter did not spell out what constitutes such independence. The independence of the judiciary has to relate to the independence of the judiciary as an institution, on one hand, and the independence of the individual judges, on the other.(10)
In addition to the above mentioned guarantees, articles 3, 4, 5 and 6 of the African Charter, provide also for the rights to equality before the law, the equal protection of the law, the inviolability of human beings, as well as guarantees against all forms of degradation of man or any arbitrary arrest or detention.
It has to be noted, also, that the African Charter, unlike the Covenant on Civil and Political Rights, does not contain provisions which permit derogations from or restrictions on the right to fair trial.
In brief, the broad formulation of provisions relevant to the right to fair trial in the African Charter allows for a dynamic interpretation of that right. Such interpretation could take into consideration the relevant universal standards mentioned, for example, in the Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the practice and comments of the Human Rights Committee as well as that of relevant regional human rights bodies.(11) The African Charter, also, opens the door before victims of alleged violation of human rights to complain to the African Commission after fulfilling certain conditions, including the exhaustion of local remedies.(12)
III. The African Commission and the Implementation of the Right to Fair Trial
The issue of the right to fair trial is not only a matter of standards, but also a question of implementation of these standards. Hence the importance of looking into the contribution of the African Commission towards the implementation of the right to fair trial. Such implementation in turn, could enhance the process of elaborating on standards relevant to the right to fair trial.
The African Commission deals with the right to fair trial within the context of interpreting the provisions of the African Charter, examining States' reports, the operation of the communications procedure and in relation to its promotional activities.
A. Interpreting the Charter
The African Charter empowers the Commission to interpret its provisions.(13) The Charter indicates that the request for interpretation should come from a stage party, and the O.A.U. or an African organization recognized by it. However, this does not prevent the Commission from taking the initiative to interpret the Charter. Indeed the very function of the Commission depends on constant interpretation of the Charter. For example, at its 11th Session, the Commission elaborated on the right to fair trial.(14)
The Commission has to dwell more on the issue of the interpretation especially in relation to the possible limits to the justiciability of the economic, social and cultural rights contained in the Charter. Such exercise would help exhaust the potentials of the Charter and make of it a dynamic instrument which responds to the African realities and needs.(15)
B. The Reporting Procedure
Under Article 62 at the African Charter, each state party is under an obligation to submit every two years, from the date the Charter comes into force, ".. a report on the legislative or other measures taken with the view to giving effect to the rights and freedoms recognized and guaranteed . . ." by the Charter. The reporting procedure seeks to establish a dialogue between the Commission and States Parties and help them to fully comply with their obligations under the Charter. The procedure would help in monitoring the development of human rights in Africa and in building relevant infrastructures.
On the basis of the examination of States Reports, the Commission "may address all general observations to the State concerned as it may deem necessary."(16)
The African Commission asked the African States to include in their initial reports submitted to the Commission, among other things, information on the constitution, organization and functioning of the courts, the status of the judiciary, the Supreme Court and the bar.(17)
In examining States reports, members of the Commission posed may questions to the representative of the State concerned. These questions touched, among other things:(18)
1. Examples of judgements from national courts that prove respect for human rights;
2. The independence of the judiciary and the independence of the bar;
3. The security and tenure of judges;
4. The existence of any special courts or tribunals apart from the regular courts;
5. Guarantees for trial by an impartial court or tribunal within a reasonable time and limitation on preventive detention;
6. The application of the writs of Habeas Corpus;
7. The guarantees for the right to appeal;
8. The extent to which legal aid and the services of an interpreter are provided;
9. How does the government reconcile its emergency legislation with its obligation under the Charter to prohibit abuse of human rights such as torture and arbitrary arrest;
10. How promptly are the detainees who are held under Emergency Legislation brought to trial;
11. What is the procedure governing trials of such detainees;
12. Are such detainees afforded the right to counsel;
13. Have such detainees any right of appeal;
14. Is there any provision for compensation to victims of unwarranted detention;
15. Citation of cases of arbitrary arrest;
16. What are the legal, administrative and other recourse procedures available to the individual.
It is apparent that some of these questions shed extra light on principles relevant to the right to fair trial and issues which were not mentioned in Article 7 of the Charter or in the Commissions' Resolution on the Right to Fair Trial. The reference to the existence of special courts or tribunals, for example, seems to be in line with the general comments of the Human Rights Committee to the effect that the guarantees of right to fair trial apply to all courts whether ordinary or specialized.(19) The same goes to the questions of providing legal aid and compensation for miscarriage of justice. It is expected that the commission on the basis of an extensive examination of States reports would adopt general comments or observations to guide the interpretation and the application of the right to fair trial.
C. The Communications Procedure
The African Charter provides for a communications (complaints) procedure to ensure the protection of the rights in the Charter in case of violation. Under this procedure, a State Party can lodge a complaint against another State Party in case of an alleged violation of human rights.(20) The procedure also allows complaints coming from sources other than States. The Commission, in its Rules of Procedure, interpreted these other sources to be individual victims of alleged violations or someone acting on his/her behalf or organizations.
The communications procedure provides individuals with an additional guarantee to claim their rights if they have been denied the chance to claim them at the national level. That is why the procedure requires, among other things, the exhaustion of local remedies before resorting to the Commission. The procedure also opens the door for the Commission to look into situations which reveal serious or massive violations of human rights and make appropriate recommendations to the Assembly of the O.A.U.
Up to its 17th Session, the Commission received 142 communications from sources other than States, i.e., individuals and non-Governmental organizations.(21) Some of these communications involved cases of denial of the right to fair trial. The action of the Commission on these communications varied. Representative examples of this action, taken from the seventy five cases reported to the Assembly in the 7th and 8th Annual Reports(22) of the Commission indicate the following:
l. The Commission decided to expedite sending missions to a number of countries to follow-up on communications pertaining to them.
2. In one case, the Commission reiterated its recommendation to the State concerned to take provisional measures to avoid irreparable damage to the complainant.
3. In one case, the Commission, merely stated that there was violations of the Charter.
4. In one case the Commission ruled that the complainant was entitled to compensation and left the matter to the national courts to rule on its amount.
5. In one case, the Commission annulled a decree being illegal.
6. In two cases, the Commission called upon a State to release prisoners.
The Commission tried to activate its protective role in favor of the victims of violation of human rights. However, its practice needs to be further streamlined and properly rooted in viable interpretation of the African Charter and its rules of procedure, otherwise some of the practices mentioned above, though positive, as seen by a human rights activist might give grounds for criticism on the basis of the ways the Commission as a body of experts functions. The following examples illustrate my point:
The pattern of the rulings of the Commission in cases of violation is not consistent or at least is not well explained. In cases on behalf of Orton and Vera Chirwa v. Malawi,(23) the Commission merely ruled that there was a violation but in the ruling there was no explicit reference to compensation. This ruling differed from the ruling of the Commission in the case of Embga Mekongo Louis v. Cameroon.(24) In the latter case, after stating that there was a violation, the Commission explicitly ruled that "damages" should be paid and "that the quantum should be determined under the Law of Cameroon." In the case of Civil Liberties Organization v. Nigeria,(25) the Commission "annulled" The Nigerian "Legal Practitioners' Decree", as a violation of a number of provisions of the African Charter. The Commission was not satisfied by merely stating that the act violated the Charter.
However, one has to underline that the Commission has encouraged individuals and N.G.O.'s to use the communications procedure. The Commission, also, has not been restrictive in interpreting the condition of exhausting the local remedies.
In addition, the Commission has progressively applied the principle of equality of arms by allowing the complainant to appear before it, along with the representative of the government concerned.
D. Promotional Activities
The Commission is empowered to conduct promotional activities.(26) Indeed it is essential to make individuals, groups, organizations, governmental and nongovernmental organizations aware of the rights and duties contained in the Charter and the availability of the Commission to help in promoting and ensuring them. In this context the Commission emphasized the importance of the role NGO's (African and International) could play in this regard. It has encouraged NGO's to obtain observer status and intensify their co-operation with the Commission.
The Commission has made several recommendations to governments to transform their obligations under the Charter into their own legal systems, establish national commissions for human rights, incorporate human rights into the teaching curriculum at all levels, using the media to publicize human rights issues and to celebrate the 21st of October every year as African Day of Human Rights
The African Commission, within its promotional activities, called for two seminars of particular relevance to the right to fair trial. The first dealt with the national implementation of the African Charter in the internal legal systems in Africa (Brunjul, The Gambia 26-30 October 1992). The second seminar was on the independence of the judiciary and the right to fair trial (Cairo, Egypt, 6-8 December 1995).
The first seminar emphasized, among other things that:(27)
1. Human Rights must primarily be secured within the National legal system of each State Party to the Charter.
2. The Rule of Law should strictly be respected in all activities of the State and all branches of public administration.
3. The judiciary should be guaranteed full independence.
4. Access to Courts of law should be secured to all individuals regardless of their financial means.
5. Judges and lawyers have a special contribution to make in administration of justice in fostering universal respect for fundamental rights and freedoms. The second seminar underlined, in particular, the following elements which should be incorporated in any further elaboration of the right to fair trial by the African Commission on Human Rights:(28)
l. The rights of the accused not to be compelled to incriminate himself.
2.The right to a public trial, where the accused is present.
3. The right of the accused to be tried before his natural judge.
4. The right to counsel during the interrogation.
5.The right of a detained person to speedy contact with his lawyer and family.
6.The need to guarantee the independence of lawyers.
7.The importance of ensuring that there is no undue delay in securing justice
These and other relevant recommendations should no doubt influence the African Commission on Human Rights, national legislators in their efforts to improve the status of the right to fair trial.
E. Towards an African Court of Human Rights
Unlike the European and the Inter-American Human Rights Systems, the African Charter did not provide for the establishment of a court. However, in June 1994, the 30th Ordinary Session of the Assembly of the O.A.U., after having examined the Seventh Annual Report of the Commission requested "The O.A.U. secretary-general to convene a meeting of Government Experts to ponder in conjunction with the African Commission on Human and Peoples' Rights over the means to enhance the efficiency of the Commission in considering particularly the establishment of an African Court of Human and Peoples' Rights."(29)
In accordance with the said resolution, the Secretary General of the O.A.U. convened a meeting of Government Legal experts in Cape Town, South Africa, from 6 to 12 September 1995. This meeting produced draft protocol to the African Charter on Human and Peoples' Rights on the establishment of an African Court on Human and Peoples' Rights.(30) This draft, at the moment, is subject to the consideration by the African Governments and competent O.A.U. organs.
If the said draft protocol is adopted, and enters into force, it will establish an African Court on Human Rights, which could be seized by the African Commission, a State Party to the protocol which lodges a complaint to the commission and a State Party against which a complaint has been lodged.(31) On an exceptional basis, individual, non-governmental organizations and groups of individuals could bring cases directly before the court without resorting first to the African Commission.(32) The Court would have, also, the competence to make advisory opinions on ". . . any legal matter relating to the Charter or other African Human Rights instruments."(33)
There is no doubt that the idea of an African Court on Human Rights is worth careful consideration. However, the idea of the Court should not replace the more basic question of how to make the African Commission develop and function in a better way. The Court, if it is to be successful, has to work, hand in hand, with an efficient Commission.(34)
IV. Conclusion
It is clear that the formulation of the right to fair trial in the African Charter provides a text which could be interpreted broadly to cover various components of the Right to Fair Trial, as spelled out in the relevant regional and international instruments. The African Commission has acted in this spirit. The Commission, however, has to do more by way of interpretation of the Charter, and adoption of general comments, principles and rules upon which African Governments, where necessary, may base their legislation with the view to improving the status of the right to fair trial.
A major problem which has to be addressed to ensure practical access to courts and an effective remedy is how to ensure legal aid. Without legal aid, the majority will continue to be precluded from ". . . asserting their Human Rights."(35) In this context practical problems have to be faced. These relate, on one hand, to the incapacity of many African Countries to secure legal aid to the needy and, on the other hand, the lack of enough human and material resources to enable the judiciary in many African Countries to handle cases before it, in an appropriate manner and without delay.
There is a need, also, for appropriate revision of national legislation, to see to it that the relevant standards, ensuring the right to fair trial are included in it. Meanwhile, the judiciary has to interpret The African Charter ". . . in the light of jurisprudence, which has developed on similar provisions in other universal and regional instruments on human rights."(36)
The importance of the role of the judiciary, at the national level, and the African Commission on Human and Peoples' Rights, at the regional level, to the right to fair trial as guarantor for Human Rights, cannot be underestimated. This is more the case given certain fears that States may invoke the references in the Charter to the rights of peoples and duties of individuals, or lean on the clawback clauses, where the rights have to be exercised in accordance with the law, to the detriment of individual rights.
In this context, one should believe that the judiciary or the African Commission on Human Rights would interpret the various provisions of the Charter in accordance with recognized rules, which would ensure rights rather than encroaching upon them.
Finally, one has to underline the fact that the right to fair trial cannot be enhanced in
the absence of a political atmosphere rooted in the rule of law and full respect for democracy and Human Rights. The African Charter on Human and Peoples' Rights was adopted as an expression of the African will towards this goal. Upholding and enhancing the right to fair trial would, in turn, bring us, in Africa, closer to this goal.
1. The African Charter on Human and Peoples' Rights was adopted by the Assembly of Heads of State and Government of the Organization of African Unity (O.A.U.) on 27 June 1981. It entered into force on 21 October 1986. To date, 49 African States have ratified the Charter. Ethiopia, Eritrea, South Africa and Swaziland have not yet ratified the Charter.
2. See paragraph 10 and 11, Declaration of the Assembly of the O.A.U. on the political and economic situation in Africa and the fundamental changes taking place in the world, 11 July 1990, Addis Ababa.
3. See the enumeration of Rights contained in the Charter, Chapter I, part I of the African Charter.
4. The Charter does not only provide for the promotion and protection of Human Rights in Africa, but also creates a machinery to supervise its implementation at the regional level and ensure their protection in Africa. This machinery is the African Commission on Human and People's Rights. The Commission meets in one ordinary and two extraordinary sessions.
5. See, for example, articles 2(3), and 14 of the U.N. Covenant on Civil and Political Rights and 10 and 11 of the Universal Declaration of Human Rights.
6. Resolution on the Right to Recourse Procedures and Fair Trial, 11th ordinary session of the African Commission on Human and Peoples' Rights, Tunis, Tunisia, 2-9 March 1992.
7. Operative paragraph 5, Id.
8. Operative paragraph 8, Id.
9. See operative paragraph, Id.
10. For some basic notions of the independence of the judiciary, see Basic Principles of Judicial Independence, a paper submitted by Peter Wilborn to a seminar on "The Right to Fair Trial", Cairo, Egypt, 6-8 December 1995. The seminar was organized by the Arab Lawyers Union in cooperation with the African Commission on Human and Peoples' Rights.
11. See, for example, General comment 13 (21), relevant to article 14 of the Covenant on Civil and Political Rights, adopted by the Human Rights Committee, official records of the Human Rights Committee, 1988/1989, volume II 1995.
12. See articles 55 to 59 of the African Charter.
13. See article 45(3) of the African Charter.
14. See note 6 above.
15. The obligations of States, under the African Charter, in relation to Economic, Social and Cultural Rights are of immediate character. Such obligation, when put into practice, has to be considered in the light of the African realities which, in many cases, make it difficult to see how such rights could be immediately enforced.
16. Rule 85(3), rules of procedure of the African Commission.
17. See Astrid Danielsen, the State Reporting Procedure under the African Charter (The Danish Centre for Human Rights, Copenhagen, 1994) p. 52.
18. See Id., pp. 66-101.
19. See note 11 above.
20. See articles 47 to 54 of the African Charter.
21. See seventh Annual Activity Report of the African Commission on Human and Peoples' Rights 1993-1994, as well as its eighth Annual Activity Report 1994-1995.
22. See Id.
23. See seventh Annual Activity Report of the African Commission on Human and People' Rights 1993-1994, as well as its eighth Annual Activity Report 1994-1995.
24. See case no.11, Annex vi, Id.
25. See case no. 8, Id.
26. See article 45(1) of the African Charter.
27. See annex viii of the sixth Annual Activity Report of the African Commission on Human and Peoples' Rights 1992-1993.
28. Conclusions and recommendations of the seminar on the Right to Fair Trial (Cairo, Egypt, 6-8 December 1995).
29. Operative paragraph 4, AHG/Res. 230 (XXX).
30. For the text of the draft protocol, see O.A.U./LEG/exp/afc/hpr/pro(I)REV./I.
31. See article 5 of the draft protocol, Id.
32. See article 6 of the draft protocol, Id.
33. Article 4 of the draft protocol, Id.
34. The African Commission on Human and Peoples' Rights suffers from certain limitations (financial, administrative and functional). If such limitations were to be established without guaranteeing the requirements for effective functioning, the Court, in reality, would not mean much for those who cannot have access to it and consequently to an effective remedy.
35. Paragraph 6(C) conclusions and recommendations of the seminar on the National Implementation of the African Charter on Human and People' Rights in the Internal Legal system in Africa. See note 27 above.
36. Paragraph 4a, Id.