281/03 Marcel Wetsh’okonda Koso and others / Democratic Republic of
Congo
Summary of Facts
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1. On 23 September 2003, the Secretariat of the African Commission on Human and Peoples’
Rights received from Barrister Marcel Wetsh’ Okonda Koso, solicitor of the Kinshasa-Gombe Bench
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and of the NGO Campagne pour les Droits de l’Homme au Congo , from Barrister Izua Kembo,
solicitor of the Kinshasa-Gombe Bench and member of the NGO Comité des Observateurs des Droits
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de l’Homme. , and from Barrister Odette Disu, solicitor and member of the Kinshasa-Gombe Bench,
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and of the NGO “ASMEBOKEN” a communication, introduced on behalf of 5 persons as follows:
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Ngimbi Nkiama Gaby, Contractor, born on 19.04.1958 in Kinshasa;
Bukasa Musenga, Trade Inspector, born on 25.09.1967 in Kinshasa;
Duza Kade Willy, Soldier, born on 30.10.1963 in Lisala;
Issa Yaba, Femala Soldier, born on 10.04.1958 in Irebu; and
Musalinsa Manoy, Soldier, born on 10.05.1958.
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2. The communication is introduced against the Democratic Republic of Congo, (State [party] to the
African Charter, and hereinafter referred to as DRC, in accordance with Article 55 of the African
Charter on Human and Peoples’ Rights (the African Charter).
3. The Complainants allege that, on 23.07.1999, the said Ngimbo [sic] Nkiama placed an order for
the supply of 3.5 cubic metres of petrol at ELF (a petroleum company) which he was supposed to
collect on 26.06.1999 at SEP/Congo. But the said Ngimbi Nkiama was arrested by policemen who are
said to have discovered a supply of 6 drums in surplus following his collection of 40 drums of fuel
instead of the 34 drums of fuel he initially ordered for.
4. Besides, the Complainants maintain that on 04.08.1999 the said Ngimbi Nkiama was arrested and
sent to the Conseil National de Sécurité quarters together with four jointly accused persons, Bukasa
Musenga, Duza Kade Willy, Issa Yaba, and Muzaliwa Manoy.
5. According to the Complainants, on the 11.09.1999, the said Ngimbi Nkiama and the jointly
accused persons were arraigned before the Military Court of DRC for “partaking, during war time, in
the committing of acts of sabotage by the diversion of 70 drums of gas-oil and of 40 drums of gas-oil
belonging to the Congolese Armed Forces”.
6. And that the Military Court comprising 5 judges [sic] (among whom would be only one trained
jurist) tried the said Ngimbi Nkiama and his jointly accused [sic] accomplices for the evidence adduced
against and sentenced them to a capital punishment, a [quote] “decree on a ground without the least
justification [sic] [quote]” and the right to file an appeal against the decree [sic]; the decisions of the
Military Court being not [subject] either for a review or for an appeal (Decree No.091 of 23.08.1997
establishing the Military Court of DRC).
The Complaint
7. The Complainants allege that the above-mentioned facts constitute a violation by the DRC
of Articles 7 and 26.a of the African Charter and of paragraph 3 of the Provision for the right to the
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means of an appeal and of a fair trial [sic] , adopted by the African Commission during its
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11 Ordinary Session held in Tunis, Tunisia from 2 to 9 March 1992.
8. Furthermore, the Complainants maintain that the aforementioned facts constitute a violation by the
DRC of the Article 14(1)of International Covenant on Civil and Political Rights.
9. Consequently, the Complainants request the African Commission to:
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Declare Decree No. 019 of 23.08.1997, establishing a court for military order and its Article 5,
contrary to the international commitments of the DRC as far as fair trial is concerned as
stipulated in the African Charter [sic];
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Declare that the sole fact of submitting a dispute case to a Court the majority of whose
members have no legal qualification whatsoever, constitutes a flagrant violation of Article 26 of
the African Charter;
Declare that the judicial decisions on a simple ground without the least justification grossly
breach the right and liberties acknowledged by the African Charter and violate the provisions
of Article 7 of this latter;
Direct the immediate release of the sentenced persons and the reparation for all the
prejudices they have suffered;
Request the DRC to harmonise all her legislation with the commitments this state subscribed
to at international level and namely the African Charter and to initiate reforms so as to prevent
further human right violations.
Procedure
10. On 21.10.2003, the Secretariat of the African Commission acknowledged receipt of this
communication to the Complainants through a letter with reference No. ACHPR/COMM 281/2003.
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11. During its 34 Ordinary Session held from the 6 to 19 November 2003 in Banjul, The Gambia,
the African Commission examined this communication and approved its seizure.
12. On the 14/12/2003, the African Commission notified the Respondent State of this decision by
DHL, and at the same time conveyed to it a copy of the complaint. The African Commission also
requested the Democratic Republic of Congo to provide it, in two months, with its [arguments] on this
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complaint to enable it take a decision on its admissibility during its 35 Ordinary Session.
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13. On the 12 February 2004 and in the absence of any reaction from the Respondent State, the
African Commission sent a copy of the complaint in question with an acknowledgement of receipt to
the Ministry of Foreign Affairs, requesting its reaction as early as possible.
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14. At its 35 Ordinary Session which was held from the 21 May to 4 June 2004 in Banjul, The
Gambia, the African Commission considered the communication and deferred its decision on the
admissibility of the case since the delegation of the Respondent State that participated at the session
declared, contrary to all expectations, that the complaint had not reached the DRC.
15. The Secretariat of the Commission prepared a complete dossier of all the pending
communications against the DRC, including Communication 281/2003, which it delivered in exchange
for a receipt, to the DRC delegation.
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16. By letter dated 21 June 2004, the Secretariat of the Commission informed the parties to the
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communication of the deferment of its decision on the admissibility of the complaint to its 36 Session
and requested them, once again, to provide it with their comments in this regard so as to allow the
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African Commission to rule on the admissibility during its 36 Session.
17. On the 16/09/2004, the Respondent State sent its comments on the admissibility of the
communication to the Secretariat of the Commission.
18. The Secretariat acknowledged receipt of it on the 11/10/2004, and sent the said comments to the
Complainant requesting his reaction thereon as early as possible.
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19. During the 36 Ordinary Session of the African Commission which was held in
November/December 2004 in Dakar, Senegal, the Respondent State submitted its memorandum on
the admissibility of the Complaint to the Secretariat of the African Commission.
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20. On the 4 December 2004, the Secretariat of the African Commission acknowledged receipt of
this memorandum and informed the Respondent State that the African Commission would take its
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decision on admissibility of the complaint at its 37 Ordinary Session and the arguments raised would
be taken into account.
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21. On the 23 December 2004, the Secretariat of the African Commission conveyed the submission
of the Respondent State on admissibility to the Complainant, and requested his reaction to the
arguments submitted therein and further informed him that the African Commission would take its
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decision on the admissibility during its 37 Ordinary Session.
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22. At its 37 Ordinary Session which took place from the 27 April to 11 May 2005 in Banjul, The
Gambia, the African Commission heard the Complainant on the condition of the exhaustion of local
remedies.
23. During this same session, the African Commission declared the communication admissible.
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24. On the 6 June 2005, the Secretariat informed the parties of this decision and requested them to
transmit their arguments on the merits of the case.
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25. On the 6 September 2005, the Complainant submitted his arguments on the merits of the
complaint.
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26. The Secretariat conveyed these observations to the Respondent State on the 8 November 2005
at the same time requesting its own memorandum as early as possible.
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27. During its 38 Ordinary Session, which was held from 21 November to 5 December 2005 in
Banjul, The Gambia, the African Commission considered the complaint and, in the absence of the
arguments of the Respondent State on the merits of the case, decided to differ [sic] its decision at this
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stage to its 39 Ordinary Session.
28. On 10/01/2006, the Secretariat of the African Commission informed the parties of this decision
and requested the Respondent State to forward its arguments on the merits of the communication.
29. In the absence of reaction from the Respondent State, the Secretariat sent a reminder on
28/03/2006. A copy of the submission of the Complainant on merits of the case was enclosed.
30. In a Note Verbale dated July 12, 2006, the Secretariat urged DRC to provide with its observations
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on the merits by no later than 30 August 2006. The Secretariat further reminded DRC of previous
notes verbale sent respectively on June 06, 2005, November 08, 2005 and January 10, 2006 all of
which still with no reaction from Respondent State.
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31. At its 40 Ordinary Session held in Banjul, the Gambia from 15 to 29 November 2006, the
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Commission deferred its decision on the merits to its 41 Ordinary Session scheduled to be held in
Ghana from 16 to 30 May 2007 owing to the absence of arguments on the merits from the Respondent
State.
32. On 15 January 2007, the Secretariat informed DRC of the decision of the Commission to differ
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[i][sic] the complaint to its 41 Ordinary Session and reminded DRC of previous notes verbale in which
DRC was invited to send its observations on the merits. However, DRC was given the last chance to
formulate and send its observations on the merits before the end of February 2007, failing to do so
would result in the Commission having to act in accordance with 119.4.
33. On 16 January 2007, the Secretariat informed the Complainants of the postponement of its
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decision on the merits to the 41 Ordinary Session scheduled to be held from 16 to 30 May 2007 in
Ghana. The Secretariat informed also the Complainants that DRC was given a last chance to provide
the Commission with its arguments on the merits failing of which, the Commission would be obliged to
act in accordance with 119.4.
34. In a Note Verbale dated June 14 2007, the Secretariat of the Commission informed the
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Defendant State that the communication was deferred to the 42 Ordinary [Session] scheduled from
14 to 28 November 2007 in Brazzaville, Congo. The State was also reminded of previous note
verbales in which it was urged to submit it arguments as regard to the merit of the communication and
that failing to do so may result in the application of 119.4. The Respondent State is still yet to respond
to these notes verbale.
35. A letter dated June 15, 2007 the Secretariat informed the Complainant of the deferment of the
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communication to the 42 Ordinary Session scheduled from 14 to 28 November 2007 in Brazzaville,
Congo
36. In a Note Verbale dated 17 September 2007 and a letter dated 17 September 2007 the
Secretariat of the African Commission also sent a reminder both to the Complainant and the
Defendant State.
37. By Note Verbale dated 20 March 2008 and a letter dated 19 December 2007 respectively, the
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parties were informed of the deferment of the communication to the 43 Ordinary Session scheduled
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in Ezulwini, Swaziland from 7 to 22 May 2008 for the Commission to take into consideration in its
decision on the merits, the conclusions submitted by the DRC on the merits.
38. In a Note Verbale dated 20 March 2008 and a letter dated 19 March 2008, reminders were sent
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to the parties to inform them of the deferment of the communication to the 43 Ordinary Session.
39. All attempts at getting responses from the Respondent State have been futile (or unsuccessful).
Therefore, the Commission decided to consider the communication on the merits.
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40. During its 5 Extra Ordinary Session, which took place in Banjul, The Gambia from 21 to 29 July
2008, the African Commission considered the communication and finalised its decision on the merits.
The Law
Admissibility
On the exhaustion of local remedies
41. The African Charter on Human and Peoples’ Rights stipulates in its Article 56 that the
communications referred to inArticle 55 should, if they are to be considered, necessarily be sent after
exhaustion of local remedies, if they exist, unless the procedure of exhaustion of local remedies is
unduly prolonged.
42. In its memorandum on admissibility, the Respondent State contends that as far as it is concerned
the communication should be declared inadmissible. In support of this position the Respondent State
affirms that the Complainant “does not provide evidence of having lodged an appeal against the ruling
in dispute, whereas this means of recourse remains open, in conformity with Article 150, paragraph 3
of the Transitional Constitution in the Democratic Republic of Congo” .
43. According to the Respondent State, it was possible for the Complainants to lodge an appeal
before the Supreme Court of Justice against all rulings by the Military Tribunal which are in dispute,
and that, by not using this remedy, the Complainant has not exhausted the available remedies and
therefore, it requests the African Commission to declare the communication inadmissible for non
exhaustion of local remedies.
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44. In a memorandum conveyed to the Secretariat of the African Commission on the 17 April 2005,
the Complainant insisted on the non existence of remedies at the time when the facts occurred. They
contend that the sentences passed by the Military Tribunal with regard to them cannot be subjected to
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any remedies. In effect Article 5 of Decree 019 of the 23 August 1997 establishing the Military
Tribunal stipulates that its rulings “can neither be opposed nor appealed”.
45. They contend that an eventual recourse to cancellation of the judgment in question, although
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provided for by Article 272 of the Law of 23 August 1972 instituting the Code of Military Justice,
cannot be implemented due lack of “jurisdictional competence” ; insofar as they could have brought an
appeal before the Supreme Court if the facts, which date back to 1999 were not prior to the
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Transitional Constitution which was adopted on 4 April 2003 and made it possible for citizens to
appeal against the rulings of the Military Tribunal.
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46. The Complainant contends that the Transitional Constitution Decree of the 9 April 1994 (in force
at the time of the events – 1999) stipulates in its Article 102 that: “The Supreme Court of Justice
knows……appeals lodged against rulings passed in the final jurisdiction by the Courts and
Tribunals” does not take into consideration the decisions of the Military Tribunal.
47. The Complainant considers therefore that local remedies were not available by the time the facts
occurred.
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48. At the 37 Ordinary Session of the African Commission which was held from the 27 April to
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11 May 2005 in Banjul, The Gambia, the Complainant made an oral presentation before the African
Commission in reiteration of these arguments.
Position of the African Commission
49. The main question regarding the admissibility of the case under consideration is whether local
remedies were in existence at the time when the facts occurred and, if yes, whether they have been
exhausted pursuant toArticle 56.6) of the African Charter on Human and Peoples’ Rights.
50. In effect, Article 56.6 provides that communications “are submitted within a reasonable period
from the time local remedies are exhausted or from the date the Commission is seized with the
matter”.
51. The African Commission is of the view that if such important facts are within the jurisdiction of an
exceptional jurisdiction all legal guarantees shall be given to the accused persons for their defence in
order to avoid any miscarriage of justice. That is the rationale for having remedies in all procedures,
especially in criminal procedure. All the ordinary remedies shall be available to them.
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52. An analysis of Article 150, paragraph 3 of the Transitional Constitution of 4 April 2003 on which
the Respondent State relies shows that the Transitional Constitution was passed after the facts and
also after the decision sentencing the complainants. In such circumstances, the Commission is of the
view that applying such a law of a general scope would violate the principle of non-retrospectiveness
of the law, especially as the new Transitional Constitution Decree does not expressly provide for such
remedy.
53. In the present communication, it is the State that alleges that local remedies have not been
exhausted and as such the burden is on it to show that local remedies exist. It observes that such
remedy is available under Decree 019 of 23 August 1997 establishing the Military Tribunal; Article 5 of
the Decree expressly provides that the rulings of the latter “can neither be opposed nor
appealed.” Thus, it appears that the Decree includes a derogatory [sic] clause which precludes any
opposition or appeal against the rulings of bodies such as the Military Tribunal. In other terms, the
applicable law at the time the facts occurred does not provide any remedy. In a similar situation, the
African Commission, drawing inspiration from its own well-established jurisprudence, already held,
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in , and other communications , that “it is reasonable to assume that the local remedies would not
only be prolonged, but they will produce any result” [sic].
54. Moreover, the same analysis can apply to the other common remedy, namely the lodging of an
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appeal with the Supreme Court. In terms of the Transitional Constitution Decree of 9 April 1994 (in
force at the time the facts occurred - 1999), Article 102 of which provides that “the Supreme Court of
Justice could only know of appeals lodged against rulings passed in final jurisdiction by the Courts and
Tribunals” is only available in common offences.
55. In consequence, the African Commission rules that local remedies were not available to the
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Complainants. It will apply its jurisprudence on exhaustion of local remedies without it necessarily
seeking to establish the effectiveness of local remedies; the Commission is of the view that it was
absolutely impossible for the victims to exhaust effective local remedies.
56. On these grounds, the African Commission declares the communication admissible.
Merits
57. In accordance with 120 of the African Commission, where a communication submitted in
accordance with Article 55 of the Charter has been declared admissible, the Commission “shall
consider the communication in the light of all the information that the individual and the State party
concerned have submitted in writing, it shall make known its observation on this issue.”
58. In the present case, the conclusions brought to the dossier by the two parties both in terms of the
procedure and on the merits of the case enable the Commission to make pronouncements through the
presentation and analysis of the arguments of the parties to the suit.
Arguments of the Complainants
59. The Complainants submit the violation of the African Charter in its Articles 7.a, 7.b, 7.d and 26.
The Complainants contest the legal basis, the competence, and the procedure of the Military Court
which contravenes the African Charter on Human and Peoples’ Rights to which the Respondent State
is a party.
60. The Complainant avers that the establishment of the Military Court contravenes Article 96 (1) of
the Transitional Constitution which stipulates that “courts, tribunals and war councils shall only be
established by the Law. No special commissions or tribunals shall be set up in any form whatsoever.”
61. The Complainant contends the incompetence of the said court due to its membership whose
partiality was manifested by the inclusion of members of the military corps, what with their legendary
regimentation and discipline, exacerbated by the fact that the later lacked the qualities of a magistrate.
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To support these assertions, the Complainant recalled the decision of Communication 218/98 in
which the African Commission decided that the “Military tribunal” should be bound by the norms of
equity, transparency, justice, independent rules and respect for the legal process of other courts.”
62. The Complainant also avers that the procedural situation was exacerbated by the excessive
powers of the members of the court who purportedly, followed a very arbitrary procedure in violation of
Article 137 of the Military Code of Justice, dated 25 September, according to which, “the procedure
before military jurisdictions shall be that in force before the common law jurisdictions, in conformity
with the provisions of the normal Criminal Code which are not incompatible with those of the present
code.”
63. According to the Complainants, there is no possible redress allowing them to contest the decision
of the court which sentenced the plaintiffs to death: according to Article 5 of the decree-law
establishing the said court, neither can the decisions be appealed against nor opposed. The
Complainants contend that the sentencing of the plaintiffs to death without the possibility of appeal
constitutes a violation of Article 6 of the Guarantees for the Protection of Persons Sentenced to Death.
Article 6 stipulates that “any individual sentenced to death is entitled to file an appeal with a higher
court, and measures should be taken to ensure that the appeals are mandatory.”
64. The Complainants also recalled the ruling of the Human Rights Committee in the case
of Arutynyam vs Uzbekistan which states “sentencing to death following a trial during which the
provisions of the Convention were not respected constitutes a violation of Article 6 of the Convention
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where no further appeal can be brought against the verdict”
65. The Complainant further avers that the said ruling of the court was not reasoned considering that
the authorities refused to convey to the plaintiffs the ruling pronouncing their sentence despite all the
attempts to that effect.
66. Consequently, the Complainants call for the immediate release of the plaintiffs and prays the
African Commission to call on the Government of the Democratic Republic of Congo to grant each
victim the sum of 10, 000, 000 Congolese Francs as damages and to urge it to harmonise its
legislation with its international commitments.
Arguments of the Respondent State
67. The State refutes all the allegations of the Complainants. The State submits that all the said
allegations are unfounded.
68. Pertaining to the establishment of the Military Court whose impartiality, independence and
competence are being challenged by the Complainant, the DRC State responded that the decision to
establish a Military Court was in conformity with Article 156 (2) of the Constitution which empowers the
Head of State to suspend Common Law Courts in the some or all parts of the territory, and to replace
them by Military Courts in times of war. As the Congolese state was engaged in an armed conflict
situation following the armed aggression led by its neighbours, the State was merely implementing the
said provisions of the Constitution.
69. The Respondent State observes that it is under these special circumstances that the plaintiffs
were tried and sentenced in all legality and avers that the latter have not adduced any proof of their
assertion that the ruling as passed was not reasoned.
70. Regarding the complaint brought by the Complainants pertaining to Article 5 of the decree-law
establishing the Military Court, the Respondent State alleges that the Complainants could have lodged
an appeal to bring to the fore their allegations, in accordance with Article 150 of the Transitional
Constitution, which recognises the competence of the Supreme Court to sit on decisions made by the
lowest and highest courts.
71. The Respondent State concludes that there is no room for compensation as the plaintiffs were
found guilty, and eventually released from custody.
72. The Congolese State further alleges that it has subsequently harmonised its laws with its
international commitments.
Observations of the Commission
73. In the light of the observations of the parties, it transpires that the main issue here relates to the
guarantee mechanism, as provided for under Articles 7.1 and 26 Articles 7 (1) and 26 of the Charter.
74. In terms of Article 7 of the African Charter on Human and Peoples’ Rights:
“Every individual shall have the right to have his cause heard. This comprises:
a) The right to an appeal to competent national organs against acts violating his fundamental rights as
recognised and guaranteed by the conventions, laws, regulations, and customs in force;
b) The right to be presumed innocent until proven 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.”
75. Article 26 provides that: “State Parties to the present charter shall have the duty to guarantee the
independence of the Courts and 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.”
76. The general content of the guarantee of sound justice which is the subject of Articles
7 and 26 brings two sorts of obligations to bear. The obligation of having an accessible and
appropriate court and the obligation of a fair trial (the right to have one’s cause heard fairly). The right
to a fair trial is a corollary of the concept of access to an appropriate court. The right to a fair trial
requires that one’s cause be held by efficient and impartial courts.
77. In a similar case relating to , the Commission already read Articles 7 and 26, together and held
that Article 7 deals with the right to be heard by impartial courts, and Article 26 insists on the
independence of courts; the Commission notes that States have the duty to put in place credible
institutions for the promotion and protection of human rights. Article 26 being the necessary appendix
of Article 7, one can expect a fair trial only before impartial courts.
78. In the present case, the establishment of the exceptional tribunal is a violation of the provisions of
the Charter, as already decided by the African Commission in the above-mentioned similar cases.
79. According to the African Commission, the independence of a court refers to the independence of
the court vis-à-vis the Executive. This implies the consideration of the mode of designation of its
members, the duration of their mandate, the existence of protection against external pressures and the
issue of real or perceived independence: as the saying goes“justice must not only be done: it must be
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seen to be done” .
80. The obligation to be independent is one and the same as the obligation to be impartial.
Impartiality may be perceived in a subjective and objective manner. In a subjective manner, the
impartiality of a judge is gauged by his internal inclinations. Since it is impossible to infer from this
inclination objectively, it was simpler to conclude that subjective impartiality be assumed until proven
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otherwise .
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81. However, appearances cannot be ignored while gauging the impartiality of a jurisdiction .
82. The obligation of having a jurisdiction established by law, capable of passing a judgement cannot
be clearly disassociated from the above. The ability of a court to rule depends on the competence of
the court to hear a case, and also depends on the calibre of its members. In the case of Amnesty
International Versus Sudan, the Commission decided ”that the definition of the word,
[quote]“competence” is particularly sensitive since ……………. depriving courts of qualified
staff to guarantee their impartiality, infringes on the right to have one’s cause heard by
competent organs ……….. constitutes a violation of Articles 7.1.d and 26of the
Charter” [/quote]. The requirement of a fair trial presupposes that the parties to the suit are able to
present their respective cases without prejudice to either party. The flaws of a trial can be detected
where a certain number of elements combined together have not been respected viz. the right to
equality of means and the need for dissenting views. The requirements of a fair trial also presupposes
that the courts are able to allow persons subject to trial to review the ruling passed. The principle of a
two-tier court system is recognised by all. In the present case, there is a discriminatory justice system
in the same that Article 5 applies differently depending on the persons concerned.
83. In the present case, the Military Court was established by a decree-law in accordance with Article
156(2) of the Constitution of Congo which authorises the President of the Republic to suspend the
Common Law courts and replace them with Military Tribunals, in times of war. Its competence includes
knowing of the deeds of civilians.
84. Regarding such situations, the Commission already stated several times its Resolution No
ACHPR/Res.41(XXVI)99 on the right to a fair trial. In the Forum of Conscience v. Sierra
Leone case, for instance, the Commission quoted the preceding Resolution as follows: “In many
African countries, Military Tribunals and Special Courts co-exist with ordinary legal
institutions. The objective of the military tribunals is to adjudicate on offences of a purely
military nature perpetrated by military personnel. In the dispatch of these duties, the military
tribunals should abide by the norms governing a fair trial”.
85. Consequently, in this particular case, the fact that civilians and soldiers accused of civilian
offences are tried by a Military Court presided over by military officers for the theft of drums of gas oil
is a flagrant violation of the above-mentioned requirements of good justice.
86. Furthermore, in its ruling on the Media Rights Agenda v Nigeria case, the Commission decided
as follows: [quote]“the appearance, sentencing and conviction of Malaolu, a civilian, by a special
military court, presided over by military officers in active duty is nothing short of a violation of
the fundamental tenets of free trial as stipulated under Article 7 of the Charter.”[quote]
87. Consequently, in the present case, the trial of both civilian and militaries [sic] by a military tribunal
presided over by a military officer on matters of a civilian nature constitutes an infringement of the
requirements of fair justice as mentioned earlier.
88. The Respondent State does not challenge these arguments in its statement of defence. In the
absence of any facts to the contrary, the Commission cannot invalidate the submission by the
Complainants regarding the inexistence of a fair justice system.
89. The Commission therefore finds that the verdict of the Military Court which consisted solely of
Army Officers with no qualities of a Magistrate, did not offer the guarantees of independence,
impartiality and equity and constitutes a violation of its Resolution No ACHPR/Res.41(XXVI)99 on the
Right to a Fair Trial and Legal Aid in Africa.
90. The Complainants allege that the verdict of the military court against the plaintiffs was not
reasoned and that to compound matters, the authorities refused to serve them with a copy of the
judgement. The Respondent State begs to differ and avers that the Complainant has no proof to back
this allegation. In this case, the burden of proof is on the Defendant to show that the allegations of the
Complainants are unfounded by providing the Commission with the said judgement, which proof is yet
to be provided. The Commission has always deplored lack or inadequacy of motives for legal
decisions as a violation of the right to a fair trial. In the judgement on the Pinkey v Canada case, the
Human Rights Committee ruled: “the exercise of an appellant’s right of appeal had been prejudiced
because the transcript of the lower court’s proceedings had taken two-and-a-half years to be
produced.”
91. It is important to note that the Complainants skew the doctrinal meaning of the
expression “effective redress”. This expression “effective redress” is clearly referred to in Article 13 of
the European Convention on Human Rights. “Redress”should not be considered as “the process
whereby a new decision is obtained in a dispute where an authority has already given a ruling. The
word redress shall comprise of all processes through which a constitutive act or an alleged violation of
the Convention is brought before a qualified body to seek, as the case maybe, suspension of the act,
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its annulment, amendment or compensation”. It is the case in the present communication, even
though it is happening at the African regional level.
92. In addition, the Complainants recall that they could not exhaust adequate local remedies as
already dealt with at the admissibility stage.
93. Regarding Article 14 (5) of the International Covenant on Civil and Political Rights which
stipulates that “any person found guilty of an offence shall have the right to have the verdict examined
by a higher court, in accordance with the law” , the Commission could refer to it in terms of Article
60 of the African Charter on Human and Peoples’ Rights. However, nothing in the dossier shows that
the Respondent State adopted and ratified the Covenant. The Commission can therefore not examine
the request.
57. [sic] Finally, there is no evidence that the victims were released from prison; in the same vein,
there is no evidence that the Respondent State has already harmonised its legislation with its
international commitments. However, the fact that the mere fact of recognising that its legislation is not
in line with its international commitments is a confession of its culpability.
On these grounds, the Commission,
94. Consequently, declares, the Democratic Republic of Congo has violated the relevant provisions
of the African Charter on Human and Peoples’ Rights, namely Articles 7.a, 7.b, 7.d and 26.
95. Finds that the establishment of a Military Court, albeit legally, whose competence extends to
hearing civil acts perpetrated by civilians is a flagrant ignorance of the Article 7 of the African Charter
on Human and Peoples’ Rights.
96. Recommends that the Government of the Republic of Congo guarantees the independence of
the tribunals and improves on the appropriate national institutions charged with the promotion and
protection of the rights and freedoms enshrined in the African Charter on Human and Peoples’ Rights.
97. Urges the Government of the DRC to grant the victims a fair and equitable amount as
compensation for the moral wrong suffered.
98. Recommends to the Government of the DRC to harmonise its legislation with its international
commitments, if that has not yet been done.
th
Done in Abuja, the Federal Republic of Nigeria, on 24 November 2008.
Footnotes
1. CDHC- Asbl, 18 Avenue Basoko, commune of Ngaliema, Telephone: 00243 98186937.
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2. [sic]African Commission on Human and Peoples’ Rights since October, 2001 (30 Ordinary Session). CODHO,
Kinshasa-Gombe, commune of Kalamu, Telephone: 00243 9947822.
3. Association Benjamin Moloise and Ken Saro Wiwa for the Defence of Human Rights and the Development of
Africa, 4251, Avenue Kabasele Tshamala- Kinshasa Barumbu Telephone 0024398212201; Email: groupe
strategique @ yahoo.co, disuodette @ yahoo. Fr
4. The DRC ratified the African Charter on 20/07/1984).
5. Editor’s note, IHRDA. The document being referred to is inferred to be Resolution on the Right to
Recourse and Fair Trial (1992) ACHPR /Res.4(XI)92
6. Article 56.6 102/93 Constitutional Rights Project, Civil Liberties Organisation/Nigeria]],
7. Legal Defence Center and Assistance Project v. Nigeria.
8. Legal Defence Center, Legal Defence and Assistance Project v. Nigeria.
9. Report of the Human Rights Committee, vol.I, A/59/40 (vol.I), Nations Unies, New York,2004 p.111.
10. #.60, 61; #68,69; para. 98;
11. European Court for Human Rights, Van Leuren and Meyere.
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12. CEDH, Delcourt c. Belgique, Decree of 17 January 1970, A, N 11 para. 31; Cf also, the relevant
jurisprudence of the Commission:64), #86; #14.
13. PETTITI Louis-Edmond, DECAUX Emmanuel, IMBERT Pierre-Henri (Ed), The European Convention for
Human Rights, observations, Paris, Economica, 1999, p..467.