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178 Luboya and Another v State (2007) AHRLR 165 (NaSC 2007) them by the common law and any relevant legislation. I have also referred to article 5 which imposes on the executive, the legislative and judiciary a duty to respect and uphold the entrenched rights and freedoms of the individual. As a member of the executive the Director breached article 18 by his inaction or negative action in relation to granting legal aid to the appellants. He also failed to uphold the duty imposed upon him by the Constitution to uphold and respect the right of the appellants to constitutional legal aid as defined by Strydom, CJ in Mwilima, supra. [47.] The court a quo equally failed to respect and uphold the appellants’ rights. I have already shown herein that it was evident to the Judge a quo that the charges which the appellants were facing in the trial before him, were quite serious and that they faced a prospect of long-term imprisonment in the event of being convicted as charged. Yet he allowed the trial to proceed to conclusion without allowing the appellants an opportunity to seek legal aid as was done by the accused in the Mwilima case. Had the judge handled the case in that manner his action would have conformed with the Khanyile principle which, as I have earlier herein indicated, states that where a judge perceives that a trial without legal representation would be grossly unfair he or she should refuse to proceed with it until legal representation for the accused is secured. The failure by the judge to do so did, in my considered view, constitute a denial of the appellants' right to a fair trial which is guaranteed to them by article 12(1)(a) of the Namibian Constitution. [48.] In the event I have come to the conclusion that the convictions of the appellants are unsafe and unsound; they are not only bad, but incurably bad. I would therefore uphold the appeal and in doing so I hereby make the following orders: (1) The appeal is allowed; (2) The appellants’ convictions on both counts are quashed; (3) The sentences of 12 years imprisonment imposed on them are set aside; (4) I leave it open to the state to consider the question whether or not the appellants should be prosecuted anew; (5) In the event that a new prosecution is to be undertaken, any sentences to be imposed if they are to be convicted shall take into account the periods already served pursuant to the sentences hereby set aside. African Human Rights Law Reports
NIGERIA Inspector-General of Police v All Nigeria Peoples Party and Others (2007) AHRLR 179 (NgCA 2007) Inspector-General of Police v All Nigeria Peoples Party, National Conscience Party, Peoples Redemption Party, National Democratic Party, Democratic Alternative, All Progressives Grand Alliance, Peoples Salvation Party, Nigerian Peoples Congress, Movement for Democracy and Justice, Communist Party of Nigeria Court of Appeal of Nigeria in the Abuja Judicial Division, appeal no CA/A/193/M/05, 11 December 2007 Judges: Mohammad, Adekeye, Aboki Extracts. Full text on www.chr.up.ac.za Whether the requirement to obtain a police permit for holding a rally or procession violated the freedom of assembly Interpretation (status of African Charter, 7, 37; relevance of foreign law, 15, 36; constitutional interpretation, 18, 19, 21; intention of the law maker, 20, 22; constitution to be interpreted as a whole, 29, 35; presumption that legislature does not intend to breach an international obligation, 37) Expression (necessary for democracy, 12, 34) Assembly (necessary for democracy, 12, 25, 34; permit not required, 16, 23, 25, 28, 31, 32, 35) Limitations on rights (reasonably justifiable in a democratic society, 13, 23, 25, 27, 28, 33) Constitutional supremacy (17, 35) [1.] This is an appeal against the judgment of the Federal High Court Abuja delivered on 24 June 2005. The respondents before <strong>this</strong> court are twelve political parties registered in Nigeria. They commenced <strong>this</strong> suit by way of an originating summons dated 9 February 2004 as follows: (1) Whether the police permit or any authority is required for holding a rally or procession in any part of the Federal Republic of Nigeria. (2) Whether the provisions of the Public Order Act (Cap 382) Laws of the Federation of Nigeria 1990, which prohibit the holding of rallies or processions without a police permit are not illegal and unconstitutional 179
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AFRICAN HUMAN RIGHTS LAW REPORTS 20
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CONTENTS Editorial User guide Abbre
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USER GUIDE The cases and findings i
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Nigeria Internet Law Reports www.ni
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x Table of cases Nigeria Inspector-
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SUBJECT INDEX This index is divided
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xiv Subject index Presumption that
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xvi Subject index Environment Inter
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xviii Subject index No legal remedi
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xx International instruments referr
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xxii International instruments refe
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xxiv International instruments refe
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xxvi International instruments refe
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INTERNATIONAL CASE LAW CONSIDERED U
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xxx International case law consider
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xxxii International case law consid
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UNITED NATIONS HUMAN RIGHTS TREATY
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4 Abbassi v Algeria (2007) AHRLR 3
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22 Njaru v Cameroon (2007) AHRLR 21
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30 Titiahonjo v Cameroon (2007) AHR
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36 El Dernawi v Libya (2007) AHRLR
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38 El Dernawi v Libya (2007) AHRLR
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Prince v South Africa (2007) AHRLR
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42 Prince v South Africa (2007) AHR
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56 Ben Salem v Tunisia (2007) AHRLR
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AFRICAN COMMISSION ON HUMAN AND PEO
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74 Article 19 v Eritrea (2007) AHRL
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Chinhamo v Zimbabwe ZIMBABWE (2007)
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98 Chinhamo v Zimbabwe (2007) AHRLR
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100 Chinhamo v Zimbabwe (2007) AHRL
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SUB-REGIONAL COURTS 117
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