the requirement that legal assistance must be made available to an accused
faced with a capital crimes applies not only to the trail and relevant appeals,
but also to any preliminary hearing relating to the case.
179. The African commission, therefore, notes that there is no disputed that the
victims were unrepresented at the preliminary investigation stage, and
notwithstanding the Respondents State‟s assertion that it is not the
responsibility of the State authorities to pay for such legal aid, it finds that it
is axiomatic that legal assistance be available in capital cases, at all stages of
the proceedings, especially when there were request from human rights
lawyers to represent the victims. It should be understood by the Respondent
State that there a positive obligation on them to provide access to
independent legal assistance under the Charter, inherent in the international
prohibition of torture and ill-treatment. The African Commission has
recognized the right to access to a lawyer as one of the “basic procedural
safeguards for those deprived of their liberty”91 and as one of the necessary
safeguards against abuse during the pre-trial process.92
180. The link between the prevention of torture and the right to prompt access to
a lawyer has likewise been emphasised by other international human rights
bodies. In its Resolution 61/153 of 2007, reaffirming the UN Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, the
General Assembly stressed that permitting prompt and regular access to legal
counsel constitutes an “effective measure […] for the prevention of torture
and other cruel, inhuman or degrading treatment and punishment.”93
Similarly, the Human Rights Committee has stated that the protection of
detainees from torture and ill-treatment “requires that prompt and regular
91
See Robben Island Guidelines (above n. para. 20.
92
Ibid., para. 27.
93
GA Res. 61/153, 14 February 2007, para. 11
53
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