225.
The Commission bears in mind that it had further spelt out the components of fair
trial in its soft laws'" and jurisprudence, and that it applies to everyone. These
include entitlement to a fair and public hearing by a legally constituted competent,
independent and impartial judicial body, in the resolve of any criminal charge
against a person, or of a person's rights and obligations'". Also the Commission has
stated that access to justice or the court requires that accused persons be brought
promptly before the Court'", and that States 'take the necessary measures to
facilitate the effective access to justice of women and girls towards putting an end to
impunity and ensuring that the perpetrators and accomplices of such acts are
prosecuted before the competent courts within a reasonable time'?",
226.
In Mr Mamboleo M. Itundamilamba
v Democratic Republic of Cong097, the
Commission held that States are obligated to take all appropriate measures to
ensure that justice is delivered by a competent, independent and impartial court or
tribunal; that justice should be fair and adversarial, and further that non-compliance
to this obligation to produce result, cannot be justified by any reason whatsoever
and if the result is not achieved, the State is at fault. The Commission also took
similar stand in another case brought to itinregard of violation of this right98.
.
,
'
227.
The Commission also recalls its finding in The Constitutional Rights Project v.
Nigeriai", a case that alleged that the accused and their counsel were constantly
harassed and intimidated during the trial, ultimately forcing the withdrawal of the
defense counsel, wherein it had concluded that depriving the victims of their right
to defense violated Article 7(1) of the African Charter.
228.
The Commission considers that the Complainants made several written complaints
to the Office of the Inspector General of the Police of the Respondent State, the
Minister of land and housing, the Undersecretary of the Ministry of Justice, the
Head of Public Prosecution in the Central Equatorial State, and in particular the
Minister of Interior, who in terms of Article 155(6) of South Sudan's Constitution
had the power to among others, ensure that the case was brought to court.
229.
The Commission notes the fact that the Complainants' lawyer was arrested in
attempt to force him to withdraw from the case, that there were blockages of the
legal proceedingsinitiated by the Complainants. It considers especially the fact that
the units of the Armed' 'forces who perpetrated the violations enjoy general
immunities' as a result of which legal proceedings against them is subject to
approval of their superiors, and that the Complainants could .not approach the