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ACHPR Human Rights our Collective Responsibility African Commission on Human and Peoples' Rights 132. The Complainant further submits that the repeal of Rule 60 of the 1903 Court Rules was intended to provide effective right to direct access to the courts and invokes the introduction of a provision in the Fourth Schedule of the Legal Fees and Costs Rules 2000 pursuant to Section 198 of the Courts Act that reads "There shall be paid into the Consolidated Fund, by the attorney of the party concerned or where no attorney is employed, by the party, the fees paid in Part A of the Schedule". This provision, so goes the Complainant's argument, was meant to dispense the services of an attorney. 34 133. The Complainant has requested the Commission to determine whether the Supreme Court erred by ruling that Rule 3(3) Supreme Court Rules 2000 is mandatory in the institution of proceedings " before this Court as well as the institution of proceedings before a Judge in Chambers, now requires recourse to an attorney". The Complainant posits that those rules are directory ("Rules made under subsection (1) may provide for the practice and procedures before any court"). 134. The Commission considers that this question cannot be settled by the Commission because it relates purely to domestic law. The Commission will not venture into interpretation and determination of domestic law. For the purposes of addressing the present communication, suffices it to say that any domestic legislation to the effect of making recourse to an attorney " mandatory" for a litigant would violate the African Charter. 135. That domestic legislation, executive decrees and judicial decisions must conform to international obligations of a State Party to the African Charter as well as established principle of the African Commission since Civil Liberties Organisation v Nigeria. The complaint in this communication involved a purported nullification of the effects of the Charter on domestic matters. The Commission held: "the obligation of the Nigerian government to guarantee the right to be heard to its citizens still remains, unaffected by the purported revocation ofdomestic effect of the Charter. "35 136. The Commission is of the view that the application of Rule 3 of the Supreme Court Rules 2000 to the effect of preventing the Complainant to appear and conduct their case in person, without the assistance of an att � ll "-i �,.. ,, 34 A s above, p. 5 . v· 1· 35 Communication 129/94, Civil Liberties Organisation v Nigeria (1995), ACHPR, para. 2 Page 31 of 45 A�nt\\ Union\ .; �,!. African Commission on Hu 31 Bijilo Annex Layout Wes Phone: (220) 230 436 Email: au-banjul@africa-union.org https:lachpr.au.int/0 C> a

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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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