Previous 40 / 46 Next

ACH PR African Commission on • Human and Peoples' Rights Human Rights our Collective Responsibility which obligates them to allow the establishment of national institutions entrusted with the promotion and protection of human rights. 164. With regards to the first component, the African Commission has set out a number of elements which are essential for the independence of the courts. According to the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, (a) The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities; (b) Judicial bodies shall be established by law to have adjudicative functions to determine matters within their competence on the basis of the rule of law and in accordance with proceedings conducted in the prescribed manner.61 Judicial bodies should also be 'independent of external influence, especially from the executive62 and the State must 'refrain from taking any action which may threaten directly or indirectly the independence and the security of judges and magistrates'.63 165. In its jurisprudence, the Commission has considered article 26 as a general guarantee against procedural deficiencies and state interference with the judiciary. In this respect, deficiencies affecting legal proceedings do not necessarily amount to lack of independence of the judiciary as a whole, as was held in Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt where "there were procedural deficiencies that affected the final decision", depriving the victims of an effective and impartial investigation into the violations complained of. The Commission held "the impartiality of the investigative process should be separated from the allegations related to Article 7(1) (a) and 26 of the African Charter", "because even though lack of impartiality of the investigations amount to a violation of the Victims' right to effective remedies, it cannot be classified as a violation of the Victims' rights under Articles 7(1)(a) and 26 of the African Charter" . 64 In other words, processes must be considered separately from the institutions who conduct them, and a deficiency affecting one process will not give n46 above, Section A(4). See also L. Madhuku, 'Constitutional protection of the independence of the judiciary: A survey of the position in Southern Africa', 46 J. Afr. L. 232 (2002). 62 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 146. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, paras 193 and 206. Communication , . . • N H lJf.1.._ ,,._ I 4 Marcel Wetsh okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 79. p" l•, 1>El M�,4 "vo 1 J 63 2 Resolution on the Respect and the Strengthening on the Independence of the udiciary, ACHPR/ � �1;'4 A · "°<'-0 1996. ' \ 11 ..; 64 Communication 323/06, n24 bove, para. 234. ;� 1 Page 39 of 45 n � African Commission on Human and P i3pl� ights. Ji; ;:; - ;, r.c1-UA u c, 61 t- ,.f' --;r'o -- �, ., 31 Bijilo Annex Layout, Kombo &rtli�1 ict, �� West Coast Re f"\'.S,a1'tli,fflc All'l�0 f<""' Phone: (220) 230 4361 Fax: (220) '056)e1, oES �� Email: au-b a njul@africa-unio https:/achpr.au.int/0 0 a f

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