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Wetsh'Okonda Koso and Others v Democratic Republic of Congo (Communication 281 of 2003)

African Commission on Human and Peoples' Rights · [2008] ACHPR 94 · 2008 Communication Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from trial and sentencing by a Military Court
Decision
Communication upheld; violations of the African Charter declared; recommendations made to the respondent state for compensation and legislative reform

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the Democratic Republic of Congo violated Articles 7(a), (b), (d) and 26 of the African Charter by trying civilians before a Military Court composed of military officers with no legal qualifications, whose decisions could not be appealed. The Commission found that local remedies were not available because the applicable law at the time expressly precluded opposition or appeal against Military Court rulings. The establishment of the Military Court to try civilians for civilian offences violated the requirements of independence, impartiality and fair trial.

Outcome

Communication upheld; violations of the African Charter declared; recommendations made to the respondent state for compensation and legislative reform

Facts

In July 1999, Ngimbi Nkiama ordered 34 drums of fuel but collected 40 drums, resulting in a surplus of 6 drums. He was arrested on 4 August 1999 along with four co-accused (Bukasa Musenga, Duza Kade Willy, Issa Yaba, and Muzaliwa Manoy) and sent to the National Security Council quarters. On 11 September 1999, all five were arraigned before the Military Court of DRC for acts of sabotage during wartime involving diversion of fuel belonging to the Congolese Armed Forces. The Military Court, comprising five judges (only one a trained jurist), sentenced them to death. The court's decisions were not subject to appeal or review under Decree No.091 of 23 August 1997. The complainants alleged they were never provided with a copy of the reasoned judgment despite requests.

Issues

  1. Whether local remedies were available and exhausted at the time the facts occurred.
  2. Whether the establishment and composition of the Military Court violated the right to a fair trial under Articles 7 and 26 of the African Charter.
  3. Whether the absence of a right of appeal against the Military Court's decision violated the right to a fair trial.
  4. Whether the trial of civilians by a Military Court presided over by military officers violated the African Charter.
  5. Whether the failure to provide a reasoned judgment violated the right to a fair trial.

Orders

  • Communication declared admissible.
  • Democratic Republic of Congo found to have violated Articles 7(a), (b), (d) and 26 of the African Charter.
  • Government of DRC recommended to guarantee the independence of tribunals and improve national institutions for promotion and protection of rights.
  • Government of DRC urged to grant victims fair and equitable compensation for moral wrong suffered.
  • Government of DRC recommended to harmonise its legislation with international commitments.

Rules and key headnotes

Fair Trial — Exhaustion of Local Remedies — Unavailability Where Law Expressly Precludes Appeal
Where the applicable law at the time facts occurred expressly provides that decisions of a tribunal can neither be opposed nor appealed, local remedies are not available and the requirement to exhaust local remedies under Article 56(6) of the African Charter does not apply.
Fair Trial — Retrospective Application of Law — Non-Retrospectiveness Principle
A constitutional provision enacted after the facts and after the decision sentencing the complainants cannot be relied upon to establish the availability of local remedies, as applying such a law would violate the principle of non-retrospectiveness of the law.
Fair Trial — Independence and Impartiality of Courts — Military Tribunals
The independence of a court refers to its independence vis-à-vis the Executive and requires consideration of the mode of designation of members, duration of mandate, protection against external pressures, and real or perceived independence. Military tribunals should abide by norms governing a fair trial and should adjudicate only offences of a purely military nature perpetrated by military personnel.
Fair Trial — Competence of Courts — Qualification of Judges
Depriving courts of qualified staff to guarantee their impartiality infringes on the right to have one's cause heard by competent organs and constitutes a violation of Articles 7(1)(d) and 26 of the African Charter. A court composed solely of military officers with no qualities of a magistrate does not offer the guarantees of independence, impartiality and equity.
Fair Trial — Trial of Civilians by Military Courts — Civilian Offences
The trial of civilians and soldiers accused of civilian offences by a Military Court presided over by military officers for offences of a civilian nature (such as theft) is a flagrant violation of the requirements of fair justice under Articles 7 and 26 of the African Charter.
Fair Trial — Right to Appeal — Death Sentence Without Appeal
Sentencing persons to death following a trial during which the provisions of the African Charter were not respected, where no further appeal can be brought against the verdict, constitutes a violation of the right to a fair trial. The principle of a two-tier court system is recognised and the absence of a right of appeal creates a discriminatory justice system.
Fair Trial — Reasoned Judgments — Burden of Proof
Where complainants allege that a judgment was not reasoned and that authorities refused to serve them with a copy, the burden of proof is on the respondent state to show that the allegations are unfounded by providing the judgment. Lack or inadequacy of motives for a legal decision constitutes a violation of the right to a fair trial.

Legislation cited (16)

  • African Charter on Human and Peoples' Rights art.7
  • African Charter on Human and Peoples' Rights art.26
  • African Charter on Human and Peoples' Rights art.55
  • African Charter on Human and Peoples' Rights art.56
  • African Charter on Human and Peoples' Rights art.60
  • International Covenant on Civil and Political Rights art.14(1)
  • International Covenant on Civil and Political Rights art.14(5)
  • Decree No.091 of 23.08.1997 (DRC)
  • Decree No.019 of 23.08.1997 art.5 (DRC)
  • Transitional Constitution of DRC (4 April 2003) art.150(3)
  • Transitional Constitution Decree of DRC (9 April 1994) art.102
  • Constitution of Congo art.96(1)
  • Constitution of Congo art.156(2)
  • Military Code of Justice (DRC, 25 September) art.137
  • Military Code of Justice (DRC) art.272
  • Guarantees for the Protection of Persons Sentenced to Death art.6

Cases cited (18)

  • Constitutional Rights Project v Nigeria (Communication 102 of 1993)
  • Civil Liberties Organisation v Nigeria (Communication 129 of 1994)
  • Communication 218/98
  • Civil Liberties Organisation, Legal Defense Center and Assistance Project v. Nigeria
  • Civil Liberties Organisation v Nigeria (Communication 151 of 1996)
  • Media Rights Agenda c. Nigeria
  • Amnesty International and Others c. Soudan
  • Malawi African Association and Others c. Mauritanie
  • Law Office of Ghazi Suleiman c. Soudan
  • European Court for Human Rights, Van Leuren and Meyere
  • CEDH, Delcourt c. Belgique, Decree if the 17th January 1970, A,N 11 para31
  • International Pen and Others c. Nigeria
  • Constitutional Rights Projects c. Nigeria
  • Amnesty International Versus Sudan
  • Forum of Conscience versus Sierra Leone
  • Media Rights Agenda versus Nigeria
  • Pinkey versus Canada
  • Arutynyam vs Uzbekistan

Full judgment

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Wetsh'Okonda Koso and Others v Democratic Republic of Congo (Communication 281 of 2003) [2008] ACHPR 94 (24 November 2008)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.