80. In support of his argument, the Applicant cites the Court’s decision in
Diocles William v. Tanzania where it was held that although the applicant
through his counsel had opted not to call witnesses, the latter did not cease
to be necessary during trial. It is the Applicant’s contention that, in such
instances, the Respondent State’s judicial authorities are required to be
proactive in ascertaining whether the Applicant no longer intended to call
his witnesses. According to the Applicant, the fact that the Respondent
State failed to do so in the instant case amounts to a violation of the right to
defence.
81. Without responding directly to the Applicant’s allegations, the Respondent
State in its Response submits that the Applicant was afforded a fair hearing,
and that the Application has no merit and must be dismissed.
***
82. In its caselaw, the Court has held that an essential aspect of the right to
defence includes the right to call witnesses in one’s defence.32 Further, the
Court has held that the right to defence as set out in Article 7(1)(c) of the
Charter is a key component of the right to a fair trial and reflects the potential
of a judicial process to offer the parties the opportunity to express their
claims and submit their evidence.33
83. The question to be determined is whether obtaining the attendance of
witnesses during the domestic proceedings was the sole responsibility of
the accused or whether the judicial authorities of the Respondent State also
had the duty to ensure the presence of defence witnesses.
32
Umuhoza v. Rwanda (merits), supra, § 93; Ivan v. Tanzania (merits and reparations), supra, § 73 and
William v. Tanzania (merits), supra, § 62.
33 Sébastien Germain Ajavon v. Republic of Benin (judgment) (4 December 2020) 4 AfCLR 133, § 141.
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