for an entitlement to consult and be represented by a legal representative or other
qualified persons chosen by the party at all stages of the proceeding including
periods of administrative detention, trial and appeal proceedings; and to have
adequate opportunity to prepare a case121 . It further gives States an obligation to
ensure that any arrested or detained person is provided with the necessary
facilities to communicate with his lawyer, doctor, family and friends. 122 The Luanda
Guidelines provide that arrested persons have the right of access, without delay to
a lawyer of his or her choice, or if the person cannot afford a lawyer, to a lawyer or
other legal service provider, provided by state or non-state institutions123 .
177.The African Commission has acknowledged the pivotal role of the right to legal
representation in its jurisprudence and recalls its decision in Malawi African
Association and Others v. Mauritania124 and in Krishna Achuthan (on behalf of
Aleke Banda), Amnesty International (on behalf of Orton and Vera Chinua),
Amnesty International (on behalf of Orton and Vera Chinua) v Malawi 125 where
the accused either had no access or only restricted or delayed access to a lawyer,
held that the Respondent State violated article 7(1) (c) of the African Charter. In
Media Rights Agenda, Constitutional Rights Project v. Nigeria, the African
Commission held that "to be denied access to a lawyer is a violation of Article
7(1 )(c)."12a
178.The African Commission's acknowledgment of this right highlights its unwavering
commitment to protecting individuals from abuse and promoting fairness
throughout the detention process. In line with these findings, the Commission of
the view that the denial of the Victim to have access to a lawyer during his
detention, constitutes a violation of Article 7(1 )(c) of the African Charter.
179.Furthermore, the African Commission notes the Complainant's argument that the
applicable domestic legislation, i.e. Article 51 (2) of the National Security Act 2010,
itself violates Article 7( 1)(c) of the African Charter, as the right to communicate with
family members or a lawyer is thus conditional upon the contact not prejudicing the
investigation, and the NISS may therefore still hold detainees without contact
(incommunicado) where it sees fit. The African Commission has elaborated on this
matter extensively in its decision in Magdy Moustafa El Baghdady v, The Sudan
127 and expressed the view that even though the Respondent State has shown
progress in making multiple amendments to the NSA of 2010, with the latest
amendment taking place in 2024, 128 it is essential to note that these amendments
121 Articles 20 (c) and 31 of the Robben Island Guidelines and Principle A2 (e) (D of the Principles and Guidelines on the Right
to a Fair Trial.
122 Ibid Principle M (2) (e}.
123 Luanda Guidelines para 4d &14c.
124 Communications No 54/91,61/91,98/93,164-196/97, 210/98- Malawi African Association and Others v. Mauritania.
125 Communication 64/92-68/92-78/92 Krishna Achuthan (on behalf of Aleke Banda},Amnesty lnternationaMol)..b.ehalfpf Orton
and Vera Chinua), Amnesty International (on behalf of Orton and Vera Chinua) v Malawi
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12s Media Rights Agenda, Constitutional Rights Project v. Nigeria, para. 88. See also Article 19 v.,,Ei-itr~l'CJ~~Micati'on
275/03, para. 103 where the Commission held that, "[t]here had been a violation of Article 7(1)(c), ~ince
etaine have<"
been allowed no access to legal representation, contrary to the right to be defended by counsel which • proteot~d by aJ
provision of the Charter."
.
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m Communciation 476/14- Magdy Moustafa El Baghdady v, The Sudan, para.1 57-162.
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128 Amendments were made to the NSA in 2011 , 2017, 2019, 2021 , 2022, and 2024.
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