Decisions on Communications

Year of Decision: 2023
Session: 75th Ordinary Session
Related Country: Mauritius
Outcome: Decided on merits
Summary: This case, Communication 459/13 – Devendranath Hurnam v. Republic of Mauritius, concerns a Mauritian barrister who, after being convicted of conspiracy in relation to a bank robbery case, was disbarred and subsequently sought to reopen both his criminal and disciplinary proceedings based on new evidence. His attempts were repeatedly dismissed by the Mauritian courts, particularly after a 2011 Supreme Court ruling that barred litigants from initiating proceedings in person except through attorneys, which severely restricted his ability to pursue cases himself. He alleged judicial bias, manipulation, and undue influence by senior judges, claiming violations of Articles 3 (equality before the law), 7 (right to fair trial), and 26 (independence of the judiciary) of the African Charter. He requested compensation of 50 million rupees and provisional measures, while the Respondent State argued that he had not exhausted local remedies. The African Commission eventually declared the communication admissible in 2020 and proceeded to examine the merits, though Mauritius did not submit observations on the merits.

Decisions on Communications

Communication 459-13 Devendranath v Mauritius

Communication 459-13 Devendranath v Mauritius.pdf

Human Rights our Collective Responsibility Communication 459/13 Devendranath Hurnam Repu61ic of Mauritius Adopted by the African Comm�sion on Human and Peoples' Rights During the 75tlt. Ordinary Sessionfrom 3 to 23 May 2023, Banjul The Gambia ................................................... ............................................ Hon. Commissioner Remy Ngoy Chairperson to the African Commtsst.�� on Human and Peoples' Rights . Ablola ldowu-O/o xecutlve Secretary to the African Commission on Human and Peoples' Rights The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@afrjca-union.org An Organ ol lhe Afri<;an(�') Union�.,,)" ' ec/prc/AIO https:/achpr.au.int/0 O a

(i, "i�J\ ACHPR 1 ) African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Communication 459/13- Devendranath Hurnam v. Republic of Mauritius Summary of facts 1. This Complaint is submitted to the African Commission on Human and Peoples' Rights (the Commission) by Devendranath Hurnam (the Complainant) who is a citizen of the Republic of Mauritius acting in person. It is submitted against the Republic of Mauritius (the Respondent State), a Party to the African Charter on Human and Peoples' Rights (the Charter). 1 2. The Complainant states that he qualified as a Barrister and was called to the bar in 1975 in England where he also practiced briefly. He returned to Mauritius and was also called to the Mauritian Bar in the same year. He practiced law as a Barrister in Mauritius for a continuous period of 33 years. 3. In 2001 he was charged with two counts of knowingly receiving stolen property and one count of conspiracy to hinder police in an inquiry. The charges emanated from his representation of suspects in a bank robbery in 2000. It was alleged, quoad the two counts, that he knowingly received payment from the suspects out of the money robbed from the bank; and quoad the one count, that he and his client (robbery suspect) conspired to hinder police in an inquiry into the robbery by fabricating an alibi. In 2002 the first two counts were dropped. He was tried and in 2003 convicted of the conspiracy charge and sentenced to six months imprisonment by the Intermediate Court. 4. He appealed against the judgment of the Intermediate Court to the Supreme Court of Mauritius, which quashed the conviction and sentence. The Director of Public Prosecutions (DPP) of the Respondent State appealed against the judgment of the Supreme Court to the Judicial Committee of the Privy Council (JCPC) in the United Kingdom. He also lodged a cross appeal. After the hearing of the appeal before the JCPC and pending judgment, he introduced new evidence with a suggestion that the hearing of his cross-appeal should be re-opened. On 27 April 2007 the JCPC dismissed this new evidence and the suggestion to re-open the hearing of the cross1 The Charter came into force quoad Republic of Mauritius on 1 October 1992 in terms of Art. 65 of the inslrnment of ratification having been deposited on 1 July 1992 Page 1 of 45 Afric.an ,, Union\...!;/ African Commission on Human and Peopl 31 Bijilo Annex Layout, Kombo Nor West Coast Regi Phone: (220) 230 4361 Fax: (220) Email: au-banjul@africa https:/achpr.eu.in ·.. ·-\ /!

(;:·�� ... .·, ACH PR •�1 , cuu:ru· . African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility appeal. In the same judgment, the JCPC overturned the decision of the Supreme Court and restored the conviction and sentence of the Intermediate Court. 5. In May of the same year, 2007, he applied before the Supreme Court for his case to be re-opened before the Intermediate Court in light of further new evidence that was not available to him at the time of the initial trial. On 18 May 2007 the Supreme Court dismissed the application. He further applied for leave to appeal against this decision to the JCPC, which application was also dismissed on 20 June 2007 because it did not raise any questions of great general or public importance - a precondition for appeals to the JCPC. 6. Following the restoration of his conviction and sentence by the JCPC, and upon a report of the Attorney General to the Chief Justice, the Complainant was summoned and appeared before the Supreme Court on several occasions to show cause why disciplinary proceedings should not be taken against him pursuant to the provisions of the Law Practitioners Act and the Code of Ethics for Barristers. During those appearances, he lodged several objections regarding the constitution of the bench that was set up to hear the disciplinary charges, but the objections were dismissed. 7. After several changes, the disciplinary charge was ultimately that his conviction for conspiracy committed in the pursuit of his profession as a Barrister rendered him unfit to practice as a Barrister-at-Law. This charge was no longer based on provisions of the Law Practitioners Act. Instead, the Supreme Court invoked its inherent jurisdiction. 8. The Court eventually admitted his conviction as prima facie evidence and on 30 January 2008 found him guilty of professional misconduct. On the same date the Court ordered the Complainant's name to be struck off the Roll of Law Practitioners upon which the Complainant ceased practic;ing as a Barrister-at-Law. 9. However, after his disbarment, the Complainant acting as a litigant in person initiated several court proceedings against judicial officers including the then Chief Justice, other state officials, and private persons, at all times settling motion papers and other documents by himself and in his own name. c, ... . African("t;\ Union\Y Page 2 of 45 African Commission on Human and Pe 31 Bijilo Annex Layout, Kombo West Coast Re Phone: (220) 230 4361 Fax: (2 Email: au-banjul@africa 4r · � r:J o 1 '/

Human Rights our Collective Responsibility 10. On 14 February and subsequently on 30 May 2011, the Complainant lodged two motions before the Supreme Court principally seeking, respectively: (a) an order directing the re-opening of the criminal case lodged against him before the Intermediate Court in 2001 for which he was convicted; and (b) an order directing the re-opening of the disciplinary proceedings lodged against him in 2007 for which he was found guilty and disbarred. The applications were largely based on yet further new evidence and revelations that had come to light in the intervening period, which he believed were exculpatory quoad the criminal conviction and in turn the basis of his disbarment. 11. For purposes of prosecuting the first motion, the Complainant sought leave to appear in person. The Complainant also objected to the then Chief Justice (CJ) and the Senior Puisne Judge (SPJ) forming part of the bench that was empanelled to hear his motion in view of litigation he had instituted against them in which he made damning allegations about their conduct. His objections regarding constitution of the bench were dismissed. 12. On 22 February 2011 when the matter was called for hearing, the Complainant realized that even the bench was unusually constituted of five judges. The Complainant objected to four of the judges forming part of the bench because they were respondents in proceedings instituted by him in person and which were pending as at that date. He thought that those judges should not sit in judgment on an issue that would affect the other proceedings he instituted in person. His objections were dismissed. 13. On the same day, the respondents to the motion objected to the Complainant's request for leave to appear in person and to the motion papers being lodged in his name as opposed to by an attorney. The basis of the objection was that the Supreme Court Rules 2000 do not permit litigants to initiate proceedings in person, except through an Attorney. The Rules in question repealed and replaced the previous Rules of the Supreme Court, 1903 which expressly permitted any person to institute proceedings in person. The point was argued by all the parties including the Complainant and the Supreme Court reserved its ruling. On three subsequent occasions pending the ruling, the Complainant made further written submissions in support of the position he had advanced in response to the respondents' objections. Page 3 of 45 ti.tri;,11, Un!O'lv!# t: African Commission on Human and Pe w 31 Bijilo Annex Layout, Kombo _i . West Coast Re «/ Phone: (220) 230 4361 Fax: (22 41 'ooi,yq,,_ _,, r.c,<>Q ,q'-�"; FJ?icAltl��. ;1g f· Email: au-banjul@africa- f . ·. �•£ n DES\>�.,# https:/achpr.au.,nt/0·0� ·::::--·-;::7

(;i""iJ 6�!:tEf1 uuxco . Human and Peoples' Rights Human Rights our Collective Responsibility 14. Meanwhile, various cases instituted in person by the Complainant were being stayed by the Courts pending the ruling of the Supreme Court as mentioned in paragraph 13 above. 15. On 1 July 2011, the Supreme Court delivered its ruling (the 1 July 2011 ruling) upholding the objection that under the Supreme Court Rules 2000 persons cannot initiate proceedings in person. Instead, proceedings have to be initiated through an attorney, save in exceptional circumstances. The Supreme Court did not find any exceptional circumstances quoad the Complainant's motion for an order to re open his criminal case, and thus set it aside. 16. The Complainant sought special leave of theJCPC to appeal with respect to two matters: (a) the 1 July 2011 ruling of the Supreme Court; and (b) a decision in contempt proceedings instituted by the Complainant against the then Chief Justice. He states that the issue of the right to litigate in person did not arise in the second matter. On 13 December 2011 the JCPC refused the Complainant leave to appeal against those rulings because the appeals did not raise arguable points of law of general public importance. 17. The Complainant further states that since the above-mentioned proceedings, he has come to learn of various underhand machinations which he believes led to his trial, conviction, disbarment, and subsequently being prevented from instituting and prosecuting his cases as a litigant in person. The matters relate to the conduct of the then SPJ who later became the CJ. The alleged conduct, which he believes was motivated by personal vendetta against him, borders on alleged surreptitious interferences and undue influences by the then SPJ/ CJ in various proceedings concerning the Complainant. Among others, the alleged interferences included manipulating the composition of the Intermediate Court which tried and convicted him; manipulating and interfering with the prosecuting authorities; manipulation of the disciplinary proceedings against him; and influencing judicial officers who were handling his various cases. 18. In addition to the alleged interferences, the then CJ exhibited what he believes is nepotistic partiality in favour of a medical doctor by granting the latter provisional permission to practice medicine after his licence was not renewed on account of a conviction. Page 4 of 45 African Commission on Human and P 31 Bijilo Annex Layout, Kombo West Coast R Phone: (220) 230 4361 Fax: ( Email: au-banjul@af https:/ach !

- �CHP�_ ' . ACHPR ) African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 19. Following the revelations relating to the conduct of the then CJ and the latter's decision provisionally permitting a suspended medical doctor to practice, the Complainant moved the Court in February 2012 that his application for re-opening the disciplinary proceedings should be re-called. Pending the determination of this application, he also sought an interim relief allowing him to practice as the CJ had done with the medical doctor. By the time the Complainant filed his submissions on admissibility in December 2013, the Supreme Court before whom he had made his application in February 2012 had not delivered any ruling on his request for interim relief. 20. Furthermore, the 1 July 2011 ruling kept on haunting him in several other cases which he had initiated in person. In 2013 the Complainant requested that a five member bench should be constituted to revisit the issue of litigants in person as decided in the 1 July 2011 ruling. He requested the issue to be revisited in lieu of six cases (D Hurnam v The State of Mauritius & KP Matadeen and 5 other cases) in which he sought to act in person. The request was based on: (a) the fact that the JCPC which is the highest court for Mauritius allows litigants in person to initiate their appeals; (b) the fact that after the 1 July 2011 ruling and subsequent proceedings in which the Complainant was acting in person, the CJ proposed an amendment to the relevant rules to seal any loopholes in the 1 July 2011 ruling, which imply that he had a valid point that persons can institute proceedings in person; and (c) the argument that the 1 July 2011 ruling breached the equality of arms and discriminated between plaintiff and defendant litigants as the latter are allowed to defend suits in person. He states that the five-member bench he had requested was necessary since it is only a bench of that composition that could overrule the legal position enunciated in the 1 July 2011 ruling of the full bench of the Supreme Court. 21. On 2nd May 2013 his request for a five-member bench was declined by a single judge on the grounds that the issue in question had already been settled by a five member bench of the Supreme Court as per the 1 July 2011 ruling; and that there did not appear to be such magnitude in the interests at stake or such importance or intricacy of the questions of fact or law involved, in terms of section 36 of the Courts Act. 22. The Complainant states that the July 1 , 201 1 ruling continued to be invok cases in which he sought to act in person. He instituted the case of Page 5 of 45 AG��· African Commission on Human and 31 Bijilo Annex Layout, Komb West Coast Phone: (220) 230 4361 Fax: Email: au-banjul@ \ /

i,.CHP� J 6�!j,Ef1 1, 't <mw · Human and Peoples' Rights Human Rights our Collective Responsibility Hurnam v N Devat and others) by motion in 2012, initially with the assistance of an attorney. When it came up for hearing the attorney had since passed away. The question arose as to whether the Complainant could continue prosecuting as opposed to instituting the case in person following the demise of his attorney. The Judge declared his motion instituting the proceedings irreceivable on the ground that he could not act in person as his attorney had since passed on. He attempted to seize the JCPC by what is termed a leap frog appeal. However, on 12 July 2013 the JCPC declined jurisdiction as "the issue of the right to litigate in person ought to be considered by the Court of Appeal in Mauritius before any consideration by the JCPC; and the petitioner [had] not sought to have this done." 23. In yet another instance, the Complainant was a defendant in a contempt of court case brought against him by the Director of Public Prosecutions. In terms of the relevant law, he made an application for leave to summon two judicial officers to give evidence in the contempt case (Ex parte Devendranath Hurnam). The application for leave was made without recourse to an attorney and it contained an express prayer that he should be allowed to prosecute it without an attorney. The Judge in chambers set aside the application on the point in limine litis that the Complainant could not lodge and proceed with the application in person, citing the 1 July 201 1 ruling as authority for that proposition. He appealed against the judge's ruling to the Court of Civil Appeal, which he once again invited to depart from the 1 July 201 1 ruling and to revisit the decision of the judge in Devendranath Hurnam v N Devat and others (above). 24. By a judgment of 7 November 2013, the Court of Civil Appeal allowed the appeal and remitted the motion for leave to summon judicial officers to the court a quo with a direction that the Complainant be allowed to proceed without an attorney. The Court reasoned that in instituting the motion the Complainant was acting as a respondent to the contempt proceedings, and respondents are not covered by the 1 July 201 1 ruling. The Complainant states that in its ruling, the Court of Civil Appeal completely ignored his arguments to revisit the 1 July 2 decision of the judge in Devendranath Hurnam v N Devat and othe ·� q 10tv <- 4Frt1C r,.,,. · V\tf f.l -=- - Page 6 of 45 African Commis:iion on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District. West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.invO O a

Q': ::;)·· AC H P R e 1 1 . · African Commission on Human and Peoples· Rights Uillm'- Human Rights our Collective Responsibility Alleged violations 25. From his initial seizure letter and submissions on the admissibility, the Commission reckons that the Complainant alleges violations of Articles 3, 7 and 26 of the Charter. Reliefs sought 26. The Complainant prays that if the alleged violations are established by the Commission, the Respondent State should be ordered to pay compensation in the sum of Rupees 50 million. 27. Further, in his seizure letter, the Complainant requested for and the Commission declined provisional measures staying all his cases before Mauritian courts pending the decision of the Commission in the present Communication. 28. The Complainant reiterates his request for provisional measures contending that there are now exceptional circumstances "in terms of a claim being prescribed". Procedure 29. The Communication was received by the Secretariat of the Commission (the Secretariat) on 18 September 2013, and the latter acknowledged receipt by letter Ref: ACHPR/COMM/MAUR/1136/13 dated 18 October 2013. 30. The Commission decided to be seized of the Communication during its 54th Ordinary Session held from 22 October to 5 November 2013. 31. By lettered dated 8 November 2013 the Secretariat notified the Complainant about the Commission's decision and invited him to present written submissions on admissibility within two months of notification. 32. The Complainant's written observations on admissibility were received by the Secretariat on 1 8 December 2013 and receipt was acknowledged ACHPR.COMM/459/13/ MAUR/ 61/14 dated 21 January 2014. Page 7 of 45 Afunt1t,' Union\.!>' \ African Commission on Huma 31 Bijilo Annex Layout, K West Coast Region Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr au.invO O a

:CHP� . AC l-1 P R African Commission on aurm" . Human and Peoples' Rights Human Rights our Collective Responsibility 33. By Note Verbale Ref: ACHPR/COMM/459/ 13/MAUR/62/14 dated 21 January 2014 the Complainant's written submissions on admissibility were transmitted to the Respondent State with a request for the latter to submit its written observations on admissibility within two months of notification. 34. By 30 March, 2014 the Respondent State had not submitted its observations on admissibility and by Note Verbale Ref: ACHPR/COMM/459/13/550/14 dated 10 April 2014 the Secretariat informed the Respondent State that the deadlines had since passed and the Commission would proceed to consider the admissibility of the Communication based on the information available. 35. By Note Verbale Ref 147/ 14 dated 17 April 2014, the Respondent State requested for an extension of the time within which to submit its observations on admissibility. The Respondent State subsequently inquired about the status of its request for extension of time by Notes Verbale Refs: 18666/274(2014) dated 13 May 2014, and 18666/274 (2014) dated 9 June 2014 36. By Note Verbale Ref: ACHPR/COMM/459/13/MAUR/1056/14 the Secretariat informed the Respondent State that the request for extension of time was due to be considered during the 16th Extraordinary Session held in Kigali, Rwanda from 20 to 29 July 2014. 37. By letter dated 29 June 2014 the Complainant inquired about the status of the admissibility of this Communication. 38. In response to the Complainant's inqumes, by letter Ref: ACHPR/COMM/459/13/1263/14 dated 9 July 2014 the Secretariat informed the latter that the Respondent State had requested an extension of time and the Commission was due to consider it during the 16th Extraordinary Session as above stated. 39. On 7 August 2014 by Note Verbale Ref: 296/2014 the Respondent State yet again inquired about the status of its request for extension of time. 40. By Note Verbale Ref: ACHPR/COMM/ 459/13/1454/14 dated 11 August 2014 the Secretariat informed the Respondent State that during 16 th Extraordinar the Commission had granted a one month extension of time within Page 8 of 45 Afl� 11· \ Union, I \ African Commission on Human and P 31 Bijilo Annex Layout, Kombo West Coast e 10 Phone: (220) 230 4361 Fax: (22 � ..,·'./·/ Email: au-banjul@africa- -.}tin.0�1c1>. 1t'� ,,r.· ·, . •, ., . . . r. �<s:· /. '¼ _,__ https:/achpr.au .inti0.-0.!I" t ' ��:-:--· · ' -::.-:-,:-.-;:.. ., .. _/

Human Rights our Collective Responsibility Respondent State had to presents its observations on admissibility. By letter of even date Ref: ACHPR/COMM/459/13/1453/ 1 1! the Complainant was informed of this development. 41 . By Note Verbale Ref: 320/2014 dated 27 August 2014 the Respondent State submitted its observations on admissibility to the Secretariat. The latter acknowledged receipt of the submissions by Note Verbale Ref: ACHPR/COMM/459/13/MAUR/1565/14 dated 3 September 2014. 42. By letter of even date Ref: ACHPR/COMM/459/13/1566/ 14 the Respondent State's submissions were transmitted to the Complainant with a request for him to present a reply, if any, within one month of notification. 43. The Complainant submitted his reply under a letter dated 8 September 2014, which reply was acknowledged by the Secretariat by letter Ref: ACHPR/COMM/459/ 13/ 1589/14 dated 10 September 2014. By Note Verbale of even date and Ref: ACHPR/COMM/459/ 13/MAUR/1588/14 the Complainant's reply was transmitted to the Respondent State. There has been no further response from the Respondent Sate. 44. Consideration of the admissibility of the Communication was deferred during the 17th Extraordinary Session held from 17 to 28 February 2015. 45. At its 19th Extra-ordinary Session held from 16 to 25 February 2016 in Banjul, the Gambia, the Commission decided to refer the Communication to the African Court on Human and Peoples' Rights pursuant to Rule 118 of its Rules of Procedure without taking a decision on the admissibility of the Communication. 46. Subsequently, at its 23rd Extra-ordinary Session, after considering the referral brief, the Commission reconsidered its earlier decision and decided to continue to be seized of the Communication. The reason for doing so was that there were no compelling arguments for transferring the Communication to the Court. 47. By a Note Verbale Ref: ACHPR/COMM/459/13/MAUR/233/18 of 26 February 2018, the Respondent State was duly informed of the Commission's deci� continue to be seized of the Communication and not transfer it to the CG,u:f.f;� '41 //"' ..,..:-> Page 9 of 45 Afun r ' Union ..., ) j �.. African Commission on Human and �eo8 t: 3 1 Bijilo Annex Layout, Kombo"Nd'. West Coast Regi ,..b.,,.R:l.llJ.a,, ' 0 1,': Phone: (220) 230 4361 Fax: (220) .� < ·' Email: au-banjul@africa-union.org ? https:/achpr.au.int.lO O a

r, 1 6�!:j,E� p.CHPJ! ·r. (lllfff) Human and Peoples' Rights Human Rights our Collective Responsibility 48. By a letter of even date Ref: ACHPR/COMM/459/13/MAUR/234/18, the Complainant was also informed of the Commission's decision to continue to be seized of the Communication and not transfer it to the Court. 49. At its 66th Ordinary Session held virtually from 13 July to 7 August 2020, the Commission examined the Communication and declared it admissible, deciding to defer the examination of the Communication on the merits in order to give the parties time to present their submissions on the merits. 50. By Note Verbale Ref: ACHPR/COMM/ 459/13/MAUR/765/20, dated 20 October 2020, the Commission informed the Respondent State of its admissibility decision. It also informed the Respondent State that the Complainant was requested to submit his observations on the merits of the Communication within sixty (60) days from the notification or, alternatively, in.the event that it is the case, to confirm as soon as possible, and no later than sixty (60) days from the date of notification of this decision, that his submissions so far shall stand as submissions on the merits. 51. By Note Verbale Ref: ACHPR/COMM/459/13/MAUR/920/22 dated 26 September 2022, the Commission informed the Respondent State that the Complainant had confirmed that his submissions in the original complaint and the responses to the Respondent State adequately address the merits of the communication and therefore stand as his submissions on the merits. The Commission also invited the Respondent State to submit its written observations on the Complainant's submissions on the merits of the above-mentioned Notice within sixty (60) days from the date of receipt of the notification. To date, the Commission has not received any submissions from the Respondent State on the merits of the Communication. Admissibility Complainant's submissions 31 Bijilo Annex Layout, Kombo North District, We.st Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.intiO O a

(:HP: ACHPR ) Alrican Commission on onuo . Human and Peoples' Rights Human Rights our Collective Responsibility 53. Instead, the Complainant makes elaborate arguments supported by documentary evidence "to show that the Respondent [State] has violated Articles 3, 7 and 26 of the Charter." Respondent State's observations 54. The Respondent State challenges the admissibility of the Communication in respect of the claimed right to litigate in person on the ground that local remedies have not been exhausted. 55. It refers to the ruling of the Supreme Court of 1 July 2011 in which a five-member bench of the Supreme Court ruled as stated in paragraph 1 5 above and leave to appeal to the JCPC was declined in terms of paragraph 16 above. 56. It further states that despite the ruling of 1 July 2011, the Complainant has instituted multiple court proceedings which are still pending before Mauritian courts. The point has arisen and been argued in some of the cases, while in the others it has simply been taken and not yet argued. 57. Furthermore, the Respondent State refers to the Complainant's averments as captured at paragraphs 20 and 22 above and submits that on his own word, the matter of the right to litigate in person is still on going before domestic courts. In particular, the Respondent State refers to the decision of the JCPC as captured in paragraph 22 above to the effect that the issue of the right to litigate in person ought to be considered by the Court of Appeal before the JCPC could deal with it, and the Complainant had not sought to have that done. The Respondent State concludes that the issue is ongoing before domestic courts, and submits that the Complainant has not exhausted local remedies in terms of Article 56(5) of the Charter with respect to the issue of the right to initiating proceedings in person. 58. Apart from the above, the Respondent State of the Communication on any other groun � · � 0 � • Page 11 of 45 e the admissibility �tf:1±::e:s,a.1 V � <, African Commission on Human and Peopies' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.invO O a

Q:.. i"'�,- ACHPR · mum • African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Complainant's reply 59. In reply, the Complainant first highlights that the Respondent State does not advance any observations quoad his conviction by the Intermediate Court as restored by the JCPC. 60. Regarding exhaustion of local remedies, the Complainant maintains that the decision of the five-member bench delivered on 1 July 2011 and the refusal by the JCPC to entertain an appeal against that decision mean that local remedies have been exhausted with regard to the right to initiate proceedings in person. He further contends that it is plainly wrong for the Respondent State to rely on the entirely different case of Devendranath v N Devat and others, as the issue in that case was not about instituting proceedings in person, but continuance of proceedings duly commenced through an attorney who then dies while the case is pending. 61. Further, he states that the decision of the five-member bench of the Supreme Court of 1 July 2011 could not have been appealed to the Court of Appeal. He avers that the Supreme Court exercised its original first instance civil jurisdiction when it delivered the ruling of July 1, 2011. Ordinarily, the Supreme Court is constituted by one judge when disposing of matters at first instance. The CJ may however decide that any case should be heard by two or three judges sitting at first instance depending on the magnitude of interests at stake or the importance or intricacy of the questions of fact or law involved. Appeals from decisions of the Supreme Court exercising first instance jurisdiction lie to the Court of Appeal, which is a division of the Supreme Court and judges of the Supreme Court also sit as judges of the Court of Appeal, except the judge(s) who sat in the court a quo. The Court of Appeal is constituted by two or three judges. He contends that the July 1, 2011 ruling having been delivered by a five-member bench of the Supreme Court sitting at first instance, an appeal could not lie to a two- or three-member Court of Appeal to revisit the issue. He submits that there was therefore no further remedy to be exhausted, and therefore Article 56(5) of the Charter has been satisfied. 62. Furthermore, in retrospect, the Complainant addresses the other admissibility requirements under Article 56 of the Charter. He avers that he submitted the present Communication within a reasonable time after exhausting local remedies in compliance with Article 56(6) of the Charter. He states that he has discl . .-!A�=:::::::,..... identity in terms of Article 56(1) of the Charter. In relation to Article 56 Page 12 of 45 0 ..., African Commission on Human and Peop!is• Ai (°)" J 31 Bijilo Annex Layout. Kombo No West Coast Regi I Phone: (220) 230 4361 Fax: (22 Email: au-banjul@africa- � � ; � f I 1. f.." � ;: .,,·: : · ·; i

Human Rights our Collective Responsibility Charter he contends that prima facie, his Complaint compels any reasonable person or body to conclude that his human rights have been violated, and coupled with the other elements, the Complaint fulfills the ratione materiae, ratione personae, ratione temporis and ratione loci requirements. He accordingly reiterates his prayer that the Communication should be declared admissible. Analysis of the Commission 63. The Commission notes that the Complainant did not expressly address admissibility in what was supposed to be his initial admissibility submissions received at the Secretariat on 18 December 2012. In every aspect the submissions of that date address the merits of the Communication. Indeed the Complainant expressly states that the submissions are meant "to show that the Respondent [State] has violated Article 3 . . . 7 . . . and 26 . . . of the Charter". It is only in retrospect that the Complainant addresses admissibility for the first time in his reply (paragraph 55 above). 64. It is pertinent to remark that a reply under Rule 105(3) of the Commission's Rules of Procedure normally marks the close of written submissions. In this regard a reply is not supposed to address new points for the first time. I t is therefore apposite that Complainants must address all the admissibility requirements in their initial submissions, so that the Respondent State's observations are as comprehensive as it elects, and Complainant's replies are in turn focused on the State's observations. In the present case the Complainant addresses admissibility in his reply. The Commission considers that this was purely out of unfamiliarity with the procedure before the Commission as the Complainant indeed indicated as early as in his seizure letter in which he specifically requested for directions. This request was regrettably not specifically addressed. In the circumstances it became necessary for the reply to be transmitted to the Respondent State for its further observations (see paragraph 43 above). The Respondent State did not file any further observations. 65. Further, the Commission has noticed that the Senior Puisne Judge (SPJ) who later became the Chief Justice (CJ) at the time of the impugned events and whose acts and decisions form substantial parts of the Complaint is a member of this Commission. He is also a national of the Respondent State. The Commission would like to put it on record that the member in question has at no point and · O" "'4 .� ............ ,. 111 4 circumstances been involved in the consideration of this Communicati ..,. fhls�s 1?,4 ; "}�. A Page 13 of 45 Afnr,a,1r Urnori-..; African Commissicn on Human and P ' 31 Bijilo Annex Layout, Kombe West Coast R Phone: (220) 230 4361 F-ax: ( Email: au-banjul@a ,,, .;,,� ..,0 https:1achpr.a , '/ �/

r�:· �)· ACH PR \ t· • m:urn African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility in line with Rule 101 of the Commission's Rules of Procedure which the Commission observes rigorously in practice at all times. The Rule provides that "a member of the Commission shall not be present and take part in the consideration of a Communication if he or she: (a) is a national of the State Party concerned; (b) has a personal interest in the case; . . . (d) has participated in any capacity in any decision at the national level in relation to the Communication." 66. Regarding admissibility of the Communication, it is trite that the conditions under Article 56 of the Charter are cumulative and must all be satisfied for a Communication to be declared admissible. Consequently if one of the conditions is not met, the Communication will be declared inadmissible entirely or in the respects that it does not satisfy a given condition or condition(s). 2 In this regard, the Commission examines the admissibility of a Communication in respect of each condition based on the available information. 67. In the present Communication the Commission notes that the Complainant has clearly identified himself as the author acting in person which is in compliance with Article 56(1) of the Charter. Secondly, the Complaint relates to and raises prima facie violations of the rights. under, and against a State Party to, the Charter. The violations occurred within the jurisdiction of, and after the Charter had entered into force quoad the Respondent State. Article 56(2) of the Charter is accordingly satisfied in these respects. 68. With respect to Article 56(3) of the Charter, it provides that "Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they. . . are not w · ritten in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity. " The Commission has in its jurisprudence clearly settled what constitutes "disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African UnihJ, "In Communication 268/03 Ilesanmi v Nigeria, the Cormnission defined disparaging or insulting language to mean "to speak slightingly of .. or to belittle and insulting means to abuse scornfully or to offend the self-respect or modeshJ of .. ". The Commission also stated that "The language must be aimed at undermining the integrihJ and status of the institution and bring it into 2 Communication 304/05 - FJOH and others v Senegal (2006) ACI-IPR para 38; Communication 3 Economic Rights and Accountability Project (SERAP) v Nigeria (2010) ACHPR para 43; and Communica Zimbabwe Law11ers for Human Rights & Associated Newspapers ofZimbabwe v Zimbabwe (2009) ACHPR Communication 299/05 - Anuak [ustice Council v Ethiopiq (2006) ACI- IPR para. 44. Page 14 of 45 African Commission on Human and Peo ,Afnca1, 31 Bijilo Annex Layout, Kombo N Union ✓ West Coast Reg Phone: (220) 230 4361 Fax: (22 Email: au-banjul@ africa-u https:/achpr.au.:ntJO O l!ll hlA11, 4 ,. ";, O c � \· ?

Human Rights our Collective Responsibility disrepute. " In Communication 293/04 - Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, the Commission said "In determining whether a certain remark is disparaging or insulting and whether it has dampened the integrity ofthe judician;, or any other State institution, the Commission has to satisfy itself whether the said remark or language is aimed at unlawfully and intentionally violating the dignihJ, reputation or integrihJ of a judicial officer or body and whether it is used in a manner calculated to pollute the minds of the public or any reasonable man to cast aspersions on and weaken public confidence on [sic] the institution. The language must be aimed at undermining the integrity and status of the institution and bring it into disrepute. "Also in Communication 435/12 - Eyob B. Asemie v The Kingdom of Lesotho, it further stated that " [the Commission] must make sure that the ordinan; meaning of the words used are not in themselves disparaging. The language used by the Complainant must unequivocally demonstrate the intention of the Complainant to bring the State and its institution into disrepute . " 69. From all the above, it can be adduced that Article 56 (3) requires firstly, that the Communication submitted to the Commission must be written in a non disparaging or non-insulting language. This means it should not be written in a language that is belittling, abusive, scornful, disrespectful or offensive to the modesty of the institution or person. Secondly, the language used must not be intended to undermine the integrity and status of the State or its institutions or the OAU or bring them into disrepute. 70. In this Communication, no disparaging or insulting language has been used by the Complainant eithe� in the original written complaint submitted to the Commission or in its submission on Admissibility. It is only in the supporting documentary evidence attached to the original complaint that some of the language is found to be offensive. These are part of documentary evidence that was used in the prosecution of the case at the domestic level, and it is not expected that the Complainant would have to change the contents of these supporting documents for purposes of complying with Article 56(3) of the Charter. In addition, the Respondent State has not raised any issue regarding the language used by the Complainant in their submissions on Admissibility. There£ re, Article 56(3) of the Charter has been satisfied by the Complainant. �;::: 0".,��-;-;, ◄<\ 11/_.., l/-? ;j Page 15 of 45 .,, 41?1,., " 1i- 0. ,;�, � ;)\ African 31 tc. l l,op1e,• Righ1' 1 �l;lt::i�� rnbo North District. West C.:iast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjJl@afrn;a-union.org · https:;achpr.au.,ntJO O a

:·:::) AC H PR Human Rights our Collective Responsibility African Commission on . Human and Peoples' Rights 71. The Commission is also satisfied that based on the materials presented, the Communication is not exclusively based on media reports and therefore it complies with Article 56(4) of the Charter. 72. With respect to exhaustion of local remedies3, the Commission notes that whereas the conviction and disbarment occurred in 2003 and 2008 respectively, it is the motions lodged by the Complainant before the Supreme Court in 2011 for orders to re-open the criminal and disciplinary cases and what ensued afterwards that are critical. Those two motions sought to introduce allegedly exculpatory evidence and evidence of underlying covert circumstances that he alleges unjustly led to his conviction, and in turn his disbarment, which evidence was allegedly unknown to the Complainant at the time of his trial and disciplinary proceedings. 73. Significantly, the motions were dismissed by a full (five-member) bench of the Supreme Court dispatching its first instance jurisdiction Uuly 1, 2011 ruling), on the preliminary point that he could not initiate them in person as he had done. His request for permission to appeal to the JCPC on whether persons can initiate court proceedings in person was rejected by the JCPC which opined that his appeal did not raise arguable points of law of general public importance. 74. The Commission notes that the Supreme Court is the principal court of original civil jurisdiction,4 and may hear and determine all civil matters whether sitting as a Court of Appeal or in exercise of its original jurisdiction. 5 When exercising its original jurisdiction, the Supreme Court is constituted by a single judge.6 However the Chief Justice may on his or her own motion or upon an application made by a party direct that any case shall be heard by two or more judges, having regard to the magnitude of the interests at stake or the importance or intricacy of the questions of fact or law involved? 3 Article 56(5) of the Charter: " . . . Communications shall be considered if they . . . are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged." 4 Courts Act 1945 of Mauritius, s. 34(1) "The Supreme Court shall be the principal court of original civil jurisdiction and shall exercise general powers of supervision over all District and Industrial Courts and other special courts established or which may be established in Mauritius". 5 Id, s.34(2) "In the exercise of civil jurisdiction, the Supreme Court may hear and determine all civil matters whether sitting as a Court of Appeal or in exercise of its original jurisdicti _ " 6 Id, s. 35 "Every proceeding in the Supreme Court and all business roceeding shall, save as � ti-��'t 11 0 . .., provided by this Act, be heard nnd disposed of by a single judge" �,. ">� Rf "?'4, �0-o � 7 Id, s. 36 . fief I� ': �',. Page 16 of 45 �. , AfrK:an(4t� union,, )�'. Afri in .<; 11m�n H � a11 �nd Peoples' Rights ':,3 'ilo A nne� La ut !l<drnbo North District, AU,IJ,• z;,,., • 1i 4. � l ast Region Gambia , ces �n � ·J �v,1.; '1,,. �Fax: (220) 441 05 04 <4 Pi?bne: 21tl) 230,43 ..,..J:k�µ.. , ,� I /'?•e.r ,' "1,,llJI; njul@africa-union.org �:·-�- - -·-.� ai:1-n https:/a chpr.au.i nt/0 0 D

r,r) 6�!:tEB p,.CHP� Human R:ghts our Collect,ve Re::;ponsibility Human and Peoples' Rights 75. The Supreme Court also has civil and criminal appellate jurisdiction,8 and for this purpose it has two divisions which constitute the Court of Civil Appeal and the Court of Criminal Appeal. 9 Judges of the Supreme Court are also judges of the Courts of Appeal.1° Appeals to the Supreme Court sitting as Court of Civil Appeal lie from: the Supreme Court constituted by a single judge dispatching original civil jurisdiction, and other courts subordinate to the Supreme Court.11 Except as may be expressly provided otherwise in an enactment, appeals to the Supreme Court sitting as a Court of Appeal are heard before at least two (2) judges.12 The Court of Civil Appeal Act is categorical in stating that the Court of Civil Appeal shall be constituted by two (2) or three (3) judges as the Chief Justice shall in any case direct, but shall not include the judge from whose decision the appeal is made." 13 76. Further, appeals from the Supreme Court and the Courts of Civil and Criminal Appeal lie to the Judicial Committee of Privy Council (JCPC) established by the Judicial Committee Act 1 833 of the United Kingdom as amended from time to time. 14 An appeal does not lie from the Supreme Court exercising original jurisdiction to the JCPC if the appeal lies to the Court of Appeal as of right.15 The JCPC may also grant special leave to appeal directly from any court in any civil or criminal matter. 16 77. From the foregoing, it follows that the trajectory for exhausting local judicial remedies is in normal circumstances as follows: (a) from a subordinate first instance court to the Supreme Court in which case the latter sits as a Court of Appeal; (b) from the Supreme Court dispatching original (first instance) jurisdiction to the Supreme Court sitting as a Court of Appeal; (c) from the Supreme Court sitting as a Court of Appeal to the JCPC; ( d) with special leave from any court to the JCPC. The JCPC is accordingly the apex judicial appellate body for the Respondent State. s Id, s. 69(1) 9 Constitution of the Republic of Mauritius 1968 (Rev. 2011) (the Constih1tion), Art. 80(1) 10 Id, Art. 80(3) 11 Courts Act 1945, n 4 above, s. 69(1) 12 Id, s. 70 , 13 Court of Civil Appeal Act of Mauritius, Section 2(3) u The Constitution, Art. 81(1) as red together with Art. 111 ( I) ..., 1s Id, proviso to Art.81(1) � ,u 16 Id, Art. 81(5) ; :::! � :·\I Page 17 of45 Afi�n' 1 Union, � f �' J H an and Peoples' Rights " ut, Kombo North District, est Coast Region Gambia 0 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-Lrnion.org htlps:iachpr.au.int,O O a

c : �:\ ACH PR ') African Commission on � Human and Peoples' Rights Human Rights our Collective Responsibility 78. From the Complainant's averments supported by documentary evidence which has been perused by the Commission, and which the Respondent State does not dispute, it is clear that the Complainant lodged his two motions for orders to re open the criminal and disciplinary cases respectively before the Supreme Court as first instance jurisdiction. Upon being unsuccessful before the Supreme Court in terms of the 1 July 2011 he sought permission to appeal to the JCPC, the ultimate appellate judicial body, which declined to entertain his appeal on the ground that the application did not raise an arguable point of law of general importance. Clearly, the Complainant exhausted the available domestic judicial remedies, and the Commission finds accordingly with respect to events as at 13 December 2011 when the JCPC communicated its decision declining to entertain the appeal. 79. However, after the decision of the JCPC of 13 December 2011 the Complainant made several further efforts before domestic courts for the legal position adopted in the 1 July 2011 ruling to be reversed so that he could be allowed to act in person in his cases. The Commission notes that it is in respect of these further efforts that the Respondent State contends that the issue is still ongoing before domestic courts and therefore the Complainant has not exhausted local remedies. One of the cases which the Respondent State seeks to rely on in this regard is the case of D Hurnam v The State ofMauritius & K P Matadeen in which the Complainant sought to proceed in person after the demise of his attorney. The issue of whether he could so act in person arose once again, and for purposes of that issue the Complainant requested that a full bench of five judges should be constituted having regard to the points raised in the cases. The request for a five-member bench was declined by the judge to whom adminish·ative powers had been delegated at the· time. 80. In declining to empanel a five-member bench, the judge reasoned that " a full bench of five judges has already decided, in Hurnam v D.P.P. & Ors [20 1 1 SCJ 2 1 9] [the 1 July 201 1 ruling], the question relating to the need of having recourse to an attorney for the institution of proceedings before the Supreme Court . And any questions pertaining to the precise implication of that judgment can properly be decided by any ordinary bench. In relation to the other points for determination . . . there does not appear to be of such " magnitude" in the "interests at stake" or such r law involved" as to warrant the "importance or intricacy of the q ..,"> cJ..i <, "1 r 4 setting up of a full bench. . . " ��'4� �, 1 fli". <"\\ 0 p .,., . • . .· ,,,... /i n • mission on Human and Peoples' Rig hts lo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banj ul@ africa-u n ion .org https:/achpr.au.int/0 0 D

ACHPR African Commission on • Human and Peoples' Rights Human Rights our Collective Responsibility 81. The Commission notes that even though the final decision on D Hurnam v The State of Mauritius & KP Matadeen was not delivered, at the time the Communication was filed before the Commission, the decision of the judge in declining the request for a five-member bench clearly shows that the court regarded the 1 July 201 1 ruling to have settled the issue of whether the Complainant could institute proceedings in person and that the two-member bench in D Hurnam v The State of Mauritius & KP Matadeen were not going to revisit the issue substantively. 82. The second case in respect of which the Respondent State contends that the issue is ongoing before domestic courts is Devendranath Hurnam v N Devat and others in which the Complainant sought to proceed with a motion in . person after his attorney's demise. The judge declared the motion irreceivable because the Complainant could not make that motion in person, relying on the proposition in the 1 July 2011 ruling. The Complainant sought special leave to appeal directly to the JCPC, leap-frogging the Court of Ci_vil Appeal. The JCPC declined special leave on the ground that the Complainant had not first sought to appeal to the Court of Appeal (see paragraph 22 above). 83. The Respondent State seeks to rely on the reasoning of the JCPC in declining special leave in Devendranath Hurnam v N Devat and others as indicating that the issue can still be considered by the Court of Appeal and therefore local remedies have not been exhausted. 84. However, it should be noted that the judge's decision in Hurnam v The State of Mauritius & K P Matadeen refusing to empanel a five-member bench, thereby foreclosing the possibility of the Court of Appeal revisiting the issue of instituting proceedings in person, was made in May 2013. As noted above, by that date it was apparent that the Court of Appeal would not revisit the issue with the possibility of changing the legal position in the 1 July 2011 ruling. The JCPC on its part declined to entertain the appeal in Devendranath Hurnam v N Devat and others in July 2013 on the basis that the issue had to be considered by the Court of Appeal first, the very court whichhad earlier in May 2013 already indicated that the issue was already settled and not subject to reconsideration. 85. Therefore, unless the foreclosure of revisiting the issue in Hurnam v The State o Mauritius & K P Matadeen was unknown to the JCPC at the time it decl' f&�•:·_:_ · ._ ::: : -. Page 19 of 45 African Commission on Human and Peo / / /'"' � �ls, Ri tse � 31 Bijilo Annex Layout, Kombo Nott!, !ois rict, L _! 0 West Coast Reg, � � bia AUPhone: (220) 230 4361 Fax: (22 41 �_g Email: au-banjul@africa- iOJ,1 ��,c .. 0

ri:fV 6�!:tEfi �(.aHm • Human and Peoples' Rights Human Rights our Collective Responsibility entertain the appeal in Devendra11ath Hurnam v N Devat and others, the JCPC contemplation that the Court of Appeal had yet to consider the issue would be tenuous as a ground for supposing that the issue is still ongoing before domestic courts as the Respondent State suggests. 86. The issue also arose subsequently in the same year in yet another case of Ex parte Devendranath Hurnam. The Judge in dealing with the procedural issues in chambers and relying on the 1 July 2011 ruling, decided that the ex-parte application cannot be instituted by the applicant in person/without recourse to an Attorney and on appeal, the Complainant once again requested that the issue of litigating in person should be reconsidered (see paragraphs 23 and 24 above). The Court of Appeal's decision on 7 November 2013 in this case clearly shows that: (a) the Complainant's request was ignored; (b) the Court of Appeal still regarded the issue as settled in the 1 July 201 1 ruling as sacrosanct. The Court however, allowed the appeal on the ground that in filing the ex-parte application, the Complainant was acting as a Respondent and is not covered by the 1 July 2011 ruling. 87. From all the cases cited above, the Commission is of the view that the Court of Appeal had taken a firm position not to revisit the 1 July 2011 ruling that the Complainant could not institute proceedings before the Supreme Court in person. The Commission also finds that, despite the fact that the 1 July 201 1 ruling affected any other person who would institute proceedings in person, the JCPC as a court of last resort earlier took the view that it could not consider the issue as it is not an arguable point of general public importance to warrant attention. 88. In light of the above, the Commission is convinced that there was no other court the Complainant could go to in Mauritius to get redress on this issue.. The Commission accordingly finds that the Complainant had exhausted local remedies initially as at December 2011 and later on upon further attempts by July 2013 when on both occasions the JCPC, the court of last resort, declined to entertain his appeals on the issue of litigating in person. 89. Further, the Commission notes that the Complainant's motions for orders to re open the criminal and disciplinary cases were dismissed by the Supreme Court. The decision dismissing the motions is what gave rise to the issue of litigating in person. The disciplinary case is inextricably connected to the criminal cas �=:::::-....... ,. . t' Atncan 1 Union,� Page 2 African Commission on Human and P 31 Bijilo Annex Layout, Kombo West Coast R Phone: (220) 230 4361 Fax: (2 Email: au-banjul@afr hnps:/achpr. i if. �

r, r.J 6�!j,E,� p,.CHP/1 <nuw. • Human Rights our Collective Responsibihty Human and Peoples' Rigtits the latter that led to and forms the basis of the former. The criminal case was already considered by the JCPC, the court of last resort, which restored the conviction and sentence. The Complainant attempted to have the criminal and disciplinary cases re-opened in light of alleged exculpatory evidence and underhand machinations that allegedly led to his conviction and subsequent disbarment. Those attempts were dismissed on account of the issue of litigating in person in respect of which an appeal to the JCPC the apex court was declined. 90. In the circumstances, the Commission considers that the Complainant exhausted local remedies in respect of the criminal case and the disciplinary action taken against him as a barrister. The rest of the issues are incidental to the criminal case, the disciplinary action and the issue of the right to litigate in person. Accordingly, the Commission is inclined to find, and holds that for all purposes the Complainant exhausted local remedies. It must be observed however, that in so finding, the Commission does not purport to prejudge the merits of the issues at hand. The issue as to whether provisions of the Charter have been violated will be considered subsequently at the merit stage, if the Communication satisfies the remaining admissibility conditions. 91. Regarding Article 56(6) of the Charter which requires that communications must be submitted within reasonable time after exhaustion of local remedies, the Commission recalls its jurisprudence that in determining whether a complaint has been submitted within reasonable time, each case has to be considered on its own circumstances.17 In the present Communication the critical point at which local remedies were exhausted is 12 July 2013 when the JCPC, the apex judicial authority for the Respondent State, declined to entertain the relevant appeal by the Complainant. It is about two months from 12 July 2013 to 18 September 2013 when the Complainant submitted the present Communication. The Commission is satisfied that a period of two is within reasonable time and accordingly this Communication satisfies Article 56(6) of the Charter. 92. Lastly, whereas the Complainant first attempted to submit the complaint to the African Court on Human and Peoples' Rights, the latter declined jurisdiction as the Respondent State has not ratified the necessary instrument to be impleaded before that Court. There is nothing suggesting that he approached an.o �:,::t �::::::::..... r .,<c- ' 1 7 Cornmunicat10n 308/0:> - Micha1•/ M,.1_:,m, 11 7,iml,al,wl' (2008) ACHPR para. 109. ... .. Atric.a'l• ' Unio'l I Page 21 of 45 African Commission on Human and P 31 Bijilc Annex Layout, Kombo West Coast Re Phone: (220) 230 4361 Fax: (220 Email: au-banjul@africa , _ } 1) "'_\, ,>"'�; 1 ,____ icA1 ._ 0::_�;;; _; '· 7 --.;:;;�-� h•tps:/achpr.au.int,O O a

Human Rights our Collective Responsibility international mechanism for redress in accordance with "the principles of the Charter of the United Nations, or the [Constitutive Act of the African Union] or the provisions of the . . . Charter"18. In this regard, the Commission does not reckon any issue relating to Article 56(7) of the Charter, and the Communication is compliant with the condition under that provision. 93. In view of the foregoing, the Commission declares the Communication admissible . Merits Complainant's Submissions 94. The Complainant declares himself to be aggrieved and dissatisfied with the decision of the Supreme Court of Mauritius preventing him from litigating in person, which decision was subsequently upheld by the Judicial Committee of the Privy Council (JCPC). The Complainant avers that by Interlocutory Judgment of 1 July 2011 (1 July 2011 Ruling), the Supreme Court decreed and declared among other things that all legal proceedings in the Supreme Court of Mauritius shall be commenced by an Attorney-at-law to the exclusion of a litigant in person. The Complainant avers that, in its Interlocutory Judgment, the Supreme Court dismissed his application because it was "drawn up in person by the appellant in person without having recourse to an attorney". 95. The Complainant further considers that the Supreme Court's decision of 30 January 2008 to strike his name off the Roll of Law Practitioners on the basis of his conviction was outrageous. He claims that following receipt of fresh exonerating evidence, he sought to move the Supreme Court to order the re-opening of the criminal trial in which he was convicted and the disciplinary proceedings which led to his disbarment, but he was unsuccessful in both endeavours. 96. The Complainant avers that two motions were introduced to the Supreme Court respectively on 21 February 2011 and on 5 June 2011. Through those two motions the complainant sought to introduce allegedly exculpatory evidence and evidence of underlying covert circumstances that he alleges unjustly led to his conviction, and subsequent disbarment, which evidence was allegedly u v"' , ., � the Complainant at the time of his trial and disciplinary proceedin /•':, c •" •:• .,\ : : � 1 1s The Charter, Art. 56(7) A5ri�, '\ Page 22 of 45 � '3 �l _; � ' \,!ii � i' P�tWs' R' lffe ;; African Commission on H J. n\ 31 Bijilo Annex Layo Ko"� �rr,i\t� . Wes �� tOi'f?ar:�.a".Phone: (220) 230 4361 · 20)�·04 Email: au-banjul@a rica-=i:i'nlci'n.org https:/achpr.au.int,O O a

ACHPR Human Rights our Collective Responsibility African Commission on Human and Peoples' Rights 97. The Complainant avers that the motion before the Supreme Court to re-open the disciplinary proceedings settled by himself was listed for 2 July 2011 but the five bench Judge decreed that all proceedings before the Supreme Court must be instituted by an Attorney pursuant to Rule 3(3) of the Supreme Court Rules 2000. He avers that he had thereafter retained the services of an Attorney but the latter passed away on 3 August 2012. He further alleges that he had previously settled motions and affidavits without recourse to an Attorney with no objection either from the parties or from the courts. 98. The Complainant avers that he sought to appeal to the Judicial Committee of the Privy Council but, on 13 December 2011, his application for special leave was refused. In rejecting his application for leave to appeal, the JCPC reasoned : "the applications do not raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at this time, bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal and because it would be an abuse of process to permit the appellant to argue issues which were not the subject of decisions by the Court below," which reasoning the Complainant contends is incorrect. 99. The Complainant submits that, contrary to the JCPC's findings, his complaint raises several arguable points in law of fundamental importance, that it relates to unwarranted restrictions placed by the court in relation to the protection of the law and due process, together with questions of great general public importance which ought to be examined and determined by the Supreme Court. 100. In his submissions, the Complainant also questions the impartiality of the Court. He cites a number of court proceedings instituted by himself against judges and judicial officers, including the then Chief Justice and other state officials. He notably alleges that, on 21 and 22 February 2011, during hearings before the Supreme Court, the Chief Justice displayed an unwillingness to allow the Complainant to address the Court until he was invited to do so by another Judge of the same Bench. He also points to a number of alle ed family ties between judicial officers and other unconfirmed unethical b 'allegedly made 7,_..,, c,te,R 41?14I 4 i<' ::9 the them acting in a biased way against him.1 �l o ;;hltii�� 19 See paras. 17-19 above. V o 1f" ;f � � ,;. i g ""l z:. ";, Page 23 of 45 AU-UA � � • iJ ',i' �-i;, ""--..- o"-"<Y"'"' � African C hili§.{�16Alffu�t 31 Biji � Pa, ombo North District, est Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org hnps:/achpr.au.int/0 CJ a

r) c� !:LEB p.CHPII j Human Rights our Collective Responsibility Human and Peoples' Rights 101. The Complainant then put a number of questions to the Commission for determination. For the sake of concision and ease of understanding, the Commission has summarized those questions in the following paragraphs. 102. The Complainant wants to obtain a determination as to whether that the Supreme Court erred by ruling that Rule 3(3) Supreme Court Rules 2000 is mandatory in the institution of proceedings " before this Court as well as the institution of proceedings before a Judge in Chambers, now requires recourse to an attorney". The Complainant submits that the Supreme Court has thus breached the right to the protection of the law and due process and procedural rights of access to courts [guaranteed by the African Charter on Human and Peoples' Rights]. 103. He submits that the integrity of the trial process was breached because of the participation of the Chief Justice and the Senior Puisne Judge in hearing the matter, in view of the challenge made against them by the Complainant. He claims that the Chief Justice who assigned the bench of 5 Judges, including himself, to decide his case has been judge in his own cause. 104. The Complainant submits that the invariable consistent stance of the Supreme Court having heard and decided several cases where [the Complainant] personally initiated all such proceedings in person until 2011 is testimony to the wider principle of the protection of the law, direct access to court and not "the result of an oversight" as the Court puts it. 105. The Complainant further submits that, to his view, the repeal of Rule 60 of the 1903 Court Rules was intended to provide effective right to direct access to the courts and the introduction of a provision in the Fourth Schedule of the Legal Fees and Costs Rules 2000 pursuant to Section 198 of the Courts Act that reads "There shall be paid into the Consolidated Fund, by the attorney of the party concerned or where no attorney is employed, by the party, the fees paid in Part A of the Schedule" was meant to dispense the services of an attorney. 106. The Complainant also contends that the repeal of RuleJL -='tt-u: existence of express provisions in the Fourth Sch�f�-• jurisdiction or residual discretion to the Supreme Coui,tl Page 24 of 45 3 and the herent ii! 3 n African Comm'�!,i � 31 Bijilo An Phone: < Rights Em �� ambia 1 05 04 - nion.org https:/achpr.au.inuO O a

1;,..�1 6�!:LE� �<iu:ff() • Human and Peoples' Rights Human Rights our Collective Responsibility 107. The Complainant submits that the Supreme Court acted contrary to the equality of arms principle in that its interpretation discriminates between a plaintiff and a defendant as the latter is not bound to retain services of an attorney to defend or resist an action. 108. These facts, so the complaint contends, amount to violations of articles 3, 7 and 26 of the Charter and this is what the Commission will determine. 109. In support to his claims, the Complain cites a number of statutory provisions, notably Section 17, 36, 56 and 198 of the Courts Act, Rule 3 of the Supreme Court Rules 2000, Rule 1, 2 and 3 of the Legal Fees and Costs Rules 2000. The Complainant also adduces a number of documentary evidence. 110. In substance, the Complainant claims the right to litigate in person or in other words the right to access to the courts and to defend himself without retaining the services of an attorney, in order to seek the re-opening of both the criminal matter which led to his conviction and incarceration for six months and the disciplinary proceedings that led to his disbarment. Failure by the Respondent State to make observations on the merits 111. By Note Verbale Ref: ACHPR/COMM/459/13/ MAUR/920/22 dated 26 September 2022, the Commission informed the Respondent State that the Complainant had confirmed that his submissions in the original complaint and the responses to the Respondent State adequately address the merits of the communication and therefore stands as his submissions on the merits. The Commission further invited the Respondent State to submit its written observations on the Complainant's submissions on the merits on the abovementioned communication within sixty (60) days of receipt of the notification. To this date, the Commission has not received any submissions on merits from the Respondent State. 112. On several occasions, the Commission has made it clear that where allegations of violations of provisions of the African Charter go uncontested Government concerned, the Commission must decide on the facts pr Complainant and treat those facts as given, as was determined \..,,.,..1.. Africanr '' Union � Page 25 of 45 African Commission on Human an 31 Bijilo Annex Layout, Korn West Coa Phone: (220) 230 4361 Fa Email: au-banjul https:/achpr.au.int/00 a

{""r,, ACHPR � · African Commission on Human and Peoples' Rights au:no · � Human Rights our Collective Responsibility Assistance Group, Lawyers 1 Committee for Human Rights, Union Interafricaine des Droits de l 1 Homme, Les Temoins de Jehovah v. DRC. 20 This principle will be followed in the present communication . 1 13. It is understood that the facts as alleged by the Complainant are not the only consideration in determining the case. Not only they will be assessed for their own merits, which must be supported by convincing evidence, but also they will be wighted against Charter provisions and other applicable norms. As further refined in Uwimana-Nkusi & saidati Mukakibibi (represented by Media Legal Defence Initiative) v. Rwanda " the Commission must give due weight to the Complainant's allegations insofar as these have been adequately substantiated".21 In order words, the Commission will make its mind on the sole basis of the information availed to it. Commission's analysis of the merits 114. From the outset, the Commission wishes to make it clear that it is not mandated and does not concern itself with the interpretation of domestic law. Its mandate is limited to determining whether a specific legislation, decision or conduct violates any of the rights enshrined in the African Charter on Human and Peoples' Rights. 115. Likewise, should a violation of any provision of the Charter be found on the basis of an analysis of the facts against the provisions of the said Charter, the Commission shall not endeavour to weigh arguments or the new evidence that the Complainant seeks to adduce before the Supreme Court and Judicial Committee in order to request a review of his conviction and ensuing disciplinary measures, which are the exact matters for domestic courts to determine. The analysis of the Commission will limit itself to determining whether the refusal by the Supreme Court and the JCPC to grant leave to appeal and entertain a matter brought before them by an individual in the circumstances of the Complainant acting on their own behalf, without the assistance of an attorney, is a violation of the provisions of the African Charter or otherwise. 2° Communications 25/89- 47/90- 56/91- 100/93 Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de !'Homme, Les Temoins de Jehovah v. DRC (2017) ACHPR, aras. 40. See also Communication 292/04, 1nstilute for Human Rights and Development in Africa v. Republi para. 34. 21 Communication 426/12 Agnes Uwimana-Nkusi & Saidati Mukakibibi (represented by Initiative) v . Rwanda (2019), ACHPR, para. 30. Page 26 of 45 African Commission on Human " ?'�.. r Afican , 31 Bijilo Annex Layout, K Union � West Co Phone: (220) 230 4361 Fa

ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 116. The Commission wishes to reiterate its position as clarified in its jurisprudence that in line with the principle of subsidiarity, and article 56(5) of the Charter which requires the exhaustion of local remedies before filing communications with the Commission, it does not serve as an 'appellate body' quoad national court decisions and that, "in assessing the compatibility of the ruling of a national court with the African Charter, the African Commission does not act as an appellate body with powers to overrule the decisions of national courts, but simply discharges its mandate of ensuring compliance by a State Party, with the provisions of the African Charter in its interpretation and application of the law".22 117. As a matter of consequence, it has been held in Agnes Uwimana-Nkusi & saidati Mukakibibi (represented by Media Legal Defence Initiative) v . Rwanda, "the Commission in this particular case does not intend to examine whether the national courts applied its national laws correctly to the facts, but rather, what the Commission will determine is whether the law in itself, and the procedure of the Court in its application of the law is consistent with the African Charter."23 118. Likewise, in the present instance, the Commission does not purport to examine whether the Supreme Court and the JCPC applied the domestic law provisions correctly to the facts, but rather, whether in interpreting and applying domestic law including the Supreme Court Rules 2000 to the effect of preventing the Complainant from litigating his case in person, they acted in a manner consistent with the African Charter or otherwise. Alleged violation ofArticle 3 119. Article 3 of the African Charter provides : "1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law". 120. According to the Commission, equality before the law includes 'equality in the administration of justice', meaning that 'all individuals should be subject to the Ali�nr- \ Union\.�

ACHPR r· African Commission on Human and Peoples' Rights : ' ; �CHP�. \ ·· Human Rights our Collee;tive Responsibility ·cnu:rn � same criminal and investigative procedures in the same manner by law enforcement and the courts'. 24 121. The Commission has severally explained that article 3 is a complement to article 2 aimed at protecting people from discrimination in legal proceedings. It has held in Communication 253/02 Antonie Bissangou v Congo that 'Article 3 of the African Charter contains a general guarantee of equality which supplements the ban on discrimination provided for in Article 2'. 25 122. Likewise, in Communication 286/2.004, Dino Noca v DRC, drawing inspiration from the case of Brown v Board of Education of Topeka according to which "equal protection by law refers to the right ofeveryone to have equal access to courts ofjustice and to be treated the same way by the courts, both for procedures and for the essence of the law. It is akin to the right to due process oflaw, but applies in particular to equal treatment as an element offundamental equih/11 the Commission found that the right to defence and principle of right to equality before the law were violated, partly because the complainant was unable to present its defence following the rejection of a request for resumption of proceedings by the aggrieved party. 26 123. In the present communication( the Complainant's request for leave to appeal to the JCPC in order to be allowed to litigate in person was rejected by the JCPC which opined that his applications " do not raise an arguable point of law of general public importance." 27 The question before this Commission is whether the refusal by the Supreme Court and the JCPC respectively, to grant leave for appeal to the Complainant to present his case in person without the services of an attorney violated his rights under the Charter. 124. It also appears that after the decision of the JCPC of 13 December 2011, the Complainant made several further unsuccessful attempts before domestic courts for the legal position adopted in the 1 July 2011 ruling to be reversed so that he could be allowed to act in person in his cases. The said attempts include the institution of the case D Hurnam v The State ofMauritius & KP Matadeen, where the 24 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 177. 25 Communication 253/02 Antonie Bissangou v Congo, 29 November 2006, para 70. 26 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 203; also affirmed in Communication 293/ 4 Zimbabwe Lawyers for Human Rights and Development in Africa v. Zimbabwe, para. 126. 27 Devendranath Hurnam v Director of Public Prosecutions & Others, JCPC, 13 De Page 28 of 45 African Commission 31 Bijilo Anne Phone: (220) Email: 1�@��;,ri . rg https:/achpr.au.int/0 0 D

. • �CHP�• • ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Complainant sought to proceed in person after the demise of his attorney, and again his request was rejected. 28 125. The Commission is of the view that the personal right to appear in court and litigate one's case in person is protected under the African Charter, and in the circumstances of the present case, where an individual's career, reputation, and the likelihood that a decision in a case will set a precedent and resonate on all present and future members of an entire profession, all litigants in person, and the general public, make the protection of this right all the more necessary. The state's intervention in this case, citing "a collateral attack" that "is contrary to public policy and amounts to an abuse of process" seems to reinforce this position. 29 . 126. Moreover, the Commission notes that, in the 1 July 2011 Ruling, the Supreme Court held the view that "the new regime introduced by the Supreme Court Rules 2000, should henceforth be applied with due rigour," without indicating the reasons why it henceforth wanted to depart from previous practice and why in any case the 1 July 2011 Ruling should not apply only 'henceforth', i.e. on future cases and not operate retrospectively. In this respect, the Complainant's submission that "the decision in D Hurnam v DPP & Others to the effect that the new regime introduced by the Supreme Court Rules 2000 should henceforth be applied with rigour can only mean to apply subsequent to the said judgment" is upheld. 127. The rights to equality before the law and to equal protection of the law entail that parties to legal proceedings must be given equal opportunity to prepare and present their case. They must be able to defend their case in court on an equal footing. If the State does not afford the Complainant the same treatment it accorded to the other party, or if the State accord favourable treatment to others in the same position as the Complainant, that would be unfair treatment in violation of article 3(2). 128. That position was explicitly held in Communication 294/04, Zimbabwe Lawyersfor Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, where the Commission stated that the-�lte:::::::... ()N ""M.i 4 must ensure that any parties to a dispute are 'placed on equal footing /o!tl-y "in. 1?,::1,;·• . ,,.,. vo 1 � <{ _, o I! i 28 See paras. 21-23, 61, 74 & 80-82 above. AU-UA .j. \ Devendranath Hurnam v. Kailashing Bho/ah and Soobashsing Bholah; Privy Council Appeal No 0102 20� .5 29 ._.,.,► i�l,) Page 29 of45 ";, \·. . \', - ,\ ✓' · C "�<>,. ,Alltf-at> �-,// African Commission on Human and Peop ' gb s�""-.,: -31 Bijilo Annex Layout, Kombo North oirs , iti=i;i;:;::� West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 a I / 1

;· � ACH PR Q · · African Commission on mwc· � Human and Peoples' Rights Human Rights our Collective Responsibility the manner in which the law is formulated, but also, as in this case, the manner in which the implementation of that law is conducted' . 30 129. In this respect, the protection accorded to litigants against unfair discrimination is very much similar to the general non-discrimination clause under article 2. The Commission has insisted that "the premise under Article 3 of the African Charter is that . . . the State has an affirmative duty to prohibit discrimination and ensure that all persons are protected by the law and are equal before the law" . 31 130. In Purohit and Moore v Gambia (The), in determining the extent to which a piece of legislation imposing indefinite institutionalization to a category of people referred to as 'lunatics' was discriminatory, the Commission considered whether the concerned individuals were able to challenge their detention in designated institutions. The Commission noted that those who were most likely to be assigned to that regime were those who lived on the streets or who were poor, and that in reality those who were wealthy enough to afford the services of a lawyer would be able to contest any such confinement. The Commission concluded that this situation 'fails to meet the standards of anti-discrimination and equal protection of the law as laid down under the provisions of Articles 2 and 3 of the African Charter'. 32 131. In the present communication, the Complainant submits that the Supreme Court, acted contrary to the equality of arms principle in that its interpretation discriminates between a plaintiff and a defendant as the latter is not bound to retain services of an attorney to defend or resist an action. The Complainant argues that Rule 4(b) of the Supreme Court Rules stipulates that the defendant or other party may appear in person or be represented and that these rules cannot be interpreted to discriminate between parties to a suit. 33 Rule 4(b) reads as follows: "Every plaint shall specify [. . . ](b) that a failure by defendant or other party to appear or be represented may result in the Court delivering judgment against him in favour of the plaintiff in terms of the plaint". 30 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe (2009), AC -IJ;Bl-;:::P:R!a::�:See also Communication 323/06, n24 above, para. 176. L 1 -c,9 "'t cF>� 4 '?,4,�.1,; 3 1 Communication 323/06, n24 above, para 175. ,�, 32 Communication 241 /01, Purohit and Moore v Gambia (The), 29 May 2003, para 54 :}' 33 Complainant's Submissions, 5 December 2023, received 18 December 2023, p .4. 1 Af�nr�,, UrnonW Page 30 of 45 African Commission 31 Bijilo Annex L· Email: auhttps:/achpr.au.int/0 0 D

ACHPR Human Rights our Collective Responsibility African Commission on Human and Peoples' Rights 132. The Complainant further submits that the repeal of Rule 60 of the 1903 Court Rules was intended to provide effective right to direct access to the courts and invokes the introduction of a provision in the Fourth Schedule of the Legal Fees and Costs Rules 2000 pursuant to Section 198 of the Courts Act that reads "There shall be paid into the Consolidated Fund, by the attorney of the party concerned or where no attorney is employed, by the party, the fees paid in Part A of the Schedule". This provision, so goes the Complainant's argument, was meant to dispense the services of an attorney. 34 133. The Complainant has requested the Commission to determine whether the Supreme Court erred by ruling that Rule 3(3) Supreme Court Rules 2000 is mandatory in the institution of proceedings " before this Court as well as the institution of proceedings before a Judge in Chambers, now requires recourse to an attorney". The Complainant posits that those rules are directory ("Rules made under subsection (1) may provide for the practice and procedures before any court"). 134. The Commission considers that this question cannot be settled by the Commission because it relates purely to domestic law. The Commission will not venture into interpretation and determination of domestic law. For the purposes of addressing the present communication, suffices it to say that any domestic legislation to the effect of making recourse to an attorney " mandatory" for a litigant would violate the African Charter. 135. That domestic legislation, executive decrees and judicial decisions must conform to international obligations of a State Party to the African Charter as well as established principle of the African Commission since Civil Liberties Organisation v Nigeria. The complaint in this communication involved a purported nullification of the effects of the Charter on domestic matters. The Commission held: "the obligation of the Nigerian government to guarantee the right to be heard to its citizens still remains, unaffected by the purported revocation ofdomestic effect of the Charter. "35 136. The Commission is of the view that the application of Rule 3 of the Supreme Court Rules 2000 to the effect of preventing the Complainant to appear and conduct their case in person, without the assistance of an att � ll "-i �,.. ,, 34 A s above, p. 5 . v· 1· 35 Communication 129/94, Civil Liberties Organisation v Nigeria (1995), ACHPR, para. 2 Page 31 of 45 A�nt\\ Union\ .; �,!. African Commission on Hu 31 Bijilo Annex Layout Wes Phone: (220) 230 436 Email: au-banjul@africa-union.org https:lachpr.au.int/0 C> a

ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility discriminatory and in breach of the equality of arms but also because those who are unable or unwilling to use the services of an attorney will be deprived of their right to be heard by the Court. 137. It is clear that the prohibition under Rule 3 of the Supreme Court Rules 2000 has the effect of discriminating against those without the means or the willingness to avail themselves of the services of an attorney. And this conclusion holds irrespective of the fact that the Complainant was disbarred since the protection established under Article 3 applies to 'every individual'. If disbarment based on a lawful conviction and following a fair disciplinary action can indeed be justified and prohibit convicted attorneys from representing others in court36, it would be untenable to hold that such retrogradation should also prevent the same disbarred individuals from representing themselves as 'every individual'. This could have serious consequences in cases where the disbarred attorney does not have the necessary means or trust to have recourse to an admitted attorney. 138. Judges and administration officials should 'not act arbitrarily in enforcing laws'.37 There should consequently be no 'position of imbalance' 38 and the individual should have 'the same opportunity as his opponent to present his arguments by enjoying equal consideration in accordance with the procedural requirements and standards provided for by the law and which were applied by the same domestic court in respect of' the other party, as was held in Communication 302/05, Maftre Mamboleo M. Itundamilamba v Democratic Republic of the Congo.39 139. Equal protection of the law (article 3(2)) has been interpreted as meaning that 'no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or class of persons in like circumstances in their lives, liberty, property and in their pursuit of happiness'. 40 Thus, 'similarly situated persons must receive similar treatment under the law'.41 36 This question was determined in Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para . 41. 37 Communication 294/04, n30 above, para 96; Communication 323/06, n24 above, para. 9 38 Communication 302/05, Maitre Mamboleo M. Itundamilamba v Democratic Republic 2013, para 100. 39 As above, para 101. 4° Communication 323/06, n24 above, para 174; Communication 294/04, n30 above, par 41 Communication 294/04, n30 above, para 99. Page 32 of 45 Afr�nt! �\ Unoolt-� ,., l . .£ � -a. an � , ....--;;;-�. �ng1>1 � o African Commission on Hu 31 Bijilo Annex Layout, West � �Cog Phone: (220 ) 230 4361 F Email: au-banjul@africa- u nion.org https:/achpr.au.int/0 0 a

/ / p.CHP#l - � ,' ·, \'' -\ / I . ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 140. The Commission has held that a violation of Article 3(2) needs to show that 'the Respondent State had not given the Complainant the same treatment it accorded to the others. Or that, the Respondent State had accorded favourable treatment to others in the same position as the Complainant'.42 141. In the present instance, the Commission finds that, by refusing the Complainant the right to litigate in person which is not refused to the representative of the State and can only be afforded by individuals with the necessary means, in terms of Rule 3 of the Court Rules 2000 and the 1 July 2011 ruling, the Respondent State is in violation of article 3(2) of the Charter. Alleged violation ofArticle 7 142. Article 7 provides as follows: 1 . Even; individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts of 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 can be imposed only on the offender. 143. The right to fair trial is of utmost importance. Parties to a trial must be afforded due process. The Commission provided further clarification on the meaning of Article 7 in Kenneth Good v. Republic of Botswana, in which it asserted that the right to be heard requires that the Complainant should enjoy unrestricted access to a court of competent jurisdiction to have his case heard.43 The Commission considered that "when the authorities put impediments in the way to prevent 42 Communication 294/04, n30 above, para 101. 43 Communication 313/05 - Kenneth Good v Republic of Botswana (ACHPR) para 16 Communication 286/2004, n26 above, paras. 191. Ati�nr�, Union\!¥ Page 33 of 45 "> African Commission on Human an 31 Bijilo Annex Layout, Korn West Coas Phone: (220) 230 4361 Fax: Email: au-banjul@afn https:/achpr.au.i nt/0 0 a '

_ p,.CHP� . ' . I, ,,/, ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility victims from having access to competent courts, they deprive victims of their right to have their case heard" . 44 144. In determining violations caused by the refusal to reopen the case and give the aggrieved party 'an opportunity to present his defence' in Dino Noca v DRC, the Commission held the view that the final judgment which rejected an obligation to reopen the proceedings to hear the position of Dino Noca deprived him of the right to have his case heard. 45 145. Enhancing the guarantees of Article 3 in relation to judicial matters, Article 7 protects the right to access to the courts et equality before the courts. The essential elements of fair trial include: "equality of all persons before any judicial body without any distinction whatsoever as regards race, .colour, ethnic origin, sex, gender, age, religion, creed, language, political or other convictions; national or social origin, means, disability, birth, status or other circumstances" 46 (emphasis added). Equality before the law must be ensured before any judicial body and in any legal proceedings.47 146. The principle of equality before the courts means that every person appearing before a court has the right not to be discriminated against either in the course of the proceedings or in the way the law. is applied to the concerned person. The principle of equality also means that all persons must have equal access to the courts. In 016 Bahamonde v. Equatorial Guinea, the UN Human Rights Committee held "a situation in which an individual's attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1 [of the ICCPR]".48 147. The Complainant contends that the new reform that was ushered in by the Court Rules 2000 is suggestive of all litigants enjoying rights to access to the Courts in Mauritius with or without an attorney being retained and this without leave of the Court or that of the Judge in Chambers in terms of article 3 [of the Court Rules 2000]. He maintains that the judicial process has moved to unrestrained procedural 44 Communication 286/2004, n26 above, paras 192. 45 Communication 286/2004, n26 above, paras 197-199. 46 ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Afri A(2)(b). 47 As above, section A(2)(b) &(c). s Communication No. 468/1991, A. N. 016 Bahamonde v. Equatorial Guinea (Views adopted o UN doc. GAOR, A/49/40 (vol. II), p. 187, para. 9.4. 4 ..,�-;r.,. Atrican(-."i Union\-!t Page 34 of 45 African Commission on Human an .-..�,•-31 Bijilo Annex Layout, Ko West Coas Phone: (220) 230 4361 Fax: Email: au-banjul@africa-union.org https:/achpr.au.int/0 C> a "

Qitr.�, < ACHPR -j African Commission on mmri' • Human and Peoples' Rights Human Rights our Collective Responsibility access to the courts in Mauritius, and it would be against the principle of protection of the law that restrictions be now brought back for litigants to issue or resist process. 148. On that basis, the Complainant contends that the Supreme Court was wrong in ruling that "this court retains a residual discretion upon good cause shown to allow litigants to dispense with the services of an attorney and sue in person". Arguably, the Court Rules are binding to the Court. The rule of law so requires. The competent authority who makes the rules should also follow them, unless and until they decide to change them which, by nature, they are entitled to. To rule otherwise would give leeway to arbitrariness and the rule of power as the Commission has warned,49 and this indeed ,opens the door to the very violations of the right to equal access to the .courts, �s some individuals could be granted access while others in similar conditions are denied same. 50 This Commission is of the view that the Supreme Court Rules, so Jong as they are in force, are binding upon the Court itself. 149. The position long held by this Commission is that failure to re-open the proceedings, when there are reasons to do so, thereby preventing the complainant from presenting his defence and the parties from discussing whether the case should be continued, is a violation of the principle of equality of arms. 51 In legal proceedings, the judicial authorities should always ensure that the parties are not 'placed in a position of legal or procedural inequality. [. . . ] no one could claim to have enjoyed the right to defend himself if he or she were not afforded the same opportunity as his opponent, under the same conditions, to present his or her case and produce evidence' . 52 150. 151. In Communication 2 77/03 Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, making a pronouncement on the refusal to reopen an individual's trial for murder despite new evidence that would exonerate him, the Commission did not find a violation apparently because the contested - Q N ""' (;,i 49 Communication 294/04, n30 above, para 118. 50 See the reasoning of the Commission on the notion of 'margin of appreciation' in Communicati Anver Prince v South Africa, 7 December 2004, para. 37. 51 Communication 286/2004, n26 above, paras 198-200 52 Communication 302/05, n38 above, para 117. Page 35 of 45 (.C><f7� .! � v, : �·j. .Z! _f' , � C:.;ji African Commission on Human a , _. 31 Bijilo Annex Layout, Ko r,i_ot, ' West Coast m.bi.l , . -;:./ �:-:�- · Phone: (220) 230 4361 Fax: ( Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 D <,�J

. . ,.�CHP�. : . · ACHPR Human Rights our Collective Responsibility )·. African Commission on <r.n.w.d � Human and Peoples' Rights evidence was not the basis for the conviction. 53 Arguably, the Commission would have reached a different conclusion if the evidence presented had been strong enough to warrant the reopening of the trial or to call into question the evidence on which the conviction had been based. 152. In Communication 323/06 Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, the Commission further observed that in addressing the concerns, needs and interests of victims in judicial proceedings, the primary concern should be to ensure that victims of human rights violations obtain redress by giving them an opportunity to appeal decisions from other judicial bodies and that failure to allow victims to appeal decisions is contrary to the guiding principles and spirit of the African Charter and other international and regional instruments. 54 f In the present communication, given the fact that the Complainant was refused the opportunity to present his evidence before the Supreme Court and the Judicial Committee without recourse to an attorney, leads to the conclusion the right to appeal to a competent national organ, which is a key component of the right to have his cause heard was denied, hence violating article 7(1)(a) of the Charter. 153. Over the years, the Commission has clarified the content of the right to defence, notably through the adoption of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa which enshrines the principle of an individual's right to defend themselves in person alongside the right to legal representation: "The accused has the right to defend him or herself in person or through legal assistance of his or her own choosing." 55 154. 155. In doing so, the Commission has espoused the approach of the travaux preparatoires,56 and adopted a characterization very much akin to the right to defence under the International Covenant on Civil and Political Rights in its article 14(1)(d), as reaffirmed by the UN Human Rights Committee in Michael and Brian 53 Communication 277/03, Spilg and Mack & DTTSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, ACHPR, para. 187-190. 54 Communication 323/06, n24 above, para. 219-220. 55 n46 above, Principle N(2)(a) Right to counsel. 56 The Commission hereby echoes the earlier version of the Charter found in the travaux preparatoires, notably Article 21(2)(d) of the so-called M'Baye draft, which provided: "During the proceedings every person is entitled, with full equality, to the following minimum guarantees: [ . . . ] (d) the right of the accused to defend · r��-: personally or to be assisted by legal counsel of his own choosing, and to communicate freely and pr· ...,, efy: '¢th 1 I q,i,0 :;, hi• s counsel.11 ,.., . -------.. '°('0 0 .., · v Page 36 of45 �·t .qi' African Commission on Human and P �les' igh�\ 31 Bijilo Annex Layout, Kombo stric� � � � ) .... � (I) r-, , West Coast R ibn i b� ·UA ,§ � / Q' Phone: (220) 230 4361 Fax: ( 2 '!,4if-<W // _,'>Q Email: au-banjul @ africa · 1filgc111,;; .,· . �tB ,'?,,.I/ '� ._ 0[� , a•·;:.'- . , --·-=-=:=::.-::,.. •·

Human Rights our Collective Responsibility Hill v. Spain : "legislation [which] does not allow an accused person to defend himself in person, [is] contrary to article 14, paragraph 3 (d), of the Covenant." 57 The right to defence is a key component of article 7(1). No substance would be left to this right if it meant that individuals whose rights are infringed can only pursue them through the services of a third party. This would undoubtedly prejudice parties with no or limited means to afford the services of a lawyer or those who are unable to identify 'counsel of their choice'. Arguably, the rights under article 7 are stipulated in favour of the concerned individual and it is up to them to choose if they wish to use the services or an attorney or institute the proceedings themselves. 156. In conclusion, "the right to be defended by counsel of his .choice", in other words recourse to an attorney is an entitlement and not a requirement quoad individuals, and article 7(1)(c) must be so construed. It is stipulated in favour of the concerned party who can renounce it and therefore is free to retain the services of an attorney or not. Once the services of a lawyer are made available, it is up to the individual to decide whether to use those services or not. 157. Individuals can indeed renounce to their rights if they so freely choose. No one should be compelled to use the services of an attorney against their free will to take on their own case themselves, based on their free and informed choice to litigate in person. Article 7(1)(c) directs the use of "counsel of his choice".58 To hold otherwise would undermine the whole range of judicial safeguards set forth under article 7 in order to ensure fairness and justice in judicial proceedings and to protect individuals against arbitrariness. Clearly by establishing article 7, the Charter aims at easing not inflating the burden borne by the individual litigant. 158. The Commission concludes that the 1 July 2011 Ruling of the Supreme Court and the subsequent refusal by the JCPC to entertain an appeal against that decision 159. 57 Communication No. 526/1993, Michael and Brian Hill [represented by a non-governmental organization] v Spain Declared admissible: 22 March 1995 (fifty-third session) Date of adoption of Views: 2 April 1997 (fifty-ninth session) U.N. Doc. CCPR/C/59/D/526/1993 (2 April 1997), para. 14.2. 58 For a discussion on the shortcomings of the pro deo system, see Communication 319/06 - Interights & Ditshwanelo v. The Republic of Botswana, ACHPR, 2015. The Commission held that there would a violation of the Charter if the pro deo attorney assigned to the victim in this present case was a young and in-experienced couns ,., 4 lacked the requisite skills, resources and commitment to handle the case, so as to cause a miscar """.., ( a violation of his fair trial rights. At paras. 70-75. <?.: Page 37 of 45 At�nt�\ Urnon\!.il l � , � ,) African Commission on Human an 31 Bijilo Annex Layout, Korn West Coa Phone: (220) 230 4361 Fa Email: au-banjul@a r �..'!:.; ig nts/ A <;:. \\ � : \\•' �• � isfrltt� ·, o'<-"'<:> https:/achpr.au.int10 0 a

ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility violate the Complainant's right to defence as provided for under article 7(1)(c) of the Charter. Alleged violation of Article 26 160. The Complainant alleges violation of Article 26 of the Charter which provides: "State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter." 161. Compliance with the duty imposed onto the State under Article 26 is paramount to ensuring respect for the rule of law and fair trial rights. The Commission has buttressed the significance of the Article 26 duty in Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf ofAndrew Barclay Meldrum) v Zimbabwe: , "It is impossible to ensure the rule of law, upon which human rights depend, without guaranteeing that courts and tribunals resolve disputes both of a criminal and civil character free of any form of pressure or interference. [. . . J Without the rule of law and the assurance that comes from an independent judiciary, it is obvious that equality before the law will not exist."59 162. There is also as well as established relationship between article 7 and 26. The Commission has specified that while Article 7 focus is on the individual right to be heard, Article 26 is more concerned with the 'the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual's rights against the abuses of State power' . 60 Article 7 aims at offering individual guarantees against procedural unfairness, while article 26 is a chapeau provision mostly concerned with the wider institutional cradle within which human rights are fostered and protected. 163. Article 26 has two distinguishable though interconnected parts, one that obligates States to "guarantee the independence of the courts" and a 59 Communication 294/04, n30 above, para 118. 60 Communication 129/94, n35 above, paras. 5 & 15. Reiterated in Communication 294/04, n30 ...�...... African(�\ Urnon\Jv' Page 38 of 45 African Commission on Human an � ('! � ----� - .!. !? 0 ..� «- >\, 31 Bijilo Annex Layout, Korn West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 a "'

ACH PR African Commission on • Human and Peoples' Rights Human Rights our Collective Responsibility which obligates them to allow the establishment of national institutions entrusted with the promotion and protection of human rights. 164. With regards to the first component, the African Commission has set out a number of elements which are essential for the independence of the courts. According to the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, (a) The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities; (b) Judicial bodies shall be established by law to have adjudicative functions to determine matters within their competence on the basis of the rule of law and in accordance with proceedings conducted in the prescribed manner.61 Judicial bodies should also be 'independent of external influence, especially from the executive62 and the State must 'refrain from taking any action which may threaten directly or indirectly the independence and the security of judges and magistrates'.63 165. In its jurisprudence, the Commission has considered article 26 as a general guarantee against procedural deficiencies and state interference with the judiciary. In this respect, deficiencies affecting legal proceedings do not necessarily amount to lack of independence of the judiciary as a whole, as was held in Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt where "there were procedural deficiencies that affected the final decision", depriving the victims of an effective and impartial investigation into the violations complained of. The Commission held "the impartiality of the investigative process should be separated from the allegations related to Article 7(1) (a) and 26 of the African Charter", "because even though lack of impartiality of the investigations amount to a violation of the Victims' right to effective remedies, it cannot be classified as a violation of the Victims' rights under Articles 7(1)(a) and 26 of the African Charter" . 64 In other words, processes must be considered separately from the institutions who conduct them, and a deficiency affecting one process will not give n46 above, Section A(4). See also L. Madhuku, 'Constitutional protection of the independence of the judiciary: A survey of the position in Southern Africa', 46 J. Afr. L. 232 (2002). 62 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 146. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, paras 193 and 206. Communication , . . • N H lJf.1.._ ,,._ I 4 Marcel Wetsh okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 79. p" l•, 1>El M�,4 "vo 1 J 63 2 Resolution on the Respect and the Strengthening on the Independence of the udiciary, ACHPR/ � �1;'4 A · "°<'-0 1996. ' \ 11 ..; 64 Communication 323/06, n24 bove, para. 234. ;� 1 Page 39 of 45 n � African Commission on Human and P i3pl� ights. Ji; ;:; - ;, r.c1-UA u c, 61 t- ,.f' --;r'o -- �, ., 31 Bijilo Annex Layout, Kombo &rtli�1 ict, �� West Coast Re f"\'.S,a1'tli,fflc All'l�0 f<""' Phone: (220) 230 4361 Fax: (220) '056)e1, oES �� Email: au-b a njul@africa-unio https:/achpr.au.int/0 0 a f

' :-' \ . p.CHP/1 _ \ ACH PR . I -,,.l African Commission on Olll'l'."O "" Human and Peoples' Rights :· , . ✓ Human Rights our Collective Responsibility credence to a generalized statement of lack of independence of the entire institutional system. 166. Contrariwise, in Communication 322/2.006, Tsatsu Tsikata v. Republic of Ghana, the Commission found that a series of measures taken by the government amounted to interference in the independence of the judiciary with respect to the case of the constitutionality of the Fast Track High Court, in violation of Article 26 of the ACHPR. 65 In the presence of measures taken by the government which amount to interference in the independence of the judiciary, one can conclude to a violation of article 26 of the Charter. 167. In the present communication, the Complainant has not qemonstrated any such element affecting the Judiciary of the Respondent State. The Commission notes that the Complainant has submitted a series of allegations and cases instituted by himself against the Chief Justice and other Judges, and media reports where the same Complainant questions the integrity of their appointment to the bench.66 The Complainant contends that, since the Chief Justice and the Senior Puisne Judge participated in hearing the matter, while having challenges raised against them by the Complainant, the integrity of the trial process was compromised. The Complainant has also invoked family relations between two senior members of the Judiciary. 168. In support to his claim of partiality in relation to a dismissal of his application for temporary admission to the practice pending a review of his conviction and disbarment decisions, the Complainant referred to the case of a medical doctor who was granted temporary permission to practice medicine pending the determination of her application for renewal of her licence which had expired prior, citing the common descent of the Chief Justice and the concerned Medical Doctor. The Commission declines to entertain this claim on which it does not have sufficient information likely to lead to a finding on discrimination between individuals in " similar conditions" and which is not relevant to the communication at hand. In any case, those cases instituted by himself against members of the Judiciary have not been adjudicated. Other claims look like mere suspicions without tangible evidence of misconduct or undue interference. The Com��ion holds the view that those cannot stand as elements of evide "J,��f 'O � C 141 65 Communication 322/ 2006, n62 above, para 161. <)� 66 Complainant's Submissions, 5 December 2013, received 18 December 2013, Annex 7. Page 40 of 45 ':j .o 'o w 0 '-"�... African Commission on Huma · 31 Bijilo Annex Layout, West Phone: (220) 230 4361 a Email: au-banjul@africa-union.org https:/achpr.au.intJO O a �(' \\ -,l \ jl � . 0 0 � "' �-

. p.CHP�. ACHPR ) African Commission on \. � Human and Peoples' Rights Human Rights our Collective Responsibility independence on the part of the Judiciary as a whole. This would be condoning unilateral and unproven views of the Complainant as a litigant against the members of the Judiciary, which is untenable. 169. The Commission finds that these allegations are not sufficiently substantiated and cannot be considered as solid evidence to warrant a pronouncement against the independence of the entire judiciary of Respondent State. Accordingly, the Complainant's allegations of violation of Article 26 of the Charter on said grounds must be dismissed and the Commission so declares. 170. The Commission will now proceed with a determination of a possible violation under the second part of article 26. The second part of article 26 requires states to "allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter". 171. The Commission has clarified that '"'The establishment of national institutions" translate to establishing courts to protect individuals frorJJ, abuse from the State. However, it could also be interpreted to mean establishing institutions which also have the mandate to create mechanisms for protection. Essentially therefore, the Respondent State has a duty to provide the structures and mechanisms necessary for the exercise of the right to fair trial." 67 172. The information on record clearly indicates that rule of law institutions are present in the Respondent State. These include the judicial institutions which the Complainant himself has been turning to in order to seek redress for his grievances, with a double degree of jurisdiction and opportunity for second appeal from the Intermediate Court to the Supreme Court, to the Judicial Committee of the Privy Council. 67 Communication 323/06, n24 above, paras 235. 68 n46 above, Section A 4(b). https:/achpr.au.i nt/0 0 a

. �c�P� . ' AC H PR .·· African Commission on � Human and Peoples' Rights Human Rights our Collective Responsibility Act 1945 of Mauritius69, the Judicial and Legal Provisions Act 200070, the Supreme Court Rules 200071, the Court of Civil Appeal Act of Mauritius, and the Legal Fees and Costs Rules 200072, among others. The Complainant has himself acknowledged that, pursuant to Section 198 of the Courts Act, the Supreme Court Rules are made by the Chief Justice, after consultation with the Rules Committee and the Judges. The Supreme Court Rules and the Legal and Costs Rules make respectively the Third and Fourth Schedules of the Courts Act. 174. In this light, it would be paradoxical to conclude that the Respondent State has not allowed the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of human rights as required by Article 26 of the Charter. Based on the above, the African Commission concludes that there is no violation of Article 26 of the African Charter by the Respondent State. Compensation 175. The Commission will now consider the appropriate remedies in light of the prejudices suffered and the request for compensation made by Complainant. In his prayer to the Commission, the Complainant requested a compensation in the amount of Mauritian Rupees Fifty Million (Rs50 000 000), i.e. more than One Million United States Dollar (US$1,000,000) should the violations of the right to access to the courts be established against the Respondent State. 176. The Commission has generally determined compensation in the name of fairness and its jurisprudence. 73 In the case of Mr. Mamboleo M. Itundamilamba v. DRC, the Commission, noting that the procedures at the national level took four years and then a subsequent six years after submission of the case to the African Commission, 'during which period the Complainant must have invested significant resources in the process, including procedural expenses', the African Commission requested the DRC to pay compensation for these costs, in accordance with the laws of the DRC." 74 Three elements seem to emerge from this 69 Courts Act, Cap 168 (Act 41 of 1945) - 7 March 1945. 70 Act 15 of 2000. 71 Act 15 of 2000. 1/ :,,:·:.�;,:::;�·"' ��·'''�t <- i> t 1 11 ,;,-l ;·\,;�' 73 Communication No. 253/2002; Antoine Bissangou v. Republic of Congo (29 November 20 J'par ':._\ � Communication 59/91 Embga Mekongo Louis v. Cameroon, [1991] ACHPR 7; (1 January 1991), par, .� . · '. ) !(� 74 Communication 302/05, n38 above, para 138. , :1 n Page 42 of 45 ; African Commission on Human and Pe s'l!• tf U ·U �"-'•• "' AfnG<3n(.�,) "' 31 Bijilo Annex Layout, Kombo No P �� , p d'., Urnon 111...,. --�i,,c,,.,,.;:. West Coast Regio ,.,�k a ..§....,� ' OE.S � Phone: (220) 230 4361 Fax: (220) 441 Email: au-ba11jul@africa-union.org https:/achpr.au.int/0 0 a 72 Act 15 of 2000. 1i �j _ ·. :� -� i

ACH PR African Commission on • Human and Peoples' Rights Human Rights our Collective Responsibility jurisprudence when determining compensation: (1) the duration of the proceedings - ten years in this case; (2) the significance of the resources invested in the process; and (3) reference to the laws of the concerned country in determining the 'quantum' of the compensation. 177. With regards to the quantum of the compensation, the Commission has more and more found it necessary to be more specific in determining the amount of compensation. This approach is consistent with the notion of effective remedy for it looks paradoxical to send victims to claim enforcement of their rights or remedies thereof back to the same domestic courts who denied them in the first place, which tends to place victims on a hamster wheel. 178. The Commission has also been keen to distinguish between material damage, moral damage and costs, with material damages to be determined taking into account local socio-economic conditions, while domestic conditions should not be a dominant factor in determining moral damages. It also appears that material damage such as claims related to property rights have tended to attract more substantive amounts of compensation as opposed to moral suffering and frustration caused by the length of proceedings for instance. 179. Thus, in Mbiankeu Genevieve v. Cameroon, the Commission allocated an amount of 15,391,460 CFA francs as financial compensation for the deprivation of enjoyment of the rights related to the right to property; and an amount of 5,000,000 CFA francs for non-material damages suffered as a result of the frustration and uncertainty experienced since the time the land was expropriated," 75 while it requested the payment of compensation for material damage, the amount of which shall be determined by mutual agreement between the parties under the conditions stated in this decision". II II 180. Moreover, the Commission in Hossam Ezzat & Rania Enayet (represented by Egtjptian Initiative for Personal Rights & INTERIGHTS) v The Arab Republic of Egypt, considered that "Such compensation is at large: it cannot be ascertained by a mathematical calculation. It is a matter of impression on the part of the Commission" and proceeded to award a US$10,000 (United States Dollars Ten Thousand) lump sum for all the victims. 76 z; -.:7;�-��'� 1/ ,.. � �� ":," � ,. 75 Communication 389/10-Mbiankeu Genevieve v. Cameroon (2015) ACJ-IPR para 153(ii). /({ 76 Communication 355/07 - Hossam Ezzat & Rania Enayet (represented by Egyptian Initiative for r/ JiJon I •c & INTERIGHTS) v The Arab Republic of Egypt, para. 183. Atr�n�\ UnionW Page 43 of 45 �--� '' �0 ..,/' ' e,Rf.l ,ill,, '•o 0 '� � African Commission on Human and Pe 31 Bijilo Annex Layout, Kombo West Coast Re Phone: (220) 230 4361 Fax: (22 Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 a � •. ' ' \' ' O , "' rS

(i.;�� - ; ACHPR •,_ .�. 'm:i:nr.i' � African Commission on Human and Peoples' Rigt1ts Human Rights our Collective Responsibility 181. In the present instance, while the amount claimed by Complainant could be exaggerated, there is no doubt that he has had to incur expenses and make the necessary steps in order to be able to present and litigate his communication first before the African Court on Human and Peoples' Rights and then before this Commission. The Commission is of the view that those expenses and hassles in reaching the outcome would have been avoided should the case have been settled at national level and, because of that, the Respondent State should bear the costs. Because of that, the Commission finds that monetary compensation is due in addition to other measures to redress the situation. However, the Commission does not have sufficient information to determine the amount of this compensation, which must therefore be left to the national courts to decide. 182. The Commission wishes to specify that the compensation is accorded in relation to the 'resources invested' in the procedure before the African Court on Human and Peoples' Rights and the African Commission on Peoples' Rights without prejudice to any other possible compensation for any possible damages suffered in the course or as a result of proceedings before domestic courts, as may be determined by domestic courts in accordance with national law. Decision of the Commission on the merits 183. In light of the foregoing, the African Commission on Human and Peoples' Rights: (a) Finds that the Respondent State is in violation of articles 3, 7(1)(a) and 7(1)(c) of the African Charter, but there is no violation of article 26 of the Charter; (b) Requests the Respondent State to take all necessary measures to ensure the re-opening of the proceedings as requested by the Complainant and allow him to litigate in person before the Supreme Court, the Judicial Committee and other national institutions, without the services of an attorney if he so desires ; (c) Requests the Respondent State to take all necessary measures to ensure its laws and statutes regarding access to the courts ecially the Supreme Court Rules 2000 and the Legal Fees and are in line with , its obligations under the African Charter; (/ ..,.,J��t4j��, Page 44 of 45 :} ® Afric � a ,> i e: :i. : 5 � '· � ,f.d Peoples' Rig hts 1\�,l.t.i'y ut.'-Jsornbo North District, onWest'.Coast Region Gambia �!nc -4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 a

��\- ACHPR �) · African Commission on om'J.ri ., Human and Peoples' Rights Human Rights our Collective Responsibility (d) Requests the Respondent State to provide the Complainant with financial compensation the amount of which will be determined by the competent national courts for the prejudice suffered, and the fees incurred, in relation to the proceedings before the African Court on Human and Peoples' Rights and the African Commission on Human and Peoples' Rights. Page 45 of 45 African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.int/0 C> a

Created Apr 14, 2026 · Edited Jun 10, 2026

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Communication 459-13 Devendranath v Mauritius

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