44. However, Section 148(5) of the Respondent State’s Criminal Procedure Act
provides that: “a Police Officer in charge of a police station, or a court before
whom an accused person is brought or appears, shall not admit that person
to bail if: this person is accused of (i) murder, treason, armed robbery or
defilement”.
45. The crime of which the instant Applicant was convicted, namely, armed
robbery, is therefore a non-bailable offence in the Respondent State.
Accordingly, there would have been no prospect for success for the
Applicant even if he had raised the denial of his right to bail before the
domestic courts. In other words, there was no available and effective
remedy in the Respondent State with regard to this allegation and in this
context, he cannot be required to have exhausted a non-existent local
remedy.13
46. The Court further observes that the allegation of violation of the right to
equal treatment and equal protection of the law is related to the Applicant’s
allegation of violation of his right to be heard. Furthermore, the Applicant’s
allegation of violation of his right to free legal representation is made in the
context of his trial and appeals in the domestic courts, which is also tied to
the Applicant’s right to be heard.
47. In line with its established case-law, the Court is of the view that these
alleged violations occurred in the course of the domestic judicial
proceedings that led to the Applicant’s conviction and sentence to thirty (30)
years’ imprisonment. The allegations form part of the “bundle of rights and
guarantees” relating to the right to a fair trial which was the basis of the
Applicant’s appeals.14
48. The domestic judicial authorities, including the Court of Appeal, which is the
Respondent State’s highest court, had ample opportunity to address the
allegations even without the Applicant having raised them explicitly. It would
13
14
Konaté v Burkina Faso (merits) (2014) 1 AfCLR 310, § 108
Thomas v. Tanzania (merits), supra, § 60; Onyachi and Njoka v. Tanzania (merits), supra, § 68.
13