The Prohibition of Torture and Ill-treatment in the African Human Rights System: A HANDBOOK FOR VICTIMS AND THEIR ADVOCATES State of the Legal System and Due Process In Article 19 v. Eritrea, the case involved the continuous incommunicado detention, without charge or trial, of 18 journalists in Eritrea. The State argued that the continued detention of the victims was a result of the poor state of the criminal justice system. The Commission found that ‘[i]n the absence of any concrete steps on the part of the State to bring the victims to court, or to allow them access to their legal representatives three years after their arrest and detention, and more than one year after being seized of the matter, the African Commission is persuaded to conclude that domestic remedies, even if available, are not effective and/or sufficient’.394 Similarly, in Haregewoi Gebre-Sellasie and IHRDA v. Ethiopia, the State argued that as the matters raised in the complaint were before a domestic court, local remedies had not yet been exhausted and therefore the requirements of Article 56(5) were not met. However, the Commission held that ‘exceptions to Article 56(5) must be linked to the determination of possible violations of certain rights enshrined in the Charter, such as the right to fair trial under Article 7. The exception to the rule on exhaustion of domestic remedies therefore applies where the domestic situation of the State doesn’t afford due process of law’.395 The SADC Tribunal, though no longer functioning, was the only sub-regional body to require exhaustion of domestic remedies for the submission of complaints. The Tribunal took a position similar to that of the Commission, establishing that exhaustion of domestic remedies is not required where the remedy is inaccessible or ineffective, which includes situations where the right to a fair trial and due process are infringed upon.396 Cost of Proceedings In Purohit and Moore,397 the Commission indicated that recourse to the African Charter guarantees must not be the preserve of the wealthy. It is of no use if a remedy exists in theory, but cannot be accessed in the concrete circumstances of a given case by the specific complainants or victims. In this case, which involved victims who were institutionalised on the ground of their mental incapacity, the Commission stated that it could not ‘help but look at the nature of people that would be detained as voluntary or involuntary patients under the [Lunatics Detention Act, LDA] and ask itself whether or not these patients [could] access the 394 ACHPR, Article 19 v. Eritrea, Comm. No. 275/03, para. 82. 395 ACHPR, Haregewoin Gebre-Sellassie & IHRDA (on behalf of former Dergue Officials) v. Ethiopia, Comm. No. 301/2005, para. 113. 396 SADCT, Mike Campbell (Pvt) Ltd. & 78 Others v. Zimbabwe, Case No. SADC (T) 02// 2008 (28 November 2008), paras. 25 and 26. 397 ACHPR, Purohit and Moore v. The Gambia, Comm. No. 241/2001. 94