DECISION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS ON REQUEST FOR REVIEW OF MERITS DECISION
Communication 341/2007 - Equality Now and Ethiopian Women Lawyers
Association (EWLA) v. Federal Republic of Ethiopia
Summary of facts
1. On 16 May 2007, the Secretariat of the African Commission on Human and Peoples’
Rights (the Secretariat) received a Complaint from Equality Now and Ethiopian
Women Lawyers Association (EWLA)1 on behalf of Woineshet Zebene Negash (the
Victim), against the Federal Republic of Ethiopia (the Respondent State).
2. The Complaint alleged the rape and abduction of the Victim who was 13 years old
at the time, by Aberew Jemma Negussie (“Aberew”) and four accomplices. The
abduction was reported to the police who rescued her and arrested Aberew.
3. Aberew was later freed on bail, after which he once again abducted the Victim and
hid her in his brother’s house. She was held there for a month and was forced to
sign a marriage contract. A month later, she escaped and ran to a police station. On
22 July 2003, Aberew was sentenced to 10 years imprisonment without parole and
his four accomplices were each convicted of abduction and sentenced to 8 years
imprisonment, by the Guna Woreda Court.
4.
Aberew and his accomplices lodged an appeal, and on 4 December 2003, the High
Court of the Arsi Zone, sitting on appeal quashed the decision of the lower court on
the basis that the “evidence suggests that the act was consensual”, and released the
five men from prison. Furthermore, instead of supporting the Victim’s case, the
Zonal Prosecutor recommended that the verdict of the lower court be reversed and
stated that he had no objection if the defendants were set free.
5.
Upon a further appeal made by the Victim against the ruling of the High Court, the
Oromia Supreme Court held that there were not sufficient grounds to reconsider
the case and dismissed the appeal.
6.
A final appeal was made to the Cassation Bench of the Federal Supreme Court and
on 12 January 2006, it was dismissed on the basis that it had no jurisdiction to hear
the case because no error of law had been committed.
7.
The African Commission on Human and Peoples’ Rights (the Commission) became
seized of the Communication at its 41st Ordinary Session, held from 16 - 30 May
2007, in Accra, Ghana.
1
Both Complainants at the initial stage of the Communication
Motion for Review: Communication 341/07 – Equality Now v Ethiopia
8.
Submissions on Admissibility were received from the Parties on 10 October 2007
and 29 October 2007 respectively from the Complainants and the Respondent State.
9.
On 10 May 2008, during the 43rd Ordinary Session of the Commission, the
Complainants informed the Secretariat that the Respondent State was seeking an
amicable settlement of the matter; and on 13 May 2008, during the said Session,
both the Complainants and the Respondent State met in the presence of the
Secretariat to discuss the terms of the amicable settlement.
10.
A meeting of the Parties and the Victim was convened by the Rapporteur for the
Communication on 17 and 18 November 2008, during the 44th Ordinary Session of
the Commission, and the Parties were requested to provide an update regarding
the amicable settlement. The meeting agreed that the Respondent State would
provide an update about the situation of the case.
11.
On 23 January 2009, the Secretariat requested for an update on the amicable
settlement process, and on 28 January 2009, the Secretariat received a
correspondence from the Complainants, addressed to the Respondent State, stating
that contrary to the submission by the Respondent State to the Commission that the
“amicable settlement [was] progressing in a satisfactory manner”, there was a lack of
progress in reaching an amicable settlement. The Complainants also indicated that
they had never received any formal written response from the Government
addressing the conditions that were expected to be met in an amicable settlement,
and called upon the Respondent State to complete addressing the terms of
settlement and provide written confirmation of this, backed by documentary
evidence, by 1 April 2009.
12.
Between 1 April 2009 and 21 April 2009, the Secretariat received correspondences
exchanged by both Parties, indicating that the Parties held a meeting regarding the
amicable settlement on 9 April 2009, and that the Complainants were not satisfied
that the Respondent State had taken any concrete steps towards meeting the terms
of the amicable settlement.
13.
On 13 November 2009, the Complainants provided an update to the Secretariat
regarding the steps taken by the Respondent State in meeting the terms of the
amicable settlement, indicating that these efforts did not sufficiently meet their
requests and that a settlement had not been finalized despite their frequent written
communications to and meetings with the Respondent State. The Complainants
therefore requested the Commission to use its good offices to facilitate and finalize
an amicable settlement during the 46th Ordinary Session of the Commission.
14.
On 17 and 18 November 2009, on the margins of the 46th Ordinary Session of the
Commission, a meeting of the Parties was facilitated by the Commissioner
Rapporteur for the Communication, following which: (i), the Complainants
elaborated the key issues for consideration by the Commissioner Rapporteur, to
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Motion for Review: Communication 341/07 – Equality Now v Ethiopia
charter an amicable settlement in the matter; and (ii) the Respondent State agreed to
respond to the terms of settlement by May 2010.
15.
Between 22 April 2010 and 24 August 2010, the Complainants informed the
Commission that they had failed to reach an amicable settlement with the
Respondent State, and therefore requested the Commission to advise them on the
next course-of-action, as well as to re-open the matter on Admissibility.
16.
On 7 September 2011, the Victim informed the Secretariat that she no longer wished
to be represented by EWLA, and henceforth she was represented by Equality Now
only.
17.
During the 50th Ordinary Session of the Commission which was held from 24
October to 7 November 2011, the Respondent State gave correspondence to the
Secretariat and the Complainants indicating that: the Respondent State was
constructing a house for the Victim which would be handed over to her by 27
October 2011; the Victim had left the job which the Respondent State had offered
her; and the Respondent State had initiated a case to take disciplinary measures
against the prosecutors who committed fault in the trial process of the case.
18.
On 5 October 2012, the Complainant of the Victim (Equality Now) requested the
Commission to proceed to determine the Admissibility of the Communication. On
15 November 2012, the Secretariat informed the Respondent State of the request
from the Complainant that the matter should proceed to Admissibility.
19.
The Commission proceeded to determine the Admissibility of the Communication
on the basis that the State did not honour its undertakings on amicable settlement,
and at its 15th Extra-Ordinary Session, which held from 7 to 14 March 2014, in
Banjul, The Gambia, the Commission considered the Admissibility of the
Communication and declared the same admissible.
20.
By letter of 25 June 2014, EWLA (the former co-Representative of the Victim) sent a
correspondence to the Secretariat informing the Commission that the Respondent
State and EWLA settled the matter amicably and requested that the case be closed
on that basis. EWLA specifically indicated that the Victim was employed at a
Government Institution as promised by the Respondent State and that the Victim
was currently abroad after her request for Leave of absence from her job.
21.
EWLA also informed the Commission that the Respondent State through the
Oromiya Regional State had provided a Title Deed in the Victim’s name for
ownership of the house which had been constructed as promised to the Victim.
EWLA stated that its Representatives were witnesses to the Title Deed and the
house and they were given a copy of the Title Deed under the Victim’s name. While
confirming that the house was completed, they stated that the house could not be
handed to the Victim in absentia, and that her Father refused to take the house on
her behalf on account that he did not have Power of Attorney to do so.
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Motion for Review: Communication 341/07 – Equality Now v Ethiopia
22.
In addition, EWLA stated that disciplinary measures had been taken against the
Prosecutor who was the root cause of the jeopardy against the Victim; and that the
Respondent State also took disciplinary measures against the Judge of the High
Court of the Arsi Zone, who quashed the decision of the lower court and released
the five men. EWLA concluded that the Respondent State had taken commendable
measures and had performed per its agreement under the amicable settlement, and
that they were satisfied with the measures taken by the Government under the
circumstances.
23.
On 15 May 2014 and 6 August 2014 the Secretariat received submissions on the
Merits of the Communication from the Complainant (Equality Now) and the
Respondent State respectively.
24.
On 10 October 2014, the Secretariat received a letter from the Victim, reiterating her
representation before the Commission by Equality Now.
25.
The Commission adopted a decision on the Merits of the Communication in favour
of the Victim, during its 57th Ordinary Session held from 4 to 18 November 2015 in
Banjul, The Gambia; the Parties were notified on 23 November 2015, and the text of
the decision transmitted on 4 March 2016.
Summary of the Application for Review from the Respondent State
26.
On 22 June 2016, the Secretariat received a motion for review of the Commission’s
Merits decision for the referenced Communication from the Respondent State.
27.
In its submissions for review, the Respondent State asserted that it was dissatisfied
with the Merits decision of the African Commission on the Communication, in
particular the decision recommending the payment of compensation to the Victim
while the Respondent State had already made all the necessary efforts to redress the
issue brought before the Commission regarding the Victim through an amicable
settlement.
28.
The Respondent State submitted that, the Government approached the Victim and
EWLA with an offer for amicable settlement and discussed the terms on numerous
occasions. Eventually, an agreement was reached to purchase an Apartment for the
Victim in Adama City. Subsequently, the Ministry of Foreign Affairs coordinated
all of the actors involved to ensure implementation of the amicable settlement.
Although the house was built and a Title Deed prepared for the Victim, she left the
country before receiving the Title Deed.
29.
The Respondent State submitted that the Ministry of Foreign Affairs approached
EWLA to ensure that the Victim appointed a Representative to receive the
Apartment on her behalf, following which EWLA communicated with the Victim’s
Father regarding the matter, which did not yield any results.
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Motion for Review: Communication 341/07 – Equality Now v Ethiopia
30.
The Respondent State further submitted that, for reasons which are not yet clear
and to the dismay of the Government, the Complainant – Equality Now- requested
the Commission to proceed with consideration of the Communication after which
the Commission determined the Communication admissible.
31.
The Respondent State averred that when it made its submissions on the Merits of
the Communication, it also attached the letter from EWLA relating to the amicable
settlement reached with the Victim and her legal representative (EWLA).
Furthermore, the State indicated that the Government of Ethiopia also took
disciplinary measures against the zonal prosecutor and removed the judge at the
Arsi High Court that abdicated its duty and caused the undue acquittal of the
perpetrators of the crimes against the Victim.
32. According to the Respondent State, the Commission should have closed the
Communication when EWLA notified the Commission about the amicable
settlement reached by virtue of Rule 109 (6) of the Rules of Procedure of the
Commission, and that the Commission erred by adopting a decision on the Merits
with the knowledge that an amicable settlement had been reached on the matter.
33. On the above basis, the Respondent State requested revision of the Commission’s
decision on the Merits as per Rule 111 (2)(c) of the Rules of Procedure of the
Commission which allows the Commission to revise its decision in order to ensure
justice and fairness and promote respect of human rights.
Summary of Complainant’s submissions on Review
34. On 12 July 2019, the Complainant made observations on the Respondent State’s
motion for review.
35. The Complainant states that in September 2011, the Victim relieved EWLA from
their duty to represent her and retained Equality Now as her only representative in
this Communication.
36. The Complainant further states that failure to reach an amicable settlement between
the Parties prompted the Commission to move to the Merits
stage
and
its
subsequent decision which the Respondent State now sought to review.
37. The Complainant opposes the motion to review the Commission’s decision as set
out in the observations herein.
i.
The Respondent State claims that an amicable settlement was reached,
whereas there was no such settlement which resulted to the
Complainant requesting the Commission to proceed on the
Admissibility of the Communication, and subsequently the Merits.
ii.
The Victim who was feeling intimidated fled Ethiopia and was
awarded asylum in another country. Therefore, according to the
Complainant, the Commission did not err to proceed to the Merits
stage as there was no proof of an amicable settlement.
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Motion for Review: Communication 341/07 – Equality Now v Ethiopia
iii.
In its motion to review, the Respondent State did not provide any
supporting document to proof that it met the proposed terms of the
amicable settlement. It is erroneous for the Respondent State to
construe the Commission’s decision as setting aside an amicable
settlement when the decision was clearly based on the Merits
submissions, in the absence of proof of an amicable settlement.
iv.
In particular, the Respondent State again failed to provide proof that
the title deed for the house for the Victim was supplied and deeded
appropriately; failed to provide documentary proof that disciplinary
action, including the removal mentioned in the motion to review, was
taken against the judge who overturned the lower court decision,
despite the Complainant’s repeated requests to the Respondent State
for formal documentation to this effect; and failed to provide proof of
adequate compensation to the Victim.
38. The Complainant submits further that no additional compensation had been
referred to by the Respondent State that would adequately fund the Victim’s
education and training leading to a viable livelihood.
39. The Complainant also submits that the Commission’s Rules of Procedure provide
clear guidelines on the recognition of an amicable settlement. Rule 109 (5) provides
that, once the Commission receives notification from Parties of an amicable
settlement, it proceeds to ensure that the amicable settlement complies with the
rights and freedoms under the African Charter; that the Victim consented to and is
satisfied with the terms of the settlement; and that the amicable settlement includes
an undertaking by Parties to the Communication to implement its terms.
40. The Complainant submits that following the satisfaction of the above requirements,
Rule 109 (6) then requires the Commission to prepare a report containing a brief
statement of facts, explanation of the settlement reached, the Commission’s
recommendations of the steps to be taken by Parties to ensure the maintenance of
the settlement, and the Commission’s steps to monitor the Parties’ compliance with
the terms of the amicable settlement. The Complainant avers that none of these
requirements were fulfilled and therefore an amicable settlement, as claimed by the
Respondent State, cannot be said to have existed.
41. The Complainant refutes the Respondent State’s assertion that “the Commission has
always ordered payment of damages based on the domestic legal regime of the respective
state.” According to the Complainant, this statement is inaccurate because neither
the African Charter nor the Commission’s Rules of Procedure prevent the
Commission from issuing damages in respect to instances of violations under the
African Charter.
42. The Complainant avers that the Respondent State’s motion to review is premised
upon Rule 111 (2) (c) of the Rules of Procedure, under which the Commission may
review its decision if it is satisfied that there is a “compelling reason or situation that
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Motion for Review: Communication 341/07 – Equality Now v Ethiopia
the Commission may deem appropriate or relevant to justify review of a Communication,
with a view to ensure fairness, justice and respect for human and peoples’ rights.” The
Complainant submits that the Respondent State has not provided any further or
compelling reason or situation to warrant a review of the Communication, and
therefore, the Respondent State’s motion to review does not meet the criteria
required for the Commission to review its decision.
43. The Complainant urges the Commission:
a. to dismiss the motion to review by the Respondent State and to uphold its
decision;
b. to strongly recommend the Respondent State to implement its decision and
report on its implementation;
c. to adopt and publish guidelines for determining appropriate remedies in
communications filed before it.
44. In conclusion, the Complainant takes note of and commends the Government of
Ethiopia for the positive legislative and other measures taken towards enacting the
revised Criminal Code and the Family Law.
The Commission’s analysis on the Motion for Review
45. Before delving into the crux of the motion for review, it is important to first of all
establish whether EWLA, which concluded the purported amicable settlement
negotiations with the Respondent State, has standing before the Commission.
46. From the forgoing summary of facts, it is clear that the Victim was initially
represented by two Complainants- EWLA and Equality Now. However, On 7
September 2011, the Victim communicated to the Secretariat that she no longer
wished to be represented by EWLA, and henceforth she was represented solely by
Equality Now. This was reiterated on 10 October 2014.
47. What is the implication of this? Simply, that EWLA no longer had capacity to
represent the Victim, and by extension, had no standing before the Commission.
Indeed, the Commission, in its merits decision, opined that it had on record the
Victim’s own correspondence terminating legal representation by EWLA.
According to the Commission, from the date of such termination, EWLA had no
basis for purporting to represent the Victim in negotiations with the Respondent
State. The Complainant indeed stated that “There had been no further negotiations
between the Victim, or Equality Now as her only legal representation, and the Respondent
State. As a result, no settlement agreement was reached.”2
48. In this regard, any actions taken by EWLA on behalf of the Victim are a nullity, and
so is the purported amicable settlement negotiations with the Respondent State and
the validity of the letter notifying the Commission on the process.
2
Ibid, para 103 of Complainant’s reply to the Respondent State’ submissions on Merits
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49. Having settled the issue of representation, and established that the only current
legal representative of the Victim before the Commission is Equality Now, the
Commission will now proceed to look at its relevant Rules of Procedure in order to
determine the eligibility of the motion for review of the Respondent State.
50. Rule 111 of the Rules of Procedure of the Commission, upon which the motion for
review from the Respondent State is premised, sets out the criteria for determining
review of merits decisions. It states thus:
“(1) once the Commission has taken a decision on the merits, it may, on its own initiative or
upon the written request of one of the Parties, review the decision.
“(2) In determining whether to review its decision on the merits, the Commission
shall satisfy itself of the following:
a) That the request is based upon the discovery of some facts of such a
nature as to be a decisive factor, which fact was not known to the
Commission and the party requesting the review, provided that such
ignorance was not due to negligence;
b) That the application for review is made within six months of the
discovery of the new facts;
c) Any compelling reason or situation it may deem appropriate or
relevant to justify review, with a view to ensure fairness, justice and
respect for human and peoples’ rights.
(3) No application for review may be made after 3 years from the date of the decision. “
51. On the basis of the established criteria for determining Review:
i.
ii.
iii.
iv.
The motion for review was initiated by the Respondent State in
line with Rule 111 (1);
Regarding Rule 111(2), the Respondent State contends that the
matter was settled amicably through EWLA and therefore the
Commission erred by still adopting a decision on Merits and
requesting the Respondent State to pay compensation to the
Victim which was already done within the framework of the
amicable settlement. In fact, this does not amount to a new fact as
underlined by the Complainant in terms of Rule 111(2) (a), as it
was extensively dealt with by the Commission in the
Communication and ruled upon, which eliminates the relevance of
Rule 111 (2) (a);
Linked to the above, the motion for review was sent within six
months, even though as already established, the facts cannot be
classified as new, in line with Rule 111 (2) (b);
Finally, regarding Rule 111 (2) (c), the question that immediately
comes to mind is whether the Commission finds any compelling
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reason or situation that would warrant a revision of the case and
that would subsequently impact on the merits of the same.
52. What is at stake therefore is whether in terms of Rule 109 of the Rules of Procedure
of the Commission which caters for the possibility of the Parties settling their
dispute amicably, and of which the Respondent State’s arguments are hinged on,
the Commission can find any reason to defer to the request for review.
53. Specifically, according to Rule 109 (2), “The amicable settlement procedure shall be
initiated, and may only continue, with the consent of the parties”; and according to Rule
109 (4), “The Commission may terminate its intervention in the amicable settlement
procedure at the request of one or both parties, within a period of six months, renewable once,
when an amicable settlement is not reached”.
54. It will be recalled that the amicable settlement was instituted in May 2008,
following which meetings were held by the Parties in November 2008, April 2009
and November 2009. After a lengthy process negotiating an amicable settlement,
the Commission was informed by the Complainant in 2012 to proceed with
determining the matter on Admissibility. It was following that advice that the
Commission proceeded to adopt a decision on Admissibility and subsequently, on
Merits. As a matter of fact, the State also made submissions on the Merits.
55. It should be highlighted here that there was an inordinate delay of 2 years in
settling the matter amicably, as opposed to the 6 months, renewable once period
stipulated by Rule 109 (4) of the Rules of Procedure of the Commission.
Furthermore, by opting out of the amicable settlement, the Complainant no longer
consented to any measures taken thereafter as stipulated by Rule 109 (2) of the
Rules, and in this regard, the Commission therefore did not err in law by
proceeding on the Admissibility and subsequently, the Merits of the case.
56. Furthermore, Rule 109 (5) of the Rules of Procedure requires inter alia that when the
Commission receives information from Parties that an amicable settlement has been
reached, it shall ensure that that the Victim of the alleged human rights violation or,
his/her successors, as the case may be, have consented to the terms of the
settlement and are satisfied with the conditions. In the present Communication, the
Victim is said to be out of the country; did not receive the Title Deed of the
Apartment referenced by the Respondent State, neither did the Victim’s Father.
The Commission was therefore not persuaded that the Victim was satisfied with the
conditions of the settlement in terms of Rule 109 (5), and therefore proceeded to
consider the matter on the Merits, as it was not satisfied that the requirements
under Rule 109 (5) had been met.
57. Furthermore, the Commission supports the Complainant’s observations on the
Respondent State’s motion for review that the Respondent State had an opportunity
during its motion for review to establish the veracity of the amicable settlement
claimed. Submission of evidence was also highlighted by the Commission in its
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decision on Merits, including the supposed Title Deed and other relevant
documentation. This could allow the Commission to effectively consider a revision
of the matter. This was not done, and in this regard, compounded with the fact that
no new information has been submitted regarding the case as required under Rule
111 (2) (a) of the Commission’s Rules of Procedure, the Commission has no basis for
reopening the matter for any review as any decision taken thereafter will not
impact on the Merits of the case.
58.
In addition to the above, in the Commission’s analysis on the Merits relating to the
purported amicable settlement, in noting the Respondent State’s averments that it
already compensated the Victim in accordance with the settlement agreement
reached through EWLA acting on behalf of the Victim, the Commission highlighted
the submissions of the Complainant. The Commission indicated that settlement
negotiations terminated in 2012 following lack of commitment from the Respondent
State. The Commission noted that, indeed it was on the basis that settlement
negotiations had been terminated that the Commission resumed consideration of
the Communication on admissibility, and therefore the Commission cannot have
regard to the purported settlement agreement.3
59.
The Commission went further to opine that, even if it had regard to the purported
settlement agreement, the Respondent State did not produce any evidence of the
measures it purportedly took in compliance with the terms of the alleged settlement
agreement. The alleged measures were of the nature that would ordinarily be
documented. Moreover, the Commission has on record the Victim’s own
correspondence terminating legal representation by EWLA. According to the
Commission, from the date of such termination, EWLA had no basis for purporting
to represent the Victim in negotiations with the Respondent State.4
60.
The Commission asserted in particular that, the Victim who proceeded on the
understanding that the settlement negotiations had been terminated, left the
country and therefore the house may not be of much immediate benefit to her. In
the circumstances, the Commission considered that if indeed the Respondent State
built a house as indicated, the house could be processed to form part of reparations
that have practical utility to the Victim.5
The Decision of the African Commission on Review
61. In view of the above, the African Commission on Human and Peoples Rights
decides that the motion for review be dismissed on the basis that the requirements
for the Commission to proceed with review in terms of Rule 111 (2) (c) have not
been met, as there are no compelling reasons to review the Communication.
Adopted by the African Commission on Human and Peoples’ Rights at the 27th ExtraOrdinary Session from 19 February to 4 March 2020
ACHPR Merits decision-Communication 341/07 – Equality Now v Ethiopia, para 155
Ibid para 156
5
Ibid para 157
3
4
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