influence, inducements, pressure, threats or interference, direct or indirect,
from any quarter or for any reason.38
124. The Complainants aver that, not applying these fair trial principles stated
above, to special tribunals, violates Article 7(1) (d) of the African Charter
because their composition is at the discretion of the executive branch. They
also contend that the removal of cases from the jurisdiction of the ordinary
courts and placing them before an extension of the executive branch
necessarily compromises their impartiality39 and that “[the] very existence [of
such special tribunals] constitutes a violation of the principles of impartiality
and independence of the judiciary.”40
125. The Complainants state that the above averments are founded on the
jurisprudence of the African Commission and are equally reflected in broader
international and comparative law approaches to the right to be tried by an
independent
and impartial tribunal. To
support this position
the
Complainants refer the African Commission to the jurisprudence and case
law of other regional and international and human rights mechanisms. They
argue that an interpretation of such a right under Article 14 (1) of the ICCPR
has been deemed to be “an absolute right that may suffer no exception,”41
and that where the executive is able to „control or direct‟ the judiciary, the
notion of an independent and impartial tribunal is violated.42 This
jurisprudence they submit has been followed by regional human rights treaty
38
Id, Sec (A)(4)(e) and (g) and (A)(5)(a).
39
See International Pen and Others v. Nigeria, para. 86.
40
Malawi African Association and others v. Mauritania (Comm. nos 54/91, 61/91, 98/93, 164-196/97 and 210/98), 11 May
2000, para. 98.
41
See González del Río v. Peru (Comm. no. 263/1987), Human Rights Committee, 28 October 1992, para. 20. The Inter-
American Court of Human Rights has similarly recognized that the right to an impartial tribunal constitutes one of those
fundamental judicial guarantees from which no derogation is allowed, including during times of emergency; see I-ACtHR,
Advisory Opinion OC-8/87, 30 January 1987, Habeas Corpus in Emergency Situations; I-ACtHR, Advisory Opinion OC9/87, 6 October 1987, Judicial Guarantees in States of Emergency, OAS/Ser.L/V/III.19 doc.13, 1988.
42
See Olo Bahamonde v. Equatorial Guinea (Comm. no. 468/1991), Human Rights Committee, 20 October 1993, para. 9.4.
33