The Accused’s Right to be Tried in his/her Presence in Africa: Understanding the Constitutions of Different African Countries in the Light of Article 7(1)(c) of the African Charter on Human and Peoples’ Rights

Abstract

The African Charter on Human and Peoples’ Rights does not provide for the accused’s right to be tried in his/her presence. Article 7(1)(c) of the African Charter provides that an accused has ‘the right to defence, including the right to be defended by counsel of their choice.’ Article 7(1)(c) of the African Charter should be compared to Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR) which provides that an accused has a right ‘[t]o be tried in his presence, and to defend himself in person or through legal assistance.’ However, the African Court of Human and Peoples’ Rights invoked Article 14(3)(d) of the ICCPR and jurisprudence from, inter alia, the Human Rights Committee, to hold that Article 7(1)(c) of the African Charter also provides for the accused’s right to be tried in his or her presence. In some African countries, the constitutions explicitly provide for the accused’s right to be tried in his/her presence, but the constitutions of the majority of African countries do not. These constitutions do, however, provide for the accused’s right to defence. In a few African countries, the constitutions neither provide for the accused’s right to defence nor the right to be tried in their presence. In this article the author argues, inter alia, that an accused has a right to be present at his or her trial even in countries where the constitutions are silent on this right. The author also highlights the circumstance in which an accused’s trial may take place in his or her absence under the ICCPR, the African Charter and in different African countries.