If there is a way, all trial procedures should be observed by rights defenders and lawyers so that justice can be attain . The following write up is credited to CHRDA
Trial observation in Africa and Cameroon in particular seems to have been neglected by Lawyers and Human Rights Defenders. This has left a lacuna in the area of justice where perpetrators of injustice, now walk free with impunity. It is timely for human rights defenders and lawyers to rise up, monitor and report trials which are unjust in the eyes of the law. According to Barrister Agbor Nkongho, Human Rights Defender and President of CHRDA, “It is time for Rights Advocates to master the laws when writing reports and issuing statements so that they are aware of the exact law that is violated. This is important as a judge aware he is under scrutiny will do just the right thing”. Training/Reawakening lawyers and Human Rights defenders on trial observation is of primary importance in the fight for justice in our society.
In partnership with the American Bar Association Center for Human Rights, CHRDA on the 10th of July 2020, engaged twenty-five (25) Lawyers, Human Rights Defenders, and trial observers from different regions of Cameroon in a two days training on “Trial Observation Training For Lawyers And Human Rights Advocates On Regional And International Fair Trial Standards” The event which took place in Buea, the Southwest Region was more interactive as lawyers and rights defenders shared ideas on the issue and the way forward. The training was aimed at edifying lawyers and human rights advocates on fair trial monitoring while following international standards. The first presentation was on international and regional legal instruments as well as the domestic laws of Cameroon which guarantee a right to a fair trial to all accused persons. The first facilitator, Barrister Agbor Nkongho gave a vivid definition to the term fair trial. To him, Fair trial constitutes fundamental tenets of any democratic society, through which other rights may also be realized. This definition was drawn from the decision of the African Commission on Human Peoples Right (ACHPR) in the case of Kevin Mwanga Gunme et al v. Cameroon, May 2009). This was a Cameroonian case that went before the ACHPR in which the standards for a fair trial were set. He proceeded with two quotations; “I think the first duty of society is justice “Alexander Hamilton “By all that is sacred in our hope for the human race, I conjure those who love happiness and truth to give a fair trial to the vegetable system” Percy Bysshe Shelley. From the two quotations, the trainees were able to deduce three important lessons from it.
- That fair trial is essential to any system, be it legal or political
- That without a fair trial, justice is impossible to achieve
- That all fundamental rights are guaranteed by the right to a fair trial
According to Barrister Agbor Nkongho, the Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCPR), are the main international laws which guarantee the right to fair trial. The ICCPR is one of the most important legal instrument used by human rights advocates to demand for fair trial and justice. In addition to ICCPR, regional legal instruments such as the African Charter on Human and Peoples Right (ACHPR) sets the standards for lawyers to seek for justice out of national boundaries through appropriate procedures. In his presentation, he cited relevant provisions of the law such as Article 11(1) (2) of the UDHR, Articles 14 of as well as articles 4, 5, 6 and 7 as well as article 7 of the ACHPR, which all guarantees the right to a fair trial. He also made an examination of procedural rights which guarantees a right to fair trial under the UDHR, ICCPR AND ACHPR. Some of which include:
- Right to a fair trial by independent, competent and impartial tribunal established by law. Article 14(1) ICCPR
- Right to be presumed innocent until proved guilty according to law. Article 14(3), ICCPR, and Article 7(1)(c) ACHPR
- Right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. Article 9(2) & Article 14 (3)(a) ICCPR
- Right to adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. Article 14(3)(b) ICCPR; Article 7(1)(d) ACHPR
- Right to trial without undue delay. Article 9(3), 14(3)(c) ICCPR; Article 7(1)(d) ACHPR
- Right to fair hearing and equality before the law, court and tribunal. Article 14(1) ICCPR; Article 10 UDHR; Article 3 & 7(1) ACHPR
- Right to public hearing. Every person has a right to open and public hearing (Article 14(1) ICCPR; Article 7(1)ACHPR
- Right to be present at trial. Article 14(3) (d) ICCPR
- Right to obtain the attendance and examination of witnesses. Article 14(3)(e) ICCPR
- Right not to be compelled to testify against oneself or to confess guilt. Article 14(3)(g) ICCPR
- Right to compensation for wrongful conviction so long as non-disclosure of a fact at the lower court was not due to suspect’s own doing.
- Right not to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 15 ICCPR; Article 7(2) ACHPR
Barrister Agbor Nkongho said while concluding his presentation that “Justice should not only be done but should be seen to be done. Trial observers are not partisan to the case they are observing, and should do their job while maintaining a neutral position”
The second facilitator, Barrister. Nkea Emmanuel, who has over 15 years in practice and has served as Judge in the courts of the Gambia, on his part began his presentation with a statement “fairness means getting justice and justice means getting peace. If everyone is treated fairly and equally, there would be no chaos in society and everyone will be at peace with each other”.
He looked at the constitution of Cameroon the criminal procedure code and the military justice code as the relevant domestic legal instruments which guarantee the right to fair trial. As per the preamble of the constitution, he noted three elements; a) that everyone has right on arrest and Detention, b) Assistance of Legal Counsel, c) Rights of the Accused Person. He also reiterated to the lawyers that as human rights advocates, it is important to know the provisions of the law which can be cited when a right is violated.
He further went forward to look at objectives of fair trial observation and pointed out that when judges and prosecutors are aware they are under scrutiny, they are bound to live up to expectation by delivering justice as it is. He also noted other important objectives which include inter alia;
- Fair trial observations also reflect the international concern about the fairness of the proceedings;
- Ensures that justice is done and is seen to be done (perpetrators of human rights abuses are not given immunity);
- Provides a mechanism for assessing the strengths and weaknesses of the administration of justice system and compliance with international human rights norms and standards.
Equally, the training also focused on common problems faced at trial observation. To the Cameroonian lawyers, especially those from the English Speaking Regions, one of the most serious problems faced in court is the problem of language and interpretation. For example, everything at the military tribunal as well as at the level of the national gendarmerie is done in the French language, and lawyers, as well as their clients of the English speaking background, cannot understand or communicate in French. The space provided in prisons for lawyers to meet their clients is also one of the problems Cameroonian lawyers faced. The paces in prisons are too small and some times more than 5 lawyers are meeting 5 different clients in one spot and the issue of confidentiality between the accused and his legal counsel becomes difficult. They also noted other points such as:
- Pre-trial detention without just cause
- Insufficient time to prepare a defence
- Coerced confession (torture etc.)
- Presence and understanding of the defendant of the proceedings
Moreover, the training also featured principles of fair trial observations, fair trial observation methods, qualities of observers as well as the conduct of observers at trials and the wrap up of the report. On the principles of fair trial observation, three points were noted by the trainer; impartiality, non-intervention or interference and being prudent when observing trials or advocating for change.
At the end of the day, three sample reports and manuals on trial observations by the International Commission of Justice, Amnesty International, and Organization for Security and Co-operation in Europe were reviewed and shared to the participants for further studies at the individual level.
The participants expressed gratitude to the organizers as the training has given them and the opportunity to learn a lot of issues in trial monitoring and trial observation methods which they never knew before. They all expressed willingness to work as a team to promote the course of justice in Cameroon and also called on the organizers to always come up with such refreshing trainings like this so as to keep them abreast with knowledge in human rights and trial monitoring domain.
In the words of Barrister Awungjia Tets from Buea, “it was my pleasure to have been part of this great initiative. I thank the organizers and the facilitators (Bar. NKongho Felix and Bar. Nkea Emmanuel) like Oliver Twist, I shall be waiting for more to come.” Bar. Nkongme Dorcas from Yaoundé expressed her gratitude in similar words by stating that “I want to thank the organizers and facilitators for the rich knowledge shared with us, God bless you”.
Barrister Arrey Collins in appreciation of the Training stated that Enormous thanks to Goes to Barrister Nkongho and Barrister Nkea for such an opportunity. Your excellent mastery of the subject matter has immensely armed me with new skills in the protection of human rights. I trust in your expertise and looking forward for more as my drive and passion in the protection of the Rights of persons remains unstoppable”.
In the conclusion of the event, Barrister Nkongho stated that the training which is an initiative of the American Bar Association Centre for Human Rights and CHRDA is aimed at assisting the government of Cameroon and the courts in the dispensation of justice. It will also go a long way to clarify the public perception that justice in Cameroon is sold for money, and works only to the interest of a stronger party, as 25 lawyers, human rights defenders and trial observers from all over Cameroon have been trained to monitor and report on the conduct of trials in Courts in their communities to ensure that justice is not only done but should be seen to be done. This would help do away with the public perception that there is no justice in the country, as a judge who knows that he is being monitored for every action or decision he takes in Court would do only what is right. The participants were then called up to volunteer as 15 trial observers would be trained to monitor 40 cases in Cameroon by the American Bar Association.