Access to justice and the international law standards

2.3.2.2 African instruments

The African Charter was adopted nearly three decades ago.⁷⁶ It requires each state party to take legislative or other measures to give effect to the rights it guarantees.⁷⁷ It contains a provision regarding fair trial in Article 7 (c), which includes the right to defence by a counsel of one?s own choice. Whilst stressing that every individual shall have the right to have his cause heard, it provides that this comprises:

⁷⁵ See Airey v. Ireland, supra note 7. See also the same line of argument in Morael v. France, Communication No 207/1986 issued on 28 July 1989. The European Human Rights Commission held that a very important condition for the observance of ICCPR Article l4's fair hearing requirement was respect for the principle of equality of arms. While the EHRC found there to be no violation in the Morael v. France, and did not have to deal with any claim concerned with the provision of legal aid, its holding in a civil setting that equality of arms must be observed provides some hope that legal aid will be seen as appropriate in civil cases. This should be even more so where the opposing party is the state itself.

⁷⁶ On 27 June 1981, at the 18^th Conference of Heads of States and Governments of the Organization of African Unity (OAU) replaced by the African Union (AU) on July 9, 2002.

⁷⁷ See Article 62 of the African Charter.

(a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force;

(b) The right to be presumed innocent until proved guilty by a competent court or tribunal;

(c) The right to defence, including the right to be defended by counsel of his choice; and

(d) The right to be tried within a reasonable time by an impartial court or tribunal.⁷⁸

An analytical look at this provision shows that free legal aid is not explicitly provided for in the Charter. However, the right to defence can be interpreted to mean that the state has duty to provide representation by counsel if the person cannot afford it. In Civil Liberties Organization v. Nigeria, the African Commission stated that the right to defence should be viewed in conjunction with the duty of states under Article 26 to guarantee the independence of the courts.⁷⁹ In 1999 the African Commission established a Working Group in 1999 to prepare general principles and guidelines on the right to a fair trial and legal assistance under the Charter.⁸⁰ These principles and guidelines recognise the right to legal aid and legal assistance in both criminal and civil cases.⁸¹

In Avocats Sans Frontières (on behalf of Gaëtan Bwampamy) v. Burundi, the African Commission noted that:

the right to fair trial involves fulfilment of certain objective criteria, including the

right to equal treatment, the right to defence by a lawyer, especially where this is called for by the interests of justice, as well as the obligation on the part of courts and tribunals to conform to international standards in order to guarantee a fair trial to all.⁸²

⁷⁸ Ibid. Article 7

⁷⁹ See Civil Liberties Organization v. Nigeria, ACHPR Communication No 129/94 (1995). See also Media Rights Agenda v. Nigeria, ACHPR Communication No 224/98 (2000).

⁸⁰ Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, A (2), Doc/ OS (XXX) 247 (2001).

⁸¹ Ibid. Article H (a).

82 Avocats Sans Frontières (on behalf of Bwampamye) v. Burundi, ACHPR Communication No 231/99 (2000).

Indeed in this case, the African Commission stressed that the right to legal assistance is a fundamental element of the right to a fair trial.⁸³ Also, the African Commission made it clear that the onus is on the state to provide legal aid where the interests of justice so require without making any distinction between civil or criminal matters. Similarly, in Commission Nationale des Droits de l'Homme et des Libertés v. Chad, the African Commission reaffirmed the importance of the right to legal aid and legal assistance in both criminal and civil cases.⁸⁴ As a result, it is submitted that where the interests of justice so require, an accused or a party in a civil case has a right to have free legal assistance without payment if s/he does not have sufficient means.

In similar fashion, the African Charter on the Rights and Welfare of the Child⁸⁵ provides that a child has the right to special treatment in penal cases. Children in trouble with the law can be afforded legal and other appropriate assistance in the preparation and presentation of his defence.⁸⁶ Thus, states are required to provide to children with an effective defence or representation. Children have the right to choose their legal representative at all stages of their cases. Also, the Protocol to the African Charter on Human and Peoples? Rights on the Rights of Women in Africa⁸⁷, obliges states parties to give women access to legal services, but the duty on the state is limited to ensuring «support to local, national, regional and continental initiatives directed at providing women with access to legal services, including legal aid??.⁸⁸

⁸³ Ibid. para. 30.

84 Commission Nationale des Droits de l'Homme et des Libertes v. Chad, ACHPR Communication No 74/92 (1995).

⁸⁵ African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999. It was ratified by Rwanda on 11 May 2001.

⁸⁶ See Article 17 points 1 and 2 (iii).

⁸⁷ On 26 October 2005, the Protocol to the African Charter on Human and Peoples? Rights on the Rights of Women in Africa received its 15^th ratification, meaning the Protocol entered into force on 25 November 2005. Rwanda is amongst countries which ratified it on that date.

⁸⁸ See Article 25(a) of Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by the 2^nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (September 13, 2000); reprinted in African Human Rights Law Journal 40, entered into force November 25, 2005.