Decision on Merits of the African Commission on Human and
Peoples’ Rights
Communication 599/16- Robert F. Kennedy Human Rights
and Institute for Human Rights in Africa v the Federal
Democratic Republic of Ethiopia
Summary of the Complaint:
1. The Secretariat received a Complaint on 4 February 2016 from Robert
F. Kennedy Human Rights, on behalf of the Ethiopian Human Rights
Project (“the Complainants”) acting on behalf of the Ethiopian
Electorate (“the Victims”), against the Federal Democratic Republic of
Ethiopia (hereafter referred to as “the Respondent State” or “Ethiopia”),
State Party to the African Charter on Human and Peoples’ Rights (the
Charter).
2. The Complainants allege that the Respondent State violated the
Victims’ right to participate in public affairs before the 2015 elections
actively.
3. The Complainants further allege that the Respondent State’s systematic
crackdown on media, public demonstrations, human rights
organizations, and political opponents in the 2015 electoral period
unlawfully restricted civic space in the country, including the rights to
freedom of assembly, association, and expression.
4. The Complainants aver that through the enactment of repressive laws,
which criminalize the work of civil society, opposition groups,
journalists, and human rights defenders, the Respondent State created
a restrictive environment where Ethiopians were unable to express
opinions critical of the ruling party, and thus unable to participate in
the public affairs of their country.
5. The Complainants state that in the 2015 electoral period, Ethiopians
could not freely publish their opinions critical of the Respondent State,
publicly demonstrate, or hold their elected representatives accountable
without being subject to arbitrary arrest, detention, or harassment.
6. The Complainants aver that without the free flow of vital information,
mainly information that was critical of the Respondent State and the
ruling party, the Victims were not fully informed and were unable to
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
engage in any political activity without fear of intimidation and
harassment by Government authorities, nor were they able to cast a
vote for a Government of their choice effectively.
7. The Complainants state that due to this systematic repression of civic
space, the Ethiopian Peoples' Revolutionary Front (EPRDF) won all 547
of the parliamentary seats in the general elections and all but 21 seats
of the 1,987 the regional state council elections. According to the
Complainants, these results, which secured a 100% victory for the
EPRDF in Parliament, not only failed to live up to internationally
recognized standards for genuine elections but raised serious questions
about the transparency and fairness of the electoral process.
Articles alleged to have been violated:
8. The Complainants allege a violation of Articles 1, 9, 10, 11, and 13(1)
of the Charter by the Respondent State.
Prayers
9. The Complainants call on the African Commission on Human and
Peoples’ Rights (the Commission) to find the Respondent State in
violation of the abovementioned Articles.
10. The Complainants request, among other things, that the Respondent
State amends its laws and policies to conform to its national and
international obligations and also open up civic space in the country so
that the 2021 national elections may be carried out in a manner that
facilitates the full and free exercise of all Ethiopians’ right to vote.
Procedure
11. The Secretariat received the Complaint on 4 February 2016 and
acknowledged receipt on 9 February 2016.
12. At its 19th Extra-Ordinary Session held from 16 to 25 February 2016 in
Banjul, the Commission decided to be seized of the Communication.
13. Through Correspondence of 3 March 2016, the Complainant informed
the Secretariat that the Institute for Human Rights and Development in
Africa (IHRDA) had been added to the Communication as a coRepresentative.
14. The Secretariat acknowledged receipt of the correspondence, and the
title of the Communication was
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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amended to Communication 599/16- Ethiopian Human Rights
Project (Represented by Robert F. Kennedy Human Rights and
IHRDA) v the Federal Democratic Republic of Ethiopia.
15. The Parties were informed of the decision on Seizure of the
Communication on 4 March 2016, and the Complainants were
requested to submit on admissibility within two months of notification.
16. On 9 May 2016, the Complainants requested a one-month extension of
time to make submissions on Admissibility, which was granted on 23
May 2016.
17. On 22 April 2016, the Secretariat informed the Parties that the
Communication was deferred during the 58th Ordinary Session of the
Commission pending submissions on Admissibility from the
Complainants.
18. On 24 June 2016, the Complainants made submissions on
Admissibility, which were forwarded to the Respondent State with a
two-month timeline to make observations on the submissions.
19. The Respondent State requested an extension of time to make its
observations on the Complainants’ submissions on Admissibility,
which was granted on 6 December 2016.
20. Consideration of the Communication was deferred during the 60th and
61st Ordinary Sessions of the Commission pending submissions of the
Respondent State, and on 21 November 2017, the Respondent State
was granted 30 additional days to make its submissions on
Admissibility.
21. The Communication was further deferred during the 62nd Ordinary
Session of the Commission, and the Respondent State was again
granted an additional period of 30 days to make submissions.
22. The Communication was deferred during the 63rd, 64th, 65th, 66th, and
67th Ordinary Sessions of the Commission pending submissions from
the Respondent State.
23. The Commission considered and declared the Communication
Admissible at its 68th Ordinary Session held virtually from 14 April to 4
May 2021.
24. By letter and Note Verbale of 28 June 2021, both Parties were informed
about
the
decision
of
the
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
Commission on Admissibility. The Complainants were requested to
make submissions on the Merits within 60 days of the notification.
25. On 27 August 2021, the Complainants requested an extension of time
to make submissions on the Merits, which the Commission granted,
and the Complainants and Respondent State were informed by letter
and Note Verbale of 6 September 2021.
26. On 25 January 2022, the Respondent State made its submissions on
Merits, and the Secretariat acknowledged receipt and transmitted it to
the Complainants by letter of 10 November 2022.
27. On January 15, 2023, one of the Complainants, Robert F. Kennedy
Human Rights, sent observations on the Respondent State’s
submissions on the Merits. On the same date, the Complainant
mentioned above informed the Secretariat of the status of the named
Complainant, the Ethiopian Human Rights Project, indicating that
the latter decided to officially dissolve the organization for reasons
unrelated to the present Communication. Thus, it is no longer
constituted to serve in any legal capacity.
28. Based on the above, the title of the Communication was again amended
to Communication 599/16- Ethiopian Electorate (represented by
Robert F. Kennedy Human Rights and Institute for Human Rights
and Development in Africa) v the Federal Democratic Republic of
Ethiopia.
29. By letter of 13 April 2023, the Secretariat acknowledged receipt of the
Complainants’ observations on the Respondent State’s Merits
submissions and the correspondence relating to the status of the
Ethiopian Human Rights Project.
30. By Note Verbale of 13 April 2023, the Respondent State was informed
accordingly.
31. The decision on the Merits was deferred at the 75th and 76th Ordinary
Sessions of the Commission.
The Law on Admissibility
Complainant’s Submissions on Admissibility
32. The Complainants assert that the Communication satisfies all the
Admissibility requirements of Article 56 of the Charter.
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
33. On Article 56(1) of the Charter, the Complainants submit that the
Communication reveals the author’s identity, who does not request
anonymity. Therefore, the Communication satisfies the requirement of
Article 56(1) of the Charter.
34. Regarding Article 56(2) of the Charter, the Complainants submit that
the Communication is submitted against the Respondent State, a State
Party to the Charter, and alleges violations of rights and freedoms
enshrined in the Charter. Accordingly, the Complainants argue that the
Communication satisfies the requirement in Article 56(2) of the Charter.
35. Regarding Article 56(3) of the Charter, the Complainants submit that
the Communication is written in a respectful language and, therefore,
satisfies the requirement of Article 56(3) of the Charter.
36. On Article 56(4) of the Charter, it is the Complainants’ submission that
the Communication is not based exclusively on information
disseminated on mass media reports and, therefore, complies with the
requirement of Article 56(4) of the Charter.
37. About Article 56(5) of the Charter, the Complainant contends that they
are not required to satisfy the requirement of exhaustion of local
remedies, as local remedies are inadequate, ineffective, and
unavailable.
38. The Complainants submit that a remedy is available if a petitioner can
pursue it without impediment, is effective if it offers a prospect of
success, and is adequate if it can address the Complaint.1 The
Complainants additionally submit that the requirement to exhaust local
remedies can be waived in cases of serious and massive human rights
violations and where the scale and nature of the alleged violations,
coupled with the ‘number of persons involved ipso facto, render the local
remedies unavailable.’
39. To buttress the above submission, the Complainants contend that the
subject of the present Communication relates to the right to participate
in the government of one’s country, and the Complaint is put forth on
behalf of the entire Ethiopian electorate.
40. The Complainants add that the Complaint emanates from a larger
pattern of abuses and violations in the lead-up to elections in the
Respondent State, including a systematic crackdown on freedom of
Communication No. 71/92, Rencontre Africaine Pour la Defense des Droits de l’Homme
(RADDHO) v. Zambia, para 10.
1
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
expression, assembly, and association; harassment, arbitrary arrests,
and detention of large numbers of persons as well as torture of several
individuals, all perpetrated by the Respondent State during the buildup to the 2015 elections.
41. The Complainants allege that in the run-up to the elections, more than
500 members of the Ethiopian Federal Democratic Unity
Forum/Medrek were arrested at polling stations in the Oromia region.
They further allege that massive protests broke out in Oromia Regional
State in November 2015 following the planned expansion of Addis
Ababa into Oromia and that clashes between protesters and
Government authorities led to the deaths of an estimated 200 people.
42. The Complainants submit that the scale of the violation and the number
of persons involved render the pursuit of local remedies to redress the
violations neither practical nor desirable, and therefore, domestic
remedies are unavailable.
43. Citing the Commission’s Decision in Monim Elgak and Others v.
Sudan,2 The Complainants additionally submit that where there is a
general fear of persecution of the victims of violation if they approach
domestic courts seeking redress for violations, they cannot be expected
to exhaust local remedies, as the pursuit of local remedies would be
considered impractical and unreasonable.
44. The Complainants submit that to repress and deter future protests,
Government officials detained and filed terrorism charges against the
Vice Chairman of the Oromo Federalist Congress and others for inciting
violence and property destruction, amongst other charges.
45. The Complainants further submit that the Respondent State used the
Charities and Societies Proclamation, the Anti-Terrorism Proclamation,
and the Mass Media and Access to Information Proclamation to
suspend or refuse the renewal of licenses of independent Civil Society
Organizations (CSOs) that monitor human rights violations. This,
according to the Complainants, affected election activities, denied
access to international election observers (except for the African Union),
and arrested, imprisoned, or harassed journalists, bloggers, protesters,
and opposition political party members, thereby creating a general
atmosphere of fear of persecution in the country.
Communication 379/09 - FIDH and OMCT (on behalf of Monim Elgak, Osman Hummeida
and Amir Suliman) v Sudan (2014) ACHPR.
2
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
46. Finally, the Complainants contend that a remedy is said to be available
if it can be invoked without impediment, and it is evident not only in
theory but in practice that the pursuit of the remedy does place the
victim in serious danger3 and is readily obtainable or accessible to the
Complainant so that it can be utilized under any circumstance.4
47. The Complainants argue that in the present case, the Federal Supreme
Court and the National Electoral Board - two bodies charged with
election-related matters- impeded Ethiopians' ability to pursue a
remedy for their right to vote and participate in the Government.
48. In that regard, the Complainants contend that complaints submitted to
the National Electoral Board and the Federal Supreme Court were all
dismissed on technicalities without the consideration of the merit of the
complaints, despite substantial evidence supporting the claims of
election irregularities and voter intimidation.
49. The Complainants submit further that the declaration by the Court of
Cassation that Medrek (an opposition candidate in the 2010 elections)
did not have any grounds to oppose the National Electoral Board and
Supreme Court’s decisions meant that no further avenue exists in the
Respondent State, in law and in practice to lodge a complaint regarding
elections issues.
50. In particular, the Complainants submit that despite substantial
evidence supporting the claim of election irregularities, voter
intimidation, and an attempt to submit complaints to local election
observers before resorting to the National Electoral Board, the panel of
three Judges at the Supreme Court unanimously rejected the
opposition parties’ appeal to investigate on all complaints and its
request for a re-run of elections.
51. Based on the foregoing, the Complainants aver that the opposition
Party’s 2010 appeal to the Court of Cassation, which is the Respondent
State’s court of last resort to examine final decisions, demonstrated that
no further avenues were available to lodge complaints about the
electoral process. They argue that there are no available, adequate, and
effective local remedies that the victims could pursue and exhaust.
Therefore, the Communication satisfies the requirement of Article 56(5)
of the Charter.
3 Communication No. 147/95-149/96
Dawda Jawara v. The Gambia, (2000) paras 31 -32.
4 Communication No. 299/2005 Anuak Justice Council v. Ethiopia, (2006) para 51.
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
52. On Article 56(6) of the Charter, the Complainants submit that the
Communication is submitted within a reasonable time after exhaustion
of local remedies, that is, within six months of the proclamation of the
2015 elections results, and therefore that the Communication satisfies
the requirement of Article 56(6) of the Charter.
53. On Article 56(7) of the Charter, the Complainant submits that the
Communication satisfies the requirement of the Charter, as the
Communication has not been submitted to any international or regional
procedure of investigation or settlement.
The Commission’s Analysis of Admissibility
54. Article 56 of the Charter sets out seven conditions that a
Communication submitted under Article 55 of the Charter must satisfy
to be Admissible. The requirements apply conjunctively and
cumulatively.5 The Complainants submit that the present
Communication meets all the Admissibility requirements in Article 56
of the Charter.
55. The Commission recalls that notice of the pending Communication was
sent to the Respondent State and requests that it submits its
observations and evidence on the Complainants’ arguments on
Admissibility in line with Rule 105(2) of the 2010 Rules of Procedure.
However, the Respondent State did not submit its observations and
evidence on the Admissibility of the Communication.
56. In a situation where a State Party fails to submit its observations and
evidence in line with Rule 105(2) of the 2010 Rules of Procedure, despite
notice to that effect, the Commission has no option but to proceed with
its consideration of the Communication’.6 Accordingly, and in line with
its existing jurisprudence, the Commission will analyse and determine
the Admissibility of the Communication based on the information
supplied by the Complainants in their submissions on admissibility.
5 Communication No. 304/2005 - FIDH & Others v Senegal (2006) ACHPR para 38.
6 Communication No. 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila
Connateh and 13 others) v Angola para 34. See also Communication 159/1996 - Union Inter Africaine des
Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme, Rencontre Africaine des Droits
de l’Homme, Organisation Nationale des Droits de l’Homme au Sénégal and Association Malienne des Droits de
l'Homme v Republic of Angola; Communication 276/03 - Centre for Minority Rights Development (Kenya)
and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya.
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
57. Article 56(1) of the Charter provides that Communications submitted to
the Commission should ‘indicate their authors even if the latter requests
anonymity.’ In the context of Article 56(1), “authors” could be victims
and Complainants depending on how the Communication was filed.
58. In Malawi Africa Association et al. v Mauritania,7 the Commission
interpreted the essence of the requirement under Article 56(1) of the
Charter to require that “communications should indicate the names of
the authors and not those of all the victims of the alleged violations.”8
59. Notwithstanding the above, this Communication identifies the name of
the Complainant submitting the Communication, that is, the Ethiopian
Human Rights Project, as well as the Complainant’s Legal
Representatives, the IHRDA, and Robert F. Kennedy Human Rights,
none of whom requested anonymity.
60. The Complainant, Ethiopian Human Rights Project, is an Ethiopian
Non-Governmental Human Rights Organization based in Ethiopia that
deals with the human rights situation in the country. The IHRDA is an
NGO based in Banjul, The Gambia, and the Robert F. Kennedy Human
Rights is based in the United States. While the locus standi of the latter
NGO may be an issue, the Commission has adopted a comprehensive
approach to locus standi, extending access to victims, non-victims, and
NGOs.
61. In its jurisprudence, the Commission has shown that the authors of a
Communication need not be citizens or residents of a State Party to the
African Charter or located in any African Union Member State. This was
the position in Maria Baes v. Zaire,9 where a Danish national
submitted a Complaint on behalf of Dr. S.N Kandola of the University
of Kinshasa in Zaire. Other examples include Annette Pagnoule (on
behalf of Aboulaye Mazou) v Cameroon,10 submitted by Ms.
Pagnoulle of Amnesty International and Curtis Francis Doebbler v
Sudan,11 filed by an American citizen. Based on the foregoing, the issue
of locus standi does not arise in this Communication.
62. The next question that comes to mind is whether the interpretation of
Article 56(1) of the Charter also requires that victims be stricto sensu
7Communications
No. 54/91-61/91-96/93-98/93-164/97_196/97-210/98 Malawi Africa Association et al v
Mauritania 2000.
8 As above, para 79.
9 Communication 31/89
10 Communication 39/90
11 Communication 236/2000
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
identified. This is more so because the threshold for applying the actio
popularis principle has yet to be expounded on by the Commission,
which gives room for abuse of the principle by litigants.
63. The present Communication is filed on behalf of the Ethiopian
Electorate, and the victims have not been identified. Whereas actio
popularis, in its strict sense, does not require the identification of any
victim, as it is sufficient that the complaint solely alleges incompatibility
of national laws or practices with international law.12 The principle is,
therefore, a recognition that the collective damages incurred are so
diffused that any person should have the right to litigate in the public's
interest.13 In this regard, complaints by NGOs may also be called actio
popularis if the NGO does not need to identify or name the victims.
64. According to the Commission’s jurisprudence, the Commission has
seized and admitted Communications submitted on the grounds of actio
popularis without the requirement of identifying the victims.14 Indeed,
the Commission has regularly admitted cases concerning entire
populations of individuals, including Legal Resources Foundation v
Zambia.15, Kevin Mgwanga Gunme et al. v Cameroon,16 The Nubian
Community in Kenya v Kenya,17 and Open Society Justice
Initiative v. Côte d’Ivoire.18
65. As stated in paragraphs 3, 4, and 5 of the summary of facts of this
Communication, The Respondent State’s systematic crackdown on
media, public demonstrations, human rights organizations, and
political opponents in the 2015 electoral period unlawfully restricted
civic space in the country, including the rights to freedom of assembly,
freedom of association, and freedom of expression. Each unlawful
restriction to civic space and the broader chilling effect produced by this
systematic pattern of repression prevented the free flow of information,
public debate, and dialogue from taking place in the 2015 electoral
12 A Aaken “Making international human rights protection more effective: A rational-choice approach
to the effectiveness of locus standi provisions” (2005) 16 Max Planck Institute for Research on Collective
Goods 1 at 14 https://www.econstor.eu/bitstream/10419/26871/1/50037676X.PDF
13 A Aragao & A Carvalho “Taking access to justice seriously: diffuse interests and actio popularis. Why
not?”
(2017)
2
Environmental
Law
Network
International
42
at
43
https://www.elni.org/fileadmin/elni/dokumente/Archiv/2017/Heft_2/elni20172_Aragao_etal.pdf
14 n 7 above, para 79.
15 Communication 211/98.
16 Communication 266/03 - Kevin Mgwanga Gunme et al v Cameroon (2009) ACHPR.
17 Communication 317/06.
18 Communication 318/06.
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
period. As a result, no Ethiopian was able to fully exercise their right to
vote as protected under Articles 9 and 13(1) of the Charter.
66. Considering the very nature of the violations alleged in this
Communication, it is the Commission’s view that the facts equally apply
to every single Ethiopian citizen who was denied the free flow of
information, public debate, and dialogue during the 2015 electoral
period, regardless of their political affiliation or proclivity to exercise
their vote or not.
67. Furthermore, in Malawi African Association et al. v. Mauritania,19
the Commission recognized that in a situation of grave and massive
violations, giving a complete list of names of all the victims may be
impossible. The Commission noted that “…. Article 56(1) simply
demands that Communications indicate the names of those submitting
and not those of all the victims of alleged violations.”
68. In the same vein, in Kevin Mgwanga Gunme et al. v Cameroon20, the
Communication was filed on behalf of the people of Southern
Cameroon. The Commission noted that “Article 56(1) of the African
Charter requires a Communication to indicate its authors and not the
victims of the violations.” 21
69. Additionally, in Lawyers for Human Rights (Swaziland) v The
Kingdom of Swaziland,22 the Commission again found the
Communication brought by an NGO to be admissible, even though it
was filed on behalf of the entire population of Swaziland.23 Under this
similar formation of Complainant and victims to include the whole
population of a country, the Commission expressly stated that “the
requirements under subsections (1) (2) (3) (4) and (7) of Article 56 raise no
contentious issues and require no further examination.”24
70. The Commission also took the same position regarding
Communications submitted against Benin, Zaïre, and Rwanda,25
19 n 7 above, para 79.
20n 16 above..
21 As above, para. 67.
22 Communication 414/12.
23 As above, para 3.
24 As above, para 36.
25 Cf. decisions on communications 16/88, 17/88, 18/88, 25/89, 47/90, 56/91, 100/93 Legal Assistance
Group/ Zaïre, and 27/89, 46/91, 49/91, 99/93 World Organisation against Torture, International
Association of Democratic Jurists, International Commission of Jurists and Inter-African Human Rights
Union / Rwanda).”
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
where the Commission focused more on the nature of grave/mass
violations rather than identifying the victims involved.
71. This brings us to the criteria for determining whether victims should be
identified or not, in light of which the Commission proposes two
criteria:
72. The first criterion requires that “violations alleged by the victims
should be grave and massive in nature” to pass the test of nonidentification. In this regard, further to its arguments under Article
56(5) of this Communication,26 the Commission has already established
that the violations were grave and massive, which precluded the victims
from being identified. Therefore, the first criterion has been met.
73. The second criterion pertains to the “nature of the prayers and
compensation.” Under normal circumstances, the victims should be
identified to facilitate compensation to the victims by the Respondent
State. In the present Communication, the Commission notes that the
Complainants are not seeking material compensation for the entire
electorate of Ethiopia. They instead focus mainly on reparations of
satisfaction and guarantees of non-repetition, including:
i.
ii.
iii.
Recognition of a violation of Articles 1, 9, 10, 11, and 13(1)
of the Charter;
Amendment of legislations that are incompatible with the
Charter and have served to unduly restrict the right of all
Ethiopians to participate in Government effectively; and
Undertake institutional and practical reforms to open up
civic space before the [2021] elections to facilitate the free
flow of information, public debate, and dialogue.
74. Given the above, the Commission holds that the Victims in this
Communication do not need to be identified; therefore, Article 56(1)of
the Charter has been fully complied with.
75. Article 56 (2) of the Charter requires that Communications are
‘compatible with the Charter of the Organization of African Unity or with
the present Charter. ‘The Commission notes the Complainants’
submissions allege a violation of rights and freedoms enshrined in the
Charter and is submitted against a State Party to the Charter.
76. The Commission had previously adjudged that to satisfy the
requirement of Article 56(2) of the Charter, a Communication submitted
26 See generally, paragraphs 78 to 87 of this Communication.
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African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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to it must demonstrate a prima facie case of violation of the Charter.
The present Communication alleges violation of Articles 1, 9, 10, 11,
and 13(1) of the Charter and is submitted against the Respondent State,
a State Party to the Charter. The Commission notes that the
Communication satisfies the rationae materiae and rationae personae
jurisdiction of the Commission. The Commission further notes that the
Communication is compatible with the AU Constitutive Act or the
Charter as it demonstrates a prima facie violation of the Charter.
Accordingly, Article 56(2) of the Charter is complied with.
77. Article 56(3) of the Charter provides that Communications shall be
considered if they ‘are not written in disparaging or insulting language
directed at the State concerned and its institutions or to the Organisation
of African Unity.’ The Commission’s examination of the Communication
reveals that the Communication is not written in disparaging or
insulting language and, therefore, satisfies the requirement of Article
56(3) of the Charter.
78. Article 56(4) of the Charter requires that Communications submitted to
the Commission ‘are not based exclusively on news disseminated
through the mass media.’ The Complainants have stated that the
present Communication is not based exclusively on news disseminated
through the mass media. They did not substantiate their assertion with
documents or evidence. However, after examining the Complainants’
admissibility submissions, the Commission notes that the
Communication is based on facts well known and documented from
various sources.
79. Additionally, the Commission notes from the Complainants’
submissions that the Complaint of alleged violation of rights and
freedoms is based on laws in place in the Respondent State (notably the
Charities and Societies Proclamation, the Anti-Terrorism Proclamation
and the Mass Media and Access to Information Proclamation), which
according to the Complainants, are being used by the Government to
suppress certain fundamental rights of Ethiopians. The Commission,
therefore, finds that the Communication satisfies the requirement of
Article 56(4) of the Charter.
80. Article 56(5) of the Charter requires Communications to be ‘sent after
exhausting domestic remedies, if any, unless it is obvious that this
procedure is unduly prolonged.’ This requirement is based on the
cardinal principle that the Respondent State must first have an
~ 13 ~
African Commission on Human and Peoples’ Rights
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opportunity ‘to redress… within its own domestic legal system, the
wrong alleged to have been done to the individual’.27
81. The Complainants invoke the exceptions to the above requirement and
contend that the Communication satisfies Article 56(5) of the Charter.
The Complainants specifically argue that domestic remedies are
unavailable, inadequate, and inefficient, and therefore, it would be
impractical, undesirable, and unreasonable to expect the Complainants
to pursue and exhaust them.
82. In interpreting Article 56(5) of the Charter, the Commission has
reiterated that the phrase ‘if any’ translates to the fact that only
domestic remedies that are available, effective, and sufficient need to be
exhausted by a Complainant before approaching the Commission. It is
the Commission’s position that a domestic remedy is available when it
can be pursued without impediment; it is deemed effective if it offers
prospects of success and is sufficient if it can redress the complaint.28
83. The Commission’s consistent position on the principle of exhaustion of
local remedies presupposes:
i.
the existence of domestic procedures for dealing with
the claim;
ii.
the justiciability or otherwise, domestically of the
subject matter of the complaint;
iii.
the existence under the municipal legal order of
provisions for redress of the type of wrong being
complained of; and
iv.
the availability of effective local remedies, that is,
remedies sufficient or capable of redressing the wrong
complained.29
84. The Complainants advance three main arguments about the nonexhaustion of local remedies:
i.
ii.
The fact that the Communication is submitted on behalf of
the entire Ethiopian electorate, and by extension, the scale
of human rights violations and the number of victims
involved;
General fear of persecution of the victims; and
27 Communication No. 71/92 - Rencontre Africaine pour la Defence des Droits de l'Homme v. Zambia (n 1
above).
28 Jawara v The Gambia (n 3 above).
29 Communication No. 275/03- Article 19 v Eritrea, para 47.
~ 14 ~
African Commission on Human and Peoples’ Rights
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iii.
The fact that local remedies are not available to redress
election grievances, or in the alternative, even though they
may exist theoretically, they are insufficient.
85. On the first point, how do we quantify the “Ethiopian electorate” as
referenced in this Communication? The Complainants seem to be
referring to the whole country, and if that is the case, how do we
establish whether the case falls within the purview of massive
violations, which, according to the Commission’s jurisprudence,
qualifies for a waiver of exhausting local remedies?
86. To answer these questions, it is necessary to examine the jurisprudence
of the Commission that deals with the issue of massive violations that
preclude victims from exhausting local remedies and compare them
with the facts in the current Communication, and if the Communication
doesn’t qualify, to set criteria for determining whether the violations are
massive according to the facts of the case.
87. In Amnesty International and Others v. Sudan,30 which deals with
allegations of extra-judicial killings, torture, arrests, and detention; the
Commission distinguished between cases where the complaint deals
with “violations against victims identified or named and those cases of
serious and massive violations in which it may be impossible for the
complainants to identify all the victims.”
88. Similarly, in Free Legal Assistance Group, Lawyers' Committee for
Human Rights, Union Interafricaine des Droits de l'Homme, Les
Témoins de Jehovah v DRC,31 which deals with allegations of arrests,
detention, unfair trials, restriction on freedom of association, and
freedom of the press, the Commission took the view that the condition
to exhaust local remedies “cannot be applied literally, especially where
it is impractical, or undesirable for all victims to seize domestic courts.”
89. In Sudan Human Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) v Sudan,32 which deals with large-scale
killings, forced evictions, and forced displacement of populations, the
destruction of public facilities and properties, and disruption of life
through bombing by military fighter jets in densely populated areas, the
Commission argued that in cases of serious and massive human rights
30 Communication Nos.
48/09,50/91,52/91,89/93- Amnesty International and Others v. Sudan, para 30
31 Communication Nos. 25/89-47/90-56/91-100/93 : Free Legal Assistance Group, Lawyers' Committee for
Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah / DRC, para 37
32 Communication Nos. 279/03-296/05 : Sudan Human Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) / Sudan.
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African Commission on Human and Peoples’ Rights
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violations, the scale and nature of the alleged violations, coupled with
the number of persons involved, invariably render local remedies
practically unavailable.33
90. Furthermore, in Malawi Africa Association et al. v Mauritania,
which deals with racial discrimination, the expulsion of almost 50,000
people to Senegal and Mali, and extra-judicial executions of Black
Mauritanians, the Commission observed that the gravity of the human
rights situation in Mauritania and the significant number of victims
involved rendered the channels of remedy unavailable in practical
terms, and, their process unduly prolonged.
91. Haven perused the jurisprudence of the Commission; can we effectively
state that the present Communication deals with large-scale violations
and that the number of victims involved renders local remedies
unavailable?
92. Even though the referenced Communications do not specifically deal
with elections as in the present Communication, the Commission is
called upon to look at the scale, scope, and severity of the violations
within the context of political rights and the right to vote. As well as
articulating the civic space elements required during an election under
the Charter.
93. The present Communication is submitted on behalf of the “entire
Ethiopian electorate” comprising millions of eligible voters whose right
to participate in the Government of their country is alleged to have been
suppressed. Additionally, the Communication alleges violations
involving scores of individuals arrested, detained, or killed during
protests and rallies before and after the 2015 elections in the
Respondent state. It also alleges the systematic violation of several
rights by enacting laws to suppress freedoms and crush dissenting
voices.34
94. Without delving into the merits of the case, in the present
Communication, the class of victims is self-evident and defined by the
nature of the violation (infringement on the right to vote and participate
in public affairs in the context of a national election). Technically, since
the election was open to all Ethiopians (the electorate), it is practical to
assume that it covers the whole nation.
33 See also Communication No. 249/02: Institute for Human Rights and Development in Africa (on behalf of
Sierra Leonean refugees in Guinea) v. Guinea (2004) ACHPR, para 34.
34 See summary of facts; and paras 31 to 32 of the Admissibility submissions above.
~ 16 ~
African Commission on Human and Peoples’ Rights
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95. It is, therefore, the Commission’s view that in the above circumstances,
it is impossible to identify all the Victims and, given the vast and varied
scope of the violations alleged, it would be impractical to expect the
Victims to exhaust local remedies, thereby impeding the Victims from
approaching the courts under those circumstances. This aligns with the
Commission’s jurisprudence in African Institute for Human Rights
and Development v. Guinea, wherein 5,000 Sierra Leone refugees
were detained, and an unknown additional portion of 300,000 Sierra
Leone refugees also experienced violations. The Commission found that
“an impractical number of potential plaintiffs would result in the domestic
court system becoming severely overburdened if even a slight majority of
victims chose to pursue legal redress.”35 The Communication was
declared admissible because it fell under an exception that exhaustion
was impractical due to the large number of victims.
96. Ultimately, recalling its jurisprudence in previous cases36 and
juxtaposing with the circumstances in the present Communication, the
Commission is inclined and holds that the present Communication falls
within the category of communications where exceptions to the
requirement to exhaust domestic remedies should apply, as it would be
unreasonable to expect the Victims to pursue local remedies deemed to
only exist in theory and not in practice.
97. On the second point, the Complainants alleged that the Victims cannot
resort to domestic remedies due to general fear of persecution. The
Complainants alleged that following the 2015 elections, clashes
between protesters and Government authorities in the Respondent
State resulted in the alleged deaths of hundreds of people, while others
were allegedly intimidated, arrested, detained, persecuted, and
harassed. Additionally, the Complainants stated that in the 2015
electoral period, Ethiopians could not freely publish their opinions
critical of the Government, publicly demonstrate, or hold their elected
representatives accountable without being subject to arbitrary arrest,
detention, or harassment.37
35 Communication No. 249/02: Institute for Human Rights and Development in Africa (on behalf of Sierra
Leonean refugees in Guinea) v. Guinea (2004) ACHPR, para 34.
36 Communication Nos 48/09, 50/91, 52/91, 89/93 (1999); Amnesty International and Others v. Sudan,
para 30; Comm. No. 338/07 (2010) Socio-Economic Rights and Accountability Project v. The Federal Republic
of Nigeria, para 67; Communication Nos. 25/89, 47/90, 56/91, 100/93 (1995) Free Legal Assistance Group
and Others v. Zaire; Communication No. 249/02: Institute for Human Rights and Development in Africa (on
behalf of Sierra Leonean refugees in Guinea) v. Guinea
37 See summary of Complaint.
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African Commission on Human and Peoples’ Rights
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98. What guarantees that other Victims would have the courage to
approach the local courts for redress without being arrested or facing
the same ordeal?
99. In Monim Elgak, Osman Hummeida, and Amir Suliman
(represented by FIDH and OMCT) v Sudan38, the Commission held
that where the victims cannot resort to domestic remedies because of a
general fear of persecution, pursuing such a remedy would be
impractical and unreasonable. Based on this jurisprudence, it is safe
to say that the prevailing situation in the country at the time, as
illustrated above, rendered local remedies unavailable.
100.
On the last point, the Complainants cite the National Electoral
Board and the Federal Supreme Court as State institutions with
jurisdiction to entertain election petitions. The Complainants, however,
posit that because these institutions declined to adjudicate on the merit
of election petitions following the 2010 elections, local remedies are
unavailable or insufficient. According to them, approaching the same
institutions with the present Complaints would be a waste of time.
101.
Generally speaking, and according to the jurisprudence of the
Commission,39 the principle of exhaustion of local remedies requires
that the Complainant or Victim provides some prima facie evidence of
an attempt to exhaust local remedies.
102.
Additionally, in Free Legal Assistance Group and Others v
40
Zaire and Rencontre Africaine pour la Defense des Droits de
l’Homme v Zambia,41 the Commission held that the requirement on
exhaustion of local remedies is founded on the principle that a
Government should have notice of human rights violations to have the
opportunity to remedy such violations before approaching an
international body.
103.
Based on the facts before this Commission, the present
Communication has not been submitted to the domestic courts for
adjudication. The Complainants’ excuse for the Victims not
approaching the local courts is based on the conduct of the Courts in
matters relating to the 2010 elections. The Commission recalls that in
38 n 2 above 54 & 55.
39 Communication No. 86/93- Ceesay v The Gambia; Communication No. 127/94- Dumbuya v The Gambia.
40 Communication Nos 25/89;47/90;56/91;100/93- Free Legal Assistance Group and Others v Zaire,
para 36.
41 Communication No 71/92- Recontre Africaine pour la Defense des Droits de l’Homme v Zambia, para 10.
~ 18 ~
African Commission on Human and Peoples’ Rights
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its previous jurisprudence,42 it held that the Complainant must seek to
take all necessary steps to remedy their grievances at the national level
and not merely cast doubts or aspersions on the futility of approaching
the local courts or appealing to a higher judicial body.
104.
The Complainants’ reliance on the conduct of the National
Electoral Board and the Federal Supreme Court in cases relating to the
2010 election petition as reasons for not approaching the local courts
with election grievances relating to the 2015 elections cannot amount
to justifications for not exhausting local remedies.
105.
The above notwithstanding, according to the Complainants’
submissions, the Commission notes in the present Communication
that complaints were filed before the National Electoral Board, and
nothing came out of the complaints. The Commission also notes that
the Court of Cassation had previously ruled that there is no legal basis
to contest the National Electoral Board and Federal Supreme Court
decisions. No fora existed in the Respondent State that could provide
the Victims with effective redress of the right to vote during the May
2015 elections. Therefore, while local remedies may be available, they
do not seem effective or sufficient as they do not offer prospects of
success and, consequently, may be incapable of redressing the present
complaint.
106.
In addition, regardless of the Victims’ failure to approach
domestic courts due to the conduct of the National Electoral Board and
the Federal Supreme Court, the Commission has previously adjudged
that local remedies will be considered unavailable, ineffective, and
inadequate where the State has failed to investigate violations and
crimes brought to its attention.
107.
that:
Specifically, in Article 19 v Eritrea,43 the Commission adjudged
Whenever there is a crime that can be investigated and
prosecuted by the State on its own initiative, the State has
the obligation to move the criminal process forward to its
ultimate conclusion. In such cases, one cannot demand that
the Complainants, the Victims, or their family members
assume the task of exhausting domestic remedies when it is
up to the State to investigate the facts and bring the accused
42 Communication No 372/09 - Interights (on behalf of Gizaw Kebede and Kebede Tadesse) v. Ethiopia & Com.
299/05 - Anuak Justice Council v. Ethiopia.
43 n 29 above, para 72
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African Commission on Human and Peoples’ Rights
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persons to court in accordance with both domestic and
international fair trial standards.
108.
The Complainants in the present Communication cited a plethora
of instances of crimes and human rights violations, including multiple
occasions of the arrest of hundreds of individuals who were either
protesting, marching, or involved in political rallies; the killing of dozens
of individuals during police crackdowns on protesters and
demonstrators; and cases of arrest of journalists, which are well
documented and published by state and non-state actors, but never
investigated by the Respondent State. Given the scale of the alleged
violations and their wide publicity, the Commission believes that it is
impossible for the Respondent State not to be aware of them and did
nothing to investigate the allegations. What, therefore, guaranteed that
there will be prospects of success for the Victims in domestic courts?
109.
The Commission believes that the Respondent State’s
inability/unwillingness to initiate an investigation and prosecute the
perpetrators demonstrates that local remedies are unavailable,
inefficient, and inadequate.
110.
From the foregoing, the Commission notes that expecting the
Victims to pursue or exhaust local remedies would be undesirable and
unreasonable. The Communication accordingly falls under the category
of exceptions to the requirement of exhaustion of local remedies and,
therefore, satisfies the requirement of Article 56(5) of the Charter.
111.
Concerning Article 56(6) of the Charter, a Communication must
be submitted ‘…within a reasonable period from the time local remedies
are exhausted or from the date the Commission is seized of the matter’.
112.
The Complainants aver that the Communication is submitted
within six months of the date of proclamation of the May 2015
Elections. The Commission has previously held that the time frame
within which to submit a Communication is dependent on the
exhaustion of domestic remedies. Where domestic remedies are
unavailable such that the Complainant cannot exhaust them, the
Communication will satisfy Article 56(6) of the Charter as long as it is
submitted without delay. The Commission notes that the present
Communication has been submitted without delay and, therefore, finds
that it satisfies the requirement of Article 56(6) of the Charter.
113.
Article 56 (7) of the Charter provides that Communications shall
be considered if they ‘do not deal with cases which have been settled by
~ 20 ~
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these States involved in accordance with the principles of the Charter of
the United Nations, or the Charter of the Organization of African Unity or
the provisions of the present Charter.’
114.
The Complainants aver that the present complaint has not been
submitted before or settled by any other international investigation or
dispute settlement mechanism. The Commission is satisfied that the
issues and claims in this Communication have not been brought before
any other international forum. Consequently, the Commission finds
that the Communication satisfies Article 56(7) of the Charter.
The Decision of the Commission on Admissibility
115.
Given the above, the Commission declares this Communication
Admissible in accordance with Article 56 of the Charter.
The Merits
The Complainants’ submissions on the Merits
116.
The Complainants contend that the Respondent State's
systematic disruption of peaceful demonstrations, freedom of
expression, freedom of association, and public participation through
arbitrary arrests and the disproportionate use of force violates the
provisions of Articles 1, 9, 10, 11, and 13(1) of the Charter.
Alleged violation of Article 9 of the Charter (The right to Freedom of Expression
and Access to Information)
117.
The Complainants claim that the Respondent State, to suppress
dissent and force independent voices to practice self-censorship,
engaged in harassment, prosecution, and intimidation of journalists.
They highlight that before the 2015 elections, independent media
outlets were heavily suppressed, leading many privately-owned
publications to resort to self-censorship or cease operations entirely.
They add that in 2014, approximately 22 journalists, bloggers, and
publishers faced criminal charges, while six publications were forcibly
closed due to Government harassment.
118.
The Complainants submit that the Justice Ministry brought
charges against five independent publications and a weekly newspaper
in April 2014, citing offenses such as disseminating false information,
inciting violence, and undermining public confidence in the
~ 21 ~
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Government. The Complainants further allege that in July 2014,
photojournalist Aziza Mohamed was arrested outside Anwar Mosque in
Addis Ababa under the false accusation of inciting violence while she
was just documenting Muslim protesters. They emphasize that the
risks associated with operating in Ethiopia during the 2015 elections
led to over 30 journalists fleeing the country in 2014.
119.
The Complainants further cite the case of the Zone 9 Bloggers
Collective, where six members of the group were arrested, held
incommunicado at Maekelawi detention center in Addis Ababa, and later
charged under the provisions of the 2009 Anti-Terrorism Proclamation
for allegedly collaborating with foreign organizations and inciting public
disorder through social media. The Complainants assert that the
bloggers endured brutal interrogations and physical torture during
detention to extract false confessions. They submit that 3 of the
Bloggers chose to go into exile to evade imprisonment while still facing
charges in absentia.
120.
The Complainants assert that following the suspension of their
blogging activities in 2013 due to harassment and safety concerns, the
Zone 9 Bloggers later declared their intention to resume blogging on 23
April 2015, just before the 2015 elections, resulting in the detention of
6 members of the blogging team, including Befeqadu Hailu, Atnaf
Berahane, Natnael Feleke, Mahlet Kibret, and Abel Wabela, along with
3 Journalists believed to have affiliations with them. They add that
these Bloggers were unlawfully held in Maekelawi prison for 80 days
without specific charges despite being later charged under the AntiTerrorism Proclamation and Criminal Code for unsubstantiated
allegations of collaborating with "terrorist organizations.”
121.
The Complainants allege that during their detention, the Bloggers
were subjected to unlawful interrogation methods, including physical
and mental torture such as sleep deprivation, food deprivation,
extraction of their nails, flogging, and hooding, which coerced false
confessions and resulted in the Bloggers making self-incriminating
statements to the officials.
122.
The Complainants argue that despite reports of arbitrary
detention and intimidation by the Respondent State, the African
Union's Electoral Observer Mission inaccurately portrayed the political
environment as peaceful and calm before the May 24 elections, failing
to acknowledge the pre-electoral restrictions on civic space, thereby
leading to an election that did not truly reflect the opinions of the
Ethiopian people.
~ 22 ~
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123.
The Complainants cite the International PEN, Constitutional
Rights Project, Civil Liberties Organization and Interight on
behalf of Ken Saro-Wiwa Jnr.) v. Nigeria44 case, where it was found
that Nigeria violated Articles 9 and 11 of the Charter for targeting
individuals who had disseminated critical information and opinions
about the government during a public rally by using the criminal justice
system.
Alleged violation of Article 10 of the Charter (The right to Freedom of
Association)
124.
The Complainants claim that in 2014, Andargachew Tsege, a
member of the banned political group Ginbot 7, was abducted in Sana's
Airport, Yemen, by unidentified individuals and returned to Ethiopia.
They allege that he was subsequently sentenced to death for alleged
involvement in conspiring to commit acts of terror and violence in
Ethiopia and collaborating with Ginbot 7, a proscribed terrorist
organization, to overthrow the Ethiopian Government.
125.
The Complainants allege that in July 2014, 4 opposition party
members, namely, Abra Desta of the Arena Tigray Party, Habtamu
Ayalew and Daniel Shebeshi of the Blue Party, and Yeshewas Asefa of
the Unity for Democracy Party, were arrested and taken to the Federal
Police Detention Center in Addis Ababa on 8 July 2014. According to
the Complainants, Samuel Aweke, a candidate from the Blue Party, was
found dead in the streets of Dembre Markos on 15 June 2015, in what
they allege to be a politically motivated incident because it followed the
publication of an article that criticized the actions of local officials. They
add that on 19 June 2015, Berhanu Erabu, a member of the opposition
group Medrek, was also found dead near a river in Hadiya Zone, only
24 hours after being arrested by two police officers.
126.
The Complainants additionally allege that between May and July
2015, approximately 500 members of the EFDUF, consisting of
opposition parties such as the Oromo Federalist Congress (OFC), were
detained at polling stations in the Oromia region, resulting in injuries
to 46 individuals by security officers, with six sustaining gunshot
wounds and two death. The Complainants further claim that opposition
leaders of political parties were routinely arrested, even outside
Ethiopian territory, preventing Ethiopian citizens from engaging in
public affairs through debate and active dialogue and coercing them
into voting for the ruling party.
44 Communications 137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project,
Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v. Nigeria (1998) ACHPR.
~ 23 ~
African Commission on Human and Peoples’ Rights
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127.
The Complainants allege that the Respondent State specifically
targeted opposition groups during the 2015 elections, resulting in
arrests, injuries, and deaths. They argue that this targeted suppression
of opposition leaders and their critical views violates citizens' rights to
freedom of association and participation in public affairs, which violates
Article 10 of the Charter.
Alleged violation of Article 11 of the Charter (The right to Freedom of
Assembly)
128.
The Complainants allege that ahead of the 2015 National
Elections,
the
Government
unlawfully
disrupted
peaceful
demonstrations by arbitrarily arresting protesters to dismantle
opposition groups and coerce voters. According to the Complainants, in
2014, thousands of Ethiopians were arrested for participating in
protests. In March of the same year, ten members of the newly formed
Semayawi Party (Blue Party) were detained for chanting political
slogans during a run commemorating International Women's Day
despite being released after ten days without being charged.
129.
The Complainants further allege that in April 2014, 20 members
of the Blue Party were arrested for organizing a demonstration despite
providing the required written notice to the Addis Ababa City
Administration as per the Proclamation to Establish the Procedure for
Peaceful Demonstration and Public Political Meeting No. 3/1991. They
further contend that in April and May of the same year, security
personnel fired at demonstrators in the Oromia region who were
protesting against the planned expansion of Addis Ababa's municipal
boundary into the Oromia region.
130.
The Complainants submit that student protests also occurred
in 4 university campuses in the Oromia region, which spread to
neighboring towns and resulted in the deaths of 30 protesters and
bystanders due to excessive force used by the security forces.
131.
The Complainants raise concerns regarding the Respondent
State's actions towards peaceful Muslim demonstrators. They argue
that despite the Ethiopian Constitution recognizing freedom of
thought, conscience, and religion, Government authorities have
arrested Muslim demonstrators who protested in response to the
detention of 17 Muslim leaders who were convicted by the Federal
High Court for terrorism and conspiracy to establish an Islamic State
in Ethiopia in 2012. The Complainants submit that these arrests are
~ 24 ~
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part of a broader Government campaign to suppress the grievances of
the Muslim population.
132.
The Complainants contend that the Respondent State's
systematic disruption of peaceful demonstrations, accomplished
through arbitrary arrests and the disproportionate use of force leading
up to the 2015 election, was intended to punish and suppress peaceful
protests. They argue that these actions amount to a violation of Article
11 of the Charter.
Alleged violation of Article 13(1) of the Charter (The right of Freedom to
Participate Freely in Government)
133.
The Complainants argue that States are responsible for ensuring
that every citizen can freely participate in their country's Government
and choose their representatives. They submit that this obligation
includes protecting various rights outlined in the Charter, such as
freedom of opinion, expression, peaceful assembly, and association, as
these rights are crucial for the realization of free and fair elections.
134.
The Complainants assert that the right to participate in
Government should be considered throughout the entire election
process, not just on polling day, and journalists, human rights
defenders, and others involved in the electoral process should be
protected from intimidation and human rights abuses. They also stress
the importance of CSOs engaging with potential elected representatives
and expressing their concerns and interests in participating actively in
public affairs.
135.
The Complainants allege that during the 2015 elections, a specific
group of people were systematically prevented from expressing their
views, advocating for their positions, and participating in political
activities, thus undermining genuine political participation by denying
freedom of expression.
136.
The Complainants allege that the Respondent State violated
citizens' rights by punishing them for exercising their right to political
participation and publishing information about candidates, particularly
about the opposition group Ginbot 7.
137.
The Complainants assert that leading up to the June 2021 election
in Ethiopia, civil society groups faced repression, and supporters of
opposition parties were subjected to mass arrests. They claim that
~ 25 ~
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political parties were prohibited from organizing rallies, and opposition
activities were impeded, resulting in the withdrawal of parties from the
election. They further allege that in October 2020, police used live bullets
against a protest opposing the Prime Minister in Bale Robe, leading to at
least one fatality and peaceful demonstrations against ethnically
motivated killings of individuals from the Amhara ethnic minority by the
National Amhara Movement (NAMA) were also banned. They add that the
government froze the accounts of the Tigray Peoples' Liberation Front
(TPLF). In January 2021, the National Election Board of Ethiopia
canceled the TPLF's electoral license, and opposition rallies were
suppressed while gatherings of the ruling party were allowed.
138.
The Complainants contend that in February 2021, one person was
killed by soldiers during an anti-government protest in Tigray, and
protests also erupted in Oromia due to the deteriorating health of
imprisoned opposition figures on a hunger strike, resulting in injuries
and at least one fatality. They further state that in February and March
2021, the OLF and the Oromo Federalist Congress (OFC) withdrew from
the June election, citing Government interference, the arrest of hundreds
of opposition leaders and members, and concerns about unfair
treatment.
139.
The Complainants submit that in June 2021, 7 national and
regional opposition parties raised concerns about the electoral process,
alleging harassment and unfair arrests of their members by the ruling
party. They add that on Election Day, there were reported human rights
violations, including attacks on candidates, supporters, election
workers, and security officers in certain regions, as well as polling delays.
140.
The Complainants also allege several incidences that took place in
2021, including the raiding of the Independent Broadcaster Awlo Media
Center on 30th June; police and security officers arbitrarily arresting and
detaining ethnic Tigrayans and conducting ID checks and body searches
in Tigrayan-populated neighborhoods in Addis Ababa in early July;
journalists Abebe Bayu and administrator Yayesew Shimelis from Ethio
Forum YouTube being detained, on 15 July; the license of the news
website Addis Standard revoked by the Ethiopian Media Authority
without explanation; and in late July, Ethiopian police detaining
hundreds of ethnic Tigrayans in Addis Ababa following the Government's
loss of control of Tigray's capital on June 28 while Tigrayan-owned
businesses were also forcibly closed.
141.
In conclusion, the Complainants allege that the Respondent
State, before 2015 and during the 2021 elections, violated Article 13(1)
of the Charter.
~ 26 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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Alleged violation of Article 1 of the Charter (The States obligation to uphold
the rights guaranteed by the Charter and undertake necessary measures to
adopt legislative or other measures to give effect to them)
142.
The Complainants submit that as a State Party to the Charter,
Ethiopia is obligated to uphold the fundamental rights enshrined in the
Charter. They contend that in relation to public participation, the
Respondent State has a duty to take adequate measures to ensure that
all eligible individuals can exercise their right to vote.
143.
Furthermore, the Complainants assert that under Article 13 of the
Charter, States are obligated to fulfill specific requirements, including
safeguarding and implementing relevant rights such as the right to
freedom of opinion, expression, access to information, and the right to
peaceful assembly and association.
144.
The Complainants aver that national legal frameworks should
protect these rights and ensure the independence, pluralism, and
support of civil society actors. However, the Complainants allege that
throughout the period leading up to the 2015 election, the Ethiopian
Government failed to guarantee citizens' fundamental rights to freedom
of expression, assembly, association, and participation in public affairs.
Consequently, they argue that this failure resulted in a violation of Article
1 of the Charter, which obligates States to uphold the rights guaranteed
by the Charter and undertake necessary measures to adopt legislative or
other measures to give effect to them.
Respondent State’s submissions on the Merits
145.
The Respondent State argues that the Government has taken steps
to protect and uphold the rights, freedoms, and duties outlined in the
Charter, such as freedom of expression, assembly, association, and the
right to participate in public affairs. They mention that the country's
Constitution guarantees these rights, and additional laws have been
enacted to safeguard human rights in accordance with the Charter.
146.
The Respondent State further submits that the Government has
also established various institutions, including the Courts, Police, Prison
Administration, House of Federation, Council of Constitutional Inquiry,
Ethiopian Human Rights Commission, and the Institution of
Ombudsman, to ensure the protection and promotion of human rights
as stated in the Charter.
~ 27 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
Alleged violation of Article 9 of the Charter (The right to Freedom of Expression
and Access to Information)
147.
Regarding the alleged violation of Article 9 of the Charter, the
Respondent State argues that the Ethiopian Constitution guarantees the
right to hold opinions and freedom of expression, including seeking,
receiving, and sharing information and ideas through various mediums.
They assert that these rights can only be limited by laws guided by the
principle that freedom of expression and information should not be
restricted based on content or impact of the expressed viewpoint.
However, legal limitations may be imposed to protect youth and
individuals' reputations.
148.
The Respondent State avers that Proclamation No. 590/2008,
the law Governing Mass Media and Access to Information at the time of
the allegation, has been repealed by Proclamation No. 1238/2021,
which was adopted with the purview of upholding and strengthening
previous achievements in freedom of expression while addressing
barriers to independent media operations and the free flow of
information.
149.
The Respondent State contends that private publications were not
shut down before the election in 2015, as over 107 private and public
media organizations reported on the electoral process and international
media presented throughout the pre-, during, and post-election periods.
150.
Regarding the arrest of journalists and bloggers, the Respondent
State maintains that it was not arbitrary or solely based on their
expression or political activity. Rather, they were suspected of crimes
related to their affiliation with terrorist organizations, advocating for the
violent overthrow of a constitutionally elected Government, engaging in
hate speech, and inciting violence against specific ethnic groups. The
Respondent State adds that these individuals were brought before the
court of law, as the Government has an obligation, under its own
Constitution and international law, to protect citizens from terrorism,
violence incitement, and hate speech.
151.
The Respondent State asserts that no evidence supports the
allegation of using sophisticated technologies for wiretapping and
blocking blogs and websites. They argue that the Respondent State has
laws that adhere to international standards, and interception and
surveillance of communications are allowed under the Constitution and
the Anti-Terrorism law to protect and investigate certain crimes subject
to strict procedural requirements such as court warrants, confidentiality
~ 28 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
of collected information, and usage for the intended purpose must be
followed.
152.
The Respondent State disputes the Complainants’ assertion that
the report of the African Union Electoral Observer Mission regarding the
Elections was inaccurate, arguing that the Report encompasses the preelection period and the election days.
Alleged violation of Article 10 of the Charter (The right to Freedom of
Association)
153.
Concerning the alleged violation of Article 10 of the Charter, the
Respondent State asserts that freedom of association is protected by
Article 31 of the Constitution, allowing individuals to form organizations
for any cause or purpose, except those that violate laws or subvert the
constitutional order.
154.
The Respondent State submits that during the 2015 elections, over
58 political parties participated, with 22 being local parties and the
others regional. They add that the arrest and detention of Mr.
Andargachew Tsege were unrelated to the election but were due to his
involvement as a founder and leader of "Ginbot Sebat," a group labeled
as a terrorist organization, which had military forces in Eritrea and
aimed to overthrow the Government through violence.
155.
Regarding the arrest of opposition party candidates in violation of
candidate immunity, the Respondent submits that the Complainants
only refer to complaints made by the Ethiopian Federal Democratic
Unity/Forum/ Party to the National Electoral Board of Ethiopia (NEBE)
in which all complaints by the party were received, investigated, and
responded to by the NEBE through its regional branches.
156.
The Respondent also states that the allegation regarding the
deaths of opposition party members is not insufficiently supported with
evidence that can show the linkage of these deaths to violations of
freedom of association. The Respondent State further contends that the
Government conducted investigations to bring the perpetrators to
justice, resulting in the sentencing of suspects involved in Mr. Samuel
Awoke's death to 20 and 21 years of imprisonment at the Amhara
Regional State Bahir Dar High Court, with another suspect receiving a
19-year sentence at the East Gojjamn High Court.
Alleged violation of Article 11 of the Charter (The right to Freedom of
Assembly)
~ 29 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
157.
Regarding the alleged violation of Article 11 of the Charter, the
Respondent State submits that according to the Constitution, every
individual has the right to peacefully assemble, demonstrate peacefully,
and petition, provided certain restrictions are observed. They add that
Proclamation No. 3/1991 has been enacted to affirm that everyone
possesses the right to organize and participate in peaceful
demonstrations and public political meetings while ensuring that this
right is exercised without infringing on third parties' legal rights.
158.
The Respondent State further asserts that while there is an
obligation to provide written notice 48 hours before the intended
demonstration, the Proclamation does not explicitly require seeking
permission to hold such events per se.
159.
The Respondent State asserts that since the commencement of
political reforms in April 2018, citizens have freely exercised their right
to hold peaceful demonstrations and assemblies, regardless of political
opinions. According to the Respondent State, some "peaceful'" protests
have turned violent, or legal demonstrations have been cancelled due to
threats by community members with opposing views which sometimes
necessitate intervention by the authorities.
160.
The Respondent State submits that the restrictions and
requirements outlined in the Proclamation are in line with the provisions
of the Constitution and Article 21 of the International Covenant on Civil
and Political Rights (ICCPR) and are aimed at facilitating the right to
peaceful assembly while respecting the rights of others. The Respondent
State also argues that in alleging the arrest of demonstrators, the
Complainants have not provided specific details such as the time, place,
and number of individuals arrested, supported by corroborating
evidence.
161.
Furthermore, the Respondent State contends that the
Complainants did not mention whether they contacted or approached
the relevant Government authorities to address any complaints. They
add that without timely reporting of allegations and supporting evidence
to the appropriate institutions, it becomes challenging for the
Respondent State to respond effectively.
Alleged violation of Article 13(1) of the Charter (The right of Freedom to
Participate Freely in Government)
~ 30 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
162.
Regarding the alleged violation of Article 13(1) of the Charter, the
Respondent State submits that the Constitution guarantees the right of
every individual to vote, be elected, and form or join a political
organization, establishing a multi-party democracy. The Respondent
State adds that it has enacted several legislations and directives to
implement the right to participate in governance and hold elections,
including the Amended Electoral Law, Revised Political Parties
Registration Proclamation, Electoral Code of Conduct for Political
Parties, Directive for the Registration of Candidates, Directive for the
Registration of Electors, Directive Concerning the Procedure for
Observers and Representatives of Political Parties, and the Regulation
Concerning the Procedure for Determining the Apportionment of
Government Financial Support to Political Parties.
163.
The Respondent State further submits that the NEBE, an
independent and autonomous entity, was established to ensure the
transparency of elections with the responsibility of administering free
and fair elections and has a comprehensive system of complainthandling mechanisms, ranging from the polling station level to the NEBE
headquarters. The Respondent State also submits that appeals can be
made to the Regional and Federal Supreme Courts in case of final
decisions by the Regional Electoral offices and the NEBE, respectively.
The Political Parties Joint Forum has been established to provide a
platform for resolving election-related complaints through discussions
between the parties involved.
164.
The Respondent State asserts that after the political reforms in
2018, opposition political parties, including those in exile, were formally
invited to participate in a national dialogue aimed at achieving free and
fair elections, resulting in the conclusion of constructive dialogues
between opposition parties and the Prime Minister. The Respondent
State further states that it has invited several formerly banned political
parties to return to the country and cancelled their terrorist designations
to allow freedom to all political parties, irrespective of their ideologies.
165.
The Respondent State submits that in March 2019, 107 Ethiopian
political parties, including the ruling party, signed a Code of Conduct to
guide their operations and political activities. The Respondent State also
submits that the NEBE underwent a new management appointment
process to ensure impartiality and professional integrity, and a
proclamation to re-establish the National Electoral Board was adopted,
along with a new Organizations of Civil Societies Proclamation.
166.
Regarding the 2015 national elections, the Respondent State
submits that 58 national and regional political parties participated, with
~ 31 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
5,819 candidates, including 1,270 women and 4,549 men. The
Respondent State submits that political parties were provided with free
airtime and media coverage for their election campaigns, and a
significant amount of radio, television, and print media space was
allotted to political parties for this purpose. The Respondent State further
submits that the NEBE disbursed funds to political parties based on
factors such as previous election performance, the number of nominated
candidates, and the inclusion of female candidates, aiming to contribute
to the establishment of effective multi-party democracy.
167.
The Respondent State submits that more than 58 registered
political parties, including 22 national parties and several regional
parties, participated in the pre-election period, indicating strong
participation. The Respondent State avers that complaints from
opposition parties were received and resolved promptly in consultation
with relevant Government authorities at both federal and regional levels,
with many leading to corrective measures in line with the remedies
sought. The Respondent State adds that the 2015 national elections
witnessed significant mobilization and participation of Ethiopian CSOs,
with over 13,000 CSO members granted election observation licenses.
The Respondent State also references the AU Election Observation
Mission, which commended the country's peaceful and calm atmosphere
of Election Day.
Complainants’ Observations on Respondent State's Submissions on the
Merits
168.
The Complainants submit that the Respondent State failed to
effectively rebut the allegations of severe and systematic violations of
Article 13 of the Charter during the 2015 electoral period. The
Complainants add that the Respondent State provided no evidence or
arguments to counter the claims, ignored essential aspects of the
Communication, and even admitted to unlawfully restricting the rights
to freedom of expression, association, and peaceful assembly.
169.
The Complainants further submit that the Respondent State failed
to provide any evidence or substantiation while claiming that the
allegations made in the Communication are unsubstantiated, which
contradicts the record in the Communication, including the
Commission's own Decision on Admissibility. The Complainants add that
the scale of the violations presented in the Communication, their
widespread documentation by various credible sources, and the
Commission's determination that the violations are well-known
undermine the Respondent State's superficial dismissal of the
allegations.
~ 32 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
170.
The Complainants submit that the Respondent State's argument
of recently allowing access to previously blocked websites, TV channels,
news outlets, and blogs with political content confirms the
Complainants' claim that during the 2015 elections, the Respondent
State violated the right to freedom of expression by shutting down private
media organizations and platforms.
171.
The Complainants submit that the Respondent State's response
admits to restricting political participation. Considering that the
Respondent State amended laws limiting rights and freedom of
expression, association, assembly, and political involvement, released
previously jailed journalists, activists, and bloggers, and invited political
parties previously designated as terrorist organizations to participate in
politics. According to the Complainants, this supports the claim that the
Government targeted and detained journalists, activists, and bloggers
during the 2015 election period and designated opposition political
parties as terrorist organizations, thus restricting political participation.
172.
The Complainants further submit that the Respondent State's
highlighting of the political, legislative, and institutional reforms
implemented since April 2018 and their claim of significant improvement
in the protection of freedom of expression contradicts their denial of the
allegations raised in the Communication while simultaneously
acknowledging the reforms.
The Commission’s Analysis of the Merits
Alleged violation of Article 9 (The right to Freedom of Expression and Access
to Information)
173.
Article 9 of the Charter guarantees that “every individual shall
have the right to receive information and express and disseminate his
opinions within the law.”45
174.
The Commission’s Declaration of Principles on Freedom of
Expression and Access to Information reaffirms that “freedom of
expression, including the right to seek, receive and impart information and
ideas, either orally, in writing or print, in the form of art or through any
other form of communication or medium, including across frontiers, is a
45 The Charter, Article 9.
~ 33 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
fundamental and inalienable human right and an indispensable
component of democracy.”46
175.
The African Charter on Democracy, Elections, and Good
Governance further, in its Article 27(8), provides that to advance
political, economic, and social governance, State Parties shall promote
freedom of expression and foster a professional media, particularly
freedom of the press.47
176.
The Complainants contend that in the lead-up to the 2015
Ethiopian national election, the Respondent State, through arbitrarily
arresting, detaining, harassing, and torturing journalists and bloggers
who express critical views against the Respondent State, has forced
independent voices to practice self-censorship and in some cases,
cessation of operations in violation of the right to freedom of expression
guaranteed under Article 9 of the Charter.
177.
The Respondent State, in return, submits that the arrest of the
Journalists and Bloggers was not arbitrary but instead based on their
alleged involvement in crimes associated with terrorist organizations,
advocating for the violent overthrow of a constitutionally elected
Government, engaging in hate speech, and inciting violence against
specific ethnic groups.48 They further submit that both before, during,
and after the election, more than 107 private and public media
organizations, including international media, were reporting on the
electoral process.
178.
The Commission acknowledges that freedom of expression is a
vital cornerstone of a democratic society that plays a crucial role in
enabling citizens to, directly and indirectly, participate in the public
affairs of their country, including through political associations.
179.
The Commission further observes that Article 9 of the Charter,
although including a clause that allows for limitations "within the law,”
lacks explicit grounds justifying these restrictions and limitations on
freedom of expression. Nevertheless, this does not grant States
unrestricted authority to arbitrarily curtail individuals' rights to freedom
of expression.
Declaration of Principles of Freedom of Expression and Access to Information in Africa (2019)
Principle 10.
47 African Charter on Democracy, Elections and Good Governance (2007) Article 27(8).
48 Respondent Submission on the Merits, para 15.
46
~ 34 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
180.
The Commission's jurisprudence, as seen in cases such as Monim
Elgak, Osman Hummeida, and Amir Suliman v Sudan, emphasizes
that any restrictions on the right to freedom of expression must fulfill
specific criteria, such as provided by law, serving a legitimate interest,
and being deemed necessary in a democratic society.49
181.
The Commission notes that the arrest of the Bloggers and
Journalists is an undisputed fact, as confirmed by the Respondent State.
The Respondent State contends that the arrest of the Journalists and
Bloggers was to protect citizens from terrorism, violence, incitement, and
hate speech.
182.
As evident from the Commission's jurisprudence, having a
legitimate aim alone does not automatically render a restriction legal.
The restriction, however, can be deemed necessary and employed as a
last resort to safeguard or promote the intended legitimate aim. In line
with this, the Commission recalls the case of Nigeria Constitutional
Rights Project v Nigeria, where it was emphasized that the justification
for limitations must strictly align with and be necessary for the ensuing
benefits. 50 Moreover, limitations should not undermine the right to the
extent that the right itself becomes meaningless or illusory.51
183.
The Human Rights Committee, in its General Comment No. 34,
also pointed out that “when a State Party invokes a legitimate ground for
restriction of freedom of expression, it must demonstrate in specific and
individualized fashion the precise nature of the threat, and the necessity
and proportionality of the specific action taken, in particular by
establishing a direct and immediate connection between the expression
and the threat.”52
184.
In light of the foregoing, the Commission believes that the
measures taken to restrict the freedom of expression should be justified
based on the evidence that there is a concrete threat to the legitimate
interests that proscribe to be protected.53 In the present case, although
the Respondent State claims that the arrest of the Journalists and
Bloggers is intended to safeguard citizens from terrorism, incitement of
violence, and hate speech, there is no clear explanation provided
49 n 2 above, para 114.
50 Communications 140/94-141/94-145/95- Constitutional Rights Project, Civil Liberties Organisation
and Media Rights Agenda v Nigeria (1999) ACHPR paras 41 and 42.
51 As above.
52 Human Rights Committee General Comment No. 34 paras 35 - 36
53 Communication 426/12 - represented by Media Legal Defence initiative (Agnès Uwimana-Nkusi &
Saidati Mukakibibi) V Rwanda (2019) ACHPR para 182.
~ 35 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
regarding the direct link between the actions of the Journalists and the
legitimate aim the Respondent State seeks to protect.
185.
To support the above argument, the Commission recalls its
decision in Media Legal Defence Initiative v Rwanda, which
highlighted that “the failure of a State Party to justify in explicit terms the
relationship between the imposition of limitations and public order or
national security interests, would amount to a violation of Article 9, and
that State Parties have tended to make general statements linking national
security and limitations.”54
186.
The Commission also believes that the Respondent State has not
adequately provided detailed explanations demonstrating the connection
between the restriction on freedom of expression and the legitimate
purpose of the actions, which were intended to protect and safeguard
citizens from terrorism, incitement of violence, and hate speech. Without
any explanation from the Respondent State regarding how the expression
of the Journalists and Bloggers threatens national security or public
order, the restriction and arrest of these individuals are deemed
arbitrary.
187.
The Complainants further allege that the Respondent State, in
justifying the arrest of journalists, bloggers, human rights defenders,
and opposition political parties, directly and indirectly, utilized the 2009
Mass Media and Access to Information Proclamation, as well as the 2009
Anti-Terrorism Proclamation, both of which are indicated by the
Complainants to be repressive.
188.
The Commission notes that the Respondent State did not
challenge the allegations made by the Complainants above. Instead, the
Respondent State affirmed the contention of the Complaints in
paragraphs 74 and 75 of its submission, stating that “Over the past
years, laws which were deemed to limit the smooth exercise of rights and
freedoms of expression, association, assembly and the right to take part
in public affairs have been repealed and replaced; journalists, activists,
and bloggers who were jailed under the former anti-terrorism and mass
media laws have been released.55” The Respondent State also adds that
“the Government recently allowed access to more than 246 websites and
TV channels including news outlets and blogs that were previously
blocked because of their political content.56”
54 As above.
55 Respondent Submission on Merits para 74.
56 As above para 75.
~ 36 ~
African Commission on Human and Peoples�� Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
189.
Based on the above statement, the Commission notes that the
Respondent State acknowledges the existence of a situation where,
before the 2018 political reform, journalists and bloggers were subject to
imprisonment. Additionally, Media outlets were compelled to cease their
operations by utilizing the Anti-Terrorism and Mass Media
Proclamations, which both the Complainants and the Respondent State
characterized as suppressive.
190.
The Commission recognizes the importance of the press and media
as platforms for journalists and bloggers to express their opinions freely
and provide the community with valuable information and criticism
regarding all aspects of public, political, social, and economic activities.
This, in turn, contributes significantly to the shaping of public opinion.
In this regard, in Article 19 v Eritrea, the Commission underscored
that “the imprisonment of journalists deprives not only the journalists of
their rights to express and disseminate their opinions freely, but also the
public, of the right to information.”57
191.
After thoroughly examining the arguments presented by the
Parties and considering the Respondent State's acknowledgment of the
arrest of Journalists and Bloggers under the Anti-Terrorism and Mass
Media laws, as well as the reopening of media outlets previously blocked
due to their political content, the Commission concludes that the
Respondent State violated Article 9 of the Charter before and after the
2015 elections.
Article 10 of the Charter (The Right to Freedom of Association)
192.
Article 10 of the Charter states, “Every individual shall have the
right to free association provided that he abides by the law.”
193.
The Complainants allege that the Respondent State specifically
targeted opposition groups during the 2015 elections, resulting in
arrests, injuries, and deaths. They argue that this targeted suppression
of opposition leaders and their critical views against the Government
violates citizens' rights to freedom of association, which violates Article
10 of the Charter.
194.
On the other hand, the Respondent State avers that freedom of
association is protected by Article 31 of the Constitution of Ethiopia,
allowing individuals to form organizations for any cause or purpose,
except those that violate laws or subvert the constitutional order.
57 n 29 above, para 106.
~ 37 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/
195.
The Respondent State contends that allegations regarding the
deaths of opposition party members are not sufficiently supported with
evidence that links deaths to violations of freedom of association. The
Respondent State argues that investigations were carried out and
perpetrators brought to justice, both for the deaths and arrest of
opposition party candidates.
196.
The Commission has stated that freedom of association is an
individual right, and the State must refrain from interfering with the
free formation of associations.58 The right to freedom of association
applies to “any group of individual or legal entities brought together to
collectively act, express, promote, pursue or defend a field of common
interest.”59
197.
The Commission emphasizes that associations must be free to
pursue various activities, including exercising their rights to freedom of
expression and assembly.
Additionally, the right to freedom of
association also carries with it a duty that obliges States to establish
an environment conducive to exercising this right without fear and
encumbrances.60 This is also echoed by the Commission’s Report on
the Study of Freedom of Association and Assembly, which
underscores that States should not interfere with these rights but
rather protect associations from others who might seek to interfere with
them.61
198.
Similarly, the Commission’s Guidelines on Freedom of
Association and Assembly require States to respect, in law and
practice, the right of associations to carry out their activities without
threats, harassment, interference, intimidation, or reprisals of any
kind.62 According to the Guidelines, any limitations imposed by States
shall be in accordance with the principle of legality, have a legitimate
public purpose, and be necessary and a proportionate means of
achieving that purpose within a democratic society, as these principles
are understood in the light of regional and international human rights
law.63
Communication. No. 101/93 - Civil Liberties Organisation v Nigeria, paras 54 to 59.
Report of the Special Rapporteur on the right to freedom of peaceful assembly and of association
on, Maina Kiai, A/ HRC/20/27, para 51.
60
Report of the Special Rapporteur on rights to freedom of peaceful assembly and association, para
63, U.N.
Doc. A/HRC/20/27 (May 21, 2012). See also Guidelines on FoAA, para 28.
61
Report of the Study Group on FoAA.
62
FoAA, Para 9.
63
FoAA, Para 24.
58
59
~ 38 ~
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia,
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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199.
In Gabriel Shumba v. Zimbabwe, the Commission held that the
right to freedom of association includes a prohibition against physical
attack based on affiliation with any association.64 Similarly, in Kazeem
Amina v. Nigeria, the Commission noted that unlawful and arbitrary
arrests and detention of association members, including those affiliated
with political or opposition groups, is a frequently applied State tactic.
200.
According to the facts before the Commission in this
Communication, the Respondent State interfered in the activities of
individuals associated with opposition parties through allegations of
arrests, harassment, and deaths. Apart from arguing that there is no
evidence from the Complainants linking deaths to violations of freedom
of association, the Respondent State did not refute the allegations but
indicated that it undertook investigations and brought perpetrators to
justice. In the circumstances, the Commission is of the view that the
Respondent State did not adequately rebut the allegations of arrests,
harassment, and deaths.
201.
The Commission reiterates that the Respondent State has an
obligation to ensure that people are free to form associations and to
engage independently in activities without interference from the State
and non-state actors. Therefore, The Respondent State has a duty to
create an environment free from any sought of interference. In this
connection, the facts before the Commission portray that some
opposition members were deprived of forming associations to express
their views, leading to arrests, harassment, and deaths. The
Commission notes that there is no rebuttal from the Respondent State
in this regard; therefore, the Commission opines that the Respondent
State did not adhere to its obligation to ensure that people other than
those belonging to the ruling party were free to form associations and
to engage independently in activities without interference from the State
and non-State actors.
202.
In this regard, the Commission holds that the Respondent State
did not take reasonable and appropriate measures to protect the
referenced victims from abuse and did not establish the reasonableness
of the arrests of a particular group of people who do not belong to the
ruling party.
203.
With the preceding in mind, the Commission finds that the
interference from the Respondent State violates Article 10(1) of the
Charter.
64
n 18 above para 89.
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Alleged violation of Article 11 of the Charter (The right to Freedom of
Assembly)
204.
Article 11 of the Charter guarantees 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 law,
particularly those enacted in the interest of national security, the safety,
health, ethics, and rights and freedoms of others.”
205.
The Commission’s Guidelines on Freedom of Association and
Assembly in Africa provide that “States shall fully respect in law and
practice the right to freedom of expression through assembly.”65 The
Commission notes that the right to assembly is inalienable, which may
be limited in fulfilling the circumstances provided under Article 11 of the
Charter.
206.
According to the Complainants, leading up to the 2015 Elections,
the Respondent State unlawfully disrupted peaceful demonstrations. It
allegedly employed excessive force to suppress opposition groups and
coerce voters, leading to the arrest, injury, and death of peaceful
protesters.
207.
The Respondent State, in turn, submits that in alleging the arrest
of demonstrators, the Complainants have not provided specific details
such as the time, place, and number of individuals arrested, supported
by corroborating evidence. The Respondent State also adds that since
the commencement of political reforms in April 2018, citizens have freely
exercised their right to hold peaceful demonstrations and assemblies,
regardless of their political opinions.
208.
The Commission recognizes that the right to freedom of peaceful
assembly is not absolute. It is on this premise that Article 11 of the
Charter has imposed criteria for necessary restrictions, namely:
“…provided by law, in particular those enacted in the interest of national
security, the safety, health, ethics and rights, and freedoms of others.’
209.
In Women of Zimbabwe Arise (WOZA) and Anor. v Zimbabwe,
the Commission held that States must protect and respect individuals’
rights to assembly by preventing any unwarranted interference, violence,
or repression against peaceful assemblies by States and non-state
65 Guidelines on Freedom of Association and Assembly in Africa para 77.
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African Commission on Human and Peoples’ Rights
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actors.66 The Commission notes that it is the responsibility of states to
ensure that security forces do not use excessive force against protesters.
It is also tasked with creating an environment conducive to peaceful
assembly, wherein individuals can gather without fear of retaliation or
harassment. Furthermore, in the case of Kevin Mgwanga Gunme et al.
v Cameroon, the Commission further affirms that limitations on the
freedom of assembly do not relieve States of their duty to guarantee that
individuals exercise this right.67
210.
Therefore, the right to peaceful assembly is an inalienable right
that may be limited in certain circumstances spelled out under Article
11 of the Charter, including when it is prescribed by the law and deemed
necessary in a democratic society. This is also the spirit of Proclamation
No. 3/1991 of Ethiopia and the Constitution. Having said this, States
must strike a balance between their responsibility to ensure that any
undue bureaucratic obligations do not restrict the right to organize
peaceful assembly and must further ensure that freedom is enjoyed in
practice.
211.
The European Court stated in Gafgaz Mammadov v. Azerbaijan
that “[A]n interference with the exercise of freedom of peaceful assembly
does not need to amount to an outright ban, whether legal or de facto, but
can consist in various other measures taken by the authorities.”68 The
European Court also noted that actions such as the dispersal of the
assembly, the arrest of participants, or the imposition of penalties for
participating in an assembly all qualify as undue restrictions.
212.
Furthermore, according to the Commission’s Guidelines on
Freedom of Assembly and Association, where States enact laws on
freedom of assembly, those laws shall aim primarily at facilitating the
enjoyment of the right.69 An assembly should be deemed peaceful if its
organizers have expressed peaceful intentions and if the conduct of the
assembly participants is generally peaceful.70 This was also the view of
the European Court in Oya Ataman v. Turkey, where the Court stated
that when assemblies are peaceful and demonstrators do not engage in
any violent act, States should show “a certain degree of tolerance.” In this
sense, the Commission underlines that tolerance from public authorities
Communication 446/13 Jennifer Williams and Others (represented by Zimbabwe Lawyers for
Human Rights) v Republic of Zimbabwe (2021) ACHPR 154.
67 n 16 above138.
68 Gafgaz Mammadov v. Azerbaijan, European Court, Judgment of 15 October 2015, para. 50; Gülcü v.
Turkey, European Court, Judgment of 19 January 2016, para. 91.
69 FoAA, Para 66.
70 FoAA, Para 70.
66
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African Commission on Human and Peoples’ Rights
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should not only be promoted with respect to the use of force to disperse
an assembly.
213.
Furthermore, in the case of Freedom and Democracy Party
(ÖZDEP) v. Turkey, the European Court held that the right to freedom
of association and assembly, most especially by political parties, is vital
in ensuring pluralism and the proper functioning of democracy.”71 The
European Court precisely pronounced that:
“Freedom of association is not absolute, however, and it
must be accepted that where an association, through its
activities or the intentions it has expressly or implicitly
declared in its program, jeopardizes the State’s institutions
or the rights and freedoms of others.”72
214.
The Commission acknowledges the role of the Respondent State in
ensuring that the freedom of assembly is enjoyed strictly within the
confines of the law, most significantly, those enacted in the interest of
national security, safety, health, ethics, and rights and freedoms of
others. This, therefore, puts the Respondent State in a critical position
where it may sometimes be forced by prevailing circumstances to
interfere with the enjoyment of this right. But where there is any such
interference, the interference must be justified.
215.
In the above-referenced case of Freedom and Democracy Party
(ÖZDEP) v. Turkey, it was held that where there is interference to the
exercise of a right, “Such an interference will constitute a breach of Article
11 unless it was “prescribed by law,” pursued one or more legitimate aims
under paragraph 2 and was “necessary in a democratic society” for the
achievement of those aims.”
216.
In the same light, the Commission notes that there must exist a
balance between the Respondent State’s obligation to ensure that the
right to freedom of assembly is exercised within the confines of the law
on the one hand and the right to enjoy the freedom of assembly on the
other. The balance rests on the proportionality of the actions of the
Respondent State. Where laws are violated when exercising their right to
freedom of assembly, the Respondent State’s action must be proportional
to the violation. Where the Respondent State’s action is to disperse the
Application No. 23885/94, Case of Freedom and Democracy Party (ÖZDEP) v. Turkey (1999), The
European Court of Human Rights, Para 37 (2).
72 Application no. 23885/94, Freedom and Democracy Party (ÖZDEP) v. Turkey (1999), European Court
of Human Rights, Para. 94.
71
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African Commission on Human and Peoples’ Rights
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crowd of protesters, such dispersal must be done with reasonable force.
Where the Respondent State’s action is to apply sanctions, such
sanctions must be applied proportionally to the harm caused.
217.
Key to the interpretation of the right to freedom of assembly is the
Principle of Limited Sanctions, clearly enshrined in Principle 8 of the
Commission’s Guideline on the Right to Freedom of Association and
Assembly, which is to the effect that: “Sanctions imposed by States in
the context of associations and assemblies shall be strictly proportionate
to the gravity of the harm in question and applied only as a matter of last
resort and to the least extent necessary.”73
218.
The Commission finds that using extreme force on protesters to
the extent of causing injuries to many and others dying in the process
cannot be termed proportionate. Also, shooting at protesters to disperse
them crosses the threshold of proportionality. Arresting and detaining
opposition leaders without any lawful cause does not satisfy any
legitimate aim and is not in line with practices necessary in a democratic
society.
219.
The Commission also notes the Respondent State's argument
concerning the lack of specific details, such as time, place, and the
number of individuals arrested while exercising the right to freedom of
assembly, as alleged by the Complainants.
220.
The Commission, however, observes that, while asserting the
violation of Article 11 of the Charter, the Complainants did cite several
incidents in which numerous protesters were claimed to have been
arrested, injured, and, in one instance, killed. This information is
corroborated by details regarding the locations, dates, and the number
of protesters arrested and deceased.74
73 Principle 8, Guidelines on Freedom of Association and Assembly in Africa.
74 In paragraph 48 of their submission, the Complainants submit that in March 2014 seven female and
three male party members of the newly formed Semayawi Party (“Blue Party”) were arrested for
chanting political slogans that demanded political freedom during a run in honor of International
Women’s Day. In paragraph 49 the Complainants allege that in April and May of 2014, protesters in
town in the Oromia region were fired at by security personnel for demonstrating against the planned
expansion of Addis Ababa’s municipal boundary into the Oromia region. In the same paragraph the
Complainants allege that during protests in at least four university campuses in the Oromia region at
least thirty bystanders and protesters were killed due to the excessive force displayed by the security
force. And in paragraph 50, the Complainants allege that in July 2014, protests from the members of
Ethiopia’s Muslim community were arrested for demonstrating for the continued detention of 17
Muslim leaders in 2012.
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221.
The Commission believes that the allegations put forth by the
Complainants adequately provided the relevant details of the
occurrences and are sufficient to allow the Respondent State to directly
address the claims and provide the information necessary to defend
against them.
222.
In the case of Malawi African Association et al. v Mauritania,
the Commission ruled a violation of Article 11 of the Charter due to the
Respondent State's failure to provide evidence demonstrating that the
alleged violation of the right to assembly aligns with the limitations
specified under the Charter.75
223.
The Commission underscores that the right to freedom of
assembly, as enshrined in Article 11 of the Charter, serves as a
cornerstone of a democratic society, allowing citizens to participate in
peaceful demonstrations, protests, rallies, and gatherings, collectively
amplifying their voices and thereby reinforcing their freedom of
expression. In the case of International PEN et al. v Nigeria, the
Commission recognized that freedom of assembly and expression are
closely linked.76 This means that restrictions on one of these rights can
also affect the other, creating a "chilling effect" on people's ability to
express themselves and gather peacefully and freely. The guaranteed
right to freedom of expression, which the Commission found to be
violated leading up to the 2015 national election, has a negative
implication on the free exercise of the freedom of assembly.
224.
The Commission acknowledges and commends the steps taken by
the Respondent State to ensure freedom of expression and assembly after
the political reform in 2018. These measures encompass the release of
journalists, activists, and bloggers, the reopening of media outlets
previously closed due to their political stance, and the amendment of the
Anti-Terrorism Proclamation, Mass Media Law, and Civil Society
Proclamation, which were identified as factors that impeded the exercise
of freedom of expression, association, and assembly.
225.
However, based on the facts and circumstances in this
Communication relating to the occurrences of the 2015 elections of
75 Communication 54/91_61/91_96/93_98/93_164/97 _196/97 _210/98 Malawi African Association,
Amnesty International, Ms Sarr Diop, Union Interafricaine des Droits de l'Homme and RADDHO,
Collectif des Veuves et Ayants-Droit, Association Mauritanienne des Droits de l'Homme v Mauritania
(2000) ACHPR para 111.
76 Communication 137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project,
Civil Liberties Organisation and Interrights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria (1998) ACHPR
para 110.
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which the Commission was seized, the Commission relies on its
jurisprudence in Kevin Mgwanga Gunme et al. v. Cameroon,77 where
it underscored that States must guarantee the right to freedom of
assembly while maintaining law and order. Therefore, suppression of
demonstrations, including the use of force and the arrest and detention
of people participating in such demonstrations, violates Article 11 of the
Charter.
226.
The Commission also relies on its Guidelines on Freedom of
Association and Assembly, which require States to protect all public
and private assemblies from interference, harassment, intimidation, and
attacks by third parties and non-state actors. Specifically, where third
parties aim to interfere, harass, intimidate, or attack a peaceful
assembly, the authorities' response shall not be to ban or disperse the
peaceful assembly but rather to take measures to protect the assembly
and allow it to proceed.
227.
Considering the above, the Commission stresses that while laws
currently exist in the Respondent State to protect freedom of expression
and assembly, measures taken by the Respondent State during the 2015
Elections curtailed freedom of expression and assembly. Such measures
constitute an unlawful restriction of these rights.
228.
From the foregoing, the Commission accordingly finds that the
restrictions imposed by the Respondent State were not justifiable even
though prescribed by law in contravention of Article 11 of the Charter.
Alleged violation of Article 13(1) of the Charter (The right of Freedom to
Participate Freely in Government)
229.
The Complainants allege the violation of Article 13 (1) of the
Charter, which states:
“Every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law.”
230.
In this Communication, the Complainants allege that during the
2015 elections, some people were systematically prevented from
expressing their views, advocating for their positions, and participating
in political activities, thus undermining genuine political participation.
They allege that the Respondent State impeded political advertising and
77 n 16 above. paras 137-38.
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African Commission on Human and Peoples’ Rights
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publishing information about candidates, particularly in relation to the
opposition group Ginbot 7.
231.
The Complainants also refer to violations leading up to the June
2021 election in Ethiopia, including allegations of killings during an antigovernment protest in Tigray.
232.
On the other hand, while citing various legislations and other
mechanisms to give effect to the right to participate in governance and
hold elections in Ethiopia, the Respondent State argues that the
Constitution guarantees the right of every individual to vote, be elected,
and form or join a political organization, establishing a multi-party
democracy. According to the Respondent State, during the 2015 national
elections, there was an effective multi-party democracy through the
disbursement of funds to political parties, free airtime, and media
coverage for their election campaigns with a significant amount of radio,
television, and print media space.
233.
The Respondent State also alludes to the 2018 political reforms
and other reforms, actions taken to appease opposition parties, and
formerly banned political parties who had fled the country. They also cite
the March 2019 Code of Conduct signed by 107 Ethiopian political
parties, including the ruling party, to guide their operations and political
activities.
234.
In Constitutional Rights Project v. Nigeria, the Commission
held that “to participate freely in government entails, among other things,
the right to vote for the representative of one's choice. An inevitable
corollary of this right is that the results of free expression of the will of the
voters are respected; otherwise, the right to vote freely is meaningless.”78
235.
In the same vein, the Commission, in its Guidelines on Access to
Information and Elections in Africa, stated that: “For elections to be
free, fair and credible, the electorate must have access to information at
all stages of the electoral process. Without access to accurate, credible,
and reliable information about a broad range of issues before, during, and
after elections, it is impossible for citizens to meaningfully exercise their
right to vote as envisaged by Article 13 of the African Charter.”79.
78 Communication No. 102/93 - Constitutional Rights Project v. Nigeria (1998), African Commission on
Human and People’s Rights, Para. 50.
79 Paragraph 4, Preface of the Guidelines on Access to Information and Elections in Africa.
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236.
Furthermore, according to Article 25 of the ICCPR, the right to
participation encompasses the rights of the individual to vote and to be
elected, to take part in the conduct of public affairs, and to have access
to public service, which is also echoed in Article 13 of the Charter. To
give effect to this right, States are required to adopt positive measures
to ensure the full, effective, and equal enjoyment of participatory rights,
including through inclusive, meaningful, and non-discriminatory
processes and mechanisms. States are also required to guarantee full
and effective access to justice and redress mechanisms to people who
have been unduly deprived of their right to participate in political and
public affairs.80
237.
In the present Communication, the Respondent State has
portrayed several laws and mechanisms to guarantee the right to
participation. However, the allegations made by the Complainants
illustrate that these laws need to be more effectively implemented as
some citizens were deprived of political participation. In contrast, others
were threatened and harassed, and no free, pluralistic, and
independent media further jeopardized their participation. The
Communication portrays allegations of practical barriers, including
internet restrictions, which impacted free information flow and shrank
democratic space.
238.
The correlation between freedom of expression and access to
information to the free participation in government was emphasized by
the European Court in the Freedom and Democracy Party (ÖZDEP)
v. Turkey case, where the Court stated that “the protection of opinions
and the freedom to express them…. applies all the more about political
parties given their essential role in ensuring pluralism and the proper
functioning of democracy.”81
239.
As already established, the Commission finds that the
Respondent State’s continuous suppression of journalists and media
and its crackdown on telecommunication is a coordinated effort to
interfere with the right to freedom of expression and access to
information. When this happens during elections, such interference is
purposed to discourage citizens from participating directly or by freely
choosing a representative of their choice, thus infringing their rights to
participate in government.
80 See A/HRC/27/29, para. 16
Application No. 23885/94, Case of Freedom and Democracy Party (ÖZDEP) v. Turkey (1999), The
European Court of Human Rights, Para 37 (2).
81
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African Commission on Human and Peoples’ Rights
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240.
Drawing inspiration from its jurisprudence in the Constitutional
Rights Project v. Nigeria case, the Commission notes that actions that
undermine the free choice of voters amount to a violation of Article 13(1)
of the Charter, as all individuals entitled to vote should have the freedom
to independently form their choice of candidates without undue
influence, ensuring the unimpeded expression of the voter's will. In
addition, given the essential role of freedom of expression and access to
information in shaping public opinion and enabling free and fair
elections, violating the rights to freedom of expression and access to
information violates Article 13(1) of the Charter.
241.
The Commission, therefore, finds the Respondent State to violate
Article 13(1) of the Charter concerning allegations relating to the 2015
elections in the Respondent State.
242.
For the avoidance of doubt on allegations relating to the 2021
elections in the Respondent State, the Commission would desist from
commenting on them or considering them, as they are allegations
brought to its attention after the present Communication had already
been seized by the Commission, with claims relating to the 2015
elections. In this regard, it is pertinent to note that submissions on the
merits after a Communication is declared admissible are not required
to amend any Communication or claims therein. Submissions on the
merits must concern or touch on the allegations of violations in the
Communication as was originally/initially filed with the Commission
and/or when it was seized by the Commission.
Alleged violation of Article 1 of the Charter (The States obligation to uphold
the rights guaranteed by the Charter and undertake necessary measures to
adopt legislative or other measures to give effect to them)
243.
Article 1 of the Charter provides that ‘The member states of the
Organization of African Unity parties to the present Charter shall
recognize the rights, duties, and freedoms enshrined in this Charter and
shall undertake to adopt legislative or other measures to give effect to
them.’
244.
The Complainants allege that throughout the period leading up
to the 2015 election, the Respondent State failed to guarantee citizens'
fundamental rights to freedom of expression, assembly, association,
and participation in public affairs. Consequently, violating Article 1 of
the Charter obligates States to uphold the rights guaranteed by the
Charter and undertake necessary measures to adopt legislative or other
measures to effect them.
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245.
The Commission has established that a violation of any of the
provisions of the Charter automatically amounts to a violation of Article
1 of the Charter.82 Additionally, requisite steps such as investigating
the veracity of the allegations should be taken by the State in
accordance with its constitutional process and the provisions of the
relevant treaty (in this case, the Charter), and adopt such legislative or
other measures which are necessary to give effect to the rights in the
Charter.
246.
Therefore, having found violations of Articles 9, 10, 11, and 13(1)
of the Charter, the Commission holds that there is a violation of Article
1 of the Charter.
The Decision of the Commission on the Merits
247.
In light of the above, the Commission:
a. Declares that the Respondent State is in violation of Articles 1,
9, 10, 11, and 13(1) of the Charter;
b. Acknowledges the Reforms made by the Respondent State after
the 2015 Elections, including the Amended Electoral Law;
Revised Political Parties Registration Proclamation; Electoral
Code of Conduct for Political Parties; Directive for the
Registration of Candidates; Directive for the Registration of
Electors; Directive Concerning the Procedure for Observers and
Representatives of Political Parties; the Regulation Concerning
the Procedure for Determining the Apportionment of
Government Financial Support to Political Parties; as well as
Proclamation No. 1238/2021 which repealed Proclamation No.
590/2008 (the law which previously governed Mass Media and
Access to Information);
c. Calls on the Respondent State to:
i. Continue reforming national laws perceived to
restrict freedom of expression, association,
assembly, and right to freely participate in
government;
ii. Implement amended laws resulting from the 2018
political reforms in a manner that guarantees the
full enjoyment of the rights to freedom of
expression
and
access
to
information;
82 n 4 above.
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African Commission on Human and Peoples’ Rights
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association, assembly, and political participation
as guaranteed by the Charter, as well as
international standards, and particularly in the
context of national elections; and
iii. Report in writing, within one hundred and eighty
(180) days of notification of this decision, on the
measures
taken
to
implement
these
recommendations.
Done in Arusha, Tanzania, at the 77th Ordinary Session of the African
Commission on Human and Peoples’ Rights, held from 19 October to 9
November 2023
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