Human Rights our
Collective Responsibility
COMMUNICATION 455/13
Abubaker Ahmed Mohame'd and 28
others (represented
by X and Y)
")/
Federal DemocratiQ .Re~publicof
Ethiopia"
Adopted by the:
African Commission on Huint:mand Peoples' Rights
During the 74'" OrdiMry ~ion.l~lld;'yirtually,/rom 21 February to 7 March 2023.
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Hon. Com'!!._lsslonerRemy IIIi !y Lumbu
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The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 0504
Email: au-banjul@africa-union.org
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Communication
455/13:
Abubaker
Ahmed
Mohamed and 28 others (represented by X and Y)
v. Federal Democratic Republic of Ethiopia
Summary of the Complaint
1.
The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat), received a Complaint on 4thOctober 2013from X and Y (the Complainants),
acting on behalf of Abubaker Ahmed Mohamed and 28 others (the Victims).
2.
The Complaint is submitted against the Federal Democratic Republic of Ethiopia (the
Respondent State), State Party to the African Charter on Human and Peoples' Rights
(the African Charter).'
3.
The Complainants allege that the Respondent State has been interfering with the
religious autonomy of Ethiopian Muslims since July 2011. In this regard, the
Government has sponsored and imposed a Lebanese sect known as the Ahbash on the
Muslim community in Ethiopia through the coercive training of thousands of Muslim
Imams, scholars, leaders and other religious figures. The trainees were forced to
participate in the trainings and if they refused the Respondent State threatened to
subject them to economic and social hardships.
4.
The Complainants allege that most Ethiopians, including the Victims, peacefully
questioned and opposed these actions but the Respondent State reacted by punishing
them by, among other things, removing Imams from their positions and shutting down
some Islamic schools. Those expelled as Imams were replaced by the new Ahbash sect
members by the Respondent State.
5.
The Complainants allege that in January 2012 a Committee of seventeen prominent
Islamic scholars and civil society leaders (the Committee) was set up to negotiate with
the Respondent State. The Complainants further allege that, at the initial stage, the
Respondent State engaged with the Committee but later began making arrests,
intimidations and threats against some Committee members and other protestors.
6.
The Complainants allege that the Respondent State characterised the protestors as cells
in the global network of terrorism who were trying to create sectarian and inter-regional
conflict to overthrow the Ethiopian regime in favour of an Islamic State. Between 19th
and 21st July 2012, the Respondent State launched a major crackdown arresting
members of the Committee and about one thousand (1,000) protestors including the
Victims. The Complainants allege that while doing so the special police forces used
unnecessary and excessive force to break up peaceful protests.
7.
The Complainants allege that several detainees including the Victims has« =-I-_fll
subjected to torture, mistreatment and beatings. The Complainants allege tht{;se of tt"e>.o~o'·',
following tactics by the Respondent State: mock executions; long hours !,gta~ding for "}i\
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up to sixteen hours; chaining in uncomfortable positions for prolonged periods;
slapping and beating; food and sleep deprivation; pulling out of hair and beard; solitary
confinement in cold and dark rooms; serving food during the day and depriving of it
after dawn during the fasting month of Ramadan; and prevention of prayers.
8.
The Complainants allege that the Victims have also been forced to make specific preconceived statements of being terrorists while being recorded amid threats of torture
and mistreatment if they recant their' confessions'. The Complainants further allege that
that the Victims have been prevented from seeing their families, lawyers or medical
professionals during detention and their homes were ransacked and their families
mistreated by police. Additionally, Muslim owned media outlets including those
owned by one of the Victims have been shut down.
9.
The Complainants allege that the Victims were formally charged on 29th October 2012,
three (3) months after their arrest, with the offence of terrorism under the AntiTerrorism Proclamation No. 652/2009 (Anti-Terrorism Law or Anti-terror Statute). The
Complainants further allege that on 5th February 2013,the Respondent State released a
documentary film on national television alleging that the Victims and other protestors
were working with global jihadi organisations before the Victims trial commenced. In
addition, the Respondent State's media has also broadcasted several shows and
interviews that implied the guilt of the detained Victims and other protestors.
10. The Complainants allege that since the trials are conducted in camera information is
scanty. The Complainants further allege that the Victims' attorneys have been denied
the opportunity to adequately prepare for their cases because the Court made a decision
to allow the prosecutor to withhold the identities of his witnesses and the subject matter
of their testimony.
11. The Complainants allege that the Respondent State, through an Elders Committee, has
also approached the Victims to admit guilt and apologise in exchange for pardon.
12. The Complainants allege that peaceful protests persist in Ethiopia. Illustratively, on 3rd
August 2013, 1,500 protestors were arrested and 25 other killed. On 9th August 2013,
hundreds of protestors were beaten, and an unknown number arrested including the
Victims represented in this Communication.
13. The Complainants allege that the Victims have appealed to the judiciary but that local
remedies have proved to be unavailable, ineffective and insufficient.
Articles alleged to have been violated
14. The Complainants allege violation of Articles 4, 5, 6, 7, 8, 9, 10 and 16 of the African
Charter.
Prayers
15. The Complainants request the African Commission on Human and Peoples' Rights (the
Commission) to:
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Draw the attention of the Assembly of Heads of State and Government of the African
Union (AU) to the situation in accordance with Article 58 of the African Charter.
Procedure
16.
On 4th October 2013, the Secretariat received the Complaint and acknowledged receipt
of the same on 9th October 2013.
17.
On 22nd October to 5th November 2013, during its 54th Ordinary Session, the
Commission considered the Communication and decided to be seized of it.
18.
On 7th November 2013, both the Complainants and the Respondent State were informed
of the seizure decision by letter and Note VerbaLe,respectively.
19.
On 29th January 2014, the Secretariat received the Complainants' Submissions on the
Admissibility of the Communication, which was duly acknowledged and transmitted
to the Respondent State by Note Verbale dated 7th February 2014.
20.
On the same day, the Secretariat also received a letter from the Complainants requesting
for Oral Hearings. The Secretariat acknowledged receipt and informed the parties that
the request would be brought to the attention of the Bureau of the Commission by letter
dated 7th February 2014.
21.
On 11th April 2014, the Complainants were thereafter informed that the Bureau declined
their request for Oral Hearings as it did not meet the criteria set out under Rule 99 of
the Rules of Procedure of the Commission.
22.
On 1st April 2014, a follow-up letter and Note Verbale were transmitted to the parties
following the 15th Extra-Ordinary Session of the Commission, held in Banjul, The
Gambia, from 7th to 14th March 2014.
23.
On 15th April 2014, the Secretariat received the observations of the Respondent State on
the Admissibility Submissions of the Complainants, which was duly acknowledged and
transmitted to the Complainants for their comments by letter dated 17th April 2014.
24.
On 30th May 2014, the Secretariat received the Complainants' Response to the
Submissions of the Respondent State on the Admissibility of the Communication, which
was duly acknowledged and transmitted to the State by Note Verba le dated 30th May
2014.
25.
On 2nd July 2014, the Secretariat requested the Complainants to furnish the Commission
with translated copies of some of the Annexes to their Submissions or a translated
summary of the Annexes in an AU working language.
26.
On 7th July 2014, the Complainants forwarded translated summaries of the Annexes by
email and the Secretariat acknowledged receipt by letter dated 10th July 2014.
27.
On 30th July 2014, the Secretariat informed the Parties that consideration of the
Communication was deferred to a later Session by letter and Note Verbale.
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28.
On 29th September 2014, the Secretariat received a request for Provisional ~~sures
a note on new and ongoing violations of the Complainants' Article 7 righ ~~. (
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29.
On 17th February 2015, the Commission issued the Provisional Measures request by the
Complainant. The Respondent State and the Complainant by Note Verbale and letter
dated 4th March 2015 were duly informed.
30.
On 13th April 2014, the Commission received a response from the Respondent State
alleging among other things that the Provisional Measures were issued without merit.
31.
On 17th April 2015, the Secretariat received a letter from the Complainants alleging the
violation of the Provisional Measures on 17th February 2015 and new evidence relating
to continuing violations. The Commission acknowledged the letter on 3rd December
2014.
32.
On 14th May 2015, the Secretariat updated the Complainants and the Respondent State
on the status of the Communication by way of a letter and a Note Verbale respectively
post-Se= Ordinary Session.
33.
The Secretariat transmitted the Admissibility decision via a letter and Note Verbale
dated 16th October 2015 to the Complainants and the Respondent State respectively.
34.
On 25th November 2015, the Secretariat updated both the Complainants and the
Respondent State via a letter and Note Verbale respectively after the 57th Ordinary
Session.
Provisional Measures
35.
In accordance with Rule 98 of the 2010 Rules of Procedure of the Commission (2010
ROP), the Complainants filed a request for Provisional Measures relying on allegations
that irreparable harm was being done to the Victims, specifically, Bedru Husain Nur
Husain and Ahmed Mustefa Habib, both of whom continue to be allegedly subjected to
cruel, inhuman and degrading treatment while in detention. Provisional Measures was
issued by the Commission on 17th February 2015 requesting the Respondent State to:
(i)
fully investigates the circumstances of these allegations of the 29 prisoners
specifically, the two Victims, Bedru Husain Nur-Husain and Ahmed Mustefa
Habib who continue to be subjected to cruel, inhuman and degrading treatment;
(ii) guarantee the client-attorney confidentiality privilege by ensuring that the
Victim's lawyers conversation with the Victims are not monitored and their
documents are not confiscated without following due process; and
(iii) observe the right of the Victims to a presumption of innocence until proven
guilty and also refrain from making prejudicial statements including in mass
media since it may undermine their fair trial process.
36.
The Respondent State, however, contested the issuance of Provisional Measures
alleging that it was issued without merit. The Complainants subsequently wrote back
to the Commission alleging the violation of the Provisional Measures issued by the
Commission.
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37.
The Complainants requested the Commission to among other things refer the issue-to, /J '\_
the African Court on Human and Peoples' Rights (the Court). The fiphunission
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that the Communication be tabled for admissibility on a priority basis during the 18th
Extra-Ordinary Session.
The Law on Admissibility
Complainants' Submissions on Admissibility
38. The Complainants submitted that they have fulfilled all the requirements
Admissibility provided under Article 56 of the African Charter.
of
39. The Complainants submitted that the Communication: indicates the authors; is
compatible with the African Union Constitutive Act and the African Charter; is not
written in disparaging or insulting language; is not based exclusively on news
disseminated through the mass media; is submitted within a reasonable period of time;
and does not deal with a case that has been settled internationally or regionally. The
Complainants further submitted that the Communication satisfies the requirement of
Article 56(5) of the African Charter on the exhaustion of local remedies since the
remedies are unavailable, inefficient and insufficient.
40. The Complainants submitted that the requirement to exhaust local remedies is
underpinned by several considerations as follows: local remedies must be judicial in
nature; the pursuit of local remedies must guarantee a genuine prospect of success; the
violations must be justiciable at the national level; fair trial guarantees must be
observed; and exemption should be considered in cases where the scale or seriousness
of violations renders it impractical to claim local remedies at the national level.
41. The Complainants submitted that they are unable to challenge Government's laws and
actions because of deficits contained in the Constitution of the Federal Democratic
Republic of Ethiopia (the Constitution) and other organic laws. The Complainants
further submitted that local remedies are unavailable since the powers to adjudicate
constitutional issues are given to a non-judicial or political organ by the Constitution
and other laws. In this regard, courts are legally and effectively prohibited from
interpreting and applying the Constitution and other international treaties ratified by
Ethiopia including the African Charter. The Complainants rely on Cudjoe v Ghana?
where the Commission held that Article 56 of the Charter" entails remedy sought from
courts of a judicial nature".
42.
The Complainants submitted that the requirement that local remedies must be judicial
in nature is a 'common African Standard'. The Complainants further submitted that the
power to interpret the Constitution is usually given to a judicial organ of the State and
any other arrangement will therefore violate the principle of separation of powers that
is necessary for the independence of courts.'
43.
The Complainants submitted that Articles 62, 83 and 84 of Ethiopia's Constitution
bestows the power to interpret the Constitution or decide on any constitutional dispute
to the House of the Federation - the upper House of Parliament - therefore it ~
of the requirement that the exhaustion of local remedy should be of a judicial natur ~
The Complainants further submitted that I/[t]he House of the Federatio .G not jt,{"stthe"-o.o<,..'
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Communication 221/98 - Cudjoe v. Ghana (1999) ACHPR para 13.
3 Communication
251/02 - Human Rights v. Swaziland (2005) ACHPR paras 55-56.
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highest organ to interpret the Constitution but it is the only organ that has this power"
and it is assisted by the Council of Constitutional Inquiry (the Council).
44. The Complainants submitted that any hopes that the courts would resort to
constitutional interpretation were quashed in 2001 with the passage of two laws,
Proclamation 250/2001 and Proclamation 251/2001, which ensured that the judiciary
was completely excluded from interpreting both procedural and substantive aspects of
the Constitution. The Complainants further submitted that empirical studies show that
judges routinely refer cases to the Council and the House of Federation and avoid the
issue of constitutional interpretation altogether, including by refraining from citing the
Constitution.
45. The Complainants submitted that Ethiopians courts are also precluded from applying
or interpreting the African Charter or any other human rights treaty ratified by Ethiopia
pursuant to a law passed by the House of Representatives (the "lower house"),
Proclamation 3/1995. It requires that all the laws of Ethiopia be published in the official
gazette (known as the" Negarit Gazeta"), which publication allows courts to take judicial
notice of the laws. The Complainants further submitted that the failure to publish
human rights instruments ratified by Ethiopia in the Negarit Gazeta means that the
competence of the courts is ousted. In this regard, the Commission has consistently held
that local remedies are ineffective or inadequate where the competence of the judiciary
is ousted.'
46. The Complainants submitted that the local remedies are discretionary in nature since
the House of the Federation is controlled by the ruling party, EPRDF, and its affiliates
who hold 96.6% of the seats of House of Representative ("lower house") and 100% of
the seats of the House of Federation ("upper house"). In this regard, the House of
Federation is not a judicial organ and makes its decision through the voting of political
representatives whose fidelity is to their party and electorate rather than some method
of legal interpretation or principle. The Complaints submitted that they should be
exempted from the requirement of exhaustion of local remedies in line with the
principle established under Constitutional Rights Project v Nigeria» where the
Commission exempted the requirement of exhaustion of local remedies since the
remedies were discretionary to the decision-maker or "if object of the remedy is to
obtain a favour and not to vindicate a right."
47. The Complainants submitted that the courts have also been denied the authority to
enquire into the validity of laws that strip individuals within their jurisdiction of fair
trial rights guaranteed by domestic and international law. In accordance with the
Commission's jurisprudence in Lawyers for Human Rights v Sioaziland.i there should be
no requirement to exhaust local remedies where the courts had no authority to grant
bail, although they did retain jurisdiction over criminal cases generally.
48. The Complainants submitted that the courts are unable to provide remedies given its
lack of both the structural or functional independence necessary to hold the government
accountable for violating the rights of its citizens including the Victims who have been
harassed, tortured, and subjected to a politically-motivated prosecution. Aec~.
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the Complainants Submissions, the lack of structural independence has been achieved
through a series of coercion, co-option, and rewards thus making the judiciary
dependent on the executive." The judiciary's lack of structural independence is further
evidenced by its lack of power to interpret the Constitution and review the actions and
laws of the executive and legislative organs." The Complainants further submitted that
there is no genuine prospect of success since the judiciary lack functional independence.
The Ethiopian judiciary is structured in such a way that it cannot second-guess the
executive and where that happens punishment is meted out against the judge."
49. The Complainants submitted that since the Ethiopian legal system does not allow for
plea bargaining except in the limited context of anti-corruption procedures, the release
of some of the Complainants without providing sufficient justification is illustrative of
the arbitrary nature of decisions-making aimed at appeasing the critics of the trials,
which are politically motivated.
50. The Complainants submitted that some Victims have been convicted in the Ethiopian
judiciary relying on confessions obtained via torture and in violation of fair trial
guarantees under Ethiopian laws. The Complainants further submitted that the
According to the Complainants submissions, the reliance on the executive by the judiciary has been achieved
through the following tactics: Control of the budget of the judiciary by the executive, which has led to in one
instance the refusal by ministry of finance to effect an increase in the salaries of judges having been approved
by the Judicial Administrative Council; and the use of federal and state Judicial Administration
Councils/Commissions whose membership is dominated by members of EPRDF and exercises such powers
including disciplinary hearings, promotions, and suspensions of its members. The Complainants further submit
that the independence of the judiciary administratively has been weakened further since membership to the
ruling party, EPRDF, has become a necessity for judicial appointment and tenure. The government is pursuing
two large scale campaigns targeted at recruiting judges to be members of the ruling party. The first campaign
has been for the past two decades where the Civil Service College's law department has enrolled and quickly
graduated members of the ruling party and former rebel fighters including prominent politicians, without
apparent regard for qualifications and aptitude. Relatedly, the Complainants submit that even though not
pursued rigorously, the government also considered taking over the regular law schools in the country and
make them into institutions that produce non-independent and regime-compliant professionals. The second
large scale campaign relies on the judicial training institutes, which is aimed at bringing those who have
graduated from law schools into the influence of the government by requiring that they be trained in one of
these institutions in order to become a judge or a prosecutor. According to the complainants' submission, these
institutions have been key recruitment and vetting grounds and those found non-compliant are filtered out.
The Complainants further submit that the campaigns were seen to be indispensable following the 2005 crisis.
The government wanted to ensure that the judiciary was even more reliable to deliver what is needed by the
EPRDF.The Complainants submit that the government also practices judicial purges, which can sometimes be
severe as that of 1994-1995where 1000 were fired from the judiciary by EPRDF for political reasons. In most
cases, judges in Ethiopia find it hard to resign and some of them opt to walk away. Some of them remain
unemployed for more than two years thereby suffering the indignities of livelihood challenges.
8 For example, in 2008, the judiciary was ousted from reviewing some of the decisions of the director of
Ethiopian Revenue and Customs Authority via a regulation passed by a Council of Ministers.
9 In practice, the judiciary protects the government from both internal and external criticisms by situating its
repressive policies within the framework of law and legality. The interference in the work of the judiciary is
common and the most blatant cases include government officials write letters to judges relinquishing them of
their offices, dictating the decision of the judges, ordering the reduction of judge's salaries, refusal to enforce
judicial ~ec.isio~s ~n.d in extreme cases ~he impris~nment of judges in retaliation for u~avour~~le deCislo~.
The Ethiopian judiciary also plays a critical role 111 power struggles between the vanous po . ~al forces 'ill'
Ethiopian government since the current government came into power. According to th
mplainants'
submission, the post-200S high profile political trials were aimed at mobilising public 0 ::ion against, its
~olitical adversaries. Those targeted include opposition politicians, journalists, and civic le I ~ rs and hum~n
nghts defenders.
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subjection of Victims to torture, inhuman and cruel treatment
sanctioned with the judiciary being complicit.t?
51.
may be officially
The Complainants submitted that the government has also continued to violate their
presumption of innocence through media campaigns without any reproach from the
courts.
52. The Complainants submitted that there is a general lack of accountability for massive
violations of human rights in Ethiopia.l! In this regard, the Complainants'
Communication emanates from a larger pattern of serious or massive violations since
the enactment Anti-Terrorism Proclamation in 2009. The government enacted the AntiTerrorism Proclamation alongside the Mass Media and Freedom of Information
Proclamation, and the Charities and Societies Proclamation that has shrunk the
democratic space in Ethiopia. The Complainants further submitted that torture, cruel,
inhuman, or degrading treatm.ent or punishment, and prolonged arbitrary detention
may be classified as both 'serious' and 'massive' either jointly or separately.
53. The Complainants submitted that some of their claims are non-justiciable in Ethiopia.
Their case involves a widespread pattern of violence and rights abuse with some victims
not represented in court. Some rights guaranteed under international laws ratified by
Ethiopia or the Constitution lack procedures to allow for their domestic adjudication.
The civil procedure law for instance allows only persons with 'vested interest' to be
party to a civil litigation. Criminal procedure law also recognise only the accused, the
public prosecutor and private prosecutor to be party to a criminal litigation and any
constitutional litigation that arises. Pursuant to Proclamation 250/200L constitutional
litigation does not provide. for public interest litigation avenues since only 'final
decisions' and not 'legislation' can be challenged. The Complainants further submitted
that their right to dignity and healthy conditions of detention while provided for under
the African Charter are not recognized in Ethiopia and that an Ethiopian Judge will be
reluctant to interpret the law in a broad and assertive manner to allow for either public
interest cases or recognise the rights of prisoners to a healthy and dignified condition.
54. The Complainants submitted that the Victims have been denied fair trials guarantees
including being: refused access to lawyers and legal representation; subjected to torture
in order to obtain confessions; denied their right to be presumed innocent until proven
guilty; denied the right to be tried in public; and offered pardon in exchange for
admission of guilt. Accordingly, since Article 23 of the Anti-Terrorism Law allows for
the admissibility of evidence obtained through confession, Ethiopians courts are barred
from reviewing legislations that contradicts the Constitution and as such it would be
legally impossible for any court to reject evidence obtained through torture.
The torture of political prisoners in Ethiopia's "unofficial" prisons is rampant particularly in military camps,
public offices turned into prisons and underground buildings. The torture situation in Ethiopia is so dire that
the European Court of Human Rights and the Court of Appeal of England and Wales have stopped deporting
individuals to Ethiopia.
n The judiciary is complicit in massive human rights violations committed in Ethiopia including~.
violation in Gambella Regional State; massive violations. in the Ogaden Region; massive viola ion
in Oromia ,0"0~"'.
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Regional State; massive violations following the 2005 elections; massive violations in relation
,and grabs; and
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the case of journalists. In the last category, the 2009 anti-terrorism legislation led to a drama !lshrinking of the '"
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55. The Complainants submitted that their right to be presumed innocent until proven
guilty had been violated. The Complainants submitted that they should be exempted
from the exhaustion of local remedies since in Haregeuioin Gabre-Selassie v Ethiopia the
Commission held that "exception to the rule on the exhaustion of domestic remedies
would ... apply where the domestic situation of the State does not afford due process of
law" and "the right to a fair trial enshrined under Article 7."12 The Complainants further
submitted that the government have made concerted efforts to discredit the defendants
and establish their guilty in the public mind prior to trial via media including by using
the film "Land of Blood" (Akeldama). Additionally, the then Prime Minister, Meles
Zenawi, also declared the Complainants and others and their supporters to be terrorists
in a Parliamentary speech.
Respondent State' Submissions on Admissibility
56. The Respondent State submitted that the Communication does not comply with the
requirements stipulated under Article 56 of the African Charter.
57. The Respondent State submitted that the Complainants were suspected of violating the
anti-terrorism law of Ethiopia including by deliberately and collectively conspiring to
create an Islamic State. The Respondent State further submitted that in order to advance
their aims, the Complainants created a committee called "Islamic Religious Preachers
Group".
58. The Respondent State submitted that the Complainants had contemplated waging a
jihad (religious war) against the government declaring that it would not lead its people.
The Respondent State further submitted that investigations were carried out and the
perpetrators arrested and prosecuted in strict adherence to international human rights
law.
59. The Respondent State submitted that the current case is under adjudication before the
court and that no final decision has been rendered. The Respondent State submitted that
the current case falls within the jurisdiction of the Federal High Court.
60. The Respondent State submitted that there are several guarantees under the
Constitution with regards to the jurisdiction and independence of the judiciary. In this
regard, Article 37(1) of the Constitution guarantees the right to bring a justifiable matter
to, and to obtain a decision or judgement by a court of law or any other competent body
with judicial power. Article 78 of the Constitution further guarantees the independence
of the judiciary whilst Article 78(4) of the Constitution prohibits the establishment of
special or ad hoc courts which shall take judicial powers away from the regular courts
or institutions empowered to exercise judicial functions following legally prescribed
procedures. Article 79(2) of the Constitution protects the Ethiopian courts from
interference or influence of any governmental body, or government official or from any
other source. Article 79(3) of the Constitution affirms that the judges shall exercise their
functions in full independence and shall be directed solely by the law. The Respondent
State further submitted that it has exerted its efforts to ensure individuals' righ
constitutional rights are properly implemented and materialised in Ethiopia,
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12
Communication 301/05 - Haregeuioin Gabre-Selassie v Ethiopia (2013) para 45
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61. The Respondent State submitted that the Executive cannot give instructions to the Judge
concerning the interpretation of the law, or on issues of injunctions or concerning the
stand the Judge should take on any matter of law. The Respondent State further
submitted that Judges are guaranteed protection from being subjected to any pressure
as a result of any act done during the exercise of their power.
62. The Respondent State submitted that the establishment of the Federal Judicial
Administration was one attempt to free the judiciary from the influence of government
organs or officialdom including in jurisdiction, appointment, composition of the courts,
and the composition of the judicial disciplinary bodies. The Respondent State further
submitted that its legal system is free and independent and that the Complainants
allegations regarding its lack of independence are flawed and baseless.
63. The Respondent State submitted that the independence of the Judiciary was confirmed
when it acquitted ten of the accused as well as two organisations without the need for
them to defend the charges brought by the prosecution. The Respondent State further
submitted that the independence of the judiciary is a pillar to Ethiopia's legal system
and that the Judges are professional and that the Judiciary continuously assesses itself
in order to take necessary corrective and reformative policy and legal measures.
64. The Respondent State submitted that the House of Peoples' Representatives and the
Federal Democratic Republic of Ethiopia promulgated the Anti-Terrorism Proclamation
No. 652/2009 on 28th August 2009 in compliance with international law and the UN
Security Council Resolution 1624. The Respondent State further submitted that the
Federal Democratic Republic of Ethiopia Government believes that fighting terrorist
activities is the basis for the full protection and promotion of fundamental human rights
and freedoms.
65. The Respondent State submitted that the Anti-Terrorism Proclamation No. 652/2009
does not prohibit peaceful protests. The Respondent State further submitted that the
law is also subject to all the legal principles of a public trial including fair hearing, due
process, presumption of innocence and other principles incorporated under
international human rights instruments to which Ethiopia is a party or under the
Federal Democratic Republic of Ethiopia Constitution.
66. The Respondent State submitted that it is committed to ensuring, protecting and
fulfilling the fundamental human and democratic rights that are guaranteed under its
Constitution, the African Charter and other international instruments ratified by
Ethiopia. In particular, it has taken measures to strengthen the various institutions to
work on the protection and promotion of human rights in all aspects. Consequently, the
Federal Democratic Republic of Ethiopia has adopted a national human rights action
plan and incorporated human rights in the development programmes.
67.
The Respondent State submitted that Articles 9(4)and 13(2)of the Constitution provides
that international human rights instruments ratified by Ethiopia are part and parcel of
the domestic laws. In this regard, allegations that Article 2(2) and (3) of Proclamation
3/1995 prohibiting courts from taking judicial notice is erroneous.
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68. The Respondent State submitted that Ethiopia has consistently undes aken its
obligations under the African Charter and has submitted its 1st to 4th periOd~'~eport an;J
is currently working on its 5th and 6th periodic reports.
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69. The Respondent State submitted that Complainants have not exhausted local remedies
as required by Article 56 of the African Charter since the current case is currently under
adjudication. Ten (10) of the accused persons as well as two (2) organisations have so
far been acquitted by the courts after examining the case and evaluating the evidence
before it. Nine (9) accused have been ordered to defend the case instituted against them.
Ten other accused persons are now facing amended charges of participating in terrorist
organizations and not the planning, preparation, conspiracy, incitement and attempt of
terrorist act. The Respondent State further submitted that the trial is on-going and that
the defenders have been awarded an opportunity to defend themselves. In this regard,
[t)here can be no grounds for bypassing the requirement of exhaustion of legal remedies."
/I
70. The Respondent State submitted that the Complainants' allegations that Proclamation
250/2001 and Proclamation 251/2001 have ousted the court's jurisdiction are not
accurate. The Respondent State further claims that the Council is established by the
Federal Constitution to give professional support to the House of Federation which has
been given power to interpret the Federal Constitution.
71. The Respondent State submitted that the Federal Courts have jurisdiction over cases
arising under the Constitution, Federal laws and international treaties pursuant to
Proclamation No. 25/1996. The Respondent State further submitted that, in practice,
Ethiopian courts are mandated to apply the Constitution in carrying out their duties.
72. The Respondent State submitted that the court and parties to a case reserve the right to
submit an application to the Council for constitutional interpretation. The Respondent
State further submitted that the Council is not a political body but an independent nonjudicial organ working together with the House of Federation.
73. The Respondent State submitted that the House of Federation being the legislative
branch of government with representatives from all the nations, nationalities and
people of Ethiopia has been given the responsibility for safeguarding the Constitution
by resolving conflicts as well as fostering cooperation and ensuring equality between
Ethiopia's ethnic groups. In this regard, the House of Federation has the advantage of
clarifying the clear intent of the Constitution due to the fact that it is a legislative organ
which is composed of direct representative of the people. For instance, the House of
Federation recently found in favour of a defendant in a constitutional case claiming the
right of appeal as guaranteed in the Constitution.P
74.
The Respondent State submitted that the allegation by the Complainants that there are
no checks and balances among the various branches of the State is erroneous and
unacceptable. The House of Representatives is the one that form and lead the executive
and also approve the appointment of members of the executive and Judges. In this
regard, the three branches of State operate independently and that the Parliament
oversees the execution of laws. The Respondent State further submitted that
constitutional interpretation can also be rendered by the House of Peoples'
Representatives through legislative interpretation of Constitution or by the Judiciary in
the application of cases.
claims that their rights have been violated in this respect can address their complaint to
the Prosecutors Office or to the court for effective, prompt and appropriate response.
76. The Respondent State submitted that the presumption of innocence until proven guilty
is the cornerstone of Ethiopia's Criminal Justice system and that the Supreme Court has
repeatedly upheld the importance of these Constitutional guarantees and ruled that all
courts maintain the same standard.
77. The Respondent State submitted that the trials were all conducted in public except
during the hearing of pre-trial witnesses, which was held in closed session for the sake
of security. From 27th March 2013, the trial was conducted publicly, and the court room
was full of observers.
78. The Respondent State submitted that the Ethiopian law puts basis for public interest
litigation and guarantees healthy and dignified treatment of prisoners.
79. The Respondent State submitted that the Communication contains other allegations of
human rights violations which are not part of the claims of the Complainants. The
Respondent State further submitted that the Commission should dismiss all these
allegations as irrelevant since they are unsubstantiated accusations.
80. The Respondent State prays that the case be dismissed because the applicants have not
exhausted local remedies since the cases are currently ongoing trial at the Federal High
Court.
81. The Respondent State submitted that the claims relating to the violation of fair trial and
other issues are fairly substantial matters which will be argued, when and if the
Communication is found admissible.
Additional submissions of the Complainants
82. The Complainants submit that the Respondent State contested some of the
Complainants' submissions but failed to provide evidence to support their case apart
from annexing the Constitution and two other laws.
83. The Complainants submit that the Respondent State failed to address the allegations in
the Complainants' submission that outlined multiple instances of violations of
guarantees of the Constitution and positive law which have been circumvented and
abused by the ruling party to pursue its own political agenda and that in Haregewoin
Gebre-Sellaise v Ethiopia.t! the Commission specifically rejected the Respondent's State
claim that Ethiopian courts are independent because "[t]he Constitution guarantees in
Article 79(2) and (3) that [they] shall be free from interference by government."
84. The Complainants submit that their argument is not that they have exhausted local
remedies, but that they are not available, effective or sufficient.
85. The Complainants submit that the Respondent State did not address the issue of the
existence of a "Common African Standard" which has indirectly been confirmed y
"
Communication 301/05 - Haregewoin Gebre-Sellaise & IHRDA
(2011) ACHPR para 223.
14
(all behalf of former
Dergi
Commission's jurisprudence that requires the power to adjudicate disputes of
constitutional significance be given to judicial organs.
86. The Complainants submit that they do not have an issue with giving of power to
"special organs" to interpret the Constitution but that Ethiopia's "special organ" is a
non-judicial body, its jurisdiction and power are discretionary, or it has no obligation to
decide according to legal principles. These factors make a judicial remedy unavailable,
impractical, inapplicable, ineffective and/ or insufficient.
87. The Complainants submit that their primary contention is that the bodies tasked with
the power to interpret the nation's foundational laws/ principles are not judicial organs
that operate according to judicial procedures, but they are extra-judicial organs. The
House of Federation and the Council are political organs due to the constitutive
principle that underpins the institutions and animates their operations and therefore
their memberships are irrelevant. The Complainants further submit that the Council is
irrelevant to their case as it is merely an advisory body in the process of constitutional
interpretation with no binding powers.
88. The Complainants submit that the Respondent State have failed to show that Ethiopian
courts have the powers to interpret the Constitution based on the interpretation of the
Article 6 of Proclamation 25/1996.
89. The Complainants submitted that the Respondent State has failed to publish
international human rights instruments in the official gazette thereby preventing the
courts from applying these treaties including the African Charter.l>
90. The Complainants submitted that on 17thDecember 2012 their preliminary objections
challenging the Anti-Terrorism Proclamation was declined and a request to refer it to
the Council rejected on the basis that the law did not raise constitutional concerns.
91. The Complainants submit that their unilateral petition to the Council made on 15u1
January 2013 was not acted upon despite the law providing for a decision to be made
within one month.
92. The Complainants submit that the Melaku Fenta and others case where the House of
Federation ruled in favour of the Appellant did not address the issue of judicial
independence since the Respondent State has mischaracterized and decontextualize the
case and the decision of the House of Federation as follows. One, the defendant never
sought constitutional interpretation from the House of Federation and there was no
apparent advantage for doing so. Two, the referral was political since it was never sent
via the Council thereby violating the laid down procedures. Three, the fact that the
courts ordered the House of Federation instead of submitting the case to the Council
was uncharacteristic and shows there was a political hand behind the case.'
I
93. The Complainants submit that their case has been pending before the Council for one
year and four months challenging the legality of the Anti-Terrorism Proclamation while
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rom prominent
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legal scholars to support their claim that Proclamation '3/1995 effectively prevents Ethi
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applying international treaties in Ethiopia unless they are translated to Amharic and other {~ionallanguages
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the Melaku Fenta and others case was dealt with within two weeks thus showing that the
judiciary has no functional independence and that the above scenario was' coordinated
and centrally managed by the government.'
94. The Complainants submit that other similar applications, including the right to be
presumed innocent by the Complainants, have been thrown out by the Ethiopian
Federal Supreme Court and that they have no further opportunity of appeal.
95. The Complainants submit that they have met the requirement of the exhaustion of local
remedies in light of the above facts.
The African Commission's
96.
Analysis on Admissibility
Article 56 of the African Charter sets out seven requirements that a Communication
brought under Article 55 of the African Charter must satisfy in order to be declared
Admissible for consideration by the Commission. Those requirements
apply
conjunctively and cumulatively.w Failure to satisfy anyone
or more of those
requirements renders the Communication inadmissible, unless the Complainant
provides sufficient justifications as to why any of the requirements could not be met."?
97. In the present Communication, the Complainants submit that all the requirements
under Article 56 of the African Charter have been complied with. The Respondent State
on its part however submitted that the Complainants have not satisfied all the
requirements as stipulated under Article 56 of the African Charter and in particular the
exhaustion of local remedies requirement under Article 56(5) thereunder.
98. In light of the general objection from the Respondent State that the Communication does
not comply with the requirement stipulated under Article 56 of the African Charter, it
is therefore necessary to evaluate whether all the requirements on Admissibility have
been satisfied by the Complainants including the requirement to exhaust local remedies
under Article 56(5) thereof.
99. To begin with, Article 56(1) of the African Charter requires that the Communication
should' [iJndicate their authors even if the latter requests anonymity.' This requirement
demands that those submitting Communications must be known to the Commission. In
this regard, the provision allows for the authors' names to be kept anonymous. In this
Communication, the authors requested their details to be kept confidential, which
request was granted. To this extent, this requirement has been satisfied.
100. Article 56(2) of the African Charter
requires that the Communication should be
compatible with the Constitutive Act of the African Union and the African Charter. In
Kevin Mgwaga Gunme et. al. v Cameroon the Commission listed the conditions necessary
for the compatibility, namely the Communication should: be brought against a State
Party to the African Charter; allege a prima facie violations of the African Charter;
brought in respect of violations that occurred after State's ratification of the African
Charter, or where violations began before the State Party ratified the African Charter
have continued even after such ratification.!" Using the above criteria, th~.
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Others v Senegal
(2006) ACHPR.
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Communication No. 275/2003 - Article 19 vs. Eritrea (2007) ACHPR.
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No. 266/03 - Kevin Mgwaga Gunme et. al. v. Cameroon (2009) ACHPR, pa ~-.r-1. \...'
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Communication satisfies the requirement under Article 56(2) of the African Charter
because it is: brought against the Federal Democratic Republic of Ethiopia, State Party
to the African Charter; alleging violations of the provisions of the African Charter; and
based on the events emanating from the enforcement of the Anti-Terrorism
Proclamation No. 652/2009 enacted in 2009after the adoption of the African Charter.
101. Article 56(3) of the African Charter requires that the Communication should not be
written in disparaging or insulting language. In the absence of a specific objection from
the Respondent State of the Complainants records, the Commission is satisfied that the
above requirement has been satisfied after examining the Complainants' submissions.
102. Article 56(4) of the African Charter requires that the Communication is not based
exclusively on news disseminated through the mass media. This requirement has also
been met since the Complainants relied on various documents including affidavits,
court records, documentary films, amongst other supporting documents.
103. Article 56(6) of the African Charter requires that the Communication be submitted
within a reasonable period of time. From the additional submissions of the
Complainants under paragraph 91 above, the Complainants made a unilateral
application to the Council on 15thJanuary 2013, which application was not acted upon.
This was the last action recorded with regards to the procedure pursued at the domestic
level. Eight months later on 4th October 2013, they lodged a complaint to the
Commission having received no response from the Council.
104. Unlike other regional bodies, there are no clear guidelines on this issue of
'reasonableness' under the African Charter and as such the Commission has observed
in the past that it should be assessed 'taking into account the circumstances of each
caseJ? Since the delay insubmitting this Communication was not occasioned by the
fault of the Complainants but that of the Council failure to act this Communication has
been submitted within a reasonable time.
105. Article 56(7) of the African Charter requires that the Communication should not have
been settled before other international bodies. The Commission notes that nothing in
the facts as well as the parties' submissions reveal a violation of this provision and
therefore finds it satisfied as well.
106. Consequently, the Conunission is satisfied that the Complainants have fulfilled the
requirements under Article 56(1), (2), (3) (4), (6) and (7) of the African Charter. In this
regard, the Commission will proceed to analyse the arguments of both parties with
regards to the requirement under Article 56(5) of the African Charter on the exhaustion
of local remedies, which has been particularly contested by the Respondent State.
107. Article 56(5) of the African Charter requires that the Complainant should exhaust local
remedies unless it is obvious that the procedure is unduly prolonged. The requirement
to exhaust local remedy is a precondition that must be satisfied before finding a
Communication Admissible.s? In Zimbabwe Laurfers for Human Rights & As~
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{§.~ge"a (2:~)
ACHPR.
20 See generally the following Communications:
Communication No. 284/03 -- Zimbabuie
Rights & Associated Newspaper of Zimbabioe v. Zimbabwe (2009) ACHPR; Communication 221/9
i!yers for Human
0 udioe v, @haYt~
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Netospaper of Zimbabwe 7). Zimbabwe, the Commission decided that states 'are not
considered to have violated their human rights obligations if they provide genuine and
effective remedies for the victims of human rights violations.'21The onus therefore is on
the Complainants to provide sufficient ground(s) to support their allegation that they
have complied with the requirement to exhaust local remedies.
108, Before embarking on the main analysis, it is necessary to deal with the contention by
the Respondent State that local remedies have not been exhausted by the Complainants
since the current case is pending before the Ethiopian Federal High Court.
109. Under Paragraph 69 above, the Respondent State submitted that about ten (10) of the
accused persons as well as two (2) organisations have been acquitted after due process
was observed; nine (9) others have been ordered to defend themselves. On this basis,
the Respondent State argues that [t]here can be no grounds for bypassing the requirement of
exhaustion of legal remedies.'
I
110. The question therefore is whether the present case as submitted by the Complainants to
the Commission is also pending before the Ethiopian Federal High Court as contended
by the Respondent State.
111. In order to determine this issue, it is important to appreciate the nature of cases before
the Ethiopian Federal High Court. Under paragraph 9, the Victims are stated to be
facing criminal prosecution under the provisions of the Anti-Terrorism Proclamation
No. 652/2009. Under paragraphs 55 and 56, this position was also confirmed by the
Respondent State in its submissions and currently a final decision by the courts is
pending.
112. In Anuak
Justice Council v Ethiopia, the Commission clarified that the underlying
question with regards to whether or not the current Communication is still pending at
the national level is to look at the subject matter of the proceedings before the
Commission; and, also, whether it is aimed at granting the same relief the Complainants
are seeking before the Commission.F
113. The subject matter before the Commission is the violation of the African Charter in the
context of the Anti-Terrorism Proclamation No. 652/2009. In contrast, the cases pending
before the Ethiopian Federal High Court relates to the crime of terrorism under the AntiTerrorism Proclamation No. 652/2009. In terms of the reliefs sought, the Complainants
wants a finding that the laws and actions undertaken in the context of the AntiTerrorism Proclamation No. 652/2009 as being a violation of the African Charter,
among another things. At the domestic level, only criminal sanctions are pending. To
this extent, the Commission finds that the Communication before it is not pending
before the national courts and in particular the Ethiopian Federal High Court. In any
event, since attempts by the Complainant to raise constitutional objections before the
court failed on the grounds that the Anti-Terrorism Proclamation does not raise
299/05 - Anuak Justice Council v. Ethiopia (2006),
Communication No, 284/03 - Zimbabwe Lawyers for Human Rights & Associated Newsp
v. Zimbabwe (2009) ACHPR para 100,
22 Communication
299/05 - Anuak Justice Council v, Ethiopia (2006) para 62.
21
constitutional issues, the same cannot be regarded as pending before the national
courts.P
114. The Commission will therefore proceed to examine whether the remedies being sought
by the Complainants are available, effective and sufficient at the national level. The
Complainants have submitted that the remedies are unavailable, ineffective and
insufficient.
115. The Complainants submit that the fact that constitutional matters are dealt with by the
House of Federation, which is not a judicial body is in violation of the 'Common African
Standard'. They rely on Cudjoe v Ghana to submit that only 'courts of a judicial nature'
should be exhausted. The Commission however finds nothing in Cudjoe v Ghana that
restricts the exercise of judicial functions by other relevant and properly established
bodies outside the judiciary. The Respondent State acknowledges that the House of
Federation is an upper chamber of Parliament but this does not preclude it from
exercising judicial powers particularly if the same is granted by the Constitution as is
the present case. What is important is whether the remedies at the national level are
available, effective and sufficient.
116. In Sir Dawda K. Jawara v The Gambia, the Commission established that the rule on
exhaustion of local remedies has three main criteria, namely: the remedy must be
available, effective and sufficient.>' Consequently, 'a remedy is considered available if the
petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of
success, and it is found sufficient if it is capable of redressing the complaint.'25
117. As stated above, for a remedy to be available it must be accessed without impediment.
The Commission takes the view that notwithstanding Proclamation No. 25/1996, which
bestows upon the Federal High Court jurisdiction over cases arising under the
Constitution, Federal Laws and international treaties, Proclamations No. 250/2001 and
251/2001 also provides for a constitutional process through the Council and the House
of Federation. In this regard, the remedy can be accessed without any impediment since
the Complainants have adequate legal provisions to approach the relevant bodies.
118. The remedy is also sufficient because pursuant to paragraph 63, Ethiopia has ratified
the African Charter and other international instruments in addition to having a
justiciable Bill of Rights under the Constitution. In Civil Liberties Organisation v. Nigeria,
the Commission found that the results produced at the national level should be the basis
for determining whether local remedies are sufficient." Under Paragraph 64 above, the
Respondent State also submitted that Articles 9(4)and 13(2) of the Constitution provide
that all international instruments ratified by Ethiopia form part and parcel of the
domestic law. In this regard, the remedies available at the national level are capable of
redressing the complaint in as far as the results desirable by the Complainants could
also be achieved at the domestic level.
119.
See para 87 above.
Communication 147/95 and 149/96 - Sir Dauida K. [auiara v. The Gambia (2000) para 31.
25 As above, para 32.
26 Communication
129/94 - Civil Liberties Organisation v Nigeria (1995), ACHPR, para 8.
23
24
The Respondent State on its part has relied on Melanku Fenta and Others case to show
that the remedies before the House of Federation are equally effective.27However,
under Paragraph 89 and 90 above, the Complainants provided reasons why the above
position is untenable. The issue before the Commission for determination therefore
becomes whether the reasons provided by the Complainant under the relevant
paragraphs is sufficient to disprove the contention by the Respondent State that the
remedies before the House of Federation are effective as evidenced by the Melanku Fenta
and Others case. The Commission does not find it necessary to reproduce the arguments
of the Complainants and therefore summarily finds that the reasons provided were not
convincing enough. The irregularities alluded to by the Complainants in terms of the
fact that the Complainants did not complain about a constitutional issue and the short
time period through which the issue was resolved, and the existence of political motives
were not adequately substantiated in juxtaposition to the Complainants' complaint.
120. The Complainants also allege the lack of both structural and functional judicial
independence. They argue that the Respondent State has relied on several tactics to
ensure that the judiciary does not rule against it. The Respondent State influence on the
judiciary also exists at the level of judicial training. In order to substantiate this position,
the Complainants relied on several supporting documents including affidavits from
previous judicial officers, various reports from international organisations and
scholarly references among others.
121. The Respondent State on its part submitted that the Constitution specifically under
Article 79 (2) and (3) provides for the independence of the judiciary. Contrary to the
additional submissions of the Complainants under paragraph 80, the Commission also
acknowledges that at least the functional independence of the judiciary has been
enhanced by the establishment of the Federal Judicial Administration. The above
position coupled with the fact that, under paragraph 60 above, about ten (10) persons
as well as two (2) organisations facing the same terror-related charges as the Victims
were acquitted by the courts persuades the Commission against the position adopted
by the Complainants.
122. The Complainants also submitted that right to fair trial is not being observed in several
ways including access to legal representation, the use of torture to obtain confessions,
and the violation of the presumption of innocence until proven guilty.28In this regard,
the Complainants submitted that they should be exempted from the exhaustion of local
remedies. However, the Respondent State rebutted all the submissions of the
Complainants claiming that they were without basis. In particular, under paragraph 74,
the Respondent State notes that the Complainants' trial was conducted in public except
the pre-trial sessions. The Complainants additional submissions also indicate that their
applications before the Ethiopian Federal Supreme Court failed. To this extent, the
Commission is unable to find a violation of the right to a fair trial.
123. The Commission therefore finds that local remedies are available, effective and
sufficient. In this regard, they ought to have been exhausted unless they are JJD.G_.-=
.....
prolonged. This second ambit of Article 56(5) of the African Charter forms our I\e~
inquiry since the additional submissions of the Complainants under ~ragraph 91
'} ~
See paragraph 70 above.
28 See for example paragraph 51 above.
27
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indicate that the Complainants made a unilateral petition to the Council, which had
been pending for over eight months before approaching the Commission." Were the
remedies unduly prolonged?
124. The Commission has in the past considered that the remedies were unduly prolonged
including after: one year eight months in the case of Kabambi v the Democratic Republic of
Congo;30 ten years in the case of Modise v. Botsioanav! and five years in the case of
Association of Victims of Post Electoral Violence and Interights v Cameroon= In this regard,
it appears that the time frame may vary with the circumstance of each case.
125. In order to guide itself on this issue, the Commission has developed three criteria,
namely: the legal time limits prescribed by the domestic law; the facts of the case; and
the specific circumstances of the Complainants.P
126. In terms of the legal time limits prescribed by domestic law, Proclamation No. 250/2001
provides under section 18(2) that the issue of constitutional interpretation could be
raised by a party before the courts. The party is also at liberty to submit a case before
the Council within 90 days upon the rejection of his case by the court pursuant to section
22(3). In essence, therefore, having raised the matter before the court on 17th December
2012 and the decision made, as explained under paragraph 87, that the Anti-Terrorism
Proclamation No. 652/2009 did not raise constitutional concerns. The Complainants
therefore made a unilateral application on 15 January 2013 to the Council, which
application has been pending for over eight months.v
127. Assuming that the Council had acted on the application, the House of Federation would
have been obliged to resolve the case within 30 days pursuant to section 13(2) of the
Proclamation No. 251/2001. That the Complainants' petition is still pending eight
months later before the Council for a matter that should have been concluded within a
couple of months is untenable.
128. The facts of the case also appear to support the position that the remedies pursued by
the Complainants were unduly prolonged. Otherwise, the Respondent State would not
have relied on Melanku Fenta and others case to indicate that constitutional matters in the
Respondent State are normally dealt with swiftly.
129. Lastly, the circumstances of the Victims necessitates that the matter is resolved in the
shortest period of time pursuant to the Provisional Measures issued by the Commission
earlier.P Due to the fact that it is probable that the Victims may be facing torture and
other human rights violations in Prison, to require them to wait for a prolonged period
of time would actually defeat the course of justice.
130. The Commission therefore finds that the eight months delay period in this
Communication with regards to the unilateral petition of the Complainants is unduly
See paragraphs 1 and 88 of this Communication.
As above, para 47.
31 Communication
185/2002 - Modise v. Botswana (2000), ACHPR, para 69.
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32 Communication
272/03 - Association of Victims of Post Electoral Violence and lnterights v. Cameroonr(20D9), ,. ,4lvu .,~.
ACHPR, para. 47.
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33 Communication
408/11- Jose Alidor Kabambi Beya Ushiye and others v. Democratic Republic ofl fgo, ACHPR, )
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para 40.
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prolonged and therefore the complainants are exempted from the requirement to
exhaust local remedies.
131. Accordingly, the Commission finds that the requirements of Article 56(5) of the African
Charter have also been fulfilled.
Decision of the Commission on Admissibility
132. In view of the above, the Commission declares this Communication Admissible in
accordance with Article 56 of the African Charter.
Merits
133. Beforeembarking on the analysis of the submissions of the parties hereto it is imperative
that the Commission addresses some preliminary issues. The first one relates to an issue
that the Respondent State has raised in its submissions which were filed with the
Commission on 3rd May 2016.
134. The Respondent State has submitted that the Complainants allegations should be
dismissed for failure to comply with the Commission's ruling on admissibility.
According to the Respondent State, the Commission found that the subject matter
before it is whether the laws and actions taken in the context of the Anti-Terrorism
Proclamation No. 652/2009 are a violation of the African Charter and therefore the
Commission limited the parameters of the merits stage to include violations of laws and
acts undertaken in the context of the Anti-Terrorism Proclamation No. 652/2009 and
which the Complainants raised before the Council. According to the Respondent State
the Commission did not decide to allow a free-for-all indictment about the AntiTerrorism Proclamation No. 652/2009 generally and the state of Ethiopian Democracy.
135. The Respondent State also submitted that it understood the Commission's Decision on
Admissibility as one that required the Complainants to structure their merits brief on
those grounds that the Commission deemed admissible. Instead of narrowly tailored
arguments consistent with the Commission's decision, the Complainants now seek a
ruling by the Commission to find the entirety of the Anti-Terrorism Proclamation No.
652/2009 to be in violation of the African Charter and International standards.
136. The Respondent State also understood the Commission's Decision to require the
Complainants to address the alleged violations of the African Charter within the context
of charges brought under the Anti-Terrorism Proclamation No. 652/2009 and presented
before the Council but were not considered due to the delay. The Respondent State also
understood that the Commission's Decision excluded from consideration at merit stage
those arguments that were considered before the Ethiopian Judiciary and for which
sufficient remedies were not only available but were also effective and sufficient.
137. With the foregoing matters in mind, the Respondent State requests the Commission to
dismiss all the Complainants' arguments that were not included in their original
complaint or do not fall within the narrowly-tailored grounds which the Complaint was
deemed admissible.
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138. From the look of things, it would appear that the Respondent State was ~S">intent on
making a preliminary objection. The Commission's Rules of Procedur 0 10 (the 2010
ROP) under which this Communication was brought provides f ~the filing~f
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preliminary objections. In the most material respect, Rule 103 (1) of the 2010 ROP
provides that:
A party who intends to raise a preliminanj objection at the stage of admissibility or before the
Commission takes a decision on the merits of the Communication, shall do so not later than
thirty (30) days after receiving notification to submit on admissibility or on the merits. The
Commission shall communicate the objection to the other party within fifteen (15) days.
139. The preliminary objection ought to have been filed within 30 days from the receipt of
the Commission's decision on admissibility. In casu, the decision on admissibility was
communicated to the Respondent State on 16th October 2015. And the Respondent
State's submission which contains the said preliminary objection are dated 29th April
2016and were received on 3rd May 2016by the Secretariat.
140. From matters dealt with in paragraphs 138 and 139 hereof, it cannot be said that the
Respondent State filed the preliminary objections in the sense of Rule 103 of the 2010
ROP and therefore there is no basis upon which the Complainant's arguments can be
dismissed or struck off as requested by the Respondent State.
141. But be the foregoing matters as they may be, the submissions of the parties are going to
be taken into consideration in so far as they are going to be relevant to the matters in
controversy between the Complainants and the Respondent State.
142. Having said the foregoing, the Commission would like to observe that both the
Complainants and Respondent State, in their submissions, exerted tremendous
industry in crafting their submissions but regrettably the submissions were on a broad
range of matters and in certain cases were too repetitious. While the 2010 ROP do not
prescribe the manner in which submissions are supposed to be crafted it would be
worthwhile if the parties to Communications were to be alive to the fact that the
submissions should be brief, concise and to the point (that is, concerning or touching
the matters in controversy in a communication). Verbosity does not strengthen or enrich
submissions in any way whatsoever.
143. To put this Communication in its proper context, the Commission wishes to restate that
the Complainants alleged that the Respondent State had violated Articles 4,5,6,7,8,9,
10 and 16 of the African Charter and the Complainants prayed for the reliefs set out in
paragraph 165 hereof. Against this background, the parties hereto ought to have
restricted their submissions and arguments to issues the subject of this complaint. That
said, we hereunder summarize the submissions of the respective parties as well as those
of the Amicus Curiae.
Complainant's
submissions
on the Merits
144. The Complainants have not made any submissions in relation to the alleged violation
of Article 4 of the African Charter. In the circumstances, it shall be taken that the
Complainants have abandoned the allegations concerning or touching on the .;,._v~io~~~
of Articles 4 of the African Charter.
.....Alleged violation of Articles 6 and 9(2) of the African Charter
145. The Complainants submitted that most of the violations against their
connected with the Respondent State's application of the Anti-Terrori
No. 652/2009 to them. In this regard, they submitted that their rights have been violated
through the application of the Anti-Terrorism Proclamation No. 652/2009, which
defines the act of terrorism so broadly that they could not have reasonably foreseen
whether their protest against the government constituted terrorism acts.
146. The Complainants submitted that not only is the Anti-Terrorism Proclamation No.
652/2009 so vague and broad on so many aspects, including in that it did not allow the
Complainants adequate forewarning on what constitutes a crime, but that it is designed
in a way that allows the Respondent State to persecute its peaceful critics.
147. Relying on the principle of legality and limitation under the African Charter, the
Complainants submitted that the Respondent State had violated their rights by
"prosecuring" [SIC] them under the provisions of the Anti-Terrorism Law which are:
too vague and overboard that they proscribe legitimate acts of protest and activism. In
this regard, the Complainants submitted that whereas they were threatened, tortured
and arbitrarily detained on trumped up charges of criminal conspiracy in terrorist acts
under the Anti-Terrorism Proclamation No. 652/2009 their persecution is legitimatized
under this law because of its faulty design providing legal vagueness and ambiguity
that allows the Respondent State to prosecute activists, protestors, journalist, bloggers
and political opposition leaders as terrorists.
148. According to the Complainants, the definition of "terrorism or terrorist" in the AntiTerrorism Proclamation No. 652/2009 is wanting and overboard in many ways. In this
regard the Complainants submitted that given the broad brush with which the crime is
defined it can inherently be and has been used to punish any political dissidents and
civic activists including the Complainants.
149. The Complainants implored the Commission in its consideration of whether the
Complainants' incarceration was prescribed by an adequately precise law. And they
also implored the Commission to consider the fact that the Commission and almost all
other international human rights mechanisms have decided that this law ought to be
amended to comply with human rights standards.
150. The Complainants also implored the Commission to take next logical step and decide
that the Anti-Terrorism Proclamation No. 652/2009 definitions under Article 3(4), (6)
and 5(1) do not comply with the Commission's requirements that limitations of rights
ought to be prescribed by adequately precise law. They also implored the Commission
to make recommendations contained in the "Reliefs Sought" section of their submission
in order to make the law compliant with regional and international standards.
Alleged violation of Freedom of Religion (Article 8 of the African Charter)
151. After making lengthy submissions on the alleged violation of Article 8 of the African
Charter the Complainants concluded that the Respondent State had violated the forum
intemum, which is the internal right of the freedom to choose one's religion, and to be
free from coercion in that the Government had forced over 18,000 Mt~o
proselytization classes by the Abhash sect and by its declaration of non-abaSh-sect~
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illegal. And that the Respondent State had also violated the freedo of choice and 0"') ,
freedom from coercion by establishing the Abhash sect (a vaguely de ::!r d "t:ra9itiOna~ ""~~-~
Ethiopian Islam") as the official religion of Ethiopia. According to the Bmpfainan~sthe ~ ;.,\\
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violation of the African Charter as the internal manifestation or the choice of religion
was by definition not subject to limitation.
152. The Complainants submitted that while the imposition or/and prohibition of any
religion or sect was by itself a violation of the African Charter and cannot be justified
by its prescription by law, the Respondent State's action had not been
prescribed/ established by domestic law. According to the Complainants, in fact these
acts were being undertaken in contravention of the country's Constitution which
provides that:
State and religion are separate. There shall be no state religion .... The state shall not interfere
in religious matters and religion shall not interfere in state nffairs.36
153. The Complainant also pointed out that the Respondent State had been targeting
members of the "Salafis/Wahabis" and the "Ikhwans" (Muslim Brotherhood
movements). But however that the Respondent State's actions were not prescribed by
law in so far as the Government of Ethiopia had passed no law declaring these
movements to illegal. The Complainants also submitted that the Respondent State did
not proscribe any religious sect or organization as a terrorist group according to Article
25 of the Anti-Terrorism Proclamation No. 652/2009. Therefore, the Respondent State
acted outside of domestic, regional and international law and did not have any legal
justification for the proscription of these sects.
154. According to the Complainants, the total effect of the Respondent State's misapplication
of the Anti-Terrorism Proclamation No. 652/2009 had been to destroy and impair the
Complainants' right to freedom of association. In this regard the Complainants
submitted that the Respondent State had violated the associative aspect of the freedom
of religion by:
(i)
Forcing the community to come together under the single leadership of the MajIis
against its own wishes;
(ii) Giving the Majlis the power to decide whether a new Muslim/ Islamic
organization should be formed and giving it power to have organizations
dissolved;
(iii) Giving the MajIis complete control over the nomination and expulsion of Mosque
Imans and school teachers although the Majlis is a mere a private association;
(iv) Giving the Majlis complete over the authorization of preaching and
proselytization, informal gatherings, and the building of Mosques and Schools;
(v) Interfering in the affairs of the Majlis by stage- managing who is elected to and
runs the institution and expelling those with the Respondent State; and
(vi) Shifting down organization that attempt to work independently of the MajIis.
Alleged violation of Freedom of Expression (Article 9(2) of the African Charter)
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African Charter the Complainants concluded that the Respondent Sta .tio!ated their
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36
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freedom of expression through its implementation of the Anti-Terrorism Proclamation
No. 652/2009 law similar to its violation of the rights of many bloggers, journalists and
activists in the country. According to the Complainants not only had the Respondent
State violated their freedom of expression through the implementation of this law, but
also the continued existence of the law created a chilling effect on their freedom of
express that constitutes a continuing violation of the right.
156. According to the Complainants, Article 6 of the Anti-Terrorism Proclamation No.
652/2009 is defined in such a broad way that it goes beyond the laws of incitement and
creates a truly novel and unprecedented legal principle that it is not foreseen by any
other criminal laws. The Complainants submitted that the provision is so broad that it
covers legitimate political or religious expression which should not and cannot be
considered to be the encouragement of terrorism.
157. According to the Complainants, even if the Commission were to hold that Article 6 of
the Anti-Terrorism Proclamation No. 652/2009 does not separately violate the freedom
of expression, it has to be noted that this provision is applied in conjunction with Article
3 of the Anti-Terrorism Proclamation No. 652/2009, which is separately overboard. And
according to the Complainants Article 6 of the Anti-Terrorism Proclamation No.
652/2009 should be found in violation of the African Charter both standing separately
and when read in conjunction with Article 3 of the Anti-Terrorism Proclamation No.
652/2009.
158. According to the Complainants, additionally the law fails other test of the African
Charter and other international treaties such as the requirement that terrorism laws
should be limited to violent crimes; that expression should be penalized only where the
author intends to incite terrorism, and expression should be penalized only where it is
able to create an objective danger of inciting terrorist acts.
Alleged violation of the liberty and Security of the Person (Article 6 of the African Charter)
159. The Complainants in their submissions have tackled the alleged violation of Article 6 of
the African Charter under two heads namely:
(i) Principle of legality and the limitation of rights; and
(ii) Arbitrary arrest because of religious and political opinions.
160. Under the first head according to the Complainants the laws that define the crime under
which they were arrested is so general or vague that their detention cannot be
considered to be prescribed by law and that it was neither necessary nor proportionate.
161. Relying on the matters they articulated when arguing the alleged violation of Article 6
and 9(2) of the African Charter they submitted that their arrest and detention under the
Anti-Terrorism Proclamation No. 652/2009 should be declared arbitrary. Additionally,
according to the Complainants, no person should face arrest and detention for activity
that cannot and should not be regarded as unlawful let alone prosecuted under a
counter terrorism law. Therefore, the Complainants submitted that irrespee~
whether the Commission declares a violation of the African Charter under tl'ie'ir)"'~o'~
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the African
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Charter it should also declare that the Respondent State had violated I .l!' ticle 6 of the \.... \
African Charter under this head.
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162. Under the second head, according to the Complainants, their arrest and continued
detention constitutes an arbitrary arrest violating Article 6 of the African Charter and
they were detained and prosecuted by the Respondent State in the process of its
violation of their freedom of religion.
163. According to the Complainants, the Respondent State had set out to persecute what it
considered to followers of sects and movements it described as "Salafi", "Wahabi", or
"Ikhwan" and they were detained in the process of protesting against this move. And
according to the Complainants since the Respondent State had consistently labelled
those who opposed its measures and protested against it as members of this sect they
submitted that their arrest by definition constitutes arbitrary arrest.
164. According to the Complainants, irrespective of their beliefs, it was clear that they were
detained primarily for peacefully opposing the Respondent State's Ahbashization
project. Further that the Complainants were also detained for their belief in and
advocacy for secularism as well as for either or both their alleged religious sect and for
their political beliefs.
Alleged violation of the right to humane treatment in the process of arrest (Article 5 and 6
of the African Charter)
165. The Complainants in their submissions have tackled the alleged violation of Articles 5
and 6 of the African Charter under three heads namely:
(i)
Right not to be arbitrarily arrested without an arrest warrant or judicial oversight;
(ii) Right to be informed of procedural rights and the reason of arrest; and
(iii) Right against arbitrary and illegal detention beyond legal boundaries.
166. Under the first head according to the Complainants the circumstances under which the
Respondent State arrested and detained them violated their right to humane treatment
and thus violated Articles 5 and 6 of the African Charter. In this regard according to the
Complainants all the Complainants, except one of them was severely beaten and
assaulted by the arresting the police officers even though the Complainants had not
resisted arrest.
167. The Complainants also submitted that their case is not one in which they were arrested
while a crime was in progress (flagrant delicto") and neither was it one in hot pursuit.
They also submitted that their arrest without a warrant was illegal on its own merit as
there was no reasonable suspicion or probable cause for their arrest.
168. The Complaints submitted that the Conunission had not clarified its opinion or set in
detail standard under the African Charter regarding what circumstances allow
signatories of the African Charter to effect arrest without warrant, the spirit of its
declaration in Article M (1) (b) of the Principles and Guidelineson Fair Trial and its case
law suggests that such a blank license to arrest is not allowed. And that, in this regard,
the Commission is requested to clarify the applicable standards under Article-e-e
African Charter. They also requested the Commission to declare that Articlel9(l) €>£'1th€'f"~"
Anti-Terrorism Proclamation No. 652/2009 is in violation of Article 6 oj the African <"'J"
Charter and also that the Respondent State be ordered to revoke this :Evision so that ... 7__
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Article 19(1) so that it is compliant with standards to be set by the Commission.
169. Under the second head according to the Complainants, none of them were told the
reason they were arrested at the time of their arrest. Neither were they informed of the
reasons of their arrest after they were taken to their respective cells. The first time they
heard anything that resembled an explanation of why they were arrested was when
they were taken to court for a remand hearing. Even then they were not informed of
their right to remain silent or to have an attorney. They simply overheard the police
officers explaining the case to the judge. They were not informed about their right to
legal representation or medical care at any time in the process of arrest, interrogation or
trial. They were prevented from seeking legal help and medical care despite the fact that
they sought such services. They were also not informed of their right to remain silent
and that any statement they make may be used against them in court of law in
accordance with the· Constitution. And that they were actively prevented from
exercising these rights and were forced to make statements against themselves.
170. Under the third head according to the Complainants although the Court ordered the
investigating police officers and departments to bring them to court on the 24th October
2012 and either charge or release them, the police failed to do so and they also failed to
appear in court on that date.
The Court instead of ordering the release of the
Complainants, issuing a habeas corpus order, or issuing a bench warrant for the
delinquent officers, simply verbally declared that the case was closed. The
Complainants were subsequently brought to the Court on the 29th October 2012 and
charged with terrorism offences.
171. With the foregoing matters in mind, the Complainants submitted that their detention
from 24th October 2012 to 29th October 2012, a period of 5 days, was clear violation of
their right under Article 6 of the African Charter. Additionally, the fact that there was
no investigation as to who was responsible for this violation and that were not
compensated for this violation are also violations of Article 6 of the African Charter.
Alleged violation of the prohibition against Torture or cruel, inhuman or degrading
treatment (Article 5 of the African Charter)
172. According to the Complainants they were subjected to acts of torture and other cruel,
inhuman or degrading punishment and treatment within the meaning of Article 5 of
the African Charter and Article 1 of the UN Convention against Torture (CAT). The
severe acts of pain and suffering inflicted on them, the Complainants submitted,
constitute a violation of several provisions of the Robben Island Guidelines and the
CAT.
173. According to the Complainants,
they were subjected to severe physical and
psychological pain during their pre-trial detention at the Federal Police Crime
Investigation and Forensic Sector commonly known as Maikelawi "where prisoners of
conscience and others subject to politically-motivated detention as often detained when first
The acts of tor~re and ilI-treatm.ent inflic~ed on Compla~na~ts i
contmuous and strenuous mvoluntary physical exercise, sleep depnvatIon, sohtafYI .0;' , .
confinement (sometimes in underground locations, dark rooms, freezi ,~@ntainers), o~~l\,
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forced standing in one position for extended hours until the individual faints, shaving
hair dry with broken sharp glass-bottle or razor, forcing to drink or lick one's own
blood after causing to bleed by beating, and serving food during the day and depriving
of it after dawn during the fasting month of Ramandan and prevention of prayers.
174. For these reasons, the Complainants submitted that the Respondent State was in
violation of its duty to provide adequate and effective supervision over pre-trial
detention and pre-trial interrogations within the meaning of the Robben Island
Guidelines and Article 11 of the CAT. The Complainants submitted that this duty
included the duty not only to prevent torture, but also to keep under systematic revision
its rules of interrogations, methods, instructions, practices and any other arrangements
for the custody and treatment of persons subject to any form of arrest.
Alleged violation of the right to fair trial (Article 7 of the African Charter)
175. The Complainants in their submissions have tackled the alleged violation of Article 7 of
the African Charter under four heads namely:
(i)
Right not to be held in incommunicado detention;
(ii) Right to a presumption of Innocence (Article 7(1)(b)of the African Charter);
(iii) The Right to legal defense and counsel (Article 7(1)(c)of the African Charter); and
(iv) Right to examine and challenge evidence and witnesses.
176. On the first head of incommunicado detention, the Complainants submitted that they
were held in incommunicado and solitary confinement for the first two and half months
following their arrests. In that period, they were not allowed to talk to their attorneys,
doctors, priests, their family members or friends, and were for most part not allowed to
communicate with anyone other than their interrogators and torturers.
177. On the second head of presumption of innocence, the Complainants submitted that the
pre-trial publicity campaign by the Respondent State was more serious and intensive
than that which the Commission dealt with in Hargewoin Gabre-Selassie v Ethiopia38
where the Commission found the violation of Article 7(1) (b) of the African Charter by
the Respondent State.
178. According to the Complainants, the pre-trial publicity campaign was more serious and
intensive and coordinated than in case the mentioned in paragraph 177and in fact most
of the publicity campaign was done after (and despite) the Commission giving the
Respondent State notice of its violations through an order for provisional measures
request it to refrain from making any further public statements prejudicial to a fair trial
and the presumption of innocence. The Complainants also highlighted with emphasis
the violations before the Commission's granting provisional measures and those after
the granting of provisional measures.
179. On the third head of right to legal defence and counsel, according to the Com~
the Respondent State did not only fail to inform them of their righf'-to l~~a 'l'~~
representation but actively prevented them from benefitting from th .~ight to legal <"".I' "
advice for about the first two months and a half of their detention. ~.~ y we\re.on~~~< -.''\
38
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allowed to talk to their attorneys after they all had signed confessions after a two-month
long period of torture and inhuman/ degrading treatment. The attorneys were hired for
the Complainants by their relatives and not themselves but even then their attorneys
were prevented from talking to the Complainants.
180. According to the Complainants, their right to legal defence was violated when their lead
attorney, Mr. Temam Ababalugu, was threatened with disciplinary action and
prosecution for terrorism. The defence attorneys were ridiculed and threatened
numerous times with suspension of their law license throughout the trial and especially
when trials were conducted in camera. Disciplinary action was also threatened
whenever the attorneys challenged the Court regarding violations of procedural and
evidentiary rules by the judges.
181. Another restriction on the right to legal defence and counsel is the fact that the
Complainants and their attorneys were prevented from having private conversations or
private exchanges of documents and paperwork.
182. The Complainants submitted that this situation did not change even after the
Commission requested the Respondent State to "guarantee client-attorney confidentiality
privilege by ensuring that victim's lawyer conversation with the victims are not monitored and
their documents are not confiscated without following the due process."
183. The Complainants submitted that in the final leg of their trial the Respondent State put
yet another serious restriction on their right to legal counsel through the Ministry of
Justice of Ethiopia taking a disciplinary measure against the lead attorney and
suspending him for 19 months. This move deprived the Complainants of their restricted
right of access to legal counsel.
184. On the fourth head of the right to examine and challenge evidence and witnesses, the
Complainants submitted that their right to examine and challenge evidence was
violated in various ways, namely:
(i) The first set of violations are prescribed by law in that they are allowed under the
Anti-Terrorism Proclamation No. 652/2009; and
(ii) The second set are closely connected with the evidentiary rules of the law although
they were violations that went beyond what the law allows.
185. In this regard, the Complainants took issue with Articles 23 and 32 of the Anti-Terrorism
Proclamation No. 652/2009. According to the Complainants, Article 23 (1)and (5) of the
Anti-Terrorism Proclamation No. 652/2009 allow the prosecutor and law enforcement
authorities to produce as evidence any form of "intelligence report" leaving an infinite
amount of discretion that could be abused. And specific to Article 23(2) of the AntiTerrorism Proclamation No. 652/2009 the Complainants submitted that the application
thereof made the situation even worse as not only did the provision prevent attorneys
from examining the primary source about which was the hearsay witness was testifying
about, but they were not given any information or notice about who the primary source
was and who the hearsay witness was.
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186. According to the Complainants the application of Article 32 of the . ii'ti-Terror;~~
Proclamation No. 652/2009 meant that their defence attorney had to go' "court ';Vith.
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and they also did not know what the witnesses were going to testify on. And because
of this provision of the law the defence attorneys could not get transcripts of the witness
testimonies.
187. The Complainants submitted that the violation of their right to examine and challenge
evidence and witnesses was a violation permitted under Articles 23(1), (2), (5) and 32 of
the Anti-Terrorism Proclamation No. 652/2009. In this regard the Complainants
submitted that the Commission should hold that these legal provisions violate Article 7
of the African Charter by making it impossible for the Complainants to examine and
challenge the evidence provided against them and also violated their right to a fair trial.
Alleged violation of the freedom of association (Article 10(1) of the African Charter) and
the Freedom of Assembly (Article 11 of the African Charter)
188. According to the Complainants, the Respondent State began interfering in the religious
affairs and attempting to control the training and appointing of leaders within the
Muslim community in December 2011. As a result, many Muslim civilians engaged in
peaceful protests and informal associations were formed to organize the peaceful
dissent of the community. However, the Complainants submitted that the Respondent
State's response to these peaceful protests was an aggressive indoctrination campaign,
which later prompted the popular election of Committee seventeen prominent Islamic
scholars and civil society leaders (Committee of Seventeen) in order to negotiate with
the Respondent State.
189. The Complainants submitted that they were initially members of the Committee of
Seventeen with which the Government negotiated. The Complainants submitted that
the negotiations however failed. The Respondent State responded to the continued
protests with inhumane and disproportionate measures: most of the prominent protest
leaders (including the Complainants) were arrested, tortured and convicted of
terrorism. The Complainants further submitted that the Respondent State also rounded
up an estimated one thousand peaceful protestors, including the rest of the
Complainants.
190. According to the Complainants, each of the arrested and detained Complainants
actively exercised their rights to freedom of association and freedom of assembly by
participating in the peaceful protests against the Respondent State's interference in the
religious affairs and by establishing the Committee of Seventeen in order to protect
another fundamental human right - the freedom of religion.
191. Lastly, the Complainants submitted that the Respondent State arrested and detained
the Committee of Seventeen, ignoring the fact that they were acting within the
framework of the Constitution, only to prevent future demonstrations.
192. On the basis of these submission, the Complainants requested the Commission to grant
the reliefs sought, including those that were not and are not part of the reliefs that are
set out in the Complaint before the Commission. We shall revert to this is l:l~-~ PI,
this decision.
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Respondent State's submissions on the Merits
193. The Respondent State in the main begun its submissions by making what appears to be
a preliminary objection that the Complainants' allegations should be dismissed for
failure to comply with the Commission's Ruling on admissibility.
Complainants' allegation of violations under Article 1of the African Charter
194. The Respondent State submitted that the alleged violations of Article 1 of the African
Charter lacks merit on two grounds. Firstly, the Respondent State submitted that the
Complainants' arguments on the principle of legality can be boiled down to the
supposition that the Anti-Terrorism Proclamation No. 652/2009 did not "allow [Mr.
Abubaker et all.} adequate forwarding on what constitutes a crime." According to the
Respondent State the Complainants arguments did not hold water under scrutiny.
195. The Respondent State then quotes, Article 3 of the Anti-Terrorism Proclamation No.
652/2009. According to the Respondent, specific to Article 3(6) thereof the provision of
the law clearly requires that mens rea and actus rei must be met, hardly leaving any room
for vagueness or overbreadth. And according to the Respondent State the
Complainants' arguments must fail because none of the Defendants were charged and
convicted under Article 3(6) of the Anti-Terrorism Proclamation No. 652/2009.
196. On the Complainant's argument that the Anti-Terrorism Proclamation No. 652/2009's
provision regarding damage to property being equally overboard, the Respondent State
submitted that it does not believe it should engage in a philosophical debate on this
issue, because again, none of the Complainants in this case were charged or convicted
for property damage under the Anti-Terrorism Proclamation No. 652/2009.
197. In responding to the Complainants' submissions on the principle on legality which
includes assertions of vagueness or overbreadth of the crime of rendering support to
terrorism under Article 3(5) of the Anti-Terrorism Proclamation No. 652/2009 the
Respondent State submitted that the charges of vagueness and overbreadth are equally
unsupported when viewed against the specificity of the mens rea and actus rei required
under the law.
198. According to the Respondent State, none of the Complainants were charged under
Article 5 of the Anti-Terrorism Proclamation No. 652/2009. In this regard the
Respondent State requests the Commission to dismiss this and other arguments that are
in irrelevant to the facts of this case.
199. The Respondent State submitted that, contrary to the submission by the Complainants,
the evidence presented at the trial proved beyond reasonable doubt inter alia that Mr.
Abubaker et al. incited crowds through their repeated calls for violence and Jihad
against the Government. That they were not exercising their right to free speech,
assembly and religion.
200. Secondly, the Respondent State submitted that the Complainants submissions that the
Anti-Terrorism Proclamation No. 652/2009 contravenes the African Charter and
International Standards are without merit.
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201. According to the Respondent State, the Complainants in this case are n ~~~rt of the
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other Muslims, who declared Jihad against the Government and advocated for the
establishment of an Islamic state in Ethiopia.
Complainants' allegation of a violation of the Complainants' rights under Articles 5, 6, 7,
8,9,10 and 16 of the African Charter
205 The Respondent State's observations in response to the submissions
Complainants can be summarized into three heads, namely:
(i)
of the
Article 8 of the African Charter (Freedom of Religion) and Article 9 of the African
Charter (Freedom of Expression);
(ii) Articles 5, 6, 7 and 16 of the African Charter; and
(iii) Article 10 of the African Charter (freedom of association) and Article 11 (right to
freely assemble).
206. In response to the Complainants' claims that Articles 8 and 9 of the African Charter
have been violated, the Respondent State submitted that each of the allegations of the
Complainants with regards the Respondent State's supposed infringement of the right
to the free practice of religion and the freedom of expression were either factually wrong
or fail to show a violation of the African Charter.
207.
First, the Respondent State submitted that the claim that Government "forcled] the
community
to come together under the single leadership of the Majlis against its own wishes"
was plain wrong. The Respondent State's effort to end violence among the Muslim
Community and to discourage adherents of the faith from espousing discourse that calls
for violence by conducting training sessions on tolerance and constitutional clauses of
secularism is not a violation of the freedom of religion. Second, the claim that the
Respondent State gave the Mujlis "the power to decide whether a new Muslim/Islamic
organization should beformed and giving it power to have organizations dissolved" was without
factual basis. Third, the Majlis does not have "complete control" over the nomination and
expulsion of Imams and schoolteachers. Fourth, the Majlis has never been given
"complete" or any other power to authorise preaching and proselytization, gatherings,
and building of mosques and schools. Fifth, the Respondent State does not interfere in
the affairs of the Majilis by "stage-managing" its elections and by expelling those leaders
with who it was "unhappy."
208. In this regard, the Respondent State requests the Commission to dismiss the
Complainants' allegations of the violation of Article 8 of the African Charter. According
to the Respondent State, even if the Complainants allegations that the Respondent
State's policies favour one theological approach to Islam over another were true, there
was nothing in the African Charter which prohibited a Government from promoting a
certain theological approach over another so long as its policies did not infringe on the
freedom of conscience and the profession and practice of religion. The Respondent State
called in aid Doebler v Sudans"
Respondent State pursued an "Ahbashization project", the Complainants must show
direct evidence showing linkage between the alleged government policy and the
violation of freedom of religion of the individuals represented, This case did not arise
because the defendant's refusal to espouse a particular doctrine, especially
Ahbashization, but as a result of their Jihad. Adherents of Islam who subscribe to
ideologies similar to those of the Defendants have never been charged of any crime
because they did not call for violence or Jihad against the Government.
210. The Respondent States, in the main, requests the Commission to dismiss the
Complainants' allegation concerning the violation of Article of 9 of the African Charter
by Article 6 of the Anti-Terrorism Proclamation No. 652/2009 because the defendants
were not tried and convicted under Article 6, Articles 4, and Article 7(1) of the AntiTerrorism Proclamation No. 652/2009.
Complainants' allegation of violations of Articles 5, 6,7,16 of the African Charter
211. Concerning the allegation by the Complainants that "the circumstances under which
Ethiopia arrested and detained the [defendants] violated their right to inhumane treatment and
thus violate Articles 5 and 6 of the Charter," the Respondent State submitted that given that
the arrests took place pursuant to either properly executed search warrants or in
accordance to warrantless search requirements under Ethiopian law, and not mere
suspicion nor for "vague reasons" the Complainants' allegation in this regards must be
dismissed.
212. Concerning the allegation of the arbitrariness of the arrest of Mr. Abubaker and others,
the Respondent State submitted that the same was made in compliance with domestic
law, specifically, Article 19 of the Anti-Terrorism Proclamation No. 652/2009.
According to the Respondent State Mr. Abubaker and his co-defendants were arrested
not because of their adherence to any faith but their action otherwise all members of the
Negotiation Committee would have been arrested. Additionally, according to the
Respondent State of the 17 members of the Committee who were arrested, the court
found nine to not have violated the law and acquitted them despite the fact that they
shared the same faith as the other Defendants.
213. The Respondent State submitted that, contrary to the assertions of the Complainants,
the Complainants were immediately informed of their arrest and produced before a
court of law within 48 hours in accordance with the Anti-Terrorism Proclamation No.
652/2009 and the Ethiopian Criminal Procedure. The Respondent State further
submitted that not only was there constant judicial oversight in the case, but also that
the seriousness of the allegations was considered at length by the High Court especially
after the Complainants' claim that their confessions were coerced.
214. The Respondent State further submitted that none of the Complainants was charged
under Article 6 of the Anti-Terrorism Proclamation No. 652/2009. The Respondent State
submitted that the Federal Police Commission and Regional Police Commissions
spends millions of Ethiopian Birr each year to train their officers to ensure that no
Ethiopian is tortured. The Respondent State further submitted that neither the law&-~
criminal justice policy nor courts implementing them condone torture or anYmernP,~1~,
of the police violating the human rights protections guaranteed by the Fe ~~l"and State "-Vt\.
Constitutions.
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215. For these reasons, the Respondent State urged the Commission to discountenance and
dismiss the submissions of the Complainants on this issue, especially considering the
claims by the Complainants that they were and are being denied of medical care and
that they are being detained under unsanitary conditions. The Respondent State
submitted that detainees do have an enforceable right to access medical care and that it
was criminal under the Criminal Code of the Respondent State to deny this right to a
person in need of medical care.
Complainants' allegation of violations of Articles 10 and 11 of the African Charter
216. The Respondent State responds specifically to the Complainants' submission that the
Respondent "accords preferential treatment to the Majlis by exempting it from the registration
and annual reporting requirements that other religious (and non-religious) institutions have to
endure" by submitting in the main that the Commission should dismiss this allegation
as it has no relevance as to whether or not the Complainants were legitimately charged
under specific provisions of the Anti-Terrorism Proclamation No. 652/2009 - that is,
Articles 4 and 7(1) thereof. The' Respondent State submitted that assuming the
arguments by the Complainants regarding the power and influence of the Majlis were
true, the Complainants nevertheless stepped outside the bounds of the law when
declaring Jihad against the association and the government, and stepped within the
realm of terroristic incitement.
217. According to the Respondent State, the agency that receives andaccepts registration of
religious associations - including that of the Majlis - is the Ministry of Federal Affairs
and Pastoralist Area Development (MFAD) and not the Majlis. The Complainants who
are the subject of this complaint did not seek registration at the Ministry. According to
the Respondent State, had they attempted a MFAD registration and such registration
was denied, they would have had an Article 10 of the African Charter violation of the
right to free association.
218. The Respondent State, in responding to the Complainants' submission that the
Respondent State violated the Defendants' freedom to associate through the Charities
and Societies Proclamation (CSP),submitted that this submission be dismissed because
it fell outside the Commission's Admissibility decision which required the
Complainants to limit their arguments to violations within the context of the AntiTerrorism Proclamation No. 652/2009 and that CSP did not apply to religious
associations.
219. Concerning the alleged violation of the right to freely assemble under Article 11 of the
African Charter, the Respondent State submitted that this allegation was without merit
especially when considering that the Defendants freely exercised this right for years.
According to the Respondent State, until their arrest on criminal charges, they did so in
their individual capacities and as members of the "Negotiation Committee" and the "Ustaz
and Due's Association." Accordingly, there was no infringement on the freedom of
assembly in this regard.
220. The Respondent State, therefore, requested the Commission to dismiss this
communication for failure to comply with the Commission's decision on ad l~"'~
as well as failure to substantiate a meritorious communication. Acc Cfihg to "the "'o~\
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State's position that the application of Mr. Abubaker and others before the Council had
also been decided since the Commission's ruling on Admissibility. Therefore, according
to the Respondent State, the Complainants' allegations have been considered by the
Ethiopian judiciary and the Council and as a result all domestic remedies have been
effectively and sufficiently exhausted.
221. The Respondent State also submitted that most of the issues raised by the Complainants
fall outside of the parameters permitted by the Commission which require the
Complainants to address those alleged violations of the African Charter within the
context of the charges brought under the Anti-Terrorism Proclamation No. 652/2009
and presented by the Council but were not considered due to delay. The Respondent
State requested the Commission to dismiss all the Complainants' arguments that were
not included in their original complaint or do not fall within the narrowly-tailored
grounds on which the Complaint was deemed admissible. Alternatively, or in addition,
the Respondent State requested the Commission to dismiss the Complaint on its merits
for failure to State violations of the African Charter. Accordingly, the Respondent State
requested the Commission to dismiss the reliefs sought by the Complainants.
Amicus Curiae Brief Submissions
222. By a letter dated the 19th May 2017, the Commission received Amicus Curiae brief
submissions from Messrs. Vanderbilt International Law Practice Lab which was
submitted pursuant to Rule 99(1) of the 2010 ROP.
223. The Amicus Curiae's submissions sought, in the main, to address the following issues:
First, that the Anti-Terror Statute does not meet international and regional standards
for defining and criminalizing acts of terrorism; and second, that the Anti-Terror Statute
violates the African Charter.
224. In support of its first argument that the Anti-terror statute does not meet international
and regional standards for defining and criminalizing acts of terrorism, the Amicus
Curiae submitted that:
(a) The Anti-terror Statute is overly Broad and includes a huge array of offenses which do
not meet commonly accepted definitions of terrorism;
(b) Article 3 of the Anti-Terror Statute is imprecise and fails to provide adequate notice of
what acts will constitute an offence; and
(c)
The Anti- Terror Statute criminalizes protected activities, such as exercise of freedoms
to of religion, expression, association and assembly.
225. The Amicus Curiae submitted that Article 3 of the Anti-Terror Statue defines "Terrorist
Acts" in a way that is overly broad because it includes a huge array of offences which
do not give rise to commonly accepted definitions of "terrorism". The Amicus Curiae
also submitted that the Anti-Terrorism Proclamation No. 652/2009 is ambiguous and
fails to provide adequate notice of what acts will constitute an offence and unjustly
criminalizes protected activities, such as the exercise of the rights to freed,.9lIlS:~....._
religion, expression, association, and assembly.
226. Under the second issue, the Amicus Curiae submitted that States which
African Charter are obligated to "recognise the rights, duties, freedoms in
shall undertake to adopt legislative or other measures to give effect to them." According to the
Amicus Curiae's submissions, the Respondent State is bound by the African Charter but
had failed to give effect to many of the rights, duties, and freedoms guaranteed by the
African Charter through the passage and application of the Anti-Terror Statute. The
Amicus Curiae further submitted that, in particular, the Anti-Terror Statute's definition
of terrorism violates several sections of the African Charter and that it has been applied
in such a way as to sanction arbitrary arrests for non-terrorist acts and the subsequent
torture and/ or cruel, inhumane or degrading treatment of detainees.
227. Relying on the provisions of Articles 6, 9(2), and 11 of the African Charter, the Amicus
Curiae submitted that it was clear that the overly vague definition of terrorism found in
the Anti-Terror Statute had been used to arrest and detain those within Ethiopia
attempting to invoke their right of freedom of expression and freedom of assembly
under Articles 6, 9(2) and 11 of the African Charter.
228. The Amicus Curiae's submissions alluded to the Commission's decision in Monim Elgak
and Others v Sudunw and Interights and Others v Iviauritaniat' to the effect that the AntiTerror Statute does not meet the criteria that a law must be sufficiently accessible to
individuals and adequately precise to provide notice regarding what actions are
proscribed and what rights are limited as it fails to provide individuals with adequate
notice that their actions would be considered criminal.
229. The Amicus Curiae's submissions acknowledged that the need to prevent and respond
to acts of terrorism is a legitimate aim. However, the Amicus Curiae submitted that
Article 3 of the Anti-Terror Statute criminalizes activities that are well outside any
understanding of an act of terrorism, including peaceful protest.
230. The Amicus Curiae also submitted that the criteria that a limitation in a statue must be
proportional to the nature of the objective of the law, that is, that the law should not be
more restrictive than what is necessary to achieve the legitimate aim for a restriction on
freedom to be justifiable has been violated as the Anti-Terror Statute imposes the most
severe penalties (lengthy imprisonment and potential capital punishment) upon
protected activities and otherwise minor criminal offenses, such as causing property
damage. In this regard, the Amicus Curiae submitted that the Anti-Terror Statute fails
to meet the high criteria prescribed for a legitimate limitation of the African Charter
rights under Article 27 thereof and therefore cannot legitimatize violations of the
Articles 6, 9(2), and 11 of the African Charter.
231. The essence of the Amicus Curiae's submissions was that the definition of "terrorist acts"
contained in the Anti-Terror Statute is overboard, imprecise, and impermissibly
restricts the fundamental rights protected by the African Charter and other international
human rights treaties to which the Respondent State is bound.
The Commission's analysis on the Merits
232. Before delving into the analysis of the merits of this Communication, it is imper'~~....._
that the Commission deals with the issues raised by the Respondent State which ha",e.\ol'.o...
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been set out in paragraph 194 above.
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233. In this Communication, the Complainants have approached the Commission alleging
that the Respondent State had violated Articles 4, 5, 6, 7, 8, 9, 10 and 16 of the African
Charter. See paragraph 14 above. The prayers sought, for ease of reference, are as set
out in paragraph 15 above, and have been couched in the following fashion:
The Complainants request the African Commission on Human and Peoples' Rights (the
Commission) to:
a.
Find the laws, policies and actions challenged above as violating the rights of the Victims
as well as all Ethiopians; and
b.
Draw the attention of the Assembly of Heads of State and Government of the African
Union (AU) to the situation in accordance with Article 58 of the African Charter.
234. However, a perusal of the Complainants' submissions will reveal that the Complainants
have introduced more reliefs in addition to the ones set out in paragraph 233hereof and
the reliefs now sought are couched in the following fashion:
The Complainants hereby request that the Commission:
1.
Declare the Complainants'
Charter;
right under articles 4,5,6,7, 8, 9(1), 9(2), 10 and 16 of the
2.
Declare that Articles 3(6), 5(1)(b) and (d); 23 (1)J2) and (5);25; and32 of the AntiTerrorism Proclamation of Ethiopia of Ethiopia (Proclamation No. 625/2009) are
incompatible 'with the Charter;
3.
Request the respondent to amend the Anti-Terrorism Proclamation of Ethiopia in relation
... " to do a number of listed issues which the Commission deems unnecessary to
reproduce in this Communication. This is on account of the fact those reliefs are
not set out in the Complaint with which the Complainants approached the
Commission.
235. The question that the approach adopted by the Complainants brings to the Commission
is whether the Complainants can use their submissions to enhance the rights or reliefs
sought in the Complaint or Communication filed with the Commission.
236. It should be pointed out that the case for any Complainant against a Respondent State
must be set out in the Communication submitted to the Commission under Article 35
as read with Article 56 of the African Charter. Submissions of the parties under the 2010
ROP (and indeed the 2020 Rules of Procedure) are filed for the parties to present
arguments in support of their respective cases for consideration by the Commission at
admissibility and merit stages of the Communication. Therefore, submissions cannot
and should not be used for purposes of enhancing the rights or reliefs sought in the
Complaint or Communication filed with the Commission. In this regard it must be
noted that the function of a Complaint or Communication is to give fair notice of the
case which has to be met and to define the issues on which the Commission will have
to adjudicate in order to determine the matters in dispute between the parties. Once a
Complaint or Communication has been filed subject to amendment, if necessary, the ~
parties are bound by the Complaint or Communication and the Commissio ~as to take 1
the Complaint or Communication as filed. However, if a Complainant tindeq
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amend the Complaint or Communication,
appropriate application for amendment.
the Complainant
can do so by making an
237. In the circumstances the Commission shall not consider the enhanced or additional
reliefs sought by the Complainants set out in the Complainants' submissions. For the
avoidance of doubt in this Communication, the Commission will only consider and
determine the prayers set out in the Complaint or Communication filed by the
Complainants and which have been summarized in paragraph 15 hereof or reproduced
in paragraph 238 hereof.
238. For ease of reference, we reproduce the prayers that the Complainants seek from the
Commission in this Communication are that:
The Complainants
Commission) to:
request the African Commission on Human and Peoples' Rights (the
(a) Find the laws, policies and actions challenged' above as violating the rights of the Victims
as well as all Ethiopians; and
(b) Draw the attention of the Assembly of Heads of State and Government of the African Union
(AU) to the situation in accordance with Article 58 of the African Charter.
239. The Complainants anchor these prayers on the alleged violation of the Articles 4,5,6,
7, 8, 9, 10 and 16 African Charter based on the Respondent State's implementation of the
Anti-Terrorism Proclamation No. 652/2009. The Complainants want the Commission to
make a finding that the laws and actions undertaken in the context of the Anti-Terrorism
Proclamation No. 652/2009 as being a violation of the rights of the victims and all
Ethiopians.
240. From the Complainants' prayers aforementioned, it is crystal clear that the bone of
contention in casu is essentially the reasonable justifiability of the Anti-Terrorism
Proclamation No. 652/2009 in relation to Articles 4,5,6,7,8,9,10 and 16 African Charter.
Before addressing all the provisions of the African Charter on which heads of arguments
have been articulated, it is pertinent to point out that neither the Complainants nor the
Respondent State made any submissions on the provision of Article 4 of the African
Charter. This suggests that the allegation on the violation of Article 4 of the African
Charter must be considered to have been indeed abandoned and that the Commission is
therefore entitled to find no violation of Article 4 of the African Charter and it so finds.
241.
Article 5 of the African Charter provides that:
Every individual shall have the right to the respect of the dignity inherent in a human being
and to the recognition of his legal status. All forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and
treatment shall be prohibited.
242.
Article 6 of the Charter provides that:
243.
By the tenor of these provIsIOns in relation
to the specific allegations
of
incommunicado
detention and torture in this Communication,
the African Charter
guarantees the security and dignity inherent in a human being, and prohibits all forms
of degradation
of the person, particularly
torture, cruel, inhuman
or degrading
treatment. Torture is one of the most egregious and morally reprehensible human rights
abuses prohibited by most democratic societies. Under the African Charter, like the
Convention Against Torture, the prohibition of torture is absolute and non-derogable
and applies even in the most difficult of circumstances including public emergencies.s-
244.
In Abdel Hadi, Ali Radi and Others v Sudan/> the Commission considered that "the term
cruel, inhuman or degrading treatment or punishment is to be interpreted so as to extend to
the widest possible protection against abuse, whether physical or mental.s+ As such, in
interpreting Article 5 of the African Charter in specific regard to torture, the Commission
adopted the definition provided in CAT.45
I
245.
In Sudan Human Rights Organization andAnother v Sudan, the Commission set out the
elements that constitutes torture, namely: severe pain or suffering has to have been
inflicted, for a specific purpose, such as to obtain information,
as punishment
or to
intimidate, or for any reason based on discrimination; by or at the instigation of or with
the consent or acquiescence of state authorities.w
246.
In casu, while there is ample evidence of detention, the allegations of torture have
hardly been substantiated.
The Complainants
submitted that allegations of widespread
and routine use of torture by Ethiopian authorities against individuals critical of the
Government
or suspected of opposing the Govermnent
have been documented
by
various human rights bodies, including the Commission and the Committee Against
Torture.V They rely on Exhibit 7, which is a translated version of local court proceedings
attached to their submissions on the merits, but no actual decision of a finding of torture
was furnished. No compelling proof or expert evidence was submitted to buttress the
allegation of torture.
247.
In the absence of any proof that the Complainants
were subjected to severe pain or
suffering in order to obtain information, such as punishment or to intimidate, or for any
reason based on discrimination,
by or at the instigation of or with the consent or
acquiescence
of state. authorities,
the Commission
cannot
speculate
that the
Complainants were subjected to torture while in the custody of the Respondent State.
248.
However, with regard to the deprivation of the Complainants'
liberty under the AntiTerrorism Proclamation
No. 652/2009, the fundamental
consideration
is whether the
action taken by the Respondent
State was reasonably justifiable under the African
Charter. In casu, the principal complaint of the Complainants is that the Respondent State
Communication 368/09 - Abdel Hadi, Ali Radi & Others v Republic of Sudan, (2013) para 69.
Communication 368/09 - Abdel Hadi, Ali Radi & Others v Republic of Sudan, (2013) para 75.
44 Communication
224/98 - Media Rights Agenda v Nigeria (2000) ACHPR para 71.
45 Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, CJ;uel,lnhuma 1 <1t\
Degrading Treatment of Punishment in Africa (Robben Island Guidelines) adopted by th ~omn1ission iIi
October 2002, Article 4.
~
,~
46 Communication
279/03-296/05 - Sudan Human Rights Organization and Center for Ho fig Rights1ana
Evictions v Sudan, (2009) ACHPR paras 255 & 156.
~
AU,U"_
47 Complainants Submission on the Merits, page 63.
~
42
43
); ":,
restricted the liberty of several persons including themselves pursuant to Article 3 of the
Anti-Terrorism Proclamation No. 652/2009.
249.
Article 3 of the Anti-Terrorism Proclamation No. 652/2009 provides that:
Whosoever or a group intending to advance a political, religious or ideological cause by
coercing the government, intimidating the public or section of the public, or destabilizing or
destroying the fundamental political, constitutional or, economic or social institutions of the
country:
3.1/causes a person's death or serious bodily injun);
3.2/creates serious risk to the safety or health of the public or section of the public;
3.3/commits kidnapping or hostage taking;
3.4/causes serious damage to property;
3.5/causes damage to natural resource, enuironmeni, historical or cultural heritages;
3.6/endangers, seizes or puts under control, causes serious interference or disruption of any
public service; or
3.7/threatens to commit any of the acts stipulated under sub-articles (1) to (6) of this Article;
is punishable with rigorous imprisonment from 15 years to life or with death.
250. The Complainants submitted that law's reference to "causes serious damage to property"
and to "public services" under Article 3(6) of the Anti-Terrorism Proclamation No.
652/2009 are equally overboard in terms of their definition of the terms. To the
Complainants, this is so because under Article 2(1) of the Anti-Terrorism Proclamation
No. 652/2009, "property" is defined as any asset whether corporeal or incorporeal or movable
or immovable, and includes deeds and instruments evidencing title to or interest in such asset
such as bank accounts", while" public services" is considered to be electronic, information
communication, transport, finance, public utility, infrastructure or other similar institutions or
systems established to give public service."
1/
/I
251. The Complainants also submitted that the Respondent State had sought to justify its
arrest and detention of the Complainants under Articles 4 and 5 of the Anti-Terrorism
Proclamation No. 652/2009. Article 4 of the Anti-Terrorism Proclamation No. 652/2009
provides tha t:
Whosoever plans, prepares, conspires, incites or attempts to commit any of the terrorist acts
stipulated under sub-articles (1) to (6) of Article 3 of this Proclamation is punishable in
accordance with the penalty provided for under the same Article.
252.
Whereas Article 5 of the Anti-Terrorism Proclamation No. 652/2009 provides that:
Whosoever, knowingly or having reason to know that his deed has the effect a {fPportlng, ftT'6) <> '.
commission of a terrorist act or a terrorist organization:
~"" «'0':.-'"~
(a) provides, prepares or gives forged-or falsified document;
(b) provides a skill, expertise or moral support or gives advice;
(c) provides, collects or makes available any property in any manner;
(d) d) provides or makes available monetary, financial or other related services;
(e) provides or makes available any explosive, dynamite, inflammable substances, firearms or
other lethal weapons or poisonous substances; or
(j) provides any training or instruction
imprisonment from 10 to 15years.
or directive;
is punishable
with
rigorous
253. Similarly, Article 23(1)(2) of the Anti-Terrorism Proclamation No. 652/2009 provides
that:
Without prejudice to the admissibility of evidences to be presented in accordance with the
Criminal Procedure Code and other relevant legisLations, the following shall be admissible in
court for terrorism cases:
1/ intelligence report prepared in relation to terrorism, even if the report does not disclose the
source or the method it was gathered;
2/ hearsay or indirect evidences;
254. When the above provisions are read together, there is no question that arrests and
detention relying on evidence that is based on "intelligence report prepared in relation to
terrorism, even if the report does not disclose the source or the method it was gathered" or is
based on "hearsay or indirect eoidences" can lead to arbitrariness and violations of human
freedom.
255. Deprivation of liberty through arbitrary arrests, detention or enforced disappearances
contravenes the very essence of Article 6 of the African Charter. Where violation of
Article 6 of the African Charter is widespread and shown to have been perpetrated by a
Respondent State, as in this case, the Commission has no option but to find the
Respondent State and its security personnel responsible.
256.
Article 7(1) of the African Charter provides that:
Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts violating his fundamental
rights as authorized and guaranteed by conventions, Laws, regulation and customs in
force;
(b)
the right to be presumed innocent until proved guilty by a competent court or tribunal;
(c)
the right to defence, including the right to be defended by counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial court or tribunal.
257. In the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,
the Commission affirms in relation to the obligation of State Parties under Article oo~
African Charter that: .
,.
I<'~:\
=:
=t. arres;)
States :nust
that no one shall be subjec.t to arbitr~ry m:rest or
detention or imprisonment shall only be earned out stnctly In accordance w
thai
the 'prdtnsions
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of the law and by competent officials or persons authorized for that purpose, pursuant to a
warrant, on reasonable suspicion or for probable cause.
258.
In the particular context of the right to a fair trial, the Respondent State does not deny
the Complainants' allegations that it conducted "adverse negative publicity" against the
Complainants before and during the trial through documentaries that painted the
Complainants in criminal light. The Complainants submitted and the Respondent State
does not deny that when they had obtained an injunctive order from a High Court
against the broadcast of one of the documentaries, the Registrar of the High Court
declined to serve the injunctive order on the Ethiopian Broadcasting Corporation and
give a copy to the Complainants.
259.
The Commission finds that these preventative acts by the Respondent State not only
obstructed the course of justice for the Complainants, but also served the purpose of
tainting the conduct and character of the Complainants while their cases were still
pending in court. This certainly infringed on their right to a Fair Trial under Article 7 of
the African Charter.
260.
Article 16 of the Charter guarantees that "[elvery individual shall have the right to enjoy
the best attainable state of physical and mental health" and that State parties to the present
Charter shall take the necessary measures to protect the health of their people and to ensure that
they receive medical attention when they are sick."
/I
261.
262.
In the case of International Pen and Others (on behalf of Saro-Wiwa) v Nigeria,48 the
Commission held that Nigeria's failure to provide access to medical care to Ken SaroWiwa, causing his health to suffer to that point where his life was endangered, amounted
to a violation of the right to health under Article 16 of the African Charter. This implies
that State Parties have an obligation to ensure that persons in detention have access to
proper medical care.
As a general principle, State authorities must refrain from arresting, detaining, or
imprisoning individuals or groups in flagrant disregard of due process of law or without
legal justification. In Article 19 v Eritrea (the Article 19 case),49the Commission noted that
while arrests and detention may be legal according to domestic law, it will be arbitrary
and therefore unlawful if it is inappropriate, unreasonable, unjustified and
unpredictable. 50 In that case, the Commission noted that arbitrariness should not be
equated with against the law but must be interpreted more broadly to include elements of
inappropriateness, injustice, lack of predictability and due process.
263.
In the instant case, the Respondent State does not deny the limitations imposed on the
liberty of the Complainants, acting pursuant to the Anti-Terrorism Proclamation No.
652/2009. The Respondent State does not also show cause to justify that the restriction
imposed on the liberty of the Complainants seeks to fulfil a legitimate aim, is .J:ea~
I? ~7"" ~
proportionate and absolutely necessary.
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264.
The Commission recalls ACHPR/Res.218(LI)2012
on the Human Rights ituatioy{ in the
Democratic Republic of Ethiopia, where it noted that it was:
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(2000) AHRLR 212 (ACHPR 1998) para 112.
49 (2007) AHRLR 73 (ACHPR 2007) para 93.
50 Article 19 case (n 32 above) para 93.
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Gravely alarmed by the arrests and prosecutions of journalists and political opposition
members, charged with terrorism and other offences including treason, for exercising their
peaceful and legitimate rights to freedom of expression and freedom of association=
265.
In Monim Elgak and Others v Sudan (Elgak case),52the Commission held that limitations
of the rights recognised in the African Charter must not merely be prescribed by law, but
must be based on legitimate public interest; and that the inconvenience caused by the
restrictions should be absolutely necessary and strictly proportional.
266.
The Commission finds that while no compelling evidence has been produced before
it to support the allegation of torture under Article 5 of the African Charter, there is
sufficient evidence to support the claim of arbitrary arrests and imprisonment in
violation of Article 6 of the African Charter and to establish a violation of the right of the
accused to a fair trial.
267.
The inability of the Respondent State to show that the restrictions imposed on the
Complainants by virtue of the Anti-Terrorism Proclamation No. 652/2009 are legitimate,
absolutely necessary and strictly proportional suggests that the Anti-Terrorism
Proclamation No. 652/2009 is in violation of the African Charter. Therefore, the
Commission finds that the Respondent State is in violation of Articles 5, 6 and 7 of the
African Charter.
268.
The Commission will now deal with the alleged violations of Articles 8, 9, 10 and 11
of the African Charter.
269.
Article 8 of the African Charter provides that the "Freedom of conscience, the profession
and free practice of religion shall be guaranteed. No one may, subject to law and order, be
submitted to measures restricting the exercise of these freedoms", while Article 9 of the African
Charter provides that:
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
270.
Article 10(1) of the African Charter provides that "Every individual shall have the right
to free association provided that he abides by the law", and Article 11 of the African Charter
provides that:
Every individual shall have the right to assemble freely with others. The exercise of this right
shall be subject only to necessary restrictions provided for by laui in particular those enacted
in the interest of national security, the safety, health, ethics and rights and freedoms of others.
271.
While the recognition of the right to freedom of conscience, profession and the free
practice of religion is "subject to law" in Article 8 of the African Charter and the right to
express and disseminate opinions must be done "within the law" in Article 9 of the, .
Charte~, both c.onditionalities do not gr~nt th: Respon~ent State a carte blan~~e qVeA~~f).o"'~'~
(<"
I
to restnct the rights and freedoms enshrined in the African Charter.
51 African
Commission
ACHPRjRes.218
52 n 40 above,
"Resolution
(LI) 2012".
para 118.
on the Human
Rights Situation
in the Democratic
Repu
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272. Similarly, the recognition of a person's right to freedom of association "provided that
he abides by the law" under Article 10(1) of the African Charter and the right to assemble
freely with others" subject only to necessary restrictions provided for by law" does not imply
that the African Charter allows for State Parties to derogate from this right.
273. To lawfully restrict the rights enshrined in the African Charter, the onus is on the
Respondent State to show that the limitation of the rights is prescribed by law, it fulfils a
legitimate public interest, it is absolutely necessary, and it is strictly proportional to the
aim intended. 53
274. Contrary to the rebuttal by the Respondent State that none of the Complainants was
charged under Article 6 of the Anti-Terrorism Proclamation No. 652/2009 and therefore
out of the parameters of the Commission's consideration, Exhibits I, 2 and 3 attached to
the Complainants' Merit Submissions show that the 1st Complainant and several others
were charged under the Anti-Terrorism Proclamation No. 652/2009. The Respondent
State, however, does not show that the restrictions on the freedoms 'of worship, the
freedom of expression and the freedom of assembly of the Complainants by virtue of the
application of the Anti-Terrorism Proclamation No. 652/2009 is a legitimate public
interest, that it is absolutely necessary, and strictly proportional to the aim for which it is
intended.
275. Furthermore, in the Respondent State's submissions with regard to the alleged
violations of Articles 10 and 11 of the African Charter, it only contended that the
Complainants have exercised these rights for years. No concrete evidence has been
provided to show that the arrest and incommunicado detention of the Complainants
under the Anti-Terrorism Proclamation No. 652/2009 did not unreasonably restrict their
rights to association and assembly.
276. In the circumstances, the Commission finds that the Respondent State violated the
provisions of Articles 9, 10 and 11 of the African Charter.
277. At this juncture, it is imperative that the Commission recalls its decision in
Communication No. 461/13 - Eskinder Nega Penta and Reeyot Alemu (represented by Media
Legal Defence Initiatioe, Freedom Now and Lincolns Inn) v Federal Democratic Republic of
Ethiopia whereby the Commission had occasion to deal with the Anti-Terrorism
Proclamation No. 652/2009. In that Communication the Commission inter alia decided
as follows:
53 Elgak
in
declares that the 2009 Anti-Terrorism Proclamation
Respondent's State obligations under iniernalional laui;
IV
request the Respondent State to take steps to amend the 2009 Anti-Terrorism
Proclamation to bring it in line with international law and standards relating to the
combat of terrorism; and
v
requests the Respondent State to inform the Commission within one-hund~
eighty (180) days of being notified cf this decision, the measures take 'Oimplem:~t;h;-:.r-~\
case (n 40 above) para 118.
IS
not
In
line with the
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present decision in accordance with Rule 112(2) of the Rules of Procedure of the
Commission 2010.
The Commissions sees no reason whatsoever why it should depart from this decision
or let alone over-rule it.
278.
The Commission will now deal with the prayer that the Commission should draw the
attention of the Assembly of Heads of State and Government of the African Union
(AU) to the situation in accordance with Article 58 of the African Charter.
279.
A perusal of the Complainants' and Respondent State's submission and indeed the
Amicus Curiae submissions will reveal that no effort was spared to canvass
submissions or arguments for or against the prayer to draw the attention of the Heads
of State in accordance with Article 58 of the African Charter. In the circumstances and
more so that the Complainants have made no submissions, in this regard, the
Commission deems that this prayer has been abandoned.
280.
Be the immediate foregoing matters as they may be, the Commission wishes to point
out that on the material before the Commission there is no iota of evidence which
shows or tends to show that the conditions required under Article 58 of the African
Charter are there in this Communication for consideration by the Commission.
281.
Article 58 of the African Charter provides that:
1. When it appears after deliberations of the Commission that one or more Communications
app(lrently relate to special cases tohicn reoeal the existence of a series of serious or massive
violations of human and peoples' rights, the Commission shall draw the attention of the
Assembly of Heads a/Slate and Government to these special cases.
2. The Assembly of Heads of State and Government may then request the Commission to
undertake a71in-depth study of these cases and make a factual report, accompanied by its
finding and recommendations.
3. A case ofemergency duly noticed by the Commission shall be submitted by the Zatter to the
Chairman of the Assembly of Heads of State and Government who may request an in-depth
study.
282.
From Article 58 of the African Charter, it is clear that this provision comes alive if a
communication relates to a special case which reveals the existence of a series of
serious or massive violations of human and people's rights. In casu however no such
revelation has been made in the materials availed to the Commission by the
Complainants. In circumstances the Commission is of the considered view that this is
not a proper case in which to caU in aid the provisions of Article 58 of the African
Charter as inter alia prayed by the Complainants.
Decision of the Commission on the merits
283.For the foregoing reasons, the Commission:
~
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1.
finds that the Respondent State violated Articles 6, 7, 8, 9,
African Charter.
11.
Does not find a violation of Articles 4 and 5 of the African C
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iii.
declares that the Anti-Terrorism Proclamation No. 652/2009 is not in line with
the Respondent State's obligations under the African Charter;
iv.
requests the Respondent State to take steps to amend the Anti-Terrorism
Proclamation No. 652/2009 to bring it in line with the African Charter;
v.
requests the Respondent State to inform the Commission within one-hundred
and eighty (180) days of being notified of this decision, the measures taken to
implement the present decision in accordance with Rule 112(2) of the Rules of
Procedure of the Commission 2010; and
vi.
declines to draw the attention of the Assembly of Heads of ate an~~
Government of the African Union (AU) to the situation in acco ~ance wftl{ ""I'o;~\
Article 58 of the African Charter.
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Done in Banjul, The Gambia, this 74th Ordinary Se~sion held from zi« F FU"~ to 7t <\>,<-",1,,-'" /
March 2023.
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45