News

The right to counsel

 

 

 

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[1]. 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[2].

 

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[3]. 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[4]. 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[5], 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[6]. In Media Rights Agenda v Nigeria, 49 days without access to a counsel was held to be a violation of article 7.1.c[7]. 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[8]. 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[9]. 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[10].

 

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[11].

 

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[12].

 

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[13]. 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[14].

 

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.

 

Conclusion

 

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 

 

[1] 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.

[2] 241/01 Purohit and Moore v The Gambia, May 29, 2003, para 72.

[3] 222/98-229/99 Law Office of Shazi Suleiman v Sudan, May 3, 2003, para 59.

[4] 259/02 Working Group on Strategic Legal Cases v Democratic Republic of Congo, October 24, 2011, para 82.

[5] 005/2013 Alex Thomas v United Republic of Tanzania, November 20, 2015, para 123.

[6] 368/09 Abdel Hadi, Ali Radi & Others v Republic of Sudan, November 5, 2013, para 90.

[7] 224/98 In Media Rights Agenda v Nigeria, November 6, 2000, para 55.

[8] 007/2013 Mohamed Adubakari v United Republic of Tanzania, June 13, 2016, para 120 and 121.

[9] 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, March 1, 2011, para 209.

[10] 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.

[11] 231/99 Avocats Sans Frontières (on behalf of Gaetan Bwampamye) v Burundi, November 6, 2000, para 28.

[12] 215/98 Rights International v Nigeria, November 15, 1999, para 29.

[13] 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 134.

[14] 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 209.

Contra Nocendi welcomes activation of jurisdiction of crime of aggression at ICC

 

Contra Nocendi International and Contra Nocendi Cameroon are happy to welcome the news of the adoption of the resolution on the crime of aggression that will grant the International Criminal Court (ICC) jurisdiction over the matter starting July 17, 2018. This date will also mark the 20th anniversary of the Rome Statute. Contra Nocendi is very pleased to see this opportunity provided for greater accountability for acts of aggression.

While the Court will only hold jurisdiction over States that have ratified or accepted the amendment to the Rome Statute for the crime of aggression, it is a positive step forward for international criminal justice and will bring a new level of accountability for acts of aggression. The international community must now come together to push towards the universal acceptance of the Rome Statute. Contra Nocendi International and its partners will continue to monitor developments in relation to this.

 

Female inmates in Cameroon and how imprisonment impacts their rights

The fact that prisoners are still human and therefore should have their basic rights respected should be fundamental to every society, however the reality is very much different in many places. The case of women inmates is peculiar because they are doubly vulnerable by virtue of being women and being in prison. This leaves them sometimes defenceless and at risk of serious violations. Women who are incarcerated usually come from marginalized and disadvantaged backgrounds and are often victims of violence, and physical and sexual abuse.[i] According to a 2015 survey[ii], about 2.7% of Cameroon’s prison population is made up of women. While this may not seem like a large proportion comparatively, female prisoners do have special needs and are more likely to be discriminated against.

Cameroonian prisons in general are considered to be in poor conditions due to overcrowding (mainly due to lack of financing), which are exacerbated by harsh treatment of inmates by prison personnel, and poor administration in general. The plight of the female prisoner in Cameroon is one of serious concern because prison management and administration are not usually gender sensitive. This is not to say that the plight of other prisoners is unimportant, but it is crucial to maintain decent administrative structures and prison systems otherwise they create additional problems for female prisoners.

The problems faced by the female population in prisons mostly boil down to financial issues on the side of the state. In some prisons in Cameroon for example, both male and female prisoners are expected to live within the same compound though in separate quarters. Sometimes this situation does not provide even the basic standards of decency as it is hard to maintain an acceptable physical hygiene, leaving the female prisoners exposed to abuse from their male counterparts and even prison personnel, and as a result are at a higher risk of contracting STDs and other diseases.

Most of the prison personnel, even those in charge of female inmates, are male and cannot be expected to fully empathise with and understand women’s conditions. The general level of poverty is also very high and as a result perpetuates corruption and other malpractices within the prison system. Women who are not supported by their families can hardly afford feminine care products or other basic needs. Often, this leads to forced prostitution in exchange for favours and special treatment.

Prison systems in Cameroon not only fail to meet the gender and biological health needs of imprisoned women, but also the standards of humane care established by internationally accepted standards of human rights. That said, the government and other institutions including NGOS make considerable efforts to make regular donations to alleviate the suffering of these female inmates, providing them with feminine care, and even beauty products as being locked up for a crime is not the end of one’s life as many inmates are led to believe.

In the midst of this, there is the case of an even more vulnerable sub-group consisting of particularly young women, and pregnant women or nursing mothers, who need to be specially considered. The 2015 human rights report produced by the Cameroonian Ministry of Justice observed that some female inmates with children refuse to hand them over to their families or benevolent persons as suggested by prison authorities, while other women get into prison already pregnant, leading to a very dire situation, as pre-natal or post-natal care is either inadequate or at worst non-existent.  

Women in Cameroonian prisons and prisons all over the world especially in Africa deserve better treatment and protection from the States and persons directly involved in their administration. Special attention ought to be paid to their interests and personal development so that they can be productive members of society once freed.

The first important measure will be a considerable review of prison systems and policies. The population of female guards should be augmented, as they can much better relate to the situation faced by these women. More efforts should also be made to have separate prisons for female prisoners.

Secondly, opportunities for counselling and other more concrete forms of rehabilitation should be made available to these women to prepare them for reintegration into society, and to decrease any chances of them falling back into a life of crime. Educational or training facilities should also be provided to these women, so they can learn a trade in order to support their independency in and out of prison. As rule 46 of the Bangkok Rules[iii] prescribe, prison authorities, in cooperation with probation and/or social welfare services, local community groups and non-governmental organizations, shall design and implement comprehensive pre- and post-release reintegration programmes which take into account the gender-specific needs of women.

Other important aspects, like the general hygiene conditions and access to health care and material needs necessary for female inmates must also be improved. Physical and mental health issues must be addressed with adequate measures (as per rules 10 and 12 of the Bangkok Rules).

The overall goal should be to guarantee the respect of already established standards of treatment like the Bangkok rules amongst others, and ensure that prison serves the purpose of reformation and provides an enabling environment for personal development, with the view to combatting discrimination against women. This will ensure that the fundamental human rights of these women are safeguarded.

 

[i] Bulletin of the World Health Organization, 06 July 2011., imprisonment and women’s health: concerns about gender sensitivity, human rights and public health, http://www.who.int/bulletin/volumes/89/9/10-082842/en/

[ii] Institute for Criminal Policy Research, 2015. Birkbeck University of London http://www.prisonstudies.org/country/cameroon

[iii] United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules). 2016(Updated)

 

 

This article was written by Rosaline A. Bates Anoma, Contra Nocendi's Advocacy Associate for Cameroon

 

Contra Nocendi welcomes investigation into Burundi

 

Contra Nocendi International was happy to learn about the decision to authorize a formal investigation into the situation in Burundi by the Pre-Trial Chamber III of the International Criminal Court (ICC) on 25 October 2017. Given that over 400,000 Burundians have been displaced, and over 1,000 have reportedly been killed, there is a very clear need for the people of Burundi to get answers with regards to what has happened. We truly hope that the victims of the alleged atrocities finally get their delayed justice.

 

While we welcome this development, we must stress that this is still only the beginning of what could be a very long and difficult process. The Court does not have a cooperation agreement with the Republic of Burundi. It is questionable as to what extent Burundian domestic law expressly grants security forces the authority to cooperate with any investigation. The international community must stand firmly behind the Office of the Prosecutor and encourage cooperation on the part of the Government of Burundi. Another element of the difficulties with this process is that victims and their loved ones may have to re-live their trauma. While this may ultimately lead to more answers and justice, we must always be mindful of the additional suffering that re-living trauma of this nature can have. We hope to see sufficient resources allocated in support of the victims.

 

We must also stress that the presumption of innocence must be maintained and respected at all times for any persons who face charges before the Court. The process must be fair, and additionally must fully embrace international human rights law and protections afforded to accused persons under international criminal law.

 

Contra Nocendi International will continue to monitor the situation in Burundi and the process before the ICC. Our hearts continue to go out to those who have needlessly suffered through the events in Burundi. We look forward to the day that the people of Burundi get the answers they deserve.

 

 

 

Contra Nocendi marks 10th anniversary of Katabazi judgement

 

Contra Nocendi on Wednesday November 1, marked the 10th anniversary of the judgement handed down by the East African Court of Justice in the case of James Katabazi & 21 others v Secretary General of the EAC and one other. This judgement was a key turning point in providing greater access to justice in the East African Community for human rights abuses.

 

The Court in Katabazi recognized its jurisdiction to matters indirectly related to human rights. While Article 27(1) restrains the Court from dealing with matters of human rights until the jurisdiction is vested in the Court via Article 27(2), however the Court held that:

“While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the reference includes allegation of human rights violation”. This opened the door for greater access to justice for human rights abuses in the East African Community.

 

While we mark this important decision and the wisdom of the Court in handing down this precedent, we must reflect upon the fact that 10 years later, the East African Community has yet to vest jurisdiction over human rights issues directly with the Court. The Partner States must take action and show that their commitments in the EAC Treaty to the African Charter on Human and Peoples’ Rights, and to the rule of law were not empty words. We at Contra Nocendi, urge the Partner States of the East African Community to put the necessary protocol into force to vest jurisdiction with the Court.

Notice of withdrawal of Burundi from the ICC comes into force

 

Contra Nocendi International is greatly saddened by the fact that the withdrawal notice of Burundi from the International Criminal Court (ICC) has come into effect, and all signs suggest that the Office of the Prosecutor will not be opening a formal investigation into this development in Burundi. We are heartbroken for the people of Burundi for many reasons. In particular, we feel that they deserve answers – they need to know what are the implications of this development on the protection of human rights within the country.  This is indeed a sad day for international justice and for the ICC itself.

 

Given that there has been no evidence so far that the government of Burundi has any intention of conducting an independent and transparent investigation into the current crisis, it does appear that the international community is permitting impunity for the horrific acts that have taken place. We hope that is not in fact the case. Over 400,000 Burundians have fled their homeland and many more have been internally displaced. Many human rights defenders, including our own friends and colleagues, have been forced to flee. Burundians of all political affiliations have suffered as a result of the situation. They all deserve better. We will continue to monitor developments over the next few days or weeks. We remain hopeful that the response we seek for the people of Burundi will be forthcoming, sooner rather than later.

 

 

Timeline of the withdrawal of Burundi from the ICC

  

Contact us