299/05 : Anuak Justice Council / Ethiopia
Summary of Facts
1. The communication is submitted by the Anuak Justice Council, through Obang Metho the Director
for International Advocacy, Anuak Justice Council which was prepared by the International Human
Rights Clinic, Washington College of Law, in Washington D.C., the United States of America against
the Federal Democratic Republic of Ethiopia, the Respondent State, a party to the African Charter
since 1998.
2. The Complainant avers that the Respondent through its agents, the Ethiopian Defence Forces
has been engaged in massive discrimination resulting in serious human rights abuses and violations
of the people of Anuak ethnicity. They claim that the abuses by the Ethiopian Defence Forces include
the massacre of over four hundred and twenty-four (424) civilians, the wounding of over two hundred
(200) civilians and the disappearance of over eighty-five (85) civilians in the Gambella region in the
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three day period of 13 to 15 December 2003. The Complainant states that the abuses have
continued against the Anuak since that period including extrajudicial killing, torture, detention, rape
and property destruction throughout the Gambella region resulting in one thousand (1000) Anuak
deaths and that, over fifty-one thousand (51,000) Anuak have been displaced within the Gambella
region.
3. The Complainant adds, that the Republic of Ethiopia has violated its legal obligations to uphold
the rights and principles of all Ethiopian citizens, and has violated its obligation to uphold the rights
and protections enshrined in the African Charter under Articles 4, 5, 6, 12, 14 and 18.
4. The Anuak Justice Council requests the African Commission to grant provisional measures and
declare them binding on the Ethiopian government.
5. The Complainant states that the Anuak are an indigenous minority group living in south-western
Gambella region of Ethiopia and that despite their dominance in the region, the Ethiopian government
has a long history of marginalising, excluding and discriminating against them. The Complainant
claims that due to Gambella’s natural resources, the Ethiopian government has resettled over sixty
thousand (60,000) highlanders, who had almost completely destroyed the Anuak way of life within
Gambella.
6. The Complainant avers that the Anuak believe that oil in the region should belong to them, while
the Federal Government argues that under the Federal Constitution all mineral resources belong to
the Ethiopian State. The complainant adds that the Ethiopian Defence Forces are stationed
throughout the Gambella in order to identify and destroy disparate groups of armed Anuak known
collectively as shifta that have attacked highlander civilians.
7. The Complainant submits that the December 2003 massacre was sparked by the killing of eight
(8) highlander refugee camp officials and propelled the Ethiopian Defence Forces into a broad-based
assault on Gambella’s Anuak community. The Complainant states that despite the fact that nobody
was immediately found responsible for the death of the eight people, there is no indication that the
Ethiopian government had undertaken an official investigation into the ambush of the refugee camp
officials thus blaming the Anuak community for the attacks.
8. The Complainant avers that the violence in the Gambella region has continued since December
2003 and remains a serious threat to Anuak citizens as well as other ethnic groups in the region. The
Complainant allege that the Ethiopian Defence Forces search for shifta has become the pretext for
bloody and destructive raids on numerous Anuak villages since the December 2003 massacre on the
Gambella town. The Complainant further allege[s] that unarmed Anuak within Gambella are currently
being killed by Ethiopian Defence Forces without due process or the use of judicial proceedings
without even making an effort to distinguish Anuak civilians from the shifta they claim to be looking
for.
9. The Complainant further allege[s] that many Anuak have been detained in prison without charge
both in Gambella and Addis Ababa which accounts to about one thousand (1000) detained to this
day. The Complainant also adds that a substantial group of Gambella’s educated Anuak have been
imprisoned or forced into exile and that many have been charged with offences relating to alleged
collaboration with Anuak insurgents and put on trial but none of the leaders are yet to be convicted.
10. The Complainant further alleged that in rural areas the Ethiopian military continues to burn
homes, destroy crops, burn food stores, disrupt planting cycles, and destroy agricultural equipment of
the Anuak to prevent them from sustaining themselves. The Complainant asserts that as recently as
January 2005 the Ethiopian government threatened Anuak elders in Gambella that anyone attempting
to tarnish the reputation of the Ethiopian government over the massacres would be dealt with.
11. The Complainant claims that the Ethiopian government’s response to the December massacre
has been grossly inadequate and disingenuous. The Complainant states that the government’s initial
position that no soldiers had taken part in the massacre had become impossible to defend and adds
that the Commission of Inquiry set up by the Government was biased and ineffectual and did not
investigate the behaviour of the Ethiopian Defence Forces as an organisation despite numerous
reports.
Complaint
Request for provisional measures – summary
12. The Complainant states that crimes against humanity, such as extrajudicial killing, torture, and
rape, crimes that take place against the Anuak civilians is in violation of international law as well as a
violation of Articles 4, 5, 6, 12, 14 and 18 of the African Charter. The Anuak Justice Council urges the
African Commission to intervene to prevent further human rights abuses of the Anuak by the
Ethiopian government.
13. The Comp[lainant] further makes an urgent request for provisional measures under 1995 Rules
of Procedure of the African Commission on Human and Peoples' Rights, Article 111 of the Rules of
Procedure of the African Charter [sic] that the African Commission may intervene to “avoid irreparable
damage being caused to the victim of the alleged violation”.
14. The Complainant, requests for provisional measures to the African Commission pursuant to
1995 Rules of Procedure of the African Commission on Human and Peoples' Rights, Article 111 of the
Rules of Procedures of the Commission. The complaint relates to the alleged actions of the Defence
Forces of the Federal Democratic Republic of Ethiopia. These actions according to the Complainant
reveal a pattern of serious and massive human and peoples’ rights violations by the Ethiopian
Defence Forces. That, bound by the African Charter, the Federal Democratic Republic of Ethiopia,
has and continues to violate Articles 4, 5, 6, 12, 14 and 18 of the African Charter.
15. The Anuak Justice Council therefore seeks the [African] Commission’s intervention and issuance
of Provisional Measures requesting that the Ethiopian government stops the human rights abuses of
the Anuak pending a decision of the African Commission on the concurrent communication and is
also seeking an in-depth study of the treatment of the Anuak by the African Commission pursuant to
Article 58 of the Charter.
16. The Anuak Justice Council notes that it does not request the [African] Commission to evaluate
the merits of this case rather, in this provisional measures submission, the Anuak Justice Council
merely asks that the [African] Commission request that the Ethiopian government immediately stops
the series of serious and massive violations of human and peoples’ rights of the Anuak people prior to
the issuance of a decision by the African Commission on the merits.
17. That the [African] Commission has jurisdiction to issue provisional measures under 1995 Rules
of Procedure of the African Commission on Human and Peoples' Rights, Article 111 of the Rules of
Procedure of the African Charter [sic], see Registered Trustees of the Constitutional Rights Project v.
the President of the Federal Republic of Nigeria and Five Others[sic]. Similar to the Nigeria case,
many Anuak have also been, and continue to be, sentenced to death. The [African] Commission
should therefore find the Anuak situation as even more sever[e] and compelling than the Nigeria case
and grant provisional measures.
18. The Complainant notes further that while the African Commission has not decided whether
grants of provisional measures should be binding on State Parties, other international and regional
human rights bodies have declared that provisional measures be binding on States including the
European Court of Human Rights, Inter-American Commission, the International Court of Justice and
the UN Human Rights Committee. Due to the severity of the situation that the Anuak find themselves
subject to in the Gambella, in prisons throughout Ethiopia and as refugees in Sudan and Kenya,
petitioners plead that the African Commission grant provisional measures and declare them binding
on the Ethiopian government.
19. The Complainant seeks the [African] Commission’s intervention and issuance of provisional
measures requesting that the Ethiopian government stop human rights abuses of the Anuak, pending
the decision of this Commission on the Anuak Justice Council’s concurrent communication to the
African Commission on the merits of this claim and further urges the Commission to find that its order
of provisional measures in this case be binding upon the Ethiopian government.
Procedure
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20. The communication was received at the Secretariat of the African Commission on 4 April 2005.
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21. By letter of 20 April 2005 the Secretariat acknowledged receipt thereof informing the
Complainant that the communication has been registered as communication 299/05 - Anuak Justice
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Council/Ethiopia and that the communication will be considered on seizure at the 37 Ordinary
Session of the African Commission.
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22. At its 37 Ordinary Session held in Banjul, The Gambia from 27 April to 11 May 2005, the
African Commission considered the communication and decided to be seized thereof.
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23. By Note Verbale of 24 May 2005 the Secretariat of the African Commission notified the State of
the African Commission’s decision and forwarded the complaint to the State with a request for the
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latter to make its submission on the merits within three months of the notification. By letter of 24 May
2005, the Secretariat of the African Commission informed the Complainant of the African
Commission’s decision.
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24. On 23 August 2005, the Secretariat received the Respondent State’s submissions on
admissibility.
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25. On 25 August 2005, the Secretariat transmitted the Respondent State’s submission on
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admissibility to the Complainant, requesting the latter to respond thereto before 25 September.
26. On 21 [sic] complainant wrote to the Secretariat informing the latter that the legal representative
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of the Anuak Justice Council had changed adding that they received the Secretariat’s letter of 25
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August only on 9 September and would like the deadline for the submission of their arguments on
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admissibility to be moved to 9 October 2005. The Complainant also requested for provisional
measures to be taken by the African Commission.
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27. On 10 October 2005, the Secretariat received the Complainant’s response on the Respondent
State’s submissions on admissibility.
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28. On 19 October 2005, the Secretariat transmitted the Complainant’s response to the
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Respondent State with a request to the latter to make its comments, if any, before 31 October 2005.
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29. At its 38 Ordinary Session, the African Commission deferred consideration on the admissibility
of the communication and to enable the Secretariat get additional information from the parties.
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30. By Note Verbale of 19 January 2006 and by letter of the same date, the Secretariat of the
African Commission notified the parties of the African Commission’s decision.
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31. At its 39 Ordinary Session held in Banjul, The Gambia from 11 to 25 May 2006, the African
Commission considered the communication and decided to declare it inadmissible.
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32. By Note Verbale of 29 May 2006 and by letter of the same date, both parties were notified of
the African Commission’s decision.
Complainant’s submission on admissibility
Respondent State’s submissions on admissibility
33. The Complainant submits that Article 56.5 of the African Charter requires that complainants
exhaust domestic remedies before a case is considered by the African Commission. The Complainant
notes further that if the potential domestic remedies are unavailable or unduly prolonged, the
Commission may nevertheless consider a communication, adding that this is especially true when the
country against which the complaint is lodged has committed vast and varied scope of violations and
the general situation in the country is such that domestic exhaustion would be futile.
34. The Complainant argue that in the Anuak Justice Council case, pursuing domestic remedies
would be futile due to the lack of an independent and impartial judiciary, a lack of an efficient remedy,
the significant likelihood of an unduly prolonged domestic remedy, and most importantly, the potential
for violence against the Anuak or those supporting them within the legal system.
35. Anuak Justice Council alleges that it cannot seek exhaustion of domestic remedies because of
its inability to receive an independent and fair hearing, as a direct consequence of the fact that the
aggressor is the government of Ethiopia. The Complainant notes that in spite the protection in Article
78 of the Respondent State’s Constitution guaranteeing the independence of the judiciary, it is
perceived by individuals both at home and abroad that the executive has considerable and even
undue influence on the judiciary.
36. The Complainant quoted a World Bank Report entitled Ethiopia: Legal and Judicial Sector
Assessment (2004) which concluded that “… of the three branches of government, the judiciary has
the least history and experience of independence and therefore requires significant strengthening to
obtain true independence”. According to the Complainant, the Report notes that the interference in
the judiciary is more flagrant at State level where there are reports of administrative officers interfering
with court decisions, firing judges, dictating decisions to judges, reducing salaries of judges and
deliberately refusing to enforce certain decisions of the courts.
37. The Complainant also alleges that bringing the case before Ethiopian courts would unduly
prolong the process as the Ethiopian judiciary suffers from a complex system of multiple courts that
lack coordination and resources, including “dismal conditions of service, staff shortages, lack of
adequate training, debilitating infrastructure and logistical problems”. The Complainant claims court
proceedings take years to yield results, and concluded that the Respondent State’s judicial system is
so under resourced that prosecutions would be nearly impossible, noting that to date, no action had
been taken to prosecute any of the Ethiopian Defence Forces or government officials for the atrocities
they committed against the Anuak.
38. The Complainant also alleges that the Anuak fear for their safety in bringing the case in Ethiopia
adding that there are no Anuak trained as lawyers who could bring the case before Ethiopian courts.
The Complainant notes that the overwhelming sentiment in the Gambella Region and of the Anuak
who have fled the country is that non-Anuak lawyers within Ethiopia would be unwilling to take the
case due to the potential persecution they would face, as well as the insurmountable odds of
achieving a just remedy. The Complainant added that Anuak who remain in the Gambella Region
continue to suffer from extra-judicial executions, torture, rape and arbitrary detention from the
authorities of the Respondent State adding that several of them have been threatened and warned
specifically against pursuing a case against the Respondent State. The Complainant noted that as
recently as January 2005, the Respondent State threatened Anuak leaders, declaring that anyone
attempting to tarnish the reputation of the Respondent State would be dealt with. The Complainant
concluded by stating that to bring the case within the Respondent State would only further endanger
the lives of the remaining Anuak in the Ethiopia.
39. The Complainant added that the Respondent State had been given notice and adequate time to
remedy the human rights violations against the Anuak but has utterly failed to do so. That the
Respondent State received notice of the violations but chose not to take action to halt the atrocities or
to make its forces accountable. The Complainant added that the Respondent State’s response to the
massacres in December 2003 in the Gambella Region was inadequate and disingenuous. That under
international pressure, the Respondent State established a Commission of Inquiry to investigate the
killings, however, according to the Complainant, the inquiry was biased and ineffectual and did not
meet international standards of an independent investigation.
40. The Respondent State claims that the cases of those involved in the alleged violations that took
place in the Gambella Region are currently pending before the Federal Circuiting Court and the
Respondent, therefore, argued that domestic remedies have not yet been exhausted. The State
provided a list of about nine such cases including their file numbers and previous and future dates of
adjournments.
41. The Respondent State argues that the rule that local remedies be exhausted is not limited to
individuals and also applies to organisations, including those in no way subject to the jurisdiction of
the Respondent State. According to the Respondent, the Complainant could have sought redress
from the domestic courts, the Judicial Administration Office, the Commission of Inquiry or the Human
Rights Commission but did not. The Complainant has not, argued the State, shown the existence of
any impediment to the use of these remedial processes or that such were unduly long.
42. Without indicating the status of the proceedings, the State argued that all those alleged of human
rights offences associated with the Gambella incident of December 2003 were brought before the
Federal Circuit Court. The State indicated that three domestic remedies were available to the
Complainants: the competent courts, the Judicial Administration Officer and the Human Rights
Commission but the Complainants failed to approach any of them.
Provisional measures
43. The Republic of Ethiopia argues that the Complainant has sought only to present what it claims
is prima facie evidence of violations and has not shown that if such alleged violations continue there
will be ‘irreparable injury’, as required. Finally, the Respondent submits that the Government has
presented sufficient evidence that it has taken adequate measures to rectify the situation and that the
situation in general has stabilised and does not warrant any provisional measures from the African
Commission. The Respondent State submits as follows:
In February 2004, the Office of the Prime Minister issued instructions to Federal institutions to
assist the Regional Administration in safeguarding the security of the people and institutions
and preventing further violence; soliciting the support of elders, the youth and civil servants in
the effort towards sustainable peace, democracy and development; rehabilitating victims of
the violence and internally displaced people; and bringing to justice those responsible for
committing the violence and the destruction of property.
The Defence Forces, once deployed, protected the civilian population and allowed
humanitarian assistance and rehabilitation.
The Federal Government, in cooperation with international agencies, coordinated
humanitarian assistance to alleviate the suffering of the victims of violence and the displaced.
A Commission of Inquiry has been established to investigate the circumstances surrounding
the crisis; charges have been filed against several individuals as a result.
The Government has organised various consultations and workshops with the participation of
the local population which have proposed concrete solutions aimed at resolving the problems
facing the region and have identified the root causes of the crisis.
The Federal Police have recently graduated more than three hundred police officers from the
Gambella region to aid in maintaining law and order in the region once the situation has
stabilised.
Law
43. The Republic of Ethiopia argues that the Complainant has sought only to present what it claims is
prima facie evidence of violations and has not shown that if such alleged violations continue there will
be ‘irreparable injury’, as required. Finally, the Respondent submits that the Government has
presented sufficient evidence that it has taken adequate measures to rectify the situation and that the
situation in general has stabilised and does not warrant any provisional measures from the African
Commission. The Respondent State submits as follows:
In February 2004, the Office of the Prime Minister issued instructions to Federal institutions to
assist the Regional Administration in safeguarding the security of the people and institutions
and preventing further violence; soliciting the support of elders, the youth and civil servants in
the effort towards sustainable peace, democracy and development; rehabilitating victims of
the violence and internally displaced people; and bringing to justice those responsible for
committing the violence and the destruction of property.
The Defence Forces, once deployed, protected the civilian population and allowed
humanitarian assistance and rehabilitation.
The Federal Government, in cooperation with international agencies, coordinated
humanitarian assistance to alleviate the suffering of the victims of violence and the displaced.
A Commission of Inquiry has been established to investigate the circumstances surrounding
the crisis; charges have been filed against several individuals as a result.
The Government has organised various consultations and workshops with the participation of
the local population which have proposed concrete solutions aimed at resolving the problems
facing the region and have identified the root causes of the crisis.
The Federal Police have recently graduated more than three hundred police officers from the
Gambella region to aid in maintaining law and order in the region once the situation has
stabilised.
Admissibility
44. The current communication is submitted pursuant to Article 55 of the African Charter which
allows the African Commission to receive and consider communications, other than from States
Parties. Article 56 of the African Charter provides that the admissibility of a communication submitted
pursuant to Article 55 is subject to seven (7) conditions. The African Commission has stressed that
the conditions laid down in Article 56 are conjunctive, meaning that if any one of them is absent, the
communication will be declared inadmissible.
45. The Complainant in the present communication argued that it has satisfied the admissibility
conditions set out in Article 56 of the African Charter and as such, the communication should be
declared admissible. The Respondent State on the other hand submitted that the communication
should be declared inadmissible because, according to the State, the Complainant has not complied
with Article 56.5 of the African Charter. As there seems to be agreement by both parties as to the
fulfillment of the other requirements under Article 56, this Commission will not make any
pronouncements thereof.
46. Article 56.5 of the African Charter provides that communications relating to human and peoples’
rights shall be considered if they: “[a]re sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged”.
47. Human rights law regards it as supremely important for a person whose rights have been
violated to make use of domestic remedies to right the wrong, rather than address the issue to an
international tribunal. The rule is founded on the premise that the full and effective implementation of
international obligations in the field of human rights is designed to enhance the enjoyment of human
rights and fundamental freedoms at the national level. In Free Legal Assistance Group, Lawyers'
Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah /
DRC, Paragraph 36 and Rencontre africaine pour la défence des droits de l'Homme (RADDHO) /
Zambia, Paragraph 11, this Commission held that “a government should have notice of a human
rights violation in order to have the opportunity to remedy such violations before being called before
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an international body.” Such an opportunity will enable the accused state to save its reputation,
which would be inevitably tarnished if it were brought before an international jurisdiction.
48. The rule also reinforces the subsidiary and complementary relationship of the international
system to systems of internal protection. To the extent possible, an international tribunal, including
this Commission, should be prevented from playing the role of a court of first instance, a role that it
cannot under any circumstances arrogate to itself. Access to an international organ should be
available, but only as a last resort; after the domestic remedies have been exhausted and have failed.
Moreover, local remedies are normally quicker, cheaper, and more effective than international ones.
They can be more effective in the sense that an appellate court can reverse the decision of a lower
court, whereas the decision of an international organ does not have that effect, although it will engage
the international responsibility of the state concerned.
49. The African Charter states that this African Commission shall consider a communication after the
applicant has exhausted local remedies, “if any, unless it is obvious that this procedure is unduly
prolonged”. The Charter thus recognises that, though the requirement of exhaustion of local remedies
is a conventional provision, it should not constitute an unjustifiable impediment to access to
international remedies. This Commission has also held that Article 56.5 “must be applied
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concomitantly with Article 7, which establishes and protects the right to fair trial”.
In interpreting the
rule, the African Commission appears to take into consideration the circumstances of each case,
including the general context in which the formal remedies operate and the personal circumstances of
the applicant. Its interpretation of the local remedies criteri[ion] can therefore not be understood
without some knowledge of that general context.
50. A local remedy has been defined as “any domestic legal action that may lead to the resolution of
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the complaint at the local or national level.” The Rules of Procedure of the African Commission
provide that “[t]he Commission shall determine questions of admissibility pursuant to Article 56 of the
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Charter” Generally, the rules require applicants to set out in their applications the steps taken to
exhaust domestic remedies. They must provide some prima facie evidence of an attempt to exhaust
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local remedies. According to the African Commission’s guidelines on the submission of
communications, applicants are expected to indicate, for instance, the courts where they sought
domestic remedies. Applicants must indicate that they have had recourse to all domestic remedies to
no avail and must supply evidence to that effect. If they were unable to use such remedies, they must
explain why. They could do so by submitting evidence derived from analogous situations or testifying
to a state policy of denying such recourse.
51. In the jurisprudence of this Commission, three major criteria could be deduced in determining the
rule on the exhaustion of local remedies, namely: that the remedy must be available, effective and
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sufficient. According to this Commission, a remedy is considered to be available if the petitioner can
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pursue it without impediments or if he can make use of it in the circumstances of his case. The
word ‘available’ means ‘readily obtainable; accessible’; or ‘attainable, reachable; on call, on hand,
ready, present; . . . convenient, at one’s service, at one’s command, at one’s disposal, at one’s beck
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and call’. In other words, “remedies, the availability of which is not evident, cannot be invoked by the
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State to the detriment of the Complainant.”
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52. A remedy will be deemed to be effective if it offers a prospect of success. If its success is not
sufficiently certain, it will not meet the requirements of availability and effectiveness. The word
‘effective’ has been defined to mean “adequate to accomplish a purpose; producing the intended or
expected result,” or “functioning, useful, serviceable, operative, in order; practical, current, actual,
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real, valid”. Lastly, a remedy will be found to be sufficient if it is capable of redressing the
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complaint. It will be deemed insufficient if, for example, the applicant cannot turn to the judiciary of
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his country because of a generalised fear for his life “or even those of his relatives.” This
Commission has also declared a remedy to be insufficient because its pursuit depended on
extrajudicial considerations, such as discretion or some extraordinary power vested in an executive
state official. The word ‘sufficient’ literally means “adequate for the purpose; enough”; or “ample,
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abundant; . . . satisfactory.”
53. In the present communication, the author of the communication is based in Canada, alleging
human rights violations in the Respondent State following an incident that occurred in the country.
The Complainant does not hide the fact that local remedies were not attempted but argued that
pursuing domestic remedies in the Respondent State would be futile “due to the lack of an
independent and impartial judiciary, a lack of an efficient remedy, the significant likelihood of an
unduly prolonged domestic remedy, and most importantly, the potential for violence against the Anuak
or those supporting them within the legal system”. The Complainant argued that the violations that
took place in Gambella were massive and serious and involved many people; it noted that “the
government forces and its collaborators, having previously drawn a list of targets, went from door to
door, slaughtering any educated Anuak men they could find, women and children were raped, and
homes and schools were burnt to the ground…”.
54. The Complainant noted further that the judiciary in the Respondent State is not independent due
to interference at State level where there are reports of administrative officers interfering with court
decisions, firing of judges, dictating decisions to judges, reducing salaries of judges and deliberately
refusing to enforce certain decisions of the courts; and that bringing the case before Ethiopian courts
would be unduly prolonging the process as the Ethiopian judiciary suffers from “a complex system of
multiple courts that lack coordination and resources”, including “dismal conditions of service, staff
shortages, lack of adequate training, debilitating infrastructure and logistical problems”. The
Complainant claims court proceedings “take years to yield results”, and concluded that the
Respondent State’s judicial system is “so under resourced that prosecutions would be nearly
impossible”.
55. The Complainant also alleges that the Anuak fear for their safety in bringing the case in Ethiopia
adding that there are no Anuak trained as lawyers who could bring the case before Ethiopian courts.
The Complainant concluded by stating that to bring the case within the Respondent State would only
further endanger the lives of the remaining Anuak in the Ethiopia. The Complainant added that the
Respondent State had been given notice and adequate time to remedy the human rights violations
against the Anuak but has utterly failed to do so.
56. Can this Commission conclude, based on the above allegations by the complainant that local
remedies in the Respondent State are not available, ineffective or insufficient?
57. It must be observed here that the Complainant’s submissions seem to suggest that local
remedies may in fact be available but it is apprehensive about their effectiveness as far as the present
case is concerned. From the Complainant’s submissions, it is clear that the Complainant has relied on
reports, including a World Bank report which concluded that “of the three branches of government, the
judiciary has the least history and experience of independence and therefore requires significant
strengthening to obtain true independence”.
58. The Complainant’s submissions also demonstrate that it is apprehensive about the success of
local remedies either because of fear for the safety of lawyers, the lack of independence of the
judiciary or the meagre resources available to the judiciary. Apart from casting aspersions on the
effectiveness of local remedies, the Complainant has not provided concrete evidence or
demonstrated sufficiently that these apprehensions are founded and may constituted [sic] a barrier to
it attempting local remedies. In the view of this Commission, the Complainant is simply casting doubts
about the effectiveness of the domestic remedies. This Commission is of the view that it is incumbent
on every complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of,
local remedies. It is not enough for the complainant to cast aspersion on the ability of the domestic
remedies of the State due to isolated or past incidences. In this regard, the African Commission would
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like to refer to the decision of the [UN] Human Rights Committee in A v. Australia in which the
Committee held that “mere doubts about the effectiveness of local remedies … did not absolve the
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author from pursuing such remedies”. The African Commission can therefore not declare the
communication admissible based on this argument. If a remedy has the slightest likelihood to be
effective, the applicant must pursue it. Arguing that local remedies are not likely to be successful,
without trying to avail oneself of them, will simply not sway this Commission.
59. The Complainant also argue[s] that the violations alleged are serious and involve a large number
of people and should be declare admissible as the African Commission cannot hold the requirements
of local remedies to apply literally in cases where it is impracticable or undesirable for the
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Complainant to seize the domestic courts in the case of each violation. In the case , for example,
this Commission observed that [t]he gravity of the human rights situation in Mauritania and the great
number of victims involved render[ed] the channels of remedy unavailable in practical terms, and,
according to the terms of the Charter, their process [was] ‘unduly prolonged’. In like manner, the
Amnesty International, Comité Loosli Bachelard, Lawyers' Committee for Human Rights, Association
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of Members of the Episcopal Conference of East Africa / Sudan, Paragraph 32 case involved the
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arbitrary arrest, detention and torture of many Sudanese citizens after the coup of 30 July 1989. The
alleged acts of torture included forcing detainees into cells measuring 1.8 metres wide and 1 metre
deep, deliberately flooding the cells, frequently banging on the doors to prevent detainees from lying
down, forcing them to face mock executions, and prohibiting them from bathing or washing. Other
acts of torture included burning detainees with cigarettes, binding them with ropes to cut off
circulation, and beating them with sticks until their bodies were severely lacerated and then treating
the resulting wounds with acid. After the coup, the Sudanese government promulgated a decree that
suspended the jurisdiction of the regular courts in favour of special tribunals with respect to any action
taken in applying the decree. It also outlawed the taking of any legal action against the decree. These
measures, plus the “seriousness of the human rights situation in Sudan and the great numbers of
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people involved,” the Commission concluded, “render[ed] such remedies unavailable in fact.”
60. Thus, in cases of massive violations, the state will be presumed to have notice of the violations
within its territory and the State is expected to act accordingly to deal with whatever human rights
violations. The pervasiveness of these violations dispenses with the requirement of exhaustion of
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local remedies, especially where the state took no steps to prevent or stop them.
61. The above cases must however be distinguished from the present case which involves one
single incident that took place for a short period of time. The Respondent State has indicated the
measures it took to deal with the situation and the legal proceedings being undertaken by those
alleged to have committed human rights violations during the incident. By establishing the Gambella
Commission of Inquiry and indicting alleged human rights perpetrators, the state, albeit under
international pressure, demonstrated that it was not indifferent to the alleged human rights violations
that took place in the area and in the view of this Commission could be said to have exercised due
diligence.
62. This Commission has also held in many instances that domestic remedies have not been
exhausted if a case that includes the subject matter of the petition before it is still pending before the
22
national courts. In Civil Liberties Union/Nigeria, the African Commission declined to consider a
communication with respect to which a claim had been filed but not yet settled by the courts of the
Respondent State. In the present communication, the Respondent State indicates that the matter is
still pending before its courts and attached a list of cases still pending before the Federal Circuit Court
in relation with the Gambella incident. The list provided the names of the suspects, file number of their
cases, previous and future dates of adjournments. The Complainant does not deny this process is
going on. In the view of this Commission, it does not matter whether the cases still pending before the
courts have been brought by the Complainant or the state. The underlying question is whether the
case is a subject matter of the proceedings before the African Commission and whether it is aimed at
granting the same relief the Complainant is seeking before this Commission. As long as a case still
pending before a domestic court is a subject matter of the petition before this Commission, and as
long as this Commission believes the relief sought can be obtained locally, it will decline to entertain
the case. It is the view of this Commission that the present communication is still pending before the
courts of the Respondent State and therefore does not meet the requirements under Article 56.5.
Holding
For the above reasons, the African Commission declares communication 299/05 Anuak Justice
Council/Ethiopia inadmissible for non-exhaustion of local remedies in conformity with Article
56.5 of the African Charter.
Footnotes
1. See communications 25/89, 47/90, 56/91, 100/93 Free Legal Assistance Group et al./Zaire, para. 36, 1995 and
communication 71/92 Rencontre africaine pour la défense des droits de l’Homme/Zambia, para. 11.
2. consolidated communication 48/90, 50/91, 89/93 Amnesty International [et] al./Sudan, para. 31.
4. Rule 116 of the [African] Commission’s Rules of Procedures.
5. communication 86/93 Ceesay/The Gambia.
5. communication 86/93 Ceesay/The Gambia.
6. Consolidated communications 147/95, 149/96 Jawara/The Gambia, para. 31.
7. Ibid, para. 32.
8. Ibid, para 33.
9. Longman Synonym Dictionary, 82 (1986).
10. Consolidated communications 147/95, 149/96 Jawara/The Gambia supra, para. 33.
11. [[147/95-149/96 #32, Ibid, para. 32.
12. Longman Synonym Dictionary, 82 (1986).
13. [[147/95-149/96 #32, Consolidated communications 147/95-149/96 Jawara/The Gambia, para. 32.
14. Ibid, para 35.
15. Longman, p. 1183.
16. Communication 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
17. See also L. Emil Kaaber v. Iceland; Communication 674/1995; UN Doc. CCPR/C/58/D/674/1995 (1996);
Communication 910/2000 Ati Antoine Randolph/Togo; UN Doc. CCPR/C/79/D/910/2000 (2003).
18. See combined communications [[54/91-61/91-98/93-164/97_196/97-210/98 #80, 54/91 Malawi African
Association/Mauritania, 61/91 Amnesty International/Mauritania, 98/93 Ms Sarr Diop, Union interafricaine des
droits de l’Homme and RADDHO/Mauritania, 164/97 Collectif des veuves et ayants-droits/Mauritania, 210/98
Association mauritanienne des droits de l’Homme/Mauritania, para. 80.
19. [[ 48/90-50/91-52/91-89/93 #32, Communications 48/90, 50/91, 52/91, 89/93 Amnesty International [et]
al./Sudan, para. 32.
20. [[48/90-50/91-52/91-89/93, Ibid.
21. See communications 27/89, 46/91, 49/91, 99/93.
22. Communication 45/90 Civil Liberties Organisation/Nigeria.