Resolution on the Right to a Fair Trial and Legal Assistance in Africa - The Dakar Declaration and Resolution
In Dakar, Senegal, from 9 to 11 September 1999, a Seminar on the Right to a Fair Trial in Africa was held in collaboration with the African Society of International and Comparative Law and Interights. The Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa were adopted. They were then adopted in a Resolution by the African Commission on Human and Peoples' Rights at its 26th Ordinary Session in November 1999.
Resolution on the Right to Fair Trial and Legal Aid in Africa
The African Commission on Human and Peoples’ Rights meeting at its 26th Ordinary Session, held in Kigali, Rwanda, from 1-15 November 1999:
Considering the provisions of the African Charter on Human and Peoples’ Rights relating to the right to a fair trial, in particular Articles 7 and 26;
Recalling the resolution on the Right to Recourse and Fair Trial adopted by the Commission at its 11th Ordinary session in Tunis, Tunisia, in March 1992;
Recalling further the resolution on the Respect and the Strengthening of the Independence of the Judiciary adopted at the 19th Ordinary session held in Ouagadougou, Burkina Faso, in March 1996;
Noting the Recommendations of the Seminar on the Right to a Fair Trial in Africa held in collaboration with the African Society of International and Comparative Law and Interights, in Dakar, Senegal, from 9-11 September 1999;
Recognising the importance of the right to a fair trial and legal assistance and the need to strengthen the provisions of the African Charter relating to this right;
1. Adopts the attached Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa;
2. Requests the Secretariat of the Commission to forward the Dakar Declaration and Recommendations to Ministries of Justice and Chief Justice of all States parties, Bar Associations and law schools in Africa and non-governmental organizations with observer status, and to report to the 27th Ordinary Session in this regard;
3. Decides to establish a Working Group on Fair Trial under the supervision of Commissioner Kamel Rezag-Bara and consisting of members of the Commission and representatives of non-governmental organizations;
4. Requests the Working Group to prepare a draft of general principles and guidelines on the right to a fair trial and legal assistance under the African Charter and submit it to the 27th Ordinary Session of the Commission and for comments and observations by the Members of the Commission during the period between the 27th and the 28th Sessions;
5. Further requests the Working Group to report to the 28th Ordinary Session on the final draft of the general principles and guidelines on fair trial and legal assistance for consideration;
6. Requests the Secretariat to provide the Working Group with all support and assistance needed to implement this mission.
The right to a fair trial is a fundamental right, the non-observance of which undermines all other human rights. Therefore the right to a fair trial is a non-derogable right, especially as the African Charter does not expressly allow for any derogations from the rights it enshrines. The realisation of this right is dependent on the existence of certain conditions and is impeded by certain practices. These include:
1. Rule of Law, Democracy and Fair Trial
The right to a fair trial can only be fully respected in an environment in which there is respect for the rule of law and fundamental rights and freedoms. The rule of law includes the existence of fully accountable political institutions.
2. Independence and Impartiality of the Judiciary
While there are constitutional and legal provisions which provide for the independence of the judiciary in most African countries, the existence of these provisions alone do not ensure the independence and impartiality of the judiciary. Issues and practices which undermine the independence and impartiality of the judiciary include the lack of transparent and impartial procedures for the appointment of judges, interference and control of the judiciary by the executive, lack of security of tenure and remuneration and inadequate resources for the judicial system.
3. Military Courts and Special Tribunals
In many African countries, military courts and special tribunals exist alongside regular judicial institutions. The purpose of military courts is to determine offences of a pure military nature committed by military personnel. While exercising this function, military courts are required to respect fair trial standards. They should not in any circumstances whatsoever have jurisdiction over civilians. Similarly, special tribunals should not try offences which fall within the jurisdiction of regular courts.
4. Traditional Courts
It is recognised that traditional courts are capable of playing a role in the achievement of peaceful societies and exercise authority over a significant proportion of the population in African countries. However, these courts also have serious shortcomings, which result in many instances in a denial of a fair trial. Traditional courts are not exempt from the provisions of the African Charter relating to fair trial.
5. Independence of Lawyers and Bar Associations
An independent Bar Association is essential to the protection of fair trial guarantees. Bar Associations should protect and uphold the independence of their members. The ability of lawyers to represent their clients without any harassment, intimidation or interference is an important tenet of the right to a fair trial. In many countries lawyers who represent unpopular causes or persons or groups who are perceived to be opponents of the government themselves become targets for harassment or persecution. An important safeguard for lawyers is that they should not be identified with their clients or their clients' causes as a result of discharging their functions. Cross-border relationships between Bar Associations and the ability of African lawyers to represent a person in countries other than their own enhances the independence of lawyers and Bar Associations.
6. Other Human Rights Defenders
Paralegals, parents or families of victims of human rights violations and crime or of suspects and accused persons and human rights workers representing victims, suspects or accused persons should not be identified with the persons they represent and should not face harassment, intimidation or persecution when they act to protect the human rights of such persons, including the right to a fair trial.
7. Impunity and Effective Remedies
The failure of the state to deal adequately with human rights violations often results in the systematic denial of justice and, in some instances, conflict and civil war. In societies recovering from conflict situations, the right to effective redress and justice is often discarded in favour of political expediency. The right to a fair trial does not permit the use of amnesty to absolve perpetrators of human rights violations from accountability.
8. Victims of crimes and abuse of power
The right to a fair trial would be meaningless unless victims of crimes and abuse of power have access to the courts and to an effective remedy. Fair trial standards and national laws and procedures do not adequately protect the rights and interests of such victims who are entitled to judicial procedures that are fair and which protect their wellbeing and dignity.
9. Legal Aid
Access to justice is a paramount element of the right to a fair trial. Most accused and aggrieved persons are unable to afford legal services due to the high cost of court and professional fees. It is the duty of governments to provide legal assistance to indigent persons in order to make the right to a fair trial more effective. The contribution of the judiciary, human rights NGOs and professional associations should be encouraged.
10. Women and Fair Trial
Judicial processes and institutions reflect societal discrimination against women. Gender discrimination affects women in accessing justice and as prospective litigants, accused in criminal trials, victims of crime, witnesses and as legal representatives before judicial institutions. Women are not adequately represented in judicial positions and legal procedures are not sufficiently sensitive to issues that affect them.
11. Children and Fair Trial
Children are entitled to all the fair trial guarantees and rights applicable to adults and to some additional protection. The African Charter on the Rights and Welfare of the Child requires that: “Every child accused of or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child’s sense of dignity and worth and which reinforces the child’s respect of human rights and fundamental freedoms.”
The African Commission should:
• Consolidate and expand all its pronouncements on the right to fair trial into a coherent body of principles, acting under article 45(1)(b) of the African Charter;
• Prioritise specific aspects of fair trial in Africa, such as access to legal aid, proceedings before military and traditional courts, impunity, and discrimination against women in judicial proceedings for discussion in the agenda of its regular sessions;
• Direct its Special Rapporteurs to focus special attention on aspects of the right to fair trial which fall within or are related to their mandates;
• Monitor the improvement of access to justice and effective redress by requesting state parties to include in their reports a special section which addresses the implementation of the right to a fair trial, including an analysis of the resources provided to judicial institutions as a proportion of the national budget of the state;
• Take up the issue of the right to a fair trial, including the independence of the judiciary, and establish contact with the judiciary and local bar associations during promotional and protective mission to states;
• Work in collaboration with the Office of the High Commissioner for Human Rights and other appropriate intergovernmental institutions to provide technical assistance to states for enhancing the performance and procedures of judicial institutions in the realisation of the right to fair trial;
• Establish a specific mechanism of follow up and monitoring of the right to fair trial in Africa;
• Disseminate annually a compendium of its decisions and resolutions to the Ministry of Justice of each state with a request that it be distributed to law schools, judicial officials, judicial training centres, bar associations and law enforcement agencies;
• Transmit this document to the Minister of Justice and the head of the judiciary in each state party with a request that it be disseminated to judicial and law enforcement officials, bar associations and law schools.
State parties to the African Charter should:
• Allocate adequate resources to judicial and law enforcement institutions to enable them to provide better and more effective fair trial guarantees to users of the legal process;
• Urgently examine ways in which legal assistance could be extended to indigent accused persons, including through adequately funded public defender and legal aid schemes;
• In collaboration with Bar Associations and NGOs enable innovative and additional legal assistance programmes to be established including allowing paralegals to provide legal assistance to indigent suspects at the pre-trial stage and pro-bono representation for accused in criminal proceedings;
• Seek technical assistance from the Office of the High Commissioner, other UN agencies and bilateral and multilateral sources to reform constitutional and legal provisions for effective implementation of the right to a fair trial, including the protection of the rights of victims of crime and abuse of power and their defenders;
• Improve judicial skills through programmes of continuing education, giving specific attention to the domestic implementation of international human rights standards, and to increase the resources available to judicial and law enforcement institutions;
• Incorporate the African Charter into domestic law and adopt concrete measures at the national level to implement their obligations under the Charter, including specific measures to uphold their obligation to protect the right to a fair trial;
• Take immediate measures to ensure better and effective representation of women in judicial institutions, reform judicial procedures which discriminate against women and provide gender awareness training to judicial and law enforcement officials;
• Include in their periodic reports to the Commission a special section which addresses the implementation of the right to a fair trial, including an analysis of the resources provided to judicial institutions as a proportion of the national budget of the state;
• Work in collaboration with local communities to identify and address issues within the traditional courts which are obstacles to the realisation of the right to a fair trial;
• Ensure that the law is applied without discrimination to ordinary persons and state officials alike and that abuse of power is promptly investigated and those found responsible prosecuted;
• Establish an age of criminal responsibility below which children may be presumed incapable of committing a crime and establish separate or specialised procedures and institutions to deal with accused children;
• Ratify all treaties relevant to the right to a fair trial, including the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child and the Statutes of the International Criminal Court, if they have not done so already;
• Respect the independence of lawyers and bar associations, including their right to undertake their duties without any interference and/or intimidation;
• Ensure that all trials before military courts respect the right to a fair trial and that civilians are not tried before such courts;
• Take measures to ensure that all cases involving civilians are tried before regular courts and that special courts, where they exist, are abolished and phased out;
• Take progressive steps to abolish the death penalty and in the meanwhile to ensure that all persons tried for an offence where the death penalty is a competent sentence are afforded all the rights to a fair trial;
• Afford rights of audience to lawyers from other African countries and consider the adoption of regional or sub-regional treaties for this purpose, where such instruments do not exist.
Judicial officials should:
• Examine shortcomings in constitutional and legal provisions which affect the right to a fair trial, including the rights of victims, and make specific recommendations to the authorities to remedy them;
• Make recommendations to the national authorities on the resources and training needs of the judiciary to improve the implementation of fair trial guarantees;
• Establish, where it does not exist, a forum for regular discussion between representatives of judicial institutions, law schools, and law enforcement agencies to address problems which undermine the right to a fair trial;
• Establish contact with the African Commission for the purposes of obtaining regular information on developments relevant to domestic implementation of the right to a fair trial under the African Charter;
• Bring to the attention of the Commission cases or practices which threaten the independence and impartiality of the judiciary;
• Take measures and institute processes to tackle practices, including corruption, which undermine their independence and impartiality;
• Adopt measures to ensure the elimination of discrimination against women both as regards their appointment as judicial officials and as participants in judicial proceedings.
Bar Associations should:
• In collaboration with appropriate government institutions and NGOs enable paralegals to provide legal assistance to indigent suspects at the pre-trial stage;
• Establish programmes for pro-bono representation of accused in criminal proceedings;
• Establish a forum for regular discussions with government and judicial officials on ways in which the implementation of the right to a fair trial could be improved;
• Take steps to protect and assure the integrity and independence of members of the legal profession;
• Take active steps to support the recruitment and appointment of women to judicial positions and provide gender awareness training to their members;
• Institute a programme of continuing education for its members on issues that advance fair trial rights and seek appropriate technical assistance and resources to realise this;
• Establish programmes of cooperation with legal professional organisations in other countries and encourage states to afford rights of audience to lawyers from other African countries where such rights do not exist.
Non-governmental Organisations and COmmunity Based Organisations should:
• Consider innovative and alternative ways in providing legal assistance to indigent accused including through the establishment of paralegal programmes, legal aid clinics, legal defence funds and public interest litigation programmes;
• Establish programmes in conjunction with the judiciary and other state bodies to contribute to the training of judicial and law enforcement officials in aspects of fair trial rights;
• Undertake studies of fair trial issues and make recommendations regarding the measures to be taken by the different organs of state to improve the delivery of justice and fair trials;
• In collaboration with law enforcement agencies, to produce posters in simple language on the rights of accused persons or detainees and display these in all places of detention;
• Assist the Commission to disseminate its decisions and distribute to law schools, judicial officials, judicial training centres, law enforcement agencies and bar associations, documents and information relevant to fair trial.