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. • �CHP�• • ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Complainant sought to proceed in person after the demise of his attorney, and again his request was rejected. 28 125. The Commission is of the view that the personal right to appear in court and litigate one's case in person is protected under the African Charter, and in the circumstances of the present case, where an individual's career, reputation, and the likelihood that a decision in a case will set a precedent and resonate on all present and future members of an entire profession, all litigants in person, and the general public, make the protection of this right all the more necessary. The state's intervention in this case, citing "a collateral attack" that "is contrary to public policy and amounts to an abuse of process" seems to reinforce this position. 29 . 126. Moreover, the Commission notes that, in the 1 July 2011 Ruling, the Supreme Court held the view that "the new regime introduced by the Supreme Court Rules 2000, should henceforth be applied with due rigour," without indicating the reasons why it henceforth wanted to depart from previous practice and why in any case the 1 July 2011 Ruling should not apply only 'henceforth', i.e. on future cases and not operate retrospectively. In this respect, the Complainant's submission that "the decision in D Hurnam v DPP & Others to the effect that the new regime introduced by the Supreme Court Rules 2000 should henceforth be applied with rigour can only mean to apply subsequent to the said judgment" is upheld. 127. The rights to equality before the law and to equal protection of the law entail that parties to legal proceedings must be given equal opportunity to prepare and present their case. They must be able to defend their case in court on an equal footing. If the State does not afford the Complainant the same treatment it accorded to the other party, or if the State accord favourable treatment to others in the same position as the Complainant, that would be unfair treatment in violation of article 3(2). 128. That position was explicitly held in Communication 294/04, Zimbabwe Lawyersfor Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, where the Commission stated that the-�lte:::::::... ()N ""M.i 4 must ensure that any parties to a dispute are 'placed on equal footing /o!tl-y "in. 1?,::1,;·• . ,,.,. vo 1 � <{ _, o I! i 28 See paras. 21-23, 61, 74 & 80-82 above. AU-UA .j. \ Devendranath Hurnam v. Kailashing Bho/ah and Soobashsing Bholah; Privy Council Appeal No 0102 20� .5 29 ._.,.,► i�l,) Page 29 of45 ";, \·. . \', - ,\ ✓' · C "�<>,. ,Alltf-at> �-,// African Commission on Human and Peop ' gb s�""-.,: -31 Bijilo Annex Layout, Kombo North oirs , iti=i;i;:;::� 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 I / 1

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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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