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;· � ACH PR Q · · African Commission on mwc· � Human and Peoples' Rights Human Rights our Collective Responsibility the manner in which the law is formulated, but also, as in this case, the manner in which the implementation of that law is conducted' . 30 129. In this respect, the protection accorded to litigants against unfair discrimination is very much similar to the general non-discrimination clause under article 2. The Commission has insisted that "the premise under Article 3 of the African Charter is that . . . the State has an affirmative duty to prohibit discrimination and ensure that all persons are protected by the law and are equal before the law" . 31 130. In Purohit and Moore v Gambia (The), in determining the extent to which a piece of legislation imposing indefinite institutionalization to a category of people referred to as 'lunatics' was discriminatory, the Commission considered whether the concerned individuals were able to challenge their detention in designated institutions. The Commission noted that those who were most likely to be assigned to that regime were those who lived on the streets or who were poor, and that in reality those who were wealthy enough to afford the services of a lawyer would be able to contest any such confinement. The Commission concluded that this situation 'fails to meet the standards of anti-discrimination and equal protection of the law as laid down under the provisions of Articles 2 and 3 of the African Charter'. 32 131. In the present communication, the Complainant submits that the Supreme Court, acted contrary to the equality of arms principle in that its interpretation discriminates between a plaintiff and a defendant as the latter is not bound to retain services of an attorney to defend or resist an action. The Complainant argues that Rule 4(b) of the Supreme Court Rules stipulates that the defendant or other party may appear in person or be represented and that these rules cannot be interpreted to discriminate between parties to a suit. 33 Rule 4(b) reads as follows: "Every plaint shall specify [. . . ](b) that a failure by defendant or other party to appear or be represented may result in the Court delivering judgment against him in favour of the plaintiff in terms of the plaint". 30 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe (2009), AC -IJ;Bl-;:::P:R!a::�:See also Communication 323/06, n24 above, para. 176. L 1 -c,9 "'t cF>� 4 '?,4,�.1,; 3 1 Communication 323/06, n24 above, para 175. ,�, 32 Communication 241 /01, Purohit and Moore v Gambia (The), 29 May 2003, para 54 :}' 33 Complainant's Submissions, 5 December 2023, received 18 December 2023, p .4. 1 Af�nr�,, UrnonW Page 30 of 45 African Commission 31 Bijilo Annex L· Email: auhttps:/achpr.au.int/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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