“(1) Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts violating his fundamental rights as recognized 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;
(d) the right to be tried within a reasonable time by an impartial court or tribunal.
(2) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and may only be inflicted on the offender.”
The right to a fair hearing under article 7 of the African Charter on Human and Peoples’ Rights (the Charter) is quite comprehensive. It includes but is not limited to the right to presumption of innocence, and to be tried by competent and qualified judges, the right to a defence and to a defence counsel, the right to be tried within a reasonable time, and by an independent and impartial court or tribunal, and the right to protection from retroactive legislation and vicarious punishment.
In interpreting and applying article 1, The Commission has given a range of interpretations to the chapeau element of article 7(1): Every individual shall have the right to have his cause heard.
For example, in Rencontre Interafricaine pour la Defense des Droits de l’Homme v Zambia, the Commission held that the deportation of foreigners from Zambia without giving them the opportunity to be heard by domestic courts violated article 7 (1) of the Charter.
In Bissangou v. Republic of The Congo, the Commission also held that:
The right to be heard guaranteed by Article 7 of the African Charter includes a right to the execution of a judgment.” “…as a result, the execution of a final judgment passed by a tribunal or Court should be considered an integral part of ‘the right to be heard’ which is protected by article 7.”
As the rights enumerated under article 7(1) are broad, they will be considered individually:
Article 7(1)(a):
…the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
In Communication 87/93, in the case of Constitutional Rights Project (in respect of Zamani Lekwot and 6 Others) v Nigeria, the Commission held that Decree No.2 of 1987 in Nigeria which prohibited any judicial review of a special tribunal, and lacked judicial appeal violated article 7 (1) (a) of the Charter
Article 7(1)(b):
…the right to be presumed innocent until proved guilty by a competent court or tribunal;
The presumption of innocence clause requires that the burden of proof rests on the prosecution to prove the accused’s guilt. Under no circumstance should the courts imply a duty on an accused person to prove his/her innocence.
Article 7(1)(c):
…the right to defence, including the right to be defended by counsel of his choice;
The right to defence and defence counsel implies that an accused person must be given the opportunity to be heard. They must be given a chance to put forward his/her own side of the case and if necessary with the assistance of a legal practitioner of his/her own choosing. The right to a defence counsel is to the effect that States should provide State-funded counsel to accused persons to ensure his/her fair trial right is upheld.
Article 7(1)(d):
…the right to be tried within a reasonable time by an impartial court or tribunal.
In the Constitutional Rights Project cited above, the Commission also found that the judges of the tribunal composed of members of the armed forces and police in addition to the judges created the appearance of a lack of impartiality and violated article 7 (1) (d).
Moreover, accused persons should be tried within a reasonable time. In Communication 103/93, in the case of Alhassan Abubakar v Ghana, the Commission held that the detention of the victim for seven years without trial violated the right to be tried within a reasonable time under article 7 (1) (d).
While Article 7 enumerates specific rights that fall under its protection, the Commission has applied article 7 as a whole to specific situations without specifically establishing a nexus between the complaint and these rights. This suggests that the specific rights enumerated in article 7 are not exhaustive.
Additionally, article 7 (2) states that “no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.”
This provision prohibits ex post facto application of laws and provides that laws should not have retrospective character. Thus, a person can only be punished for an act or omission if there was a law prohibiting such conduct at the time of its commission.
In Communication 105/93, 129/94, 130/94, 152/96, in the case of Media Rights Agenda Constitutional Rights project, Media Rights Agenda v Nigeria, a decree was passed in 1993 requiring the registration of every newspaper or magazine, thereby given a retrospective effort by rendering all existing newspapers illegal. Their owners and publishers were therefore liable. The Commission held that the degree was in violation of article 7 (2) of the Charter.
It is however important to note that the prohibition of the retroactive law does not apply to international crimes under the ICCPR regime. Thus, a person can be held responsible for an international crime punishable under international law even if there was no domestic law punishing such conduct at the time of its commission. A good example of this is found in the Organic Law of 1996 which was invoked in Rwanda to try suspects of the 1994 genocide.
Unlike the ICCPR, the ECHR and the ACHR, the African Charter does not guarantee the right to a public hearing. The Human Rights Committee has pointed out in its General Comment 13 (21) that public hearings is an important safeguard in the interest of the individual and society, and even where the trial proceeding is not open, in the interest of justice, the judgment should be made public.
Article 7 of the Charter was strengthened by a resolution of the Commission on the right to fair trial adopted by the OAU General Assembly in 1992. The resolution guarantees the right to legal aid for indigent persons, the right to interpreters, and the right to appeal to a higher court. This resolution however does not meet the standard under article 14 of the ICCPR as it does not totally solve the problem with regard to the right to compensation for the miscarriage of justice, freedom from double jeopardy, and self-incrimination.
