233.
In order to be impartial, it would have been of paramount relevance in the
investigative processes for the PPO to obtain, if necessary proprio motu
additional evidence from other sources by giving room for more witnesses
in the scene to make illustrative statements that could corroborate the
statements made by the Victims. Instead, the PPO gave undue attention to
the „discrepancies‟ made by the Victims which made it arrive at the
AC
HP
R
tenuous conclusion that it could not proceed with the investigations
because the perpetrators could not be identified, creating an appearance of
an actual lack of impartiality.
234.
According to this Commission, based on the evidence before it, there were
procedural deficiencies that affected the final decision that was taken by
the PPO in this Communication. This obliges the Commission to conclude
that the Victims were indeed deprived of an effective and impartial
investigation from the PPO. Having said this however, the African
Commission is of the opinion that the impartiality of the investigative
process should be separated from the allegations related to Article 7(1) (a)
and 26 of the African Charter. This is because even though
lack of
impartiality of the investigations amount to a violation of the Victims‟
right to effective remedies, it cannot be classified as a violation of the
Victims‟ rights under Articles 7(1)(a) and 26 of the African Charter which
form the basis of this analysis.
235.
The above notwithstanding, the second arm of Article 26 of the African
Charter also provides that, States should “allow the establishment and
improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the
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