Abacha. 26. We believe that this decision must indicate the durability of the norms prescribed by the Charter and the duties on whatever system of governance may be in place, to abide by the international norms as well as duties established in international human rights law. It must be clearly understood that the military tribunal here is one under an undemocratic military regime. In other words, the authority of the executive and the legislature has been subsumed under military rule. Far from this suggesting that military rulers have carte blanche to govern at the whim of a gun, we wish to underscore the fact that the laws of human rights, justice and fairness must still prevail2 . 27. It is our view that the provisions of Article 7 should be considered non-derogable providing as they do the minimum protection to citizens and military officers alike, especially under an unaccountable, undemocratic military regime. The Human Rights Committee in its General Comment No 13 states that Article 14 of the ICCPR applies to all courts and tribunals whether specialised or ordinary. The Committee went on to note the existence of military or special courts in many jurisdictions, which, nonetheless, try civilians. It is noted that this could present serious problems as far as equitable, impartial and independent administration of justice is concerned. Such courts are resorted to in order to justify recourse to exceptional measures that do not comply with normal procedures. The European Commission has ruled that the purpose of requiring that courts be "established by law" is that the organisation of justice must not depend on the discretion of the Executive, but must be regulated by laws emanating from parliament. The military tribunals are not negated by the mere fact of being presided over by military officers. The critical factor is whether the process is fair, just and impartial. 28. It is alleged that in contravention of Article 7(1) (c) of the Charter, the convicted persons were not given the opportunity to be represented and defended by counsel of their choice, but rather that junior military lawyers were assigned to them and their objections were overruled. The fairness of the trial is critical if justice is to be done; the accused should be represented by a lawyer of his choice, especially in serious cases that carry the death penalty. The purpose of this provision is to ensure that the accused has confidence in his legal counsel. Failure to provide for this may expose the accused to a situation where he will not be able to give full instructions to their counsel for lack of confidence. 29. Besides, it is desirable in cases where the accused is unable to afford legal counsel, that he is represented by counsel at state expense. Even in such cases, the accused should be able to choose out of a list the preferred independent counsel "not acting under the instructions of government but responsible only to the accused". The Human Rights Committee also prescribes that the accused person must be able to consult with his lawyer in conditions, which ensure confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with established professional standards without any restrictions, influences, pressures or undue interference from any quarter (Burgos v Uruguay and Estrella v Uruguay). 30. The right to fair trial is essential for the protection of all other fundamental rights and freedoms. In its Resolution on the Right to Recourse Procedure and Fair Trial, the Commission has observed that the right to fair trial includes, among other things, that: a)3 In the determination of charges against individuals, the individual shall be entitled in particular to: (i) have adequate time and facilities for the preparation of their defence and to communicate in confidence with counsel of their choice. 31. The assignment of military lawyers to accused persons is capable of exposing the victims to a situation of not being able to communicate, in confidence, with counsel of their choice. The Commission therefore finds the assignment of military counsel to the accused persons, despite their objections, and especially in a criminal proceeding which carries the ultimate punishment a breach of Article 7(1) (c) of the Charter (vide the Ken Saro-Wiwa decision cited above). 32. The communication alleges that under military rule, the decision of the military tribunal is not subject to appeal, but may be confirmed by the Provisional Ruling Council. The PRC in this instance arrogates to itself the role of Complainant, prosecutor and judge in its own cause. This, it alleged, is a violation of Article 7 (1) (a) of the Charter, which provides: Every individual shall have the right to have his cause heard. This comprises: (a) the right to appeal to competent national organs against acts violating his fundamental rights as 3