Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers Nigeria as falling within the jurisdiction of the regular courts; and that the trial before the Court further violated the right to a fair trial as guaranteed by article 7(1)(d) of the African Charter and Principle 5 of the Basic Principles on the Independence of the Judiciary, which provides that “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.” Furthermore, the Tribunal also violated article 26 of the Charter, according to which the States parties “shall have the duty to guarantee the independence of the Courts”.112 Lastly, in a case concerning a Special Military Tribunal set up under the Nigerian Military Government, the African Commission had to consider the fairness of legal proceedings before this court against military officers accused of offences punishable in terms of military discipline. In this case the Commission stated that it “... must be clearly understood that the military tribunal here is one under an undemocratic military regime. In other words, the authority of the Executive and the Legislature has been subsumed under the military rule. Far from this suggesting that military rulers have carte blanche to govern at the whim of a gun, we wish to underscore the fact that the laws of human rights, justice and fairness must still prevail.”113 It was the view of the Commission, furthermore, that “the provisions of Article 7 should be considered non-derogable, providing as they do the minimum protection to citizens and military officers alike, especially under an unaccountable, undemocratic military regime”. The Commission thereafter referred to General Comment No. 13 of the Human Rights Committee, as well as the case-law of the European Commission of Human Rights, according to which “the purpose of requiring that courts be ‘established by law’ is that the organization of justice must not depend on the discretion of the Executive, but must be regulated by laws emanating from parliament”. The African Commission added with regard to military tribunals that the “critical factor is whether the process is fair, just and impartial”.114 While considering that “a military tribunal per se is not offensive to the rights in the Charter” and does not imply “an unfair or unjust process”, the Commission made the point that “Military Tribunals must be subject to the same requirements of fairness, openness, and justice, independence, and due process as any other process. What causes offence is failure to observe basic and fundamental standards that would ensure fairness.”115 112 Ibid., para. 66. 113 ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Communication No. 218/98, decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, at p. 3 of the text published at http://www1.umn.edu/humanrts/africa/comcases/218-98.html. 114 Ibid., loc. cit. 115 Ibid., p. 6, para. 44. 142 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers