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SUMMARY OF FACTS
1. On 23rd September 2003, the Secretariat of the African Commission on
Human and Peoples' Rights received from Barrister Marcel Wetsh' Okonda Koso,
solicitor of the Kinshasa-Gombe Bench and of the NGO "Campagne pour les
Droits de l' Homme au Congo [FN1], from Barrister Izua Kembo, solicitor of
the Kinshasa- Gombe Bench and member of the NGO "comite' des Observateurs
des Droits de l' Homme [FN2], and from Barrister Odette Disu, solicitor and
member of the Kinshasa- Gombe Bench, and of the NGO "ASMEBOKEN" [FN3] a
Communication, introduced on behalf of 5 persons as follows:
- Ngimbi Nkiama Gaby, Contractor, born on 19.04.1958 in Kinshasa
- Bukasa musenga, Trade Inspector, born on 25.09.1967 in Kinshasa
- Duza kade willy, Soldier, born on 30.10.1963 in Lisala
- Issa Yaba, Femala Soldier, born on 10.04.1958 in Irebu, and
- Musalinsa Manoy, Soldier, born on 10.05.1958
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[FN1] CDHC- Asbl, 18 Avenue Basoko, commune of Ngaliema, Telephone: 00243
98186937
[FN2] African Commission on Human and Peoples' Rights since October, 2001
(30th Ordinary Session). CODHO, Kinshasa-Gombe, commune of Kalamu, Telephone:
00243 9947822
[FN3] Association Benjamin Moloise and Ken Saro Wiwa for the Defence of
Human Rights and the Development of Africa, 4251, Avenue Kabasele Tshamala-
Kinshasa Barumbu Telephone 0024398212201; Email: groupe strategique @
yahoo.co, disuodette @ yahoo. Fr
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2. The Communication is introduced against the Democratic Republic of Congo,
(State signatory [FN4] to the African Charter, and hereinafter referred to
as DRC in accordance with Article 55 of the African Charter on Human and
Peoples' Rights (the African Charter).
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[FN4] The DRC ratified the African Charted on 20/07/1984)
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3. The Complainants allege that, on 23.07.1999, the said Ngimbo Nkiama
placed an order for the supply of 3.5 cubic metres of petrol at ELF (a
petroleum company) which he was supposed to collect on 26.06.1999 at SEP/Congo.
But the said Ngimbi Nkiama was arrested by policemen who are said to have
discovered a supply of 6 drums in surplus following his collection of 40
drums of fuel instead of the 34 drums of fuel he initially ordered for.
4. Besides, the Complainants maintain that on 04.08.1999 the said Ngimbi
Nkiama was arrested and sent to the Conseil National de Sécurite quarters
together with four jointly - accused persons, Bukasa Musenga, Duza Kade
Willy, Issa Yaba, and Muzaliwa Manoy.
5. According to the Complainants, on the 11.09.1999, the said Ngimbi Nkiama
and the jointly - accused persons were arraigned before the Military Court
of DRC for " partaking, during war time, in the committing of acts of
sabotage "by the diversion of 70 drums of gas-oil and of 40 drums of gas-oil
belonging to the Congolese Armed Forces".
6. And that the Military Court comprising 5 judges (among whom would be only
one trained jurist) tried the said Ngimbi Nkiama and his jointly-accused
accomplices for the evidence adduced against and sentenced them to a capital
punishment, a "decree on a ground without the least justification" and the
right to file an appeal against the decree; the decisions of the Military
Court being not susceptible either for a review or for an appeal (decree
No.091 of 23.08.1997 establishing the Military Court of DRC).
THE COMPLAINT
7. The Complainants allege that the above-mentioned facts constitute a
violation by the DRC of Articles 7 (a) and 26 of the African Charter and of
paragraph 3 of the Provision for the right to the means of an appeal and of
a fair trial, adopted by the African Commission during its 11th Ordinary
Session held in Tunis, Tunisia from 2 to 9 March 1992.
8. Furthermore, the Complainants maintain that the aforementioned facts
constitute a violation by the DRC of the Article 14(1) of International
Covenant on Civil and Political Rights.
9. Consequently, the Complainants request the African Commission to:
- Declare Decree No. 019 of 23.08.1997, establishing a court for military
order and its Article 5, contrary to the international commitments of the
DRC as far as fair trial is concerned as stipulated in the African Charter;
- Declare that the sole fact of submitting a dispute case to a Court the
majority of whose members have no legal qualification whatsoever,
constitutes a flagrant violation of Article 26 of the African Charter;
- Declare that the judicial decisions on a simple ground without the least
justification grossly breach the right and liberties acknowledged by the
African Charter and violate the provisions of Article 7 of this latter;
- Direct the immediate release of the sentenced persons and the reparation
for all the prejudices they have suffered;
- Request the DRC to harmonise all her legislation with the commitments this
State subscribed to at international level and namely the African Charter
and to initiate reforms so as to prevent further human right violations.
THE PROCEDURE
10. On 21.10.2003, the Secretariat of the African Commission acknowledged
receipt of this Communication to the Complainants through a letter with
reference No. ACHPR/COMM 281/ 2003.
11. During its 34th Ordinary Session held from the 6th to 19th November 2003
in Banjul, The Gambia, the African Commission examined this Communication
and approved its seizure.
12. On the 14/12/2003, the African Commission notified the Respondent State
of this decision by DHL, and at the same time conveyed to it a copy of the
Complaint. The African Commission had also requested the Democratic Republic
of Congo to provide it, in two months, with its reactions on this Complaint
to enable it take a decision on its admissibility during its 35th Ordinary
Session.
13. On the 12th February 2004 and in the absence of any reaction from the
Respondent State, the African Commission sent a copy of the Complaint in
question with an acknowledgement of receipt to the Ministry of Foreign
Affairs, requesting its reaction as early as possible.
14. At its 35th Ordinary Session which was held from the 21st May to 4th
June 2004 in Banjul, The Gambia, the African Commission considered the
Communication and deferred its decision on the admissibility of the case
since the delegation of the Respondent State which had participated at the
Session declared, contrary to all expectations, that the Complaint had not
reached the DRC.
15. The Secretariat of the Commission prepared a complete dossier of all the
pending Communications against the DRC, including Communication 281/2003,
which it delivered in exchange for a receipt, to the DRC delegation.
16. By letter dated 21st June 2004, the Secretariat of the Commission
informed the Parties to the Communication of the deferment of its decision
on the admissibility of the Complaint to its 36th Session and requested them,
once again, to provide it with their comments in this regard so as to allow
the African Commission to rule on the admissibility during its 36th Session.
17. On the 16/09/2004, the Respondent State sent its comments on the
admissibility of the Communication to the Secretariat of the Commission.
18. The Secretariat acknowledged receipt of it on the 11/10/2004, and sent
the said comments to the Complainant requesting his reaction thereon as
early as possible.
19. During the 36th Ordinary Session of the African Commission which was
held in November/December 2004 in Dakar, Senegal, the Respondent State
submitted its memorandum on the admissibility of the Complaint to the
Secretariat of the African Commission.
20. On the 4th December 2004, the Secretariat of the African Commission
acknowledged receipt of this memorandum and informed the Respondent State
that the African Commission would take its decision on admissibility of the
Complaint at its 37th Ordinary Session and would the arguments raised would
be taken into account.
21. On the 23rd December 2004, the Secretariat of the African Commission
conveyed the submission of the Respondent State on admissibility to the
Complainant, and requested his reaction to the arguments submitted therein
and further informed him that the African Commission would take its decision
on the admissibility during its 37th Ordinary Session.
22. At its 37th Ordinary Session which took place from the 27th April to
11th May 2005 in Banjul, The Gambia, the African Commission heard the
Complainant on the condition of the exhaustion of local remedies.
23. During this same Session, the African Commission declared the
Communication admissible.
24. On the 6th June 2005, the Secretariat informed the Parties of this
decision and requested them to transmit their arguments on the merits of the
case.
25. On the 6th September 2005, the Complainant submitted his arguments on
the merits of the Complaint.
26. The Secretariat conveyed these observations to the Respondent State on
the 8th November 2005 at the same time requesting its own memorandum as
early as possible.
27. During its 38th Ordinary Session, which was held from 21 November to 5
December 2005 in Banjul, The Gambia, the African Commission considered the
complaint and, in the absence of the arguments of the Respondent State on
the merits of the case, decided to differ its decision at this stage to its
39th Ordinary Session.
28. On 10/01/2006, the Secretariat of the African Commission informed the
parties of this decision and requested the Respondent State to forward its
arguments on the merits of the communication.
29. In the absence of reaction from the Respondent State, the Secretariat
sent a reminder on 28/03/2006. A copy of the submission of the Complainant
on merits of the case was enclosed.
30. In a note verbale dated July 12, 2006, the Secretariat urged DRC to
provide with its observations on the merits by no later than 30 August 2006.
The Secretariat further reminded DRC of previous notes verbale sent
respectively on June 06, 2005, November 08, 2005 and January 10, 2006 all of
which still with no reaction from respondent State.
31. At its 40th ordinary session held in Banjul, the Gambia from 15 to 29
November 2006, the Commission deferred its decision on the merits to its
41st ordinary session scheduled to be held in Ghana from 16 to 30 May 2007
owing to the absence of arguments on the merits from the respondent State.
32. On 15 January 2007, the Secretariat informed DRC of the decision of the
Commission to differ the complaint to its 41st ordinary session and reminded
DRC of previous notes verbales in which DRC was invited to send its
observations on the merits. However, DRC was given the last chance to
formulate and send its observations on the merits before the end of February
2007, failing to do so would result in the Commission having to act in
accordance with article 119 (4) of its rules of procedure.
33. On 16 January 2007, the Secretariat informed the Complainants of the
postponement of its decision on the merits to the 41st ordinary session
scheduled to be held from 16 to 30 May 2007 in Ghana. The Secretariat
informed also the Complainants that DRC was given a last chance to provide
the Commission with its arguments on the merits failing of which, the
Commission would be obliged to act in accordance with article 119 (4) of its
rules of procedure.
34. In a note verbale dated June 14 2007, the Secretariat of the Commission
informed the Defendant State that the communication was deferred to the 42nd
ordinary scheduled from 14 to 28 November 2007 in Brazzaville, Congo. The
State was also reminded of previous note verbales in which it was urged to
submit it arguments as regard to the merit of the communication and that
failing to do so may result in the application of rule 119 (4) of the rule
of procedure.. The respondent State is still yet to respond to these note
verbales.
35. A letter dated June 15, 2007 the Secretariat informed the Complainant of
the deferment of the communication to the 42nd ordinary session scheduled
from 14 to 28 November 2007 in Brazzaville, Congo
36. In a note verbale dated 17 September 2007 and a letter dated 17
September, 2007 the Secretariat of the Commission African also sent a
reminder both to the Complainant and the Defendant State.
37. By Note Verbale dated 20 March, 2008 and a letter dated 19 December,
2007 respectively, the parties were informed of the deferment of the
communication to the 43rd ordinary session scheduled in Ezulwini, Swaziland
from 7th to 22nd May, 2008 for the Commission to take into consideration in
its decision on the merits, the conclusions submitted by the DRC on the
merits.
38. In a Note verbale dated 20 March, 2008, and a letter dated 19 March,
2008, reminders were sent to the parties to inform them of the deferment of
the communication to the 43rd ordinary session.
THE LAW ADMISSIBILITY
39. The African Charter on Human and Peoples' Rights stipulates in its
Article 56 that the Communications referred to in Article 55 should, if they
are to be considered, necessarily be sent after exhaustion of local remedies,
if they exist, unless the procedure of exhaustion of local remedies is
unduly prolonged.
40. In this context, the Complainant contends that his Complaint is
admissible because the sentences passed by the Military Tribunal with regard
to the victims listed above cannot be subjected to any remedies. In effect
Article 5 of Decree 019 of the 23rd August, 1997 establishing the Military
Tribunal stipulates that its rulings "can neither be opposed nor appealed".
41. The Complainant further contends that an eventual recourse to
cancellation of the judgment in question, although provided for by Article
272 of the Law of 23rd August 1972 instituting the Code of Military Justice,
cannot be implemented due lack of "jurisdictional competence". The
Complainant considers therefore the means of local remedies are not
available in this case.
42. In its memorandum on admissibility which it transmitted to the
Secretariat of the Commission in December 2004, the Respondent State
contends that as far as it is concerned the Communication should be declared
inadmissible. In support of this position the Respondent State affirms that
the Complainant "does not provide evidence of having lodged an appeal
against the ruling in dispute, whereas this means of recourse remains open,
in conformity with Article 150, paragraph 3 of the Transitional Constitution
in the Democratic Republic of Congo".
43. According to the Respondent State, it was possible, on the basis of
Article 150 of the D.R. Congo's Transitional Constitution, to lodge an
appeal before the Supreme Court of Justice, against all rulings by the
Military Tribunal which are in dispute.
44. By not using this remedy, contends the Respondent State, the Complainant
has not exhausted the available remedies and therefore, it requests the
African Commission to declare the Communication inadmissible for non
exhaustion of local remedies.
45. In a memorandum conveyed to the Secretariat of the African Commission on
the 17th April 2005, the Complainant insisted on the non existence of
remedies against the said ruling which was passed by the Military Tribunal.
46. Concerning the argument of the Respondent State according to which the
Complainant "does not provide evidence of having lodged an appeal against
the disputed ruling whereas this remedy remains open in conformity with
Article 150, paragraph 3 of the Transitional Constitution of the Democratic
Republic of Congo", whereas it was possible, according to this Article, to
bring an appeal before the Supreme Court, against all the rulings passed by
the Military Tribunal, the Complainant counters that the facts of this case
date back to 1999 and could in no way be governed by the Transitional
Constitution which had been adopted on the 4th April 2003, namely, four (4)
years after.
47. The Complainant contends that the Transitional Constitution Decree of
the 9th April 1994 (in force at the time of the events - 1999) stipulates in
its Article 102 that: "The Supreme Court of Justice knows......appeals lodged
against rulings passed in the final jurisdiction by the Courts and Tribunals".
48. At the 37th Ordinary Session of the African Commission which was held
from the 27th April to 11th May 2005 in Banjul, The Gambia, the Complainant
made an oral presentation before the African Commission in reiteration of
these arguments.
POSITION OF THE AFRICAN COMMISSION
49. The Respondent State considers that the Communication should be declared
inadmissible as a local remedy exists which the Complainant did not use,
namely, the lodging of an appeal before the Supreme Court of Justice,
against the ruling which sentenced the alleged victims in the Complaint, in
conformity with Article 150, paragraph 3 of the Constitution of the Republic.
50. In effect, pleads the Respondent State, the Complainant has a remedy
against the disputed rulings passed by the Military Tribunal: the lodging of
an appeal before the Supreme Court of Justice.
51. The Respondent State contends that since the Complainant did not use
this remedy, he did not exhaust all the local remedies and cannot therefore
ask the African Commission to declare the Communication admissible.
52. Whereas the Complainant has proven that the remedy to which the
Respondent State is referring did not exist at the time when the events of
the Complaint took place. In effect, the events in question took place in
1999 whereas the 1994 Transitional Constitution was in force. That according
to the provisions of Article 102 of the said Constitution, the Supreme Court
of Justice could only know of "appeals lodged against rulings passed in
final jurisdiction by the Courts and Tribunals".
53. From the foregoing arguments it would appear that the Complainant did
not have, at the time the events took place, any remedies against the said
rulings, since these remedies only came years later, with the help of the
adoption of the Transitional Constitution of the 4th April 2003.
54. In consequence, the African Commission rules that local remedies were
not available to the Complainant.
55. On these grounds, the African Commission declares the Communication
admissible.
THE MERITS
56. In accordance with rule 120 of the Rules of Procedure of the African
Commission, where a communication submitted in accordance with article 55 of
the Charter has been declared admissible, the Commission "shall consider the
Communication in the light of all the information that the individual and
the State party concerned have submitted in writing, it shall make known its
observation on this issue."
57. It is noteworthy that, in such cases, the conclusions brought to the
dossier by the two parties both in terms of the procedure and on the merits
of the case enables the Commission to make pronouncements through the
presentation and analysis of the arguments of the parties to the suit.
THE ARGUMENTS OF THE COMPLAINANTS
58. The Complainants submit the violation of the African Charter in its
article 7(a) (b) and (d) and article 24. The Complainants contest the ruling
against the victims by the Military Court in view of its mode of
establishment, competence, and illegal procedure which contravenes the
African Charter on Human and Peoples' Rights to which the Respondent State
is a party.
59. Regarding the establishment of the Military Court, the Complainant avers
that this establishment contravenes article 96 (1) of the Transitional
Constitution which stipulates that "courts, tribunals and war councils shall
only be established by the Law. No special commissions or tribunals shall be
set up in any form whatsoever."
60. The Complainant contends the incompetence of the said court due to its
membership whose partiality was manifested by the inclusion of members of
the military corps, what with their legendary regimentation and discipline,
exacerbated by the fact that the later lacked the qualities of a magistrate.
To support these assertions, the Complainant recalled the decision of
Communication 218/98 [FN5] in which the African Commission decided that the
"Military tribunal" should be bound by the norms of equity, transparency,
justice, independent rules and respect for the legal process of other courts"
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[FN5] Civil Liberties Organisation, legal defense center, legal defense and
assistance project v. Nigeria
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61. The Complainant also avers that the procedural situation was exacerbated
by the excessive powers of the members of the court who purportedly,
followed a very arbitrary procedure in violation of article 137 of the
Military Code of Justice, dated 25 September, according to which, "the
procedure before military jurisdictions shall be that in force before the
common law jurisdictions, in conformity with the provisions of the normal
Criminal Code which are not incompatible with those of the present code."
62. According to the Complainants, there is no possible redress allowing
them to contest the decision of the court which sentenced the plaintiffs to
death: according to article 5 of the decree-law establishing the said court,
neither can the decisions be appealed against nor opposed. The Complainants
contend that the sentencing of the plaintiffs to death without the
possibility of appeal constitutes a violation of article 6 of the Guarantees
for the Protection of persons sentenced to death. Article 6 stipulates that
"any individual sentenced to death is entitled to file an appeal with a
higher court, and measures should be taken to ensure that the appeals are
mandatory."
63. The Complainants also recalled the ruling of the Human Rights Committee
in the case of Arutynyam vs Uzbekistan which states "sentencing to death
following a trial during which the provisions of the Convention were not
respected constitutes a violation of article 6 of the Convention where no
further appeal can be brought against the verdict [FN6]. The Complainant
further avers that the said ruling of the court was not reasoned considering
that the authorities refused to convey to the plaintiffs the ruling
pronouncing their sentence despite all the attempts to that effect.
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[FN6] Report of the Human Rights Committee, vol.I, A/59/40 (volI),Nations
Unies ,New York,2004 p.111
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64. Consequently, the Complainants call for the immediate release of the
plaintiffs and prays the African Commission to call on the Government of the
Democratic Republic of Congo to grant each victim the sum of 10, 000, 000
Congolese Francs as damages.
THE ARGUMENTS OF THE RESPONDENT STATE
65. The State refutes all the allegations of the Complainants. The State
submits that all the said allegations are unfounded.
66. Pertaining to the establishment of the Military Court whose impartiality,
independence and competence are being challenged by the Complainant, the DR
Congolese State responded that the decision to establish a Military Court
was in conformity with article 156 (2) of the Constitution which empowers
the Head of State to suspend Common Law Courts in the some or all parts of
the territory, and to replace them by Military Courts in times of war. As
the Congolese state was engaged in an armed conflict situation following the
armed aggression led by its neighbours, the State was merely implementing
the said provisions of the Constitution.
67. The Respondent State observes that it is under these special
circumstances that the plaintiffs were tried and sentenced in all legality
and avers that the latter have not adduced any proof of their assertion that
the ruling as passed was not reasoned.
68. Regarding the complaint brought by the Complainants pertaining to
article 5 of the decree - law establishing the Military Court, the State
Respondent alleges that the Complainants could have lodged an appeal to
bring to the fore their allegations, in accordance with article 150 of the
Transitional Constitution, which recognizes the competence of the Supreme
Court to sit on decisions made by the lowest and highest courts.
69. The Respondent State concludes that there is no room for compensation as
the plaintiffs were found guilty, and eventually released from custody. The
Congolese State further alleges that it has subsequently harmonized its laws
with its international commitments.
OBSERVATIONS OF THE COMMISSION
70. 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 of the Charter.
71. Article 7
"Every individual shall have the right to have his cause heard. This
comprises:
- 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;
- The right to be presumed innocent until proven guilty by a competent court
or tribunal;
- The right to defence, including the right to be defended by counsel of his
choice;
- The right to be tried within a reasonable time by an impartial court or
tribunal."
72. Article 26 "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."
73. The general contents 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). In its
decision in the Civil Liberties Organization Vs Nigeria Communication, the
Commission made a clear distinction between these terms: "while article 7
focuses on the individual's right to be heard, article 26 speaks of the
Institutions which are essential to give meaning and content to that right.
This article clearly envisions the protection of the rights of the
individual against the abuses of state power."
74. The obligation of having an established court implies that the court
exists and that it is accessible to all persons subject to trial. For this
right of access to a competent court to be effective, there shall be no let
or hindrance to the beneficiary's enjoyment of the same. In the
abovementioned decision, the Commission also ruled that the usurpation of
the powers of the common law courts to hear any cases whatsoever constitutes
an aggression of untold proportions on the article of the Charter which
protects the right to effective remedy before national courts.
75. Mere accessibility of the competent court is not enough, the latter
should be adequate, that is to say independent, impartial, established by
the law and capable of ruling.
76. According to the African Commission, the independence of a court refers
to the independence of the court vis a 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 seen to be done" [FN7].
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[FN7] Media Rights Agenda c. Nigeria, para.60,61; Amnesty International and
Others c. Soudan, para 68,69; Malawi African Association and Others c.
Mauritanie para. 98; Law Office of Ghazi Suleiman c. Soudan para 61-64
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77. 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 otherwise [FN8].
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[FN8] European Court for Hman Rights, Van Leuren and Meyere
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78. However, appearances cannot be ignored while gauging the impartiality of
a jurisdiction [FN9].
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[FN9] CEDH, Delcourt c. Belgique, Decree if the 17th January 1970, A,N 11
para31; also cf the relevant jurisprudence of the Commission:Law office of
Ghazi Suleiman c. Soudan (para 63,64), International Pen and Others c.
Nigeria para86 ; Constitutional Rights Projects c. Nigeria, para.14
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79. The obligation of having a jurisdiction established by the 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, " 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 26 of the Charter".
80. 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 where a certain number of elements
combined together have not been respected viz. the right to equality of
means and the need for dissenting views. The requirements of a fair trial
also pre supposes that the courts are able to allow persons subject to trial
to review the ruling passed. The principle of a two-tier court system is not
always recognized by legal systems. A state may have a single tier
jurisdiction. However, should it choose to establish several, all the courts
should be governed by the criteria of good justice.
81. For its part, the International Convention on Civil and Political Rights
stipulates in article 14 (5) as follows. "Everyone convicted of a crime
shall have the right to his conviction and sentence being reviewed by a
higher tribunal according to the law. The Human Rights Committee
corroborated these provisions in its ruling in the case of Salgar de Mantego
versus Columbia [FN10] "the right to a review of a conviction or sentence
provided in article 14(5) does not leave the existence of the right to
review to be regulated by domestic law, but the modalities of the review
"[FN11].
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[FN10] 64/79
[FN11] Judicial Colloquium in Bangalore 24-26 Feb.1988 p.17
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82. Whereas the State parties enjoy considerable latitude in the choice of
resources within their legal system to fulfil the requirements of article 7
and 26 of the Charter, conformity with these articles should be sought in
the attainment of the objectives of the Charter. Every measure should be
taken to ensure justice is served by a competent, independent and impartial
tribunal and that justice is fair and adversarial. Here States are expected
to come up with results and shall have no excuse for shying away from their
responsibility. Failing to fulfil these requirement shall not be justified
for any reason whatsoever [FN12]. Where the expected outcome has not been
attained, the State shall be held responsible; it is not enough for the
latter to feign passivity should a situation which runs counter to article 7
of the Charter occur.
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[FN12] CEDH Decree Colozza of 12february. 1985,A N 89
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83. In the present case, the Military Court was established by a decree-law
in accordance with article 158(2) of the Constitution of Congo which
authorizes the President of the Republic to suspend the Common Law courts
and replace them with Military Tribunals, in times of war. Its competence
includes knowing of the deeds of civilians. The said court prosecuted and
condemned two civil and three soldiers to death for allegedly stealing seven
drums of gas oil.
84. To reaffirm its commitment to guaranteeing independent and impartial
courts, the Commission made recommendations in its decision on the right to
a free trial and legal aid in Africa which were replicated in the ruling on
the Ghazi Suleiman versus Sudan case, as follows:
"Military Courts or specialized courts ... should in no case try civilians,
military courts should not deal with offences which are under the preview of
ordinary courts"
85. In the Forum of Conscience versus Sierra Leone case, the Commission
quoted the preceding Resolution as follows: "In many African countries,
Military Tribunals and Special Courts co-exist with ordinary legal
institutions. The objective of the military tribunals is to adjudicate on
offences of a purely military nature perpetrated by military personnel. In
the dispatch of these duties, the military tribunals should abide by the
norms governing a fair trial".
86. Furthermore, in its ruling on the Media Rights Agenda versus Nigeria
case, the Commission decided as follows: "the appearance, sentencing and
conviction of Malaolu, a civilian, by a special military court, presided
over by military officers in active duty is nothing short of a violation of
the fundamental tenets of free trial as stipulated under article 7 of the
Charter."
87. Consequently, in this particular case, the fact that civilians and
soldiers accused of civilian offences are tried by a Military Court presided
over by military officers for the theft of drums of gas oil is a flagrant
violation of the above-mentioned requirements of good justice.
88. The Complainant opines that the said court was comprised of persons
belonging to the Armed Forces, devoid of the qualities of magistrates. By
its very composition it was not independent and therefore likely to pass a
partial sentence, and the fact that the latter were devoid of the qualities
of a magistrate constitutes an infringement of their right of access to a
competent court.
The Respondent State does not challenge these arguments in its statement of
defence. In the absence of any facts to the contrary, the Commission cannot
but invalidate the above conclusions. In its decision on the case of Media
Rights Agenda versus Nigeria, the Commission considered that: "the selection
of military officers in active duty, devoid of any legal training, to sit as
magistrates, constitutes a violation of paragraph 10 of the fundamental
principles of independence of the Bench. Said paragraph stipulates that:
individuals selected to fulfil the duties of Magistrates shall be men of
integrity, be competent and must have adequate legal training and
qualifications."
89. The Commission therefore finds that the verdict of the Military Court
which consisted solely of Army Officers with no qualities of a Magistrate,
did not offer the guarantees of independence, impartiality and equity.
90. The Complainants allege that the verdict of the military court against
the plaintiffs was not reasoned and that to compound matters, the
authorities refused to serve them with a copy of the judgement. The
Respondent State begs to differ and avers that the Complainant has no proof
to back this allegation. In this case, the burden of proof is on the
Defendant to show that the allegations of the Complainants are unfounded by
providing the Commission with the said judgement, which proof is yet to be
provided. The Commission has always deplored lack or inadequacy of motives
for a legal decisions as a violation of the right to a fair trial.
91. In the judgement on the Pinkey versus Canada case, the Human Rights
Committee ruled: "the exercise of an appellant's right of appeal had been
prejudiced because the transcript of the lower court's proceedings had taken
two-and-a-half years to be produced."
92. The Complainants allege that the decree-law on the establishment of the
Court stipulates in article 5 thereof that appeals shall not be brought
against the decisions of the said Court or the latter contested. The
Complainants contend that article 5 violates their right of an effective
appeal. The Respondent State contends that article 150 of the Transitional
Constitution stipulates the avenues of redress before the Supreme Court
which knows the verdicts and judgements made at the lowest and highest
echelons by the civil and military courts and tribunals.
93. It is important to note that the Complainants skew the doctrinal meaning
of the expression "effective redress". This expression "effective redress"
is clearly referred to in article 13 of the European Convention on Human
Rights. "Redress" should not be considered as "the process whereby a new
decision is obtained in a dispute where an authority has already given a
ruling. The word redress shall comprise of all processes through which a
constitutive act or an alleged violation of the Convention is brought before
a qualified body to seek, as the case maybe, suspension of the act, its
annulment, amendment or compensation. [FN13] The Complainants understandably
refers to article 14 (5) of the International Covenant on Civil and
Political rights which stipulates that "any person found guilty of an
offence shall have the right to have the verdict examined by a higher court,
in accordance with the law".
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[FN13] PETTITI Louis-Edmond, DECAUX Emmanuel, IMBERT Pierre-Henri (directed
by), The European Convention for Human Rights, observations, article by
article, Paris,Economica, 1999 P.467
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94. Hence we may conclude directly from the allegations of the Respondent
that the Complainants should have filed an appeal. However for us to
carefully examine this case we would have to elucidate the principle of the
two-tier jurisdiction. This principle entitles persons subject to trial to
file their case with another judge where the original ruling was deemed
flawed in the eyes of the Law. The appeal is for the reversal of a judgment
and consists in inviting a court of law (other than the original one)
hierarchically higher to try the entire case anew. However opposition is an
avenue for redress (retraction) which is not based on the principle of a
two-tier jurisdiction. It is based on the rule that any person subject to
trial has the right to have his cause heard. The cassation is not a third
level of the jurisdiction. It is a special avenue for redress. It is
applicable to judgements passed by the lowest and highest courts, judgements
against which appeals cannot be lodged and rulings passed by the Appeal's
Court. The cassation covers different reasons for opening a case, mainly:
breach of the law, incompetence and abuse of power; lack or inadequacy of
grounds [FN14].
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[FN14] These observation are taken from the book by 'AUBERT Jean-Luc,
Introduction to Law and the fundamental themes of Civil Law , Paris, Armand
Colin, 1995 PP.144-145 of the rights and freedoms enshrined in the African
Charter on Human and Peoples' Rights.
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95. In the present case, the Supreme Court was the only avenue for redress
available against the decisions passed at the lowest and highest levels by
the Military Court. And since the Complainants have raised the issue of the
incompetence of the said military court, the violation of the Law, and the
lack of motive of the judgement passed by the latter, they would have been
better of lodging an appeal for the case to be re-opened - but then they
were been denied access to the ruling of the court in question. The
Respondent's allegation that the Complainant's submission is inadmissible,
on the grounds of the latter's failure to exhaust all local remedies cannot
not stand.
ON THESE GROUNDS, THE COMMISSION
96. Consequently, declares, the Democratic Republic of Congo has violated
the relevant provisions of the African Charter on Human and Peoples' Rights,
namely articles 7 (a) (b) (d) and 26.
97. Finds that the establishment of a Military Court, albeit legally, whose
competence extends to hearing civil acts perpetrated by civilians is a
flagrant ignorance of the recommendations adopted by the African Commission
in its Resolution on the Right to a fair trial and legal assistance in
Africa, in line with the spirit of the African Charter.
98. Strongly recommends that the Government of the Republic of Congo
guarantees the independence of the tribunals and improves on the appropriate
national institutions charged with the promotion and protection
99. Urges the Government of the DRC to grant the victims a fair and
equitable amount as compensation for the moral wrong suffered.
Done in Abuja, the Federal Republic of Nigeria, on 24th November 2008. |
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