CYIL vol. 8 (2017)

TOMÁŠ BRUNER CYIL 8 ȍ2017Ȏ In proceeding no. 007/2013 60 the Court solved the issue of the right to fair criminal trial. It ruled that this right 61 had been violated because there had been irregularities in the proceeding and the applicant was deprived of basic facilities and legal aid during his arrest. On the other hand, the Court ruled that this right to fair trial was not violated by the mere fact that the applicant’s sentence was not pronounced on public hearing. The Court referred to its own earlier jurisprudence 62 and explained that a detained applicant could be set free only under special and compelling circumstances, which were not met in the case; therefore, the applicant was not entitled to immediate release. In proceeding no. 001/2014 63 the Court interpreted the norms concerning non- discrimination and the independence of an electoral body established by a statute in Côte d’Ivoire. It found that due to the statute’s wording, “the composition of the Ivorian electoral body is imbalanced in favour of the Government and that imbalance affects the independence and impartiality of that body.” The Court also identified this as a failure to guarantee equal protection of the law and failure to safeguard free participation in public affairs. It ruled that Côte d’Ivoire violated several treaties, including the African Charter on Democracy, the ECOWAS Democracy Protocol, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. It ordered Côte d’Ivoire to amend the impugned statute and inform the Court. Apart from jurisprudence of the European Court on Human Rights and doctrine, it again referred to its own earlier jurisprudence. In this regard the Court confirmed that an absence of a constitutional motion did not constitute the local remedies’ non-exhaustion in case it was obvious that a constitutional motion would have been dismissed (similar constitutional motions had been dismissed earlier). Similarly, the right to free participation in public affairs was defended by the Court in the joint proceeding no. 009/2011 and no. 011/2011 . 64 The Court ruled that this right is violated if independent (non-aligned) candidates are prevented from running for presidential, parliamentary or local elections in Tanzania. Conclusion The African Court on Human and Peoples’ Rights was established as a compromise between the struggle for human rights protection and the attempt to preserve the sovereignty of young African states. This setting resulted in restraints to individual access to the Court. However, during the initial years of its existence, the Court managed to overcome such an obstacle and provide automatic access to the proceeding at least for certain individuals – the citizens of 8 countries that made the respective declaration. Thus the Court was able to issue the first 8 meritorious decisions, solve a variety of human rights violations ranging from electoral rights through freedom of association and expression to protection of a suspect’s rights in criminal proceedings. In those proceedings the Court also utilized the possibilities 60 Mohamed Abubakari v. United Republic of Tanzania [2013] ACHPR [2016] 007/2013. 61 Art. 14 of the ICCPR, art. 7 of the African Charter. 62 Cases Alex Thomas v. Republic of Tanzania [2013] ACHPR [2015] 005/2013 and Wilfred Onyango Nganyi and Others v. United Republic of Tanzania [2013] ACHPR [2016] 006/2013. 63 Actions Pour La Protection des Droits De L’Homme v. Côte d’Ivoire [001/2014] ACHPR [2016] 001/2014. 64 Rev. Christopher Mtikila v. United Republic of Tanzania [2011] ACHPR [2013] 09/201; Tanganyika Law Society and the Legal and Human Rights Centre v. United Republic of Tanzania [2011] ACHPR [2013] 011/2011.

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