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2003 | Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa

These Principles and Guidelines contain a number of provisions of relevance for women seeking access to justice and in particular certain protections for those seeking effective remedy for crimes of a sexual nature.

Section A(2) emphasizes in three subparagraphs that women and men must be absolutely equal in respect of their access to legal fora, the recognition of their inherent dignity and their entitlement to consult and be represented by a legal representative at all stages of any legal proceedings. In addition, section K(b) provides that: ‘States must take special measures to ensure that rural communities and women have access to judicial services. States must ensure that law enforcement and judicial officials are adequately trained to deal sensitively and professionally with the special needs and requirements of women.’ Section A(3) provides various protections from public exposure and from exposure to risk for victims and witnesses of crimes of sexual violence.

Section C of the Principles stipulates that ‘(e)veryone has the right to an effective remedy’ and that every State has an obligation to ensure both the provision and the enforcement of effective remedies. The remedies listed include (i) access to justice, (ii) reparation for the harm suffered and (iii) access to the factual information concerning the violations. Subparagraph (d) provides that amnesties that absolve perpetrators of human rights violators constitute a violation of these provisions.

Section H states that parties to a civil case are to be provided with legal aid where necessary, according to the complexity of the case and the ability of the party to adequately represent him/herself, the rights that are affected and the likely impact of the outcome of the case on the wider community.

Section O covers the fair trial rights of children and provides for the special protection of children who have been the victims of sexual violence.

Section P deals with victims of crime and abuse of power. In relation to reparations it provides that: ‘Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.’ Furthermore, under subsection (e) ‘States are required to investigate and punish all complaints of violence against women, including domestic violence, whether those acts are perpetrated by the state, its officials or agents or by private persons.

It should be noted that the Principles do not have a clearly binding character: in the Preamble, the African Commission on human rights ‘solemnly proclaims’ the Principles and Guidelines. Moreover, the responsibility for promulgating the principles contained in this document is handed to many actors including non-government bodies: the Commission ‘urges that every effort is made so that they become generally known to everyone in Africa; are promoted and protected by civil society organizations, judges, lawyers, prosecutors, academics and their professional associations; are incorporated into their domestic legislation by State parties to the Charter and respected by them (emphasis added).