Constitution, which recognises the competence of the Supreme Court to sit on decisions made by the lowest and highest courts. 71. The Respondent State concludes that there is no room for compensation as the plaintiffs were found guilty, and eventually released from custody. 72. The Congolese State further alleges that it has subsequently harmonised its laws with its international commitments. Observations of the Commission 73. In the light of the observations of the parties, it transpires that the main issue here relates to the guarantee mechanism, as provided for under Articles 7.1 and 26 Articles 7 (1) and 26 of the Charter. 74. In terms of Article 7 of the African Charter on Human and Peoples’ Rights: “Every individual shall have the right to have his cause heard. This comprises: a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognised and guaranteed by the conventions, laws, regulations, and customs in force; b) The right to be presumed innocent until proven guilty by a competent court or tribunal; c) The right to defence, including the right to be defended by counsel of his choice; d) The right to be tried within a reasonable time by an impartial court or tribunal.” 75. Article 26 provides that: “State Parties to the present charter shall have the duty to guarantee the independence of the Courts and allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.” 76. The general content of the guarantee of sound justice which is the subject of Articles 7 and 26 brings two sorts of obligations to bear. The obligation of having an accessible and appropriate court and the obligation of a fair trial (the right to have one’s cause heard fairly). The right to a fair trial is a corollary of the concept of access to an appropriate court. The right to a fair trial requires that one’s cause be held by efficient and impartial courts. 77. In a similar case relating to , the Commission already read Articles 7 and 26, together and held that Article 7 deals with the right to be heard by impartial courts, and Article 26 insists on the independence of courts; the Commission notes that States have the duty to put in place credible institutions for the promotion and protection of human rights. Article 26 being the necessary appendix of Article 7, one can expect a fair trial only before impartial courts. 78. In the present case, the establishment of the exceptional tribunal is a violation of the provisions of the Charter, as already decided by the African Commission in the above-mentioned similar cases. 79. According to the African Commission, the independence of a court refers to the independence of the court vis-à-vis the Executive. This implies the consideration of the mode of designation of its members, the duration of their mandate, the existence of protection against external pressures and the issue of real or perceived independence: as the saying goes“justice must not only be done: it must be 10 seen to be done” . 80. The obligation to be independent is one and the same as the obligation to be impartial. Impartiality may be perceived in a subjective and objective manner. In a subjective manner, the impartiality of a judge is gauged by his internal inclinations. Since it is impossible to infer from this inclination objectively, it was simpler to conclude that subjective impartiality be assumed until proven 11 otherwise . 12 81. However, appearances cannot be ignored while gauging the impartiality of a jurisdiction . 82. The obligation of having a jurisdiction established by law, capable of passing a judgement cannot be clearly disassociated from the above. The ability of a court to rule depends on the competence of the court to hear a case, and also depends on the calibre of its members. In the case of Amnesty International Versus Sudan, the Commission decided ”that the definition of the word, [quote]“competence” is particularly sensitive since ……………. depriving courts of qualified staff to guarantee their impartiality, infringes on the right to have one’s cause heard by competent organs ……….. constitutes a violation of Articles 7.1.d and 26of the Charter” [/quote]. The requirement of a fair trial presupposes that the parties to the suit are able to present their respective cases without prejudice to either party. The flaws of a trial can be detected