The right to fair trial is recognized by the international community as a fundamental human right necessary in any democratic society governed by the rule of law. Various international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, as well as, regional instruments such as the African Charter on Human and People’s Rights have enshrined this right.
According to article 7 of the African Charter, in order to ensure the respect of the right to fair trial, several other rights have to be guaranteed. They are intrinsic elements of the right to a fair trial. The focus will be put on one of these rights, the right to counsel.
The African Commission on Human and People’s Rights and the African Court on Human and People’s Rights had likewise, the opportunity to respond to complaints apropos of the right to counsel. Both bodies have strived to ensure the respect of this essential right. From their jurisprudence, it is therefore possible to identify general standards, which can be used to complete the international and regional legislation applicable on the matter.
This jurisprudence analysis will focus on the three major violations of the right to counsel: the lack of access to counsel (A), the delayed access to counsel (B), and the restricted access to counsel (C).
A- No access to Counsel
According to article 7.1. of the African Charter, each individual has the right to have his cause heard. Article 7.1.c further specifies that this right comprises the right to defence, including the right to be defended by a counsel of one’s choice. Hence, the right to counsel consists of two components: the right to be assisted by a counsel and the right to choose a counsel.
The African Commission in its communications has repeatedly reaffirmed the first component. In Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Rights Project v Nigeria, the Commission stated that every individual has the right to defence and to be denied access to a lawyer is a violation of article 7.1.c of the African Charter. In Purohit and Moore v The Gambia (Purohit), it further added that in the circumstances where the decision has the potential of touching among others the life of the persons concerned, the rights to be heard and represented become necessary.
Purohit dealt with the Lunatics Detention Act, a legislation, enacted in 1917 and last reviewed in 1964, governing mental health in Gambia. It particularly regulated the detention of mentally disabled individuals in an extremely arbitrary and discriminatory way. Besides several flaws in the legislation, such as the lack of a valid and objective definition of the term “lunatic”, it did not supply individuals, once detained with any means to challenge their detention nor access a lawyer.
The second component of the right to counsel is equally essential. It ensures that a counsel whom he trusts represents the accused. It also prevents the State from nominating a counsel that could be neither fully qualified nor independent. The Commission has further developed this right in Law Office of Shazi Suleiman v Sudan. The defendants, civilians, were tried under a military court, accused of the offence of destabilizing the constitutional system. The military court was established by Presidential decree and composed mainly of military officers. It was empowered to make its own rules of procedure, which did not have to conform to established rules of fair trial. In particular, the court had the right to veto the choices of counsel of the defendants leading to them being refused the right to assistance of defenders of their choice.
The Commission held that the court should not have a right to veto the choice of a counsel. It stated that “to recognize that the court has the right of veto on the choice of a counsel amounts to an unacceptable violation of this right”. It added that to avoid lawyers being prevented from assisting in given cases, there should be an objective system of registration of lawyers. Finally, it stated that it is essential that the national Bar is an independent organ which regulates the profession of lawyers and that courts do no longer play this role contrary to the right to defence. This communication is particularly interesting as it identifies minimum standards and measures that can be adopted by States to ensure the independence of their legal profession.
Lastly, to ensure that the right to counsel is fully fulfilled, it appears that when individuals are not able to afford or access legal representation, judicial assistance should be provided. Article 14.3.d of the International Covenant on Civil and Political Rights states that each individual who faces criminal charges shall be tried while being present and has the right defend himself in person or through legal assistance of his own choosing. He has the right to be informed that if does not have legal assistance, he is entitled to have legal assistance assigned to him without any payment by him if he does not have sufficient means to pay for it.
Although regrettably missing from the African Charter, both the Commission and the Court implemented this right in their respective case law. In Working Group on Strategic Legal Cases v Democratic Republic of Congo, the Commission clearly stated that when an individual is not in position to afford legal counsel, it is the responsibility of the State to provide one. It judiciously added that the legal counsel should not however be imposed on the accused by the State. The accused should be able to choose out of a list the preferred independent counsel.
The Court adopted a similar position in Alex Thomas v United Republic of Tanzania, basing its legal reasoning on the letter of article 14.3.d of the Covenant.
In all the communications and decisions mentioned previously both the Court and Commission had no difficulty to conclude to a violation of either article 7.1.c of the African Charter or Article 14.3.d of the Covenant. Indeed, most the complaints addressed to the two bodies were unambiguous. The defendants were clearly deprived from legal counsel or from the opportunity to freely choose their lawyer. The question becomes more intricate when dealing with other aspects of the right to counsel.
B- Delayed Access
If article 7.1.c of the African Charter clearly established the right to counsel, it does not however provide any time frame within which the council should intervene to defend his client. The question of prompt access to counsel is crucial and often not addressed by legal instruments such as the African Charter. As the right to counsel is a guarantee for individuals that their other fundamentals rights will be respected during their detention and trial, the counsel should be able to intervene as soon as possible for this guarantee to be effective.
On this matter, the Commission and the Court concluded that a delayed access to counsel constitutes a clear violation of article 7.1.c of the African Charter. Notwithstanding what has just been said the question seems to remain partly unanswered, as the appreciation of what is delayed can seem quite subjective. After how many days can the access to counsel be qualified as delayed? Do other circumstances affect this qualification such as the gravity of the offence committed? What reasons can a State invoke to justify the delayed intervention of a counsel? It seems that this could be an aspect that is assessed case by case, in concreto, by the judge. It does not preclude however a need for some guidelines.
These guidelines regrettably cannot be found in the jurisprudence, of the Commission or the Court, here analyzed. In all the cases studied, the applicants were denied access to counsel for a significant amount of time. In Abdel Hadi, Ali Radi & Others v Republic of Sudan, the Commission held that more than nine months without access to counsel constitutes a violation of article 7.1.c. In Media Rights Agenda v Nigeria, 49 days without access to a counsel was held to be a violation of article 7.1.c. In Mohamed Adubakari v United Republic of Tanzania, the African Court found that the fact for the applicants of not having access to a lawyer for about two months affected their ability to effectively defend themselves. Neither the Court nor the Commission really detailed their reasoning in the matter.
It could be because the cases can be seen as quite straightforward in the sense that the time during which the applicants were deprived of counsel was significant. As the violations appeared obvious, the regional bodies did not seem to feel the need to dwell on the question. Therefore, from the analysis of these cases alone, the question of delayed access to counsel is not fully answered and deserves to be treated more in depth.
At the lecture of a relatively recent communication, Egyptian Initiative for Personal Rights and Interights v Egypt, further answers could be at first glance identified. In this communication, the victims were tried and sentenced to death after being accused of bombings, which took place on 6 October 2004 and 23 July 2005 on the Sinai Peninsula in Egypt. After their arrest, the applicants were allegedly subjected to various forms of torture and ill-treatment in order to confess. They were held incommunicado for a long period of time without access to a lawyer.
More specifically they did not have access to lawyers at the critical early interrogation stage and were later not able to consult with counsel privately. The Commission therefore emphasized the importance of being assisted by a counsel not only during trials but also at every step of a criminal prosecution. This includes preliminary investigations in which evidence is taken, periods of administrative detention, trial and appeal proceedings. It is particularly crucial during investigations as the presence of a lawyer can constitute a safeguard against the use of torture and other ill-treatment.
A legal counsel should therefore be able to intervene at every step of a criminal procedure. Thus, if a counsel intervenes later than the first step in a criminal procedure, the access to counsel could be qualified as delayed. However, there are cases where individuals are arbitrarily detained without charges or investigations. They can be held for days, months or years in places of detention without any criminal procedure being started.
C- Restricted access
If the two previous parts of this article can be summarized as answering the questions “what” and “when”, this third and last one answers the question “how”. Indeed, to fulfill the right to defence not only individuals have to be promptly represented by a counsel but they have to be guaranteed a certain number of conditions so that the defence can be effective. There are three essential conditions, which should be respected to guarantee the right to defence.
Firstly, the applicant and its counsel should have all the necessary information to prepare their defence. In International Pen, Constitutional Rights Project, Civil Liberties Organization and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, the defence was denied access to the evidence on which the prosecution was based. The files and documents, which were required by the accused for their defence, were removed from the lawyers’ residences and offices when security forces searched them on different occasions during the trial. The Commission held that withholding evidence from the defence constitutes at violation of article 7.1.c of the African Charter.
The Commission went further in Avocats Sans Frontières (on behalf of Gaetan Bwampamye) v Burundi, by explaining that at each stage, the accused and his counsel should be able to reply to the indictment of the public prosecutor and should be the last to intervene before the court retires for deliberations.
Secondly, the defence should be given enough time to prepare. For example, in Rights International v Nigeria, the applicant was arrested on 3rd January 1996 by unknown armed soldiers. He remained in a military detention camp until the 9th January 1996 and then transferred to the State Intelligence Bureau in Port Harcourt, Nigeria. He was held from the 9th until the 11th January 1996 without access to a legal counsel or his family. On the 9th, he was allowed to prepare a statement in his own defence without a legal counsel and brought before the Magistrate Court 2 in Port Harcourt on the 11th January. In this communication, not only the applicant did not have access to a counsel but also he was only given two days to prepare for his defence. The Commission held that it is important to provide individuals with adequate time to prepare their defence.
Lastly, individuals should be able to communicate in confidence with their counsel. The right to private and confidential communication with counsel is implied in Article 14.3.b of the Covenant. This article states that an accused should “have adequate time and facilities for the preparation of his defence and to communicate with counsel of his choosing”. When the confidentiality is not guaranteed it can lead to an imbalance between defence and prosecution.
The Egyptian Initiative for Personal Rights and Interights v Egypt communication can serve as an example to illustrate this last element. This particular communication comprises several violations of human rights such as the use of torture and other forms of ill-treatment, no access to medical assistance in places of detention and several violations of the right to fair trial. The focus will however be placed on the right to communicate in confidence with one’s counsel. When the applicants were granted access to a lawyer, their communications took place through bars of the courtroom, in the presence and within earshot of security official. It led the Commission to state that lawyer-client communications should be held in confidence. This implies that facilities should be provided to ensure the confidence of any exchange.
The wording of the Commission is similar to the letter of article 14.3.b, however it is regrettable that this particular issue is very briefly mentioned in the communication. The Commission could have sized the occasion to emphasize further the importance of it. Particularly since the jurisprudence on the matter is quite scarce and there is a clear lack of standards regulating the issue.
From this analysis of the African Commission and African Court’s jurisprudence, it is possible to establish general standards, which serve to complete the international and national instruments establishing the right to counsel. The standards identified seem reasonably rounded and show the effort of both regional bodies to ensure the protection of this fundamental right.
Nonetheless, the legal reasoning behind some communications, mainly early ones, deserve further development not only to strengthen the Commission’s holdings but to serve a more pedagogic purpose. More recent communications seem to have settled this particular concern but not complete erased it.
Furthermore, certain aspects such as the question of prompt access to counsel, a question for which it seems more difficult to establish set in stone standards are not completely answered. Similarly, the jurisprudence of the Commission and the Court could gain from addressing more in details the right to private and confidential communication with counsel. As mentioned, there are very little cases that deal with this particular question. The issue is rarely mentioned by the defence, which alone should raise some questions. Regardless, when the question is raised, the Court and the Commission should draw standards applicable on the matter.
In conclusion, it seems quite apparent that there is room for further improvement in the jurisprudence of the two regional bodies, as certain standards needs to be clarified.
Photo credit: Open Society Justice Initiative (Nigeria)
Article by Farah Jerrari, Program Associate, Contra Nocendi International
 105/93-128/94-130/94-152/96 Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Rights Project v Nigeria, October 31, 1998, para 88.
 241/01 Purohit and Moore v The Gambia, May 29, 2003, para 72.
 222/98-229/99 Law Office of Shazi Suleiman v Sudan, May 3, 2003, para 59.
 259/02 Working Group on Strategic Legal Cases v Democratic Republic of Congo, October 24, 2011, para 82.
 005/2013 Alex Thomas v United Republic of Tanzania, November 20, 2015, para 123.
 368/09 Abdel Hadi, Ali Radi & Others v Republic of Sudan, November 5, 2013, para 90.
 224/98 In Media Rights Agenda v Nigeria, November 6, 2000, para 55.
 007/2013 Mohamed Adubakari v United Republic of Tanzania, June 13, 2016, para 120 and 121.
 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, March 1, 2011, para 209.
 137/94-139/94-154/96-161/97 International Pen, Constitutional Rights Project, Civil Liberties Organization and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, October 31, 1998, para 101.
 231/99 Avocats Sans Frontières (on behalf of Gaetan Bwampamye) v Burundi, November 6, 2000, para 28.
 215/98 Rights International v Nigeria, November 15, 1999, para 29.
 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 134.
 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 209.