Elyssa v. Republic of Tunisia, No. 061/2019, AfCHPR, 4 December 2025

The failure to establish and operationalize a Constitutional Court, thereby preventing an accused person from raising a constitutional challenge to the criminal provision applied in their proceedings, violates the right to a fair trial and the right to have one’s cause heard by competent national bodies for the protection of fundamental rights.

Art. 7(1)(a)  African Charter on Human and Peoples’ Rights (ACHPR)
Art. 14(1) International Covenant on Civil and Political Rights (ICCPR)

1. The absence of a judicial body competent to review the constitutionality of laws applicable in criminal proceedings constitutes an obstacle to access to justice and amounts to a violation of the right to a fair trial, in its dimension as the right to seize competent national bodies for the protection of fundamental rights.

2. The right to have one’s case heard by a competent, independent and impartial tribunal includes the effective possibility of challenging the constitutionality of the criminal provision where the restriction of personal liberty depends upon its application.

3. By ratifying international human rights instruments, a State voluntarily assumes binding legal obligations; it cannot invoke the principle of sovereignty to evade the jurisdictional control of the African Court in cases concerning rights guaranteed under the instruments it has ratified.