PART C: Protection against Torture: Procedures before the African Commission and African Human Rights Court Denial of Access to an Effective Appeal There are no effective remedies when a victim is denied access to an effective appeal. In the Sudan cases, the Commission described the right to an appeal as ‘a general and non-derogable principle of international law’.387 The Commission defined an ‘effective appeal’ in the Sudan cases as one that ‘subsequent to the hearing by the competent tribunal of first instance, may reasonably lead to a reconsideration of the case by a superior jurisdiction, which requires that the latter should, in this regard, provide all necessary guarantees of good administration of justice’.388 It held that domestic legislation in both Mauritania and Nigeria that permitted the executive the prerogative to confirm decisions of first instance tribunals, in lieu of a right of appeal, violated Article 7(1)(a). In Egyptian Initiative for Personal Rights and Interights v. Egypt, the complainants were not required to exhaust domestic remedies. The Commission found that no local remedies were available as the victims in this case had been sentenced to death by Egypt’s State Security Emergency Court and had no right of appeal against the decision.389 They could only rely on the President to revoke the sentence, which the Commission stated is a non-judicial measure of discretionary nature. Ouster of the Jurisdiction of the ‘Ordinary’ Courts The Commission considered the impact of ‘ouster’ clauses on the question of the unavailability of domestic remedies in three cases, against The Gambia,390 Nigeria391 and Sudan.392 In these cases, the Commission defined ouster clauses as legislative provisions that ‘prevent the ordinary courts from taking up cases … or from entertaining any appeals from the decisions of … special tribunals’.393 In all of these cases, the Commission held that the existence of such clauses precluded any need to exhaust domestic remedies. The Commission recognised that the rule requiring exhaustion of domestic remedies prevents it from acting as a court of first instance but reiterated that domestic remedies must be available, effective and sufficient. In each case, the Commission took the view that ouster clauses rendered domestic remedies both unavailable and non-existent. ACHPR, Amnesty International and Others v. Sudan, Comm. Nos. 48/90, 50/91, 52/91 & 89/93, para. 37. Ibid. ACHPR, Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Comm. No. 334/06, para. 96. Ibid. See ACHPR, Purohit and Moore v. The Gambia, Comm. No. 241/2001, 33rd Ordinary Session (May 2003); Zegveld and Ephrem v. Eritrea, Comm. No. 250/2002. 392 See the cases cited in note 28, supra. 393 ACHPR, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Comm. No. 140/94, 141/94,145/95, 26th Ordinary Session (5 November 1999), para. 28. 387 388 389 390 391 93