recognised and guaranteed by conventions, laws, regulations and customs in force.
33. The foreclosure of any avenue of appeal to competent national organs in a criminal case attracting
punishment as severe as the death penalty clearly violates the said Article. It also falls short of the standard
stipulated in paragraph 6 of the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the
Death Penalty, to wit:
Any one sentenced to death shall have the right to appeal to the court of higher jurisdiction, and steps
should be taken to ensure that such appeals shall become mandatory.
34. Article 6(4)
× Article (6) (4)
(4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases. (
http://www2.ohchr.org/english/law/ccpr.htm#part3 Accessed 21/10/2010)
of the ICCPR also makes provision for this protection. In a case against Nicaragua in 1986, the
Inter-American Commission of Human Rights (IACHR) stated that "the existence of a higher tribunal
necessarily implies a re-examination of the facts presented in the lower court" and that the omission of the
opportunity for such an appeal deprives defendants of due process. In other words, a higher threshold of
rights is intended for those who are charged with crimes the sentence of which might be the death penalty (
vide Communications 60/91 Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and
others) / Nigeria and 87/93 Constitutional Rights Project (in respect of Zamani Lakwot and six others)
/Nigeria).
35. The communication further alleges that except for the opening and closing ceremonies, the trial was
conducted in camera in contravention of Article 7 of the Charter. The Charter does not specifically mention
the right to public trials; neither does its Resolution on the Right to Recourse Procedure and Fair Trial.
Mindful of developments in international human rights law and practice, and drawing especially from
General Comment of the Human Rights Committee to the effect that "the publicity of the hearings is an
important safeguard in the interest of the individual and of society at large..., apart from exceptional
circumstances, the Committee considers that a hearing must be open to the public in general, including
members of the press, and must not, for instance, be limited only to a particular category of persons..." 4
36. The publicity of hearings is an important safeguard in the interest of the individual and the society at
large. At the same time Article 14, paragraph 1
× Article 14 (1):
(1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national
security in a democratic society, or when the interest of the private lives of the parties so requires, or to the
extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice
the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
acknowledges that courts have the power to exclude all or parts of the public for reasons spelt out in that
paragraph. It should be noted that, apart from such exceptional circumstances, the UN Human Rights
Committee considers that a hearing must be open to the public in general, including members of the press,
and must not, for instance, be limited only to a particular category of persons.
37. In Le Compte, van Leuven & de Meyere v Belgium, the European Commission held that there is no
public hearing unless the court dealing with the matter holds its proceedings in public both when
considering the facts and when deciding on the law. While it may be acceptable in certain circumstances
for the hearing to be held in camera, the proceedings should remain fair and in the interests of the parties.
While there may be circumstances where a trial in camera may be held, for example, where the identity of
the accused or the safety of witnesses need to be protected, this does not prescribe a right but is subject to
the discretion of the judicial officer.
38. Article 14
4