African Commission of the opposite view, it cannot invalidate the submission
by the complainants regarding the inexistence of a fair justice system.
209.
The African Commission will look into the issue of the right to counsel
of ones choice. This right as enshrined in Article 7(1) (c) of the African
Charter122 is an important right which underpins several others, such as
freedom from ill-treatment and the right to prepare a defence.123 In the
Principles and Guidelines on Fair Trial, the African Commission considered that
in proceedings relating to criminal charges, legal representation is the “best
means of legal defence against infringements of human rights and
fundamental freedoms”.124 Such right to counsel applies during all stages of
any criminal prosecution “including preliminary investigations in which
evidence is taken, periods of administrative detention, trial and appeal
proceedings. Article 7 is explicit that the right is to counsel of the detainee or
defendant‟s choice. It comprises the right to timely and confidential
consultations with that counsel.125 Where the accused either had no access, or
only restricted or delayed access, to lawyers, the African Commission has
found a violation of Article 7.1(c) 126
210.
In the instant case, none of the Victims had lawyers present at the
critical early interrogation stage. It is submitted by the Complainants and not
refuted by the Respondent State that on 23 November 2004 a group of human
rights lawyers submitted a specific request to the Public Prosecutor‟s Office
122
Art. 7(1) of the Charter guarantees “the right to defence, including the right to be defended by counsel of his choice.”
123
Amnesty International and others v. Sudan (above, n. 27), para. 64.
124
See Principles and Guidelines on Fair Trial (above n. Section N(2)(a).
125
As noted by the Human Rights Committee in relation to the right to a lawyer under the ICCPR “[c]ounsel should be able
to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of
their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal
offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue
interference from any quarter” (Human Rights Committee, General Comment No. 32 (above, n. 60), para. 34.
126
See Malawi African Association and Others v. Mauritania).
64
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