Communication 372GTK/2009-Interights (on behalf of Gizaw Kebede and Kebede
Tadesse) v Ethiopia
Summary of Complaint
1. The Complaint was received at the Secretariat of the African Commission on
Human and Peoples‟ Rights on 12 March 2009. The Complaint is brought by
International Centre for the Legal Protection of Human Rights (INTERIGHTS) on
behalf of Gizaw Kebede (1st Applicant) and Tadesse Kebede (2nd Applicant)
against the Federal Democratic Republic of Ethiopia1.
2. The 1st Applicant is the son of the 2nd Applicant and they are both citizens of
Ethiopia. The Complainant alleges that the 1st Applicant was issued licence for
the production of river washed sand from 1993 to 2004 and the 2nd Applicant was
issued licences for the production of construction materials from 30 June 1954 to
4 February 2004, at District Met Walga Farmers Association in Walgaa River
(now the Goro District Soyema Farmers Association), and at Woliso District
Maru Gotu Farmers Association.
3. The Complainant states that in Ethiopia, administrative zones are made up of
districts. The former Woliso District is located in South West Shoa District which
administers the area in which the quarries are located. South West Shoa District
authorities issued the licences on behalf of the Ministry of Energy and Mines and
in accordance with Proclamation 52/1993 article 46.
1
The Federal Democratic Republic of Ethiopia ratified the African Charter on Human and Peoples‟ Rights
on 15 June 1998 and is thus a State party to the African Charter.
1
4. The Complainant alleges that on 4 February 2004, South West Shoa authorities
invoked directives issued by the Federal Ministry of Mines and Energy which
effectively revoked the Applicants licences. The directive was that the work
undertaken by the Applicants would instead be undertaken by members of
Associations. On 30 April 2004, the Oromia State authorities issued similar
directives which were distributed to zonal administrative offices. They also
stated that the production of any construction and precious materials and mines
would be done through workers belonging to an Association.
5. The Complainant alleges that the Applicants together with their workers formed
an Association and requested official recognition to allow them to continue
operating the quarries. This request was denied.
6. The Complainant avers that from April 2004 to December 2006, the Applicants
were not allowed to produce construction materials on the quarries, but only
allowed to sell already processed construction materials. Subsequently from
January 2007 to 13 January 2008, the district administration denied access to the
quarries which were under constant guard by policemen and farmer association
guards.
7. The Complainant states that on 13 January 2008, the Respondent State seized the
Applicant‟s quarries and ordered that organized, unemployed youth belonging
to Melti Walga Sand Producers Association should work at and manage the
quarries.
8. The Complainant alleges that contrary to the Respondent States position that the
quarries would be run by a youth association, the quarries are now being
managed by Getahun Gudisa and Muluneh Getahum. The Complainant further
2
alleges that members of the youth association are not directly engage in the sand
production as Getahun Gudisa and Muluneh Getahum have employed other
workers as the Applicants had done.
9. The Complainant states that the 1st and 2nd Applicants filed separate petitions
before the District Court against the Office of Mines and Energy of the South
West Shoa Zone for the reinstatement of their licences. On 17 June 2005, the
District Court found in favour of the 1st Applicant and on 25 January 2006, found
in favour of the 2nd Applicant. For both cases, the District Court found that the
Respondent State‟s Proclamation 52/93, Article 2.2, was meant to regulate a
different kind of mine and not the kind run by the Applicants and as such the
Respondent State should have made provision for the Applicants to continue
running the mines. The District Court also found that cancellation of the licences
was invalid and therefore ordered for the Applicants licences to be reinstated.
10. The Complainant avers that the Respondent State failed to comply with the
judgement of the District Court and the Applicants re-applied to the District
Court in 20 March 2007, requesting the reinstatement of their licences. In refusing
their application, the District Court held that the judgement should have been
executed within a year of its pronouncement, despite the fact that Article 384 of
the Ethiopian Civil Procedure Code provides a 10 year time limit for the
execution of judgements.
11. The Complainant states that on 22 March 2007, the Applicants made separate
appeals to the South West Shoa High Court against the District Court Judgement
of 20 March 2007. In separate judgements delivered on 15 and 29 May 2007,
respectively, the High Court held that the District Court‟s judgement of 20 March
2007 was contradictory and ordered the District Court to execute its previous
3
judgements of 17 and 25 June 2006, respectively. The District Court declined to
comply with the High Court order.
12. The Complainant further states that on 1 January 2008, the Respondent State had
prepared a contract which states that the Applicants would use their own labour
at the quarries and not engage workers. The Applicants did not agree with the
contents of the contract. The Applicants informed the District Court of this
development and in its decision of 14 January 2008; the District Court stated that
it could not interfere with the authorities‟ decision.
13. The Complainant avers that the matter went to the High Court again on appeal
from the decision of 14 January 2008, and the High Court affirmed the decision of
the District Court. The Applicants applied to the Federal Council of
Constitutional Inquiry which on 6 June 2008, declined to hear the application on
the grounds that the facts before it did not warrant a Constitutional
interpretation.
14. The Complainant alleges that the Applicants also claim that they also sought
resolution of their grievances through non judicial remedies such as lodging a
petition with the Ethiopian Federal Government, the Parliament, the Ethiopian
Human Rights Commission, the Public Ombudsman, the Council of
Constitutional Inquiry and the Ethical and Anti-Corruption Commission, to no
avail.
Articles alleged to have been violated
15. The Complainant alleges a violation of Articles 1, 7, 14 and 26 of the African
Charter by the Respondent State.
4
16. The Complainant requests that the following remedies be granted by the African
Commission:
I.
An order directing the Respondent State to implement the Court
judgement delivered in favour of the Complainant or an order directing
that the Respondent State provide an effective remedy for the Applicants.
II.
In the alternative, if the African Commission finds that the withdrawal of
the Applicants licenses and the seizure of the quarries were justified and
in the public interest, an order that the Respondent State pay
commensurate compensation to the Applicants.
The Procedure
17. The Secretariat of the African Commission received the Complaint on 12 March
2009, and acknowledged receipt of the same on 15 March 2009, requesting that a
signed copy of the Complaint be sent to the Secretariat as soon as possible.
18. On 17 March 2009, the Secretariat received a signed copy of the complaint and
acknowledged receipt of the same.
19. During the 6th Extra Ordinary Session of the African Commission, which took
from 30 March to 3 April 2009, in Banjul, The Gambia, the African Commission
considered the Communication and decided to be seized thereof.
20. By Note Verbale dated 6 April 2009, and by letter of the same date, both parties
were informed of the decision of the African Commission and requested to
5
submit arguments on Admissibility of the Communication within three months
thereof, i.e. 6 July 2009.
21. By letter and Note Verbale dated 7 January 2010, the Secretariat informed both
parties that two Communications were registered with the same reference
number and as in that regard, has re-numbered the above Communication as
Communication 372GTK/09. The Secretariat also informed both parties that
during the 46th Ordinary Session of the African Commission, which took place
from 11 to 25 November 2009, in Banjul, The Gambia, the African Commission
deferred consideration of the Communication pending both parties submission
on Admissibility.
22. By letter and Note Verbale dated 4 June 2010, the Secretariat informed both
parties that during the 47th Ordinary Session of the African Commission which
took place from 12 to 26 May 2010, in Banjul, The Gambia, the African
Commission deferred consideration of the Communication pending both parties
submission on Admissibility.
23. On 6 July 2010, the Secretariat received the Complainant‟s submission on
Admissibility of the Communication.
24. By letter dated 7 October 2010, the Secretariat acknowledged receipt of the
Complainant‟s submission on Admissibility and forwarded same to the
Respondent State.
25. By Note Verbale dated 29 October 2010, the Secretariat received the Respondent
States submission on Admissibility of the Communication.
6
26. By Note Verbale and letter dated 9 December 2010, the Secretariat acknowledged
receipt of the Respondent States submission on Admissibility and forwarded
same to the Complainant respectively. The Secretariat also informed both parties
that during the 48th Ordinary Session which took place from 10 to 24 November
2010, in Banjul, The Gambia, the African Commission deferred consideration on
Admissibility of the Communication because it had just received the submission
of the Respondent State on Admissibility.
27. By Note Verbale and letter dated 16 May 2011, the Secretariat informed both
parties that during the 49th Ordinary Session of the African Commission which
took place form 28 April to 12 May 2011, in Banjul, The Gambia, the African
Commission deferred consideration on Admissibility of the Communication to
its 50th Ordinary Session due to lack of time.
28. By letter dated 28 September 2011, the Secretariat received additional
submissions on Admissibility from the Complainant.
29. By letter dated 10 October 2011, the Secretariat acknowledged receipt of the
Complainant‟s additional submission on Admissibility.
30. By Note Verbale and letter dated 9 November 2011, the Secretariat informed both
parties that during the 50th Ordinary Session of the African Commission which
took place form 24 October to 7 November 2011, in Banjul, The Gambia, the
African
Commission
deferred
consideration
on
Admissibility
of
the
Communication to its 51st Ordinary Session due to lack of time.
7
The Law on Admissibility
Complainant’s Submission on Admissibility
31. The Complainant submits that the criteria for Admissibility stipulated in Article
56 of the African Charter has been satisfied and goes further to address each of
these criteria.
32. The Complainant submits that in accordance with Article 56(1) of the African
Charter, the Applicants in this Communication have been identified and relevant
details provided to the African Commission, along with the details of those
individuals and organisations representing them.
33. The Complainant states that Article 56(2) of the African Charter has been
complied with, noting that the Communication is compatible with the
Constitutive Act of the African Union and with the African Charter.
34. The Complainant submits that the Communication is presented in a polite and
respectful language and as such is in compliance with Article 56(3) of the African
Charter.
35. The Complainant avers that the Communication is based on information
provided by the Applicants and on Court documents, not on media reports and
as such has complied with Article 56(4) of the African Charter.
36. The Complainant submits that Article 56(5) has been fulfilled because the
Applicants have exhausted all the remedies available to them in Ethiopia. The
8
Complainant states that the Applicants undertook the following steps in their
quest for remedies before the Ethiopian judicial system:
i.
On 10 June 2005 and 25 January 2006, the District Court ruled in favour
of the Applicants. On 20 March 2007, the District Court rejected the
application regarding the non-implementation of its judgments by
wrongly stating that these should have been implemented within a
year.
ii.
On 29 March 2007, due to the non-implementation of the decisions, the
Applicants appealed to the South West Shoa High Court. On 15 and 29
May 2007, Judge Gazali ordered that the District Court execute its
decisions of 17 June 2005 and 25 January 2006 in respect of the two
Applicants.
iii.
On 14 January 2008, the District Court declined to comply with the
High Court Order stating that it would not interfere with the
authorities‟ decision.
iv.
On 6 February 2008, the Federal Council of Constitutional Inquiry
refused to hear the Applicants‟ application. It found that their petition
did not warrant a constitutional interpretation.
v.
On 4 March 2008, the matter went to the High Court again on appeal
from the decision of 14 January 2008. The High Court affirmed the
decision of the District Court.
37. The Complainant submits that on the exhaustion of local remedies, the African
Commission has stated that such a remedy, if it is available must be exhausted
9
by the Complainant before any recourse of the African Commission can be
allowed. In determining this rule, the African Commission has stated that “the
remedy must be available, effective and sufficient and a remedy is considered
available if the petitioner can pursue it without impediment, and if sufficient it is
capable of redressing the complaint2”.
38. The Complainant further submits that it is quite clear from the evidence set out
in the Complaint that no good and sufficient remedy was available to the
Applicants despite their engagement in a long and protracted judicial process,
and as a result the Applicants have duly exhausted all the domestic remedies
available to them in Ethiopia for the purpose of Article 56(5) of the African
Charter.
39. The Complainant states that Article 56(6) of the African Charter has been fulfilled
because the Communication is submitted within a reasonable time of their
having exhausted local remedies.
40. The Complainant submits that the Communication has not been submitted to
any other procedure of international investigation or settlement and as such has
complied with Article 56(7) of the African Charter.
Respondent State’s Submission on Admissibility
41. The Respondent State submits on the following two grounds:
i.
the Communication is incompatible with the Constitutive Act of
the AU or with the African Charter
2
Communication 147/95,para 3 and 32. Dawda Jawara v The Gambia.
10
ii.
the Communication does not fulfil the requirements of Article 56(5)
of the African Charter.
i.
Incompatibility with Constitutive Act/African Charter
42. The Respondent State argues that a Communication which does not reveal a
prima facie violation of the African Charter will not be executed3. The
Respondent State further argues that the facts of the case represent literally a
renewal of an artisanal license obtained before the coming into force of the
Proclamation No. 52/1993. Any issue beyond the renewal of the license was not
raised by the Applicants during those proceedings nor were they entertained by
the courts.
43. Thus, the rights at stake are the right to conduct mining operations which is
accorded by Proclamation No.52/1993; and not by the African Charter.
Therefore, the African Commission should not entertain the case as it does not
invoke any provision of the Constitutive Act of the AU or the African Charter.
Moreover, the African Commission does not have a jurisdiction to entertain a
right which is solely given by the laws of Ethiopia.
ii.
Non Exhaustion of Local Remedies
44. On the non exhaustion of local remedies by the Complainant, the Respondent
State avers that the exhaustion of local remedies rule is a well established
principle under international law that provides a State an opportunity to redress
3
ACHPR Information Sheet No.3, Communication Procedure, Page 6.
11
a Complaint within the framework of the domestic legal system4. The
Respondent State argues that according to the jurisprudence of the African
Commission, local remedies mean “all local remedies”5, which could be defined
as any domestic legal action that may lead to the resolution of Complaints at the
domestic level. Furthermore, Rule 114 of the amended rules of procedure of the
African Commission specifically affirms that all local remedies should be
exhausted unless the processes of such remedies are taking an unduly long time.
45. The Respondent State submits that as can be observed from the allegation of the
Complainant, the last step taken by the Applicants was to appeal to the High
Court of the Regional Government, however, is not the end of the story
regarding the judicial structure and arrangement of Ethiopia. If a party is
aggrieved by a decision of a Regional High Court, that party can appeal to the
Regional Supreme Court. In the extent that he is not satisfied with the decision of
the Regional Supreme Court and believes that the decision has basic error of law,
the party can still present the case to the Cassation Bench of that Regional
Supreme Court. It does not end even there. The Federal Supreme Court has a
power of cassation over any final decision by the Regional or Federal Courts
containing basic error of law. This is prescribed under Article 80 of the
Constitution of the Federal Democratic Republic of Ethiopia.
46. The Respondent State further submits that the Applicants did not exhaust local
remedies available at the Regional and Country level.. The Applicants at least
should have brought their case before the Regional Supreme Court or before the
appropriate judicial organs of Ethiopia. It is abundantly clear that the local
remedies are not exhausted. Therefore, the Respondent State submits that the
4
Communication 73/92, Mohammed L. Diakite v. Gabon. Para. 16.
5 Communication 107/92. Lawyers Comm. For Human Rights v. Tanzania.
12
African Commission should not entertain the case as doing so will certainly
interfere with the jurisdictional sovereignty of Ethiopia.
47. Finally, the Respondent State request for the Communication to be declared
Inadmissible on the grounds that the Applicants failed to comply with the
requirements under Article 56(2) and 56(5) of the African Charter.
Complainant’s Additional Submission on Admissibility
48. The Complainant responded to the Respondent State‟s submissions on the
compatibility of the Communication with the African Charter and to the
Respondent‟s State‟s assertions that the Applicants‟ have failed to exhaust local
remedies.
49. The Complainant argues that the Respondent State‟s argument that the issues at
the heart of this matter should not be considered by the African Commission but
by the Respondent State‟s courts is flawed. Firstly, Article 45 of the African
Charter does not enumerate classes of cases that the African Commission is
mandated to consider, it provides a general outline of its role. Relevantly, this
includes to “[e]nsure the protection of human and peoples' rights under
conditions laid down by the present African Charter” (Article 45 (2)). Secondly,
the African Charter protects the fair trial guarantees, the right to property and
the independence of the judiciary which goes to the heart of the universality of
human rights. Where policies or practices impinge on rights protected in the
African Charter, the compliance with these policies or practices with the African
Charter can be evaluated by the African Commission. The inclusion of these
articles of the African Charter – which deals specifically with alleged violations
13
in the Applicant‟s complaint – confirms this, as does the fact that this
Commission has dealt with several Complaints alleging similar violations.
50. The Complainant contends that the seizure of this Communication by the
African Commission at the Ordinary Session of April 2009 is an indication that
the alleged violations detailed in it are compatible with the African Charter6. This
in effect means that the African Commission can consider this application.
51. The Complainant argues that the African Commission‟s protective mandate
entitles it to assess and analyse the application of domestic legislation ratified by
member states and to establish whether the application of those laws, policies
and practices conflict with a state‟s international human rights obligations. The
implementation of the Court Order by the Respondent State and the
interferences of the Authorities in the judicial proceedings which the Applicants
believed to be their only hope of securing redress for their grievances, infringed
the Applicants right to property (14) and to a fair trial (Art.7) under the African
Charter.
52. The Respondent State is therefore erroneous to assert that the Complaint only
concerns rights provided for by domestic law. The actions of the Respondent
State and its impact on the Applicants fall within the purview of the African
Charter and therefore, the African Commission is empowered to consider the
compatibility of those actions with the African Charter. The Government of
Ethiopia ratified the Charter on 15 June 1998 and in so doing unreservedly
accepted
the
competence
of
the
African
Commission
to
consider
Communications alleging all African Charter violations.
6
Article 56(2) of the African Charter.
14
53. In response to the Respondent States submission on the exhaustion of local
remedies, the Complainant argues that the remedies which the Respondent State
argues that they should have pursued failed to meet the standard for an effective
remedy in international and regional human rights law. Article 56 (5) of the
African Charter provides that Communications shall be considered if they are
sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged7‟. In determining this rule the African
Commission has stated that “the remedy must be available, effective and
sufficient8”. The African Commission has observed that a “remedy is considered
available if the petitioner can pursue it without impediment; it is deemed
effective if it offers a prospect of success, and it is found sufficient if it is capable
of redressing the complaint9”.
54. The Complainant further argues that international and regional human rights
law requires that for a domestic remedy to be exhausted, it must be available,
effective and sufficient. This means that the particular remedy must not only be
available in theory but also in practice and must have a reasonable prospect of
success10. The European Court on Human Rights has held that to uphold
objections based on failure to exhaust local remedies, the remedies must be both
formally available and sufficiently certain in theory as well as in practice failing
which they will lack the requisite accessibility and effectiveness11.The InterAmerican Court on Human Rights has opined that remedies should be
exhausted when they exist formally, where they are adequate to protect the legal
7Article 56 (5) of the African Charter,
http://www.achpr.org/english/_info/charter_en.html, accessed
13 July 2011.
8Dawda Jawara v The Gambia (Communications 147/95 and 149/96), para 31.
9 Ibid,para 32.
10 Collins v Jamaica Communication UN Human Rights Committee, No. 356/1989, para 7.1.
11 Pavletic v Slovakia App. No. 39359/98, June 22, 2004, para 68.
15
interest infringed and where they are effective in producing the result for which
they were designed12.
55. The Complainant submits that in the Applicants‟ case, existing remedies are not
adequate and they do not protect the legal interest infringed. In Anuak Justice
Council v Ethiopia, the African Commission has opined that it is incumbent on
every Complainant to take all necessary steps to exhaust, or to at least attempt
the exhaustion of local remedies13. The Complainant states that this Complaint
should be distinguished from the Anuak Justice Council case, in which, the
Applicant did not bother to seek redress before the Ethiopian Courts at all. The
Complainant argues that in this case, the Applicants went to the District Court
and the High Court and did not take the matter to the Regional Supreme Court
because it is clear on settled legal opinion from the Oromia Supreme Court, the
Supreme Court‟s Cassation Bench and the Cassation Bench of the Federal
Supreme Court that there is no prospect of success and secondly that the filing of
an appeal would not have achieved anything more and would simply have
unduly prolonged an already protracted process.
56. The Complainant further argues that in Ato Bekele Welde Michael & 25 Ors v the
State14 , the Applicants sued the West Shoa Administrative Zonal Mine and
Energy office in respect of the renewal of their revoked licenses. The High Court
in West Shoa decided against the Appellants. The Appellants appealed to the
Oromia Supreme Court and that Court confirmed the West Shoa Court‟s decision
on the basis that it had found no error of law15. The Appellants appealed to the
Cassation Bench of Oromia‟s Supreme Court, which decided that there was no
12 Parque Sao Lucas v Brasil, Case 10.31, Inter-Am CHR, Report para 31.
13Anuak Justice Council v
14
Ethiopia 299/ 05 para 58.
Case No 10597.
15 File No. 649 13.
16
error of law in the lower Courts decision; and the file was closed. The Appellants
appealed to the Federal Supreme Court‟s Cassation Bench and the Court found
that there was no error in law and the substance of the appeal was not
considered.
57. The Complainant argues that the case of Ato Bekele Welde Michael & 25 Ors v the
State therefore demonstrates that the Regional Supreme Court considers cases
similar to the Applicants only in instances where there has been an error of law.
The Cassation Court does not consider the substance of cases. The law provides
that in cases where they contain fundamental errors of law, the Federal Supreme
Court shall have the power of cassation over the final decisions of the Regional
Supreme Court rendered as a regular division or in its appellate capacity 16. For
these reasons, the Complainant submits that the Applicants case would not have
been considered by the superior Regional or Federal Courts given the above
settled legal opinion.
58. The Complainant submits that the African Commission should follow its
jurisprudence that if a Complainant cannot make use of a remedy in the
circumstances of his case such remedy is unavailable17.Therefore in a case where
the remedy exists in theory but the Applicants cannot use it to address their
grievances in practice; those remedies are in effect unavailable. The Complainant
further submit that the remedies are also insufficient since the existing local
remedies do not adequately deal with the problem, because in an analogous case,
the Courts held that there was no error in the lower Courts decision and they
could not therefore proceed to consider the substance of the case.
16 Article 10(2) Federal Negarita Gazeta of the Federal Democratic Republic of Ethiopia, 2nd Year No.
13, 1991.
17 Jawara v Gambia, op. cit., para 33.
17
59. In conclusion, the Complainant submits that based on the above, the Complaint
is compatible with the African Charter and that local remedies have been
exhausted because appealing to the higher Courts serves no purpose, when it is
clear as has been illustrated above, that the procedures in those Courts would not
address the substance of their matter and thus the violations they have suffered.
For these reasons, the remedies asserted by the Respondent State do not met the
requirements for a remedy which they were required to exhaust, in that they are
ineffective, unavailable and insufficient.
The African Commission’s Analysis on Admissibility
60. The Admissibility of Communications within the African Commission is
governed by the requirements of Article 56 of the African Charter. This Article
provides seven requirements that must be met before the African Commission
can declare a Communication Admissible. If one of the conditions/requirements
is not met, the African Commission will declare the Communication
Inadmissible, unless the Complainant provides sufficient justifications why any
of the requirements could not be met.
61. The Complainant submits that the Communication complies with all the seven
requirements of Article 56 of the African Charter. The Respondent State on the
other hand, contends that the Complainant has complied with Article 56(2) and
(5) of the African Charter. The African Commission will thus proceed to analyse
these contended sub-articles.
62. Article 56(2) of the African Charter states that „Communications…received by the
Commission shall be considered if they are compatible with the Charter of the
Organisation of African Unity or with the present Charter.‟ The Complainant
18
alleges violations of Articles 1,7,14 and 26 of the African Charter and as such
state that the Article 56(2) has been complied with. The Respondent State on the
other hand argues that, the Complainant has failed to comply with the
requirements of Article 56(2), because the right to conduct a mining operation is
accorded by Proclamation No.52/1993 of Ethiopian laws and not by the African
Charter.
63. The African Commission observes that the Communication is brought against
the Democratic Republic of Ethiopia which became a party to the African Charter
on 15 June 1998, and also alleges violations of rights contained in the African
Charter, in particular, rights guaranteed under Articles 1,7,14 and 26 of the
African Charter. Having identified the violation of certain rights guaranteed
under the African Charter, which Ethiopia is a party to and which the African
Commission has a mandate to promote and protect, it holds that the
requirements under Article 56(2) of the African Charter have been fulfilled.
64. Article 56(5) of the African Charter states that „Communications relating to
human and peoples‟ rights… shall be considered if they: are sent after exhausting
local remedies, if any, unless it is obvious that this procedure is unduly
prolonged‟. The Complainant submits that the Applicants have duly exhausted
all the domestic remedies available to them in Ethiopia for the purpose of Article
56(5) of the African Charter by undertaking the following steps in their quest for
remedies before the Ethiopian judicial systems:
i.
On 10 June 2005 and 25 January 2006, the District Court ruled in favour of
the Applicants. On 20 March 2007, the District Court rejected the
19
application regarding the non-implementation of its judgments by
wrongly stating that these should have been implemented within a year.
ii.
On 29 March 2007, due to the non-implementation of the decisions the
Applicants appealed to the South West Shoa High Court. On 15 and 29
May 2007, Judge Gazali ordered that the District Court execute its
decisions of 17 June 2005 and 25 January 2006 in respect of the two
Applicants.
iii.
On 14 January 2008, the District Court declined to comply with the High
Court Order stating that it would not interfere with the authorities‟
decision.
iv.
6 February 2008, the Federal Council of Constitutional Inquiry refused to
hear the Applicants‟ application. It found that their petition did not
warrant a constitutional interpretation.
v.
On 4 March 2008, the matter went to the High Court again on appeal from
the decision of 14 January 2008. The High Court affirmed the decision of
the District Court.
65. The Respondent State on the other hand argues that the Complainant has failed
to comply with Article 56(5) because as can be observed from the above, the last
step taken by the Applicants was to appeal to the High Court of the Regional
Government, which is not the end of the judicial structure and arrangement of
Ethiopia. The Respondent State further argues that in accordance with Article 80
of the Constitution of the Federal Democratic Republic of Ethiopia, the
Applicants since aggrieved by a decision of a Regional High Court, could have
appealed to the Regional Supreme Court. If the Applicants are not satisfied with
the decision of the Regional Supreme Court, they can still present the case to the
Cassation Bench of that Regional Supreme Court. It does not end even there. The
20
Applicants could then approach the Federal Supreme Court, which has a power
of cassation over any final decision by the Regional or Federal Courts containing
basic error of law.
66. The Complainant in response to the Respondent State‟s submission on
exhaustion of local remedies argues that the remedies which the Respondent
State argues that they should have pursued fail to meet the standard for an
effective remedy in international and regional human rights law. The
Complainant argues that international and regional human rights law requires
that for a domestic remedy to be exhausted, it must be available, effective and
sufficient. This means that the particular remedy must not only be available in
theory but also in practice and must have a reasonable prospect of success18.
67. The Complainant submits that the Applicants case would not have been
considered by the superior Regional or Federal Courts because it is clear on
settled legal opinion in the case of Ato Bekele Welde Michael & 25 Ors v The
State that the Supreme Court‟s Cassation Bench and the Cassation Bench of the
Federal Supreme Court can only use their cassation powers to consider cases in
which there have been an error on points of law made by lower Courts, that the
procedures in those Courts would not address the substance of their matter and
thus the violations they have suffered. Therefore the filing of an appeal would
not have achieved anything more and would simply have unduly prolonged an
already protracted process.
68. The African Commission is of the view that the Complainant‟s argument that
approaching the Regional Supreme Court would not have achieved any success
because based on settled legal opinion in Ato Bekele Welde Michael & 25 Ors v
18
Collins v Jamaica Communication UN Human Rights Committee, No. 356/1989, para 7.1.
21
The State, the Supreme Court‟s Cassation Bench and the Cassation Bench of the
Federal Supreme Court can only use their cassation powers to consider cases
where there have been an error on points of law, made by lower Courts is
flawed.
69. The African Commission in Article 19 v Eritrea and in Anuak Justice Council v.
Ethiopia held that: “it is incumbent on the Complainant to take all necessary
steps to exhaust, or at least attempt the exhaustion of local remedies”, adding
that: “it is not enough for the Complainant to cast aspersions on the ability of the
domestic remedies of the State due to isolated or past incidences”. The African
Commission further held that “arguing that local remedies are not likely to be
successful, without trying to avail oneself of them, will simply not sway this
Commission”. In these cases, the African Commission referred to the Human
Rights Committee‟s decision in A. v Australia, in which the Committee held that:
“mere doubts about the effectiveness of local remedies or prospect of financial
costs involved did not absolve the author from pursuing such remedies.
According to Article 80 (5) of the Constitution of Ethiopia, decisions of the
Regional High Court are appealable to the Regional Supreme Court. It is only
when the decision has a basic error of law that the Complainant‟s can appeal to
the Cassation Bench of the Regional Supreme Court. This is also illustrated in the
case cited by the Complainant in Ato Bekele Welde Michael & 25 Ors v The
State, where the Applicants in that case approached the Regional Supreme Court
appealing the decision of the Regional High Court, and thereafter approached
the Cassation Bench of the Regional Supreme Court appealing on the decision
having a basic error of law. Therefore the Complainant‟s argument that the
Regional Supreme Court considers cases similar to the Applicants only in
instances where there has been an error of law is flawed.
22
70. It is therefore the African Commission„s view that the Complainant should have
attempted to exhaust all available remedies, including appealing to the Regional
Supreme Court which was the next step for the Complainant to appeal the
decision of the Regional High Court according to the Ethiopian judicial structure
s stipulated in Article 80 of the Constitution of Ethiopia. It is not sufficient for the
Complainant to cast mere aspersion on the ability of the Regional Supreme
Court, its Cassation Bench and the Cassation Bench of the Federal Supreme
Court due to past incidences such as in the case of Ato Bekele Welde Michael &
25 Ors v The State, without availing itself to them.
71. Furthermore, in the African Commission‟s decision on Admissibility, in the case
of
Institute
of
Human
Rights
and
Development
in
Africa
and
Interights/Mauritania19, the African Commission reaffirmed the principle that
“the generally accepted meaning of local remedies, which must be exhausted prior to any
communication/complaint procedure before the African Commission, are the ordinary
remedies of common law that exist in jurisdictions and normally accessible to people
seeking justice”. It is also the African Commission‟s view that in order to avoid a
prolonged litigation process, the time the Applicants took to seek their
grievances through non judicial remedies such as lodging a petition with the
Ethiopian Federal Government, the Parliament, the Ethiopian Human Rights
Commission, the Public Ombudsman, the Council of Constitutional Inquiry and
the Ethical and Anti-Corruption Commission, they could have used that time
attempting to exhaust the ordinary remedies of a judicial nature in Ethiopia20.
For these reasons the African Commission holds that the Complainant has not
fulfilled the requirements under Article 56(5) of the Charter.
19
Communication 242/01. Institute of Human Rights and Development in Africa and
Interights/Mauritania.
20
Communication 242/01 and Communication 221/98. Institute of Human Rights and
Development in Africa and Interights/Mauritania, Alfred B. Cudjoe/ Ghana.
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Decision of The African Commission
72. Based on the above analysis, the African Commission on Human and Peoples‟
Rights decides:
i. To declare the Communication Inadmissible because it does not
comply with the requirements under Article 56 (5) of the African
Charter;
ii. To give notice of this decision to the parties;
iii. To publish this decision on its 32nd Activity Report.
Done in Banjul, The Gambia, during the 10th Extra-Ordinary Session of the
African Commission on Human and Peoples’ Rights, December 2011.
24