national organs in a criminal case attracting punishment as severe as the
death penalty clearly violates Article 7(1) (a)‟. The African Commission
agrees with the Complainants that the fact that the decisions of the Supreme
State Security Emergency Courts are not subject to appeal constitutes a de jure
procedural irregularity and manifestly violates Article 7(1) (a) of the African
Charter.
206.
Therefore, the African Commission notes that in all cases, the
independence of a court must be judged in relation to the degree of
independence of the judiciary vis-à-vis the executive. This implies the
consideration of the manner in which its members are appointed, 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 seen to be done‟.
207.
The African Commission is of the view that the degree of control which
the President exercises over the composition, conduct and outcome of
proceedings before the State Security Court does not guarantee an
independent and impartial judicial process. In its view that amounts to
executive interference in the judicial process defeating the intent and
purporse of Article 7(1) (d). The African Commission is therefore of the view
that the verdict of the Supreme State Security Emergency court did not offer
guarantees of independence, impartiality and equity and therefore
constitutes a violation of the Article 7 of the African Charter.121
208.
In any event, it was the responsibility of the Respondent State to
adduce sufficient evidence to rebut the arguments that the court in its
composition was independent and was capable of giving an impartial ruling,
and this the Respondent State has not done to the satisfaction of the African
Commission. In the absence of such rebuttal or facts that could convince the
121
Resolution No ACHPR/Res. 41(XXVI) 99 on the Right to a Fair Trial and Legal Aid in Africa
63
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