Previous 39 / 46 Next

ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility violate the Complainant's right to defence as provided for under article 7(1)(c) of the Charter. Alleged violation of Article 26 160. The Complainant alleges violation of Article 26 of the Charter which provides: "State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter." 161. Compliance with the duty imposed onto the State under Article 26 is paramount to ensuring respect for the rule of law and fair trial rights. The Commission has buttressed the significance of the Article 26 duty in Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf ofAndrew Barclay Meldrum) v Zimbabwe: , "It is impossible to ensure the rule of law, upon which human rights depend, without guaranteeing that courts and tribunals resolve disputes both of a criminal and civil character free of any form of pressure or interference. [. . . J Without the rule of law and the assurance that comes from an independent judiciary, it is obvious that equality before the law will not exist."59 162. There is also as well as established relationship between article 7 and 26. The Commission has specified that while Article 7 focus is on the individual right to be heard, Article 26 is more concerned with the 'the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual's rights against the abuses of State power' . 60 Article 7 aims at offering individual guarantees against procedural unfairness, while article 26 is a chapeau provision mostly concerned with the wider institutional cradle within which human rights are fostered and protected. 163. Article 26 has two distinguishable though interconnected parts, one that obligates States to "guarantee the independence of the courts" and a 59 Communication 294/04, n30 above, para 118. 60 Communication 129/94, n35 above, paras. 5 & 15. Reiterated in Communication 294/04, n30 ...�...... African(�\ Urnon\Jv' Page 38 of 45 African Commission on Human an � ('! � ----� - .!. !? 0 ..� «- >\, 31 Bijilo Annex Layout, Korn West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 a "'

Select target paragraph3

● ● ●

Communication 459/13 - Devendranath Hurnam v. Mauritius

ACHPR Decision

Preview

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
English
ML TOC
Download View

African Human Rights CLA 2.0

Select target paragraph3

Communication 459/13 - Devendranath Hurnam v. Mauritius

Primary Documents

Notifications