Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and Peoples’ Rights

3.1 Independence, competence and impartiality of military courts

Although the African Charter explicitly provides for the right to a competent tribunal and the right to an impartial tribunal,20 it does not explicitly provide for the right to an independent tribunal. Nonetheless, article 26 of the African Charter obligates state parties to ensure that their courts and tribunals are independent. According to section A(1) of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa21 it is provided, among others, that in determining any criminal charge against a person or in determining a person’s rights and obligations, ‘everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body’.22 In section A(4) of these Principles and Guidelines the African Commission expounded on the essential requirements and other considerations for ensuring judicial independence.

There are a number of cases involving military courts where the African Commission has addressed the question of what it takes for military courts to be independent, competent and impartial. In Marcel Wetsh’okonda Koso & Others v Democratic Republic of the Congo (Koso case),23 the military court in issue was comprised of five members, among whom only one was a trained jurist. The complainants requested the African Commission to declare, among others, that the mere fact of submitting their case to a court, the majority of whose members had no legal qualification whatsoever, constituted a blatant violation of article 26 of the African Charter. While observing that the ‘independence of a court refers to the independence of the court vis-à-vis the executive’, the Commission observed that as is the case with civil courts, in determining the independence of a military court, consideration should be given to ‘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’.24 This test for determining the independence of military courts is generally consistent with the international standards as expounded by the Human Rights Committee in General Comment 32 of 2007 and in the United Nations (UN) Basic Principles on the Independence of the Judiciary. According to the Human Rights Committee, the independence of courts refers to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure ... the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.25

In the Koso case the African Commission further stressed the fact that the ability of a court to offer justice depends on the competence and quality of its members.26 Citing its earlier decision in the case of Amnesty International & Others v Sudan,27 the Commission held that depriving courts of qualified staff to guarantee their impartiality constitutes a violation of article 26 of the African Charter which requires state parties to the Charter to guarantee the independence of courts.28 Accordingly, it asked the government of the Democratic Republic of the Congo (DRC) to introduce measures to guarantee the independence of tribunals.29 It is arguable that legally-qualified members of military courts are less likely to be influenced by external factors. They are more likely to adjudicate cases based on the law and facts, unlike members who are ignorant of the law.

In Law Office of Ghazi Suleiman v Sudan (Law Office case)30 a number of civilians were tried by a military court established by presidential decree. This court was comprised of four members, three of whom were active military personnel. It was alleged, among others, that the military court was neither independent nor impartial as its members had been carefully chosen by the President. The African Commission observed that the composition of the military court alone was evidence of impartiality.31 It held that trying civilians in military courts presided over by active servicemen still under military regulations violated the right to a fair trial. This was largely because the military court was dominated by servicemen who were part and parcel of the executive. In this case, the African Commission also held that ‘depriving the court of qualified staff to ensure its impartiality is detrimental to the right to have one’s cause heard by competent organs’.32

In Constitutional Rights Project (in respect of Lekwot & Others) v Nigeria (Lekwot case)33 the Civil Disturbance (Special Tribunal) Act provided that the Special Tribunal in issue would consist of one judge and four members of the armed forces. The African Commission correctly found this composition to be in violation of the right to an impartial tribunal guaranteed in article 7(1)(d) of the African Charter.34 It was observed that the composition of the tribunal alone created ‘the appearance, if not actual lack, of impartiality’35 Why did the African Commission so rule? This was largely because the tribunal did not appear to be impartial, as it was ‘composed of persons belonging to the executive branch of government, the same branch that passed the Civil Disturbance Act’.36 Moreover, as active service men the three members remained subject to the military chain of command. As Tshivhase correctly points out, the right to an impartial tribunal requires the absence of bias, actual or perceived.37 In this connection, the Human Rights Committee has stated: 38

The requirement of impartiality has two aspects. First, judges must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial.

Arguably, in the Lekwot case a reasonable and objective person could easily apprehend bias. The African Commission, therefore, was correct in holding the opinion it did.

From the jurisprudence summarised above four key factors emerge as critical to ensure that military courts are competent, independent and impartial. First, to achieve the independence of military courts it is critical to ensure that they are truly independent of the executive branch of government. This requirement is in line with the doctrine of separation of powers, which in this context demands a separation of judicial from executive functions and powers in order to have a proper system of checks and balances. Second, the critical aspects to consider in determining whether military courts are truly independent from the executive are the method of appointment/designation of their members; the length of their tenure; the existence of protection against external pressures; and the issue of real or perceived independence. Third, having legally-qualified persons as members of military courts is an important measure not only in guaranteeing the independence of military courts, but also their competence and impartiality. Fourth, in the particular context of trials of civilians in military courts staffed with and presided over by active servicemen, military courts cannot be considered impartial. This is essentially because active servicemen are part and parcel of the executive, and under their military codes they are obligated to respect the military chain of command. Where these military personnel are adequately insulated from obeying orders and the command influence when performing their judicial functions the threat of not being impartial can largely be reduced.

3.2 Trials before military courts must be conducted in a manner that upholds the right to a presumption of innocence and should be public

The right to presumption of innocence is provided for in article 7(1)(b) of the African Charter. This article provides that ‘[e]very individual shall have ... the right to be presumed innocent until proven guilty by a competent court or tribunal’. In the Media Rights Agenda v Nigeria case39 the African Commission held that the actions in issue were a violation of this provision, because prior to the setting up of the military tribunal there were intense pre-trial publicity events organised to make the general public believe that the arrested people had contrived a coup plot and, therefore, were guilty of treason.40 Similarly, in the Law Office case there was wide publicity concerning the suspects by state officials before and during the trial. This publicity was aimed at declaring the suspects guilty of the offences they were being tried for in the military court. The suspects were accused of a number of offences, including destabilising the constitutional system; inciting people to war; engaging in the war against the state; inciting opposition against the government; and abetting terrorism. The African Commission condemned the negative publicity before finding the suspects guilty by a competent court.41 It correctly held that such publicity violated the right to be presumed innocent as guaranteed in article 7(1)(b) of the African Charter.42

With respect to the right to a public hearing, this is not explicitly provided for in the African Charter. Nevertheless, invoking articles 60 and 61 of the African Charter43 the African Commission in a number of cases has held the right to a public hearing to be part and parcel of the right to a fair trial provided for in article 7. In the Media Rights Agenda case the military tribunal in issue excluded members of the public and the press from the trial. The complainant contended that this was a violation of the internationally-guaranteed right to a fair trial, in particular the right to a public hearing. Invoking articles 60 and 61 of the African Charter and article 14 of ICCPR, the Commission held that the exclusion of members of the public and the press from the trial amounted to a violation of the right to a public hearing. It observed that although the right to a public hearing was subject to exceptions, such as that a court or tribunal can exclude from the proceedings persons other than the parties thereto in the interests of defence, public safety and public order, it was not sufficient for Nigeria to present an omnibus statement in its defence to the effect that the right to a public hearing was subject to exceptions. Nigeria had to indicate specifically which of the permitted exceptions prompted it to exclude the public from the trial.44 Similarly, in the Civil Liberties case, where the communication alleged that except for the opening and closing ceremonies, the trial before the military court was conducted in camera, the African Commission found this to be a violation of the right to a public hearing, especially because Nigeria ‘did not show that the holding of the proceedings in secret was within the exceptional circumstances contemplated under the African Charter’.45

In sum, from its jurisprudence highlighted above the African Commission points to the need for trials before military courts to be public, and in the case of exclusion of the public, for the military courts to give specific justifications within the permitted exceptions to the right to a public hearing. From the cases mentioned above, the African Commission also highlighted the great need for military and other authorities to desist from prejudging cases before military courts and persuading members of the public to believe in the guilt of the accused before competent courts adjudge them so. All these factors are important in the quest to improve the administration of military justice by military courts in Africa.

3.3 Military justice systems and military courts must guarantee and respect the right to defence

The right to defence is provided for in article 7(1)(c) of the African Charter. This article provides that ‘[e]very individual shall have ... the right to defence, including the right to be defended by counsel of his choice’. The Constitutional Rights case involved a special tribunal composed of one judge and four members of the armed forces. It was alleged that during the trial counsel for the complainants were harassed and intimidated to the extent of being forced to withdraw from the proceedings. This situation notwithstanding, the tribunal continued with the hearing, found the accused guilty and sentenced them to death. This behaviour was held to be a violation of the defendants’ right to defence as guaranteed in article 7(1)(c) of the African Charter. In the Civil Liberties case the African Commission held that the assignment of military counsel to the accused persons, despite their objections, and especially in criminal proceedings that carry the death sentence, was a breach of article 7(1)(c) of the African Charter.46 The Commission observed that the purpose of guaranteeing the accused’s right to counsel of their own choice was to ensure that the accused has confidence in his defence counsel.47 It rightly argued that even in cases where the accused is unable to afford legal counsel and is to be represented by counsel provided at the expense of the state, he or she should be able to choose from a list of his or her preferred independent counsel answerable only to him or her.48

In the Law Office case a military court delivered a judgment of which the purpose was to prevent the lawyers chosen by the accused from appearing in the military court. Citing its earlier decision in Amnesty International & Others v Sudan49 (where the African Commission stressed the fact that to recognise that a court has the right to veto the accused’s choice of counsel amounts to an unacceptable violation of the right to defence),50 the Commission held that refusing the victims the right to be represented by a lawyer of their choice (Ghazi Suleiman) amounted to a violation of article 7(1)(c) of the African Charter. In Malawi African Association & Others v Mauritania51 the African Commission argued that the right to defence included the right to understand the charges being brought against one. In one of the trials under issue, only three out of the 21 accused persons were fluent in the Arabic language. Arabic was the language used during the trial. It found Mauritania to be in breach of article 7(1)(c) of the African Charter as 18 of the accused ‘did not have the right to defend themselves’.

From the African Commission’s jurisprudence above the following points are important to improve the administration of justice by military courts from the perspective of the right to defence. First, military courts must respect accused persons’ choice of counsel. Conversely, military courts and military authorities should never impose counsel on accused persons. Even when the state is meeting the expenses of defense counsel, persons appearing before military courts should be allowed to choose from a list of defense counsel. Third, members of the military courts must act with respect towards defense counsel. They should not engage in acts aimed at intimidating or harassing defence counsel. Fourth, military courts must ensure that accused persons appearing before them understand the charges against them.

3.4 Military laws and other legislations should never foreclose the right of appeal from decisions of military courts

Article 7(1)(a) of the African Charter provides for the right of appeal. This article provides that ‘[e]very individual shall have ... the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force’. There are numerous decisions where the African Commission has consistently held that foreclosing appeals from decisions of military and special courts is a violation of the right to appeal as guaranteed in the African Charter. In the Media Rights Agenda case52 Nigeria was held to be in violation of the right of appeal because by law, decisions of the special military tribunal that tried and convicted Malaolu were not subject to appeal. According to the Treason and Other Offences (Special Military Tribunal) Decree 1 of 1986, decisions of the Special Military Tribunal were subject only to confirmation by the Provisional Ruling Council.

In the Civil Liberties case, the African Commission held that the foreclosure of any avenue of appeal to competent national organs in a criminal case involving the death penalty was a clear violation of article 7(1)(a) of the African Charter.53 In this case, as was the situation in Media Rights Agenda, the decision of the tribunal was not subject to appeal, but to confirmation by the Provisional Ruling Council, the members of which were exclusively members of the armed forces. Similarly, in the Law Office case the African Commission found Sudan to be in violation of article 7(1)(a) of the African Charter on the basis that the decisions of the military court in issue were not subject to appeal.54 The Commission rightly emphasised the fact that preventing the submission of an appeal to competent national courts increased the risk of not remedying the procedural defects that could have occurred during the hearing.55

3.5 The jurisdiction of military courts should be confined to trials of military personnel accused of committing military offences

An awkward question that the African Commission has addressed concerning the administration of justice by military courts is the issue of jurisdiction. In terms of jurisdiction over subject matter, the Commission’s position is that military courts should have jurisdiction over only military and not over civil offences. With respect to jurisdiction over persons its position is that military courts should have jurisdiction over only military personnel and not over civilians. In its Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, the Commission stated that ‘[t]he purpose of military courts is to determine offences of a pure[ly] military nature committed by military personnel ... they should not in any circumstances whatsoever have jurisdiction over civilians’.56

In similar terms, in its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,57 the African Commission reiterated that ‘[t]he only purpose of military courts shall be to determine offences of a purely military nature committed by military personnel’.58 To this effect the Commission stressed that ‘[m]ilitary courts should not in any circumstances whatsoever have jurisdiction over civilians’.59 This position has been upheld also in a number of the Commission’s decisions on individual communications and in some Concluding Observations and Recommendations on periodic state reports. In the Media Rights case, for instance, the African Commission held that the arraignment, trial and conviction of Malalou - a civilian - by a special military tribunal, presided over by a serving military officer, was a violation of the principles of the right to a fair trial guaranteed by article 7 of the African Charter.60 The Commission also found the trial to be in contravention of Principle 5 of the UN Basic Principles on the Independence of the Judiciary.61 Similarly, in the Koso case the African Commission found that the establishment of the military court in question, of which the jurisdiction extended to hearing civil acts perpetrated by civilians, was a blatant violation of article 7 of the African Charter.62 In this case, civilians and soldiers accused of the theft of drums of fuel were tried together in a military court.

In its Concluding Observations and Recommendations on Uganda’s third periodic report the African Commission expressed concern that the state had not introduced measures to ‘comply with article 7 of the African Charter and, in particular, the 2001 Principles and Guidelines on Fair Trial and Legal Assistance in Africa, as they relate to the prohibition of trials of civilians by military tribunals’ as it had earlier recommended in the Concluding Observations and Recommen-dations on the country’s second periodic report.63 It once again urged Uganda to introduce legal measures to prohibit the trial of civilians by military courts. 64

With particular reference to special tribunals the African Commission has been emphatic that their jurisdiction should not include trying offences over which ordinary courts have jurisdiction.65 In the Media Rights case the Commission held that the setting up of the special military tribunal and clothing it with jurisdiction to try treason and other related offences (which offences were recognised by Nigerian law as falling within the jurisdiction of the regular courts) was unacceptable as it infringed on the independence of the judiciary.66

Besides infringing on the independence of the judiciary the practice of giving special tribunals and military courts the jurisdiction that belongs to ordinary courts undermines the authority of ordinary courts which they should enjoy in any country that cherishes democracy and the rule of law. In Civil Liberties Organisation v Nigeria67 the Treason and Other Offences (Special Military Tribunal) Act contained ouster clauses that removed the jurisdiction of civil courts to try persons accused of treason-related offences. The special military tribunal in issue was established under this Act. It was composed of five serving military personnel. Thirteen civilians were tried by this tribunal, which found them guilty of being accessories to treason. They were sentenced to life imprisonment. While holding that ouster clauses were a violation of article 7 of the African Charter, the African Commission urged Nigeria to ‘end the practice of removing entire areas of law from the jurisdiction of the ordinary courts’.68 It correctly argued that the practice of setting up a parallel system of justice administration was not acceptable as it undermined the civil court system.69 The African Commission correctly argued that such a practice also created the possibility of an unequal application of the law.70 The Commission observed that if the ordinary courts were overburdened by numerous cases as a result of the breakdown of law and order, it was better for the Nigerian government to allocate more resources than to create a parallel court system.71 In the Law Office case the Commission reiterated its position that military courts should not deal with offences that are under the purview of ordinary courts.72

The African Commission’s position that military courts should not have jurisdiction over civilians and offences that fall within the jurisdiction of ordinary courts is partly consistent with the UN Basic Principles on the Independence of the Judiciary. According to these principles, ‘[e]veryone has the right to be tried by ordinary courts or tribunals using established legal procedures’.73 The Principles emphasise that courts that do not use the duly-established procedures of the legal process should not be created to displace the jurisdiction belonging to civil courts.74

The African Commission’s position that military courts should not have jurisdiction over civilians is consistent with the Draft Basic Principles Governing the Administration of Justice through Military Tribunals (commonly referred to as the Decaux Principles).75 These Principles provide that ‘[m]ilitary courts should, in principle, have no jurisdiction to try civilians’.76 It is stressed that ‘[i]n all circumstances, the state shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts’.77 This position is also in line with some expert groups’ opinions.78 However, it is worth noting that the African Commission’s position on the issue of military courts and civilians is inconsistent with its earlier decision. In the Civil Liberties case, one civilian and five soldiers were arraigned, tried, convicted and sentenced to death by a military court in Nigeria. The African Commission refused to hold the Nigerian state to be in breach of article 7(1)(d) of the African Charter based on the mere fact that a civilian had been tried by a military court chaired by a military persona.79 It argued that the accused civilian was part of a common conspiracy and that it was reasonable to charge him with his military co-accused in the same military court.80 In other words, the Commission found no issue with a civilian being tried in a military court. In this case the Commission observed that military tribunals were not negated by the mere fact of being presided over by military officers.81 It emphasised that what is critical is whether the military tribunal processes are fair, just and impartial.82

A question may be posed at this point: Why did the African Commission depart from its decision in the Civil Liberties case now rigidly to insist that military courts should not have jurisdiction over civilians? First, since the existence of military courts in many countries is largely justified by the need to maintain military discipline, it makes sense to restrict their jurisdiction to only acts and omissions and only committed by those individuals whose acts and omissions can negatively impact military discipline. For the most part these acts and omissions are military offences and the individuals whose acts and omissions mainly impact on military discipline are serving military personnel. Second, it is arguable that the other reason why the African Commission does not accept the trial of civilians by military courts is because of their bad track record as far as respecting the right to a fair trial and other human rights is concerned. As some of the cases analysed in the article have demonstrated, incidents of violations of fair trial rights by military courts in African countries are numerous. These range from staffing military courts with legally-incompetent serving military personnel; holding trials in camera; adjudging accused persons guilty until proven otherwise; denying accused persons their right to counsel of their choice; and foreclosing possibilities of appeal from their decisions. In many cases the military courts also employ arbitrary procedures. In some countries, such as Uganda, for instance during Amin’s regime, military courts could even conduct trials in the absence of accused persons, who would simply be informed of the court’s decision and sentence.83

However, the view of the African Commission that military courts should not have jurisdiction over civilians in whatever circumstances is problematic with respect to some international human rights treaties; in particular ICCPR and the Geneva Conventions. With respect to ICCPR, the Human Rights Committee has stated that the treaty does not prohibit the trial of civilians in military courts.84 However, it has emphasised that the trials of civilians in military courts should be exceptions. According to the Committee the trial of civilians in military courts should be limited to cases where such trials are ‘necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue, the regular civilian courts are unable to undertake the trials’.85 This majority view of the Human Rights Committee that ICCPR does not prohibit trials of civilians in military courts, however, is contested by some members of the Committee. In Akwanga v Cameroon86 Mr Fabian Omar Salvioli disagreed with the Committee’s position. In his view, if it was the intention of the drafters of ICCPR to allow the trial of civilians by military courts in certain circumstances, they would have explicitly stated so.87 In Musaev v Uzbekistan88 two members of the Human Rights Committee (Mr Fabián Omar Salvioli and Mr Rafael Rivas Posada) partially dissented with the Committee’s position. They argued that while it is true that ICCPR does not prohibit the trial of civilians in military courts, there also is nothing to suggest that military justice can be applied to civilian jurisdiction. They called for a review of the Committee’s position which considers the trial of civilians in military courts to be compatible with ICCPR.

With respect to the Geneva Conventions, Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949 allows for trials of prisoners by military courts. Under article 84, it is provided that prisoners of war are to be tried only by military courts, unless the laws of the detaining power expressly permit civil courts to try a member of the armed forces of the detaining power in respect of the particular offence alleged to have been committed by the prisoner of war. According to this provision civilians may be accorded the status of prisoners of war under article 4 of Geneva Convention III if they are (a) accompanying the armed forces of a belligerent; (b) crew members of merchant ships or civil aircraft flagged or registered to a belligerent; (c) parties to a levée en masse; or (d) former members of the armed forces who have been interned by the opposing belligerents for security reasons.

Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 also allows for the trial of civilians by military courts. Under articles 64 and 66 of this Convention, during occupation it is allowed for the occupying power to subject the civilian population of the occupied territory to its ‘properly constituted, non-political military courts’. However, this is only acceptable when the military courts are based in the occupied country.

In sum, considering that international humanitarian law explicitly allows for the trial of civilians by military courts in certain circumstances and given the need to ensure accountability by retired military personnel for crimes committed while still serving, the better view is that expressed in the Decaux Principles: the Yale Draft Principles for Governing Administration of Justice through Military Tribunals.89 The Yale Draft provides:

Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial. Those circumstances only exist, where

(a) such a trial is explicitly permitted or required by international humanitarian law;

(b) the civilian is serving with or accompanying a force deployed outside the territory of the sending state and there is no appropriate civilian court available; or

(c) the civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b).