Following an eventful two days, the specially constituted Chambres Africaines Extraordinaires (CAE) in Dakar, Senegal has suspended proceedings in the Hissène Habré trial until 7 September 2015. This post, the third and last this week concerning the Habré case, focuses on the potential ramifications of Habré’s behavior in court and the CAE’s decision to appoint new lawyers to represent Habré.
Just to recap, on day one Habré along with his supporters disrupted proceedings, claiming not to recognize the legitimacy of the CAE and eventually being bundled out of court. You can see the footage here. The proceedings continued in Habré’s absence with the Prosecution making its opening speech. At the end of day one Presiding Judge Kam requested Habré to attend day two of the trial, and stated that this attendance would be secured by force if necessary.
On day two Habré was indeed present in court, with some reports stating this was by force. In any event, however Habré arrived he appeared less defiant, the reason possibly becoming apparent when the trial was due to commence; his defence team was no where to be seen. This left the court with an accused but no lawyers. The court therefore quickly appointed three new defence lawyers to Habré’s case. This appointment necessitated a postponement to allow the new defence team time to acquaint themselves with the case. The court gave them 45 days to do so and the trial will resume on 7 September.
First, with regards Habré’s behavior, especially on day one, as I wrote previously there is no legal requirement within the CAE Statute requiring Habré to be present during the trial. Clearly there are circumstances in which a trial can proceed in the absence of an accused who has voluntarily waived his right to be present. In this case Habré’s behavior was entirely of his own making and of such a disruptive nature so as to allow the trial chamber to remove Habré in order that the trial could proceed. Habré can safely be said to have voluntarily waived his right to be present through his disruptive behavior. My only suggestion would be that for the portions of the trial Habré is absent, to ensure there can be no issue over him not being informed of the proceedings concerning him, recordings of the proceedings should be provided to him; whether he chooses to review them is a matter for him. To this end, Article 36 CAE Statute states that proceedings will be recorded, so there would not seem to be any practical obstacles to providing Habré with such recordings.
Second, as to the appointment of new lawyers to represent Habré, Article 21 CAE Statute sets out the rights of the accused. In particular Article 21(4) (b) and (d) of the CAE Statute sets out the right of the accused to representation. These sections consistently refer to counsel of the accused’s choosing. Therefore, on a reading of the CAE Statute alone Habré has the right to be represented by lawyers he chooses.
This does not to appear to be what has happened here. The court itself appointed these new lawyers. This was done with the court stating “You have the duty to defend Hissene Habre even against his will so a fair trial can take place”. Whilst we do not yet have a decision explaining the decision to appoint counsel , something that I argue below should be issued, it would appear likely that this appointment was made pursuant to Article 2 (10) of the Additional Agreement to the CAE Statute. This provision allows the Principle Defender or others appointed by them to represent an accused where it is in the interests of justice.
In making this appointment it appears that the court refused to ask Habré if he agreed to the new counsel, possibly concerned with what to do if he said no. It is my understanding that the victims representatives specifically asked the court to confirm Habré was happy with the new counsel, possibly in an attempt to forestall any further delays down the road, but the court refused to ask the question. However, Article 2 (10) of the Additional Agreement does not contain a requirement that an accused consents to the appointment of counsel on their behalf. It is therefore potentially moot whether Habré accepts the new counsel or not.
Of course whilst legally Habré’s acceptance may not be required, practically if Habré does not accept these new lawyers the defence team will be severely limited in the work it can do to prepare for the restart of the trial and best represent Habré in court. Again, this is a matter for Habré himself and it can be argued that by appointing a team of lawyers at the very least to oversee the trial and ensure fair trial rights are protected the CAE has gone as far as it can. Having said that, it also seems entirely possible all parties coming back to court on 7 September only to be told that Habré does not want these counsel and/or refuses to give them instructions, raising the possibility of further delays.
However, Habré is not the first deposed leader to grapple with a court tasked with trying him, and running into issues over legal representation. The ICTY has experienced similar issues, and consistently ensured the rights and interests of accused are protected through court-appointed counsel, for example in the Karadžić and Slobodan Milošević cases, although the added wrinkle in both these cases was that the accused wished to represent themselves, something Habré has not asked to do.
My last point on the appointment of the new defence team is the time given to prepare. Yes, it can be argued that Habré has brought this on himself through his disruptive behavior, and that the absence of his defence team is just an extension of this behavior. But equally the appointment of defence counsel can also be seen as a separate issue. We do not know exactly why the defence team was not present; whether this was part of a plan, or whether Habré sacked them or they felt they could not continue for any reason. In any event this still must not effect the right to fair trial. As eloquently put by the Habré victims coalition themselves in a statement put out by Human Rights Watch’s Reed Brody, “although Hissène Habré’s government sent thousands of people to prison without a trial or even a lawyer, it is only proper for a trial held in the name of justice that Habré himself receive the best defence possible”.
The new defence team is faced with preparing a defence in a case made up of many charges based on hundreds of witnesses and exhibits. Therefore there is an obvious concern that 45 days will only allow the new defence team to scratch the surface of the case.
Finally, I hope that the decision to appoint new counsel, and even the requirment of Habré’s presence will be the subject of a public decision from the CAE. This may not be required- the court can make oral decisions if it thinks best- but a clear decision setting out the reasoning for the appointment of new counsel and also explaining the requirement of Habré’s attendance (or not) in court would be welcome development to ensure the continued transparent operation of the CAE. We wait to see if this will occur; what we can safely say is that the we have not heard the last of the Habré trial.