"As already mentioned, gauranteeing the right to a fair trial aims at protecting individuals from unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms. The fundamental importance of the right to a fair trial is illustrated not only by international instruments and the extensive body of interpretation it has generated, but most recently, by a proposal to include it in the non-derogable rights stipulated in article 4(2) of the ICCPR. Standards for a fair trial may stem from binding obligations that are included in human rights treaties to which a state in examination is a party, but they may also be found in documents and practices which, though not binding, can be taken to express the direction in which the law is evolving. One of the problems is that law and human rights have been viewed largely as Western concepts, and are therefore defined and valued by Western criteria. This leads to a number of difficulties. First, there are many non-Western societies in which law and human rights thus defined, is impractical and mechanisms of protecting human rights in non-Western justice systems are not recognised as comparable counterparts to those in Western societies. Secondly, African states have failed to abide by their international fair trial obligations because, probably, these standards are impractical given the realities like poverty, illiteracy and strong cultural beliefs that characterise most African communities. As a result, the law applied by the Western style courts is felt to be so out of touch with the needs of most African communities, and coercion to resort to them amounts to denial of justice. This explains why communities, especially in the rural Africa, resort to indigenous African justice systems irrespective of state recognition or otherwise. Upon realisation that the Western style of justice did not respond to the prevailing post-genocide situation for example, the government of Rwanda re-established traditional courts to help deal with the crime of genocide and foster reconciliation. A Gacaca court is constituted of a panel of lay judges who coordinate a process in which genocide survivors and suspected perpetrators and the latter between themselves confront each other. They, and the community, participate by telling the truth of what happened; who did what during the genocide, and then the judges, based on the evidence given to them, decide on the case. These judges are elected by their respective communities for their integrity, not their learning. However, human rights organisations argue that Gacaca proceedings violate the accused persons's fair trial rights. They question among other things capacity of lay judges who make decisions in these courts, to conduct a fair trial. They also contend that Gacaca does not guarantee the right to be presumed innocent because it requires confessoins and that defendants are denied legal representation. In South Africa, traditional courts (konwn as chiefs' courts) exist. They have played a crucial role in dispensing justice in the indigenous communities and are prototypes of the kind of dispute resolution mechanisms desirable in a modern society. They apply 'people's law', which developed as a result of lack of legitimacy of the Western system of justice among the indigenous South Africans. However, critics see them as conservative and unable to render justice in the modern social, economic and political climate in South Africa today. As a result, Western style court proceedings that are conducted in foreign languages to indigenous communities, and thus have to rely on inaccurate and unreliable interpreters in addition to costs for legal counsels and subjection to very technical and formal procedures, are the only alternative in criminal matters. Briefly, the major problem is to ascertain whether indigenous African criminal justice systems do, or otherwise conform to fair trial standards. If they do not, according to who are they not fair? In other words, is there a universal measure of fairness or does appreciation depend on people's enviornment and their socio-economic backgrounds, in which case, the beneficiaries of indigenous African criminal justice systems should be the ones to appreciate its fairness?" -- Introduction.
Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004.