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:·:::) AC H PR Human Rights our Collective Responsibility African Commission on . Human and Peoples' Rights 71. The Commission is also satisfied that based on the materials presented, the Communication is not exclusively based on media reports and therefore it complies with Article 56(4) of the Charter. 72. With respect to exhaustion of local remedies3, the Commission notes that whereas the conviction and disbarment occurred in 2003 and 2008 respectively, it is the motions lodged by the Complainant before the Supreme Court in 2011 for orders to re-open the criminal and disciplinary cases and what ensued afterwards that are critical. Those two motions sought to introduce allegedly exculpatory evidence and evidence of underlying covert circumstances that he alleges unjustly led to his conviction, and in turn his disbarment, which evidence was allegedly unknown to the Complainant at the time of his trial and disciplinary proceedings. 73. Significantly, the motions were dismissed by a full (five-member) bench of the Supreme Court dispatching its first instance jurisdiction Uuly 1, 2011 ruling), on the preliminary point that he could not initiate them in person as he had done. His request for permission to appeal to the JCPC on whether persons can initiate court proceedings in person was rejected by the JCPC which opined that his appeal did not raise arguable points of law of general public importance. 74. The Commission notes that the Supreme Court is the principal court of original civil jurisdiction,4 and may hear and determine all civil matters whether sitting as a Court of Appeal or in exercise of its original jurisdiction. 5 When exercising its original jurisdiction, the Supreme Court is constituted by a single judge.6 However the Chief Justice may on his or her own motion or upon an application made by a party direct that any case shall be heard by two or more judges, having regard to the magnitude of the interests at stake or the importance or intricacy of the questions of fact or law involved? 3 Article 56(5) of the Charter: " . . . Communications shall be considered if they . . . are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged." 4 Courts Act 1945 of Mauritius, s. 34(1) "The Supreme Court shall be the principal court of original civil jurisdiction and shall exercise general powers of supervision over all District and Industrial Courts and other special courts established or which may be established in Mauritius". 5 Id, s.34(2) "In the exercise of civil jurisdiction, the Supreme Court may hear and determine all civil matters whether sitting as a Court of Appeal or in exercise of its original jurisdicti _ " 6 Id, s. 35 "Every proceeding in the Supreme Court and all business roceeding shall, save as � ti-��'t 11 0 . .., provided by this Act, be heard nnd disposed of by a single judge" �,. ">� Rf "?'4, �0-o � 7 Id, s. 36 . fief I� ': �',. Page 16 of 45 �. , AfrK:an(4t� union,, )�'. Afri in .<; 11m�n H � a11 �nd Peoples' Rights ':,3 'ilo A nne� La ut !l<drnbo North District, AU,IJ,• z;,,., • 1i 4. � l ast Region Gambia , ces �n � ·J �v,1.; '1,,. �Fax: (220) 441 05 04 <4 Pi?bne: 21tl) 230,43 ..,..J:k�µ.. , ,� I /'?•e.r ,' "1,,llJI; njul@africa-union.org �:·-�- - -·-.� ai:1-n https:/a chpr.au.i nt/0 0 D

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Communication 459/13 - Devendranath Hurnam v. Mauritius

ACHPR Decision

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Type of Document

Decision

Keywords

Equality
Equality Before the Law
Functioning and Independence of the Judiciary
Right to be Heard before a Competent Court

Case Head Notes: The Complainant is a lawyer, who, in the midst of dealing with charges that were brought against him, wished to represent himself without the services of an attorney. The Respondent State denied this possibility. The Commission found a violation of Article 3 stating that the right to litigate one's own case is protected under the African Charter, and because, otherwise, those who are unable (because of financial or other reasons), or unwilling, to use the services of an attorney will be deprived of their right to be heard by the Court. The Commission also noted that the right to litigate in person is not refused to the representatives of the State, so to deny that right to the other party is unequal. The Commission found a violation of Article 7 stating that, given that the Complainant was refused the opportunity to present his case in front of the Supreme Court and the Judicial Committee, the Complainant was denied the opportunity to appeal to a competent national organ, and, therefore, denied the right to have his case heard. The Commission further states that no substance would be left to the right to defence if it meant that individuals, whose rights are infringed, can only pursue justice through the services of a third party. The Commission asserted that the right to be defended by counsel of their choice is an entitlement and not a requirement. The Commission found no violation of Article 26 stating that the Complainant submitted a series of allegations which could not be sufficiently substantiated and cannot be considered as solid evidence. They also state that they do not have a reason to conclude that the Respondent State has not allowed the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of human rights, as required by Article 26 of the Charter. The Commission requested the Respondent State to take all necessary measures to ensure the reopening of the proceedings, as requested by the Complainant, and to allow him to be self-represented if he desires. The Commission also requested the Respondent State to ensure that its laws and statutes, regarding access to courts, are in line with its obligations under the Charter and to provide the Complainant with financial compensation.

Country

Mauritius

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 7.1: Right to be Heard
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 7.1.a: Right to Sue for Remedy before a Competent Tribunal
ACHPR 7.1.c: Right to Defence

Rights Not Violated (ACHPR Provisions)

ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Sep 18, 2013 ~ May 23, 2023

Country Geolocation

Latitude: -20.348404

Longitude: 57.55215200000001

Country Geolocation (linked ACHPR Decision): Mauritius

Primary Documents

Devendranath Hurnam v Mauritius.pdf
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African Human Rights CLA 2.0

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Communication 459/13 - Devendranath Hurnam v. Mauritius

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