Equality

The Right of Equality

Many constitutions provide for equality of persons. It is an acceptable theory that all persons are equal before the law, as suggested by the immortal declaration, “we hold these truths to be self evident, that all men are created equal…” and very often, cases in court are decided on that basis.

Equality is a big subject, one could write an entire textbook about it. For the purposes of this article, we shall only discuss the right of equality of all persons before judicial courts and tribunals.

Article 14 of the Convention of Civil and Political rights provides for equality of all persons before courts and tribunals. This right is only relevant in the determination of disputes before judicial bodies. It may be in public law or in private law.

As such, every litigant is entitled to a fair, public and expedient hearing before a competent, independent and impartial judicial body. This right supersedes the right of a free press . For the sake of justice, the press may be excluded from all or part of the hearing. The hearing may also be done in camera for moral reasons, for maintenance of public order or for ensuring national security,  when the interest of the private lives of the parties so requires, or to the extent necessary in the opinion of the court.

Other exceptions to public court proceedings include such proceedings where juveniles are convicted or where the proceedings regard matrimonial disputes or the guardianship of children.

In criminal proceedings, the accused (despite their gender, race or any distinguishing factor) has the right to be presumed innocent until proved guilty. In the determination of criminal charges against the accused, he or she is entitled to be informed promptly and in detail, in a language that he or she understands of the nature and cause of the charge against him or her. The accused must have adequate time and facilities to enable them to prepare their defence and to have representation legal counsel of their choosing. The accused is also entitled to a trial without delay. In East Africa, and accused person must be arraigned in court within 48 hours after their arrest.

The right to legal Counsel cannot be undermined. An accused person or a defendant in civil proceedings has the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing. In the instance that the accused (in criminal proceedings) does not have legal assistance, it is his right, to be assigned legal assistance of their choosing, if the interest of justice so requires, and in such instances, it does not matter that the accused cannot afford to retain legal counsel.

During the trial/hearing, the accused/the defendant has the right to examine the witnesses brought to testify for and against him. It is the accused’s right to obtain witness summons to ensure the attendance of witnesses for his or her case.

In the instance that the accused or his witnesses do not understand the language of the court, they have the right to the free assistance of an interpreter.

Most importantly, every accused person has the right not to testify against himself, or to confess his or her guilt.

Where young people (minors, persons of less than 18 years) are involved in any judicial proceedings, the court shall take cognizance of their age and when passing sentence, the desirability of promoting their rehabilitation shall be highly considered.

Upon conviction, the convict has a right to appeal the sentence or conviction or both.

If on appeal the person who was convicted of a criminal offence, is acquitted or it is discovered that there was a miscarriage of justice subject to the newly discovered evidence, then the person who has suffered punishment as a result of that conviction has the right to be compensated according to the law, unless it is proved that the non-disclosure of that evidence is wholly or partly attributable to him.

There is a principle of law called double jeopardy. It in essence provides that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law.

The right to equality before judicial bodies mostly looks out for the accused. Fairness, speed and openness revolve around the rights of persons involved in criminal proceedings.

Most of these rights are well guarded if you have an advocate to represent you in court. Do not walk those corridors of justice without your own legal counsel.

BY SAMALI BITALA

This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 4 of November 25th, 2016

To receive The Deuteronomy in real time, click HERE

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