which contravenes the African Charter on Human and Peoples’ Rights to which the Respondent State is a party. 60. The Complainant avers that the establishment of the Military Court contravenes Article 96 (1) of the Transitional Constitution which stipulates that “courts, tribunals and war councils shall only be established by the Law. No special commissions or tribunals shall be set up in any form whatsoever.” 61. The Complainant contends the incompetence of the said court due to its membership whose partiality was manifested by the inclusion of members of the military corps, what with their legendary regimentation and discipline, exacerbated by the fact that the later lacked the qualities of a magistrate. 8 To support these assertions, the Complainant recalled the decision of Communication 218/98 in which the African Commission decided that the “Military tribunal” should be bound by the norms of equity, transparency, justice, independent rules and respect for the legal process of other courts.” 62. The Complainant also avers that the procedural situation was exacerbated by the excessive powers of the members of the court who purportedly, followed a very arbitrary procedure in violation of Article 137 of the Military Code of Justice, dated 25 September, according to which, “the procedure before military jurisdictions shall be that in force before the common law jurisdictions, in conformity with the provisions of the normal Criminal Code which are not incompatible with those of the present code.” 63. According to the Complainants, there is no possible redress allowing them to contest the decision of the court which sentenced the plaintiffs to death: according to Article 5 of the decree-law establishing the said court, neither can the decisions be appealed against nor opposed. The Complainants contend that the sentencing of the plaintiffs to death without the possibility of appeal constitutes a violation of Article 6 of the Guarantees for the Protection of Persons Sentenced to Death. Article 6 stipulates that “any individual sentenced to death is entitled to file an appeal with a higher court, and measures should be taken to ensure that the appeals are mandatory.” 64. The Complainants also recalled the ruling of the Human Rights Committee in the case of Arutynyam vs Uzbekistan which states “sentencing to death following a trial during which the provisions of the Convention were not respected constitutes a violation of Article 6 of the Convention 9 where no further appeal can be brought against the verdict” 65. The Complainant further avers that the said ruling of the court was not reasoned considering that the authorities refused to convey to the plaintiffs the ruling pronouncing their sentence despite all the attempts to that effect. 66. Consequently, the Complainants call for the immediate release of the plaintiffs and prays the African Commission to call on the Government of the Democratic Republic of Congo to grant each victim the sum of 10, 000, 000 Congolese Francs as damages and to urge it to harmonise its legislation with its international commitments. Arguments of the Respondent State 67. The State refutes all the allegations of the Complainants. The State submits that all the said allegations are unfounded. 68. Pertaining to the establishment of the Military Court whose impartiality, independence and competence are being challenged by the Complainant, the DRC State responded that the decision to establish a Military Court was in conformity with Article 156 (2) of the Constitution which empowers the Head of State to suspend Common Law Courts in the some or all parts of the territory, and to replace them by Military Courts in times of war. As the Congolese state was engaged in an armed conflict situation following the armed aggression led by its neighbours, the State was merely implementing the said provisions of the Constitution. 69. The Respondent State observes that it is under these special circumstances that the plaintiffs were tried and sentenced in all legality and avers that the latter have not adduced any proof of their assertion that the ruling as passed was not reasoned. 70. Regarding the complaint brought by the Complainants pertaining to Article 5 of the decree-law establishing the Military Court, the Respondent State alleges that the Complainants could have lodged an appeal to bring to the fore their allegations, in accordance with Article 150 of the Transitional