UNION AFRICAINE
AFRICAN UNION
UNIÃO AFRICANA
Addis Ababa, ETHIOPIA
P. O. Box 3243
Telephone +251115- 517700
Fax : +251115- 517844
Website : www.africa-union.org
EXECUTIVE COUNCIL
Ninth Ordinary Session
25 – 29 June 2006
Banjul, THE GAMBIA
EX.CL/279 (IX)
REPORT OF THE AFRICAN COMMISSION ON HUMAN
AND PEOPLES’ RIGHTS
EX.CL/279 (IX)
Page 1
TWENTIETH ACTIVITIY REPORT OF THE AFRICAN COMMISSION
ON HUMAN AND PEOPLES’ RIGHTS
Section I:
Period covered by the Report
1.
The 20th Activity Report covers the period from January to June 2006.
2.
It is important to recall that the 19th Activity Report of the African Commission on
Human and Peoples’ Rights (the African Commission) had been adopted by decision
Assembly/AU/DEC.101 (VI) during the 6th Ordinary Session of the Assembly of Heads
of State and Government of the African Union held from 23rd to 24th January 2006 in
Khartoum, Sudan, after having been considered by the Executive Council.
Section II:
Holding of the 39th Ordinary Session
3.
Since the adoption of the 19th Activity Report in January 2006, the African
Commission held a Session, the 39th Ordinary Session, which was held in Banjul, The
Gambia, from the 11th to 25th May 2006. The Agenda of the 39th Ordinary Session is
attached as Annex One (1) of this Report.
4.
The 39th Ordinary Session was preceded by the following meetings:
•
The NGO Forum, whose objective was to prepare the contribution of the
Members of the Commission and that of the partners to the deliberations of
the said Session. The NGO Forum was held from 6th to 8th May 2006, in
Banjul, The Gambia.
•
From 7th to 8th May 2006, the African Commission held a two day Preparatory
Meeting during which they discussed their contributions towards the
Brainstorming Meeting on the African Commission organised by the African
Union and held from 9th to 10th May 2006 in Banjul, The Gambia. The
Brainstorming Meeting discussed the functioning of the African Commission
and its relationship with the Organs of the African Union and its cooperating
partners and came up with recommendations that were addressed to various
stakeholders.
•
The Brainstorming Session on the African Commission on Human and
Peoples’ Rights organized by the Commission of the African Union was held
from 9th to 10th May 2006, in Banjul, The Gambia Gambie, was presided over
by Mrs. Salamata Sawadogo, Chairperson of the African Commission. The
consultation meeting brought together participants among whom were the
representative of the Republic of The Gambia, Members of the African
EX.CL/279 (IX)
Page 2
Commission, the Commissioner for Political Affairs of the African Union and
members of the staff of the Department of Political Affairs, the Acting Director
of Administration of the African Union, the representatives of the Pan African
Parliament, the Committee of Permanent Representatives, Representatives
from the Peace and Security Council, ECOSOCC, the United Nations Office of
the High Commissioner for Human Rights, international and
intergovernmental organisations, the Chairperson of the National Human
Rights Institutions, and representatives of NGOs. The report of the
Brainstorming is attached as Annex two (2) of this Report
5.
The following Members of the African Commission participated in the
deliberations of the 39th Ordinary Session:
•
•
•
•
•
•
•
•
•
•
Commissioner Salamata Sawadogo, Chairperson;
Commissioner Yassir Sid Ahmed El Hassan, Vice-Chairperson;
Commissioner Reine Alapini-Gansou;
Commissioner Mumba Malila;
Commissioner Angela Melo;
Commissioner Sanji Mmasenono Monageng;
Commissioner Bahame Tom Mukirya Nyanduga;
Commissioner Musa Ngary Bitaye;
Commissioner Kamel Rezag-Bara;
Commissioner Faith Pansy Tlakula.
Commissioner Mohammed Abdellahi Ould Babana was absent.
Renewal of the Mandate
6.
During the 39th Ordinary Session the African Commission renewed and extended
the mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally
Displaced Persons in Africa for a period of two years. The mandate was extended to
cover migration issues.
Participation
7.
Delegates from thirty two (32) States Parties, Nineteen (19) National Human
Rights Institutions, six (6) International Organisations and Intergovernmental
Organisations and one hundred and twenty eight (128) African and International NGOs
were represented at the 39th Ordinary Session of the African Commission. Altogether a
total of four hundred and nineteen (419) participants attended the 39th Ordinary Session.
Presentation of Initial/Periodic Reports by Member States
8.
It is important to recall that all the Member States of the African Union are State
Parties to the African Charter on Human and Peoples’ Rights. According to the
provisions of Article 62 of the African Charter on Human and Peoples’ Rights, each
EX.CL/279 (IX)
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State Party undertakes to present, every two years from the date of entry into force of
the African Charter, a Report on the legislative or other measures taken to give effect to
the rights and liberties recognized and guaranteed by the said Charter.
9.
The state of presentation of the Initial and Periodic Reports by the State Parties is
as follows:
The following
The following 16
13 States are
States have never
up to date in
submitted a Report
the submission
of their
Reports
The following 13
States have
already submitted
Reports but have 1
or 2 outstanding
Reports
South Africa
Burkina Faso
Cameroon
Central African
Republic
Egypt
Libya
Mauritania
Niger
Rwanda
Botswana
Comoro Islands
Côte d’Ivoire
Djibouti
Algeria
Benin
Burundi
Congo (Brazza)
Eritrea
Ethiopia
Guinea Bissau
Gabon
Equatorial Guinea
Congo (DRC)
Ghana
Lesotho
Namibia
Sahrawi Demo.
Republic
Senegal
Swaziland
Chad
Togo
Seychelles
Sudan
Uganda
Zambia
Kenya
Liberia
Malawi
Madagascar
Sao Tomé and
Principé
Sierra Leone
Somalia
The following 11
States have
already submitted
Reports but have
more than 2
outstanding
Reports
Angola
Cape Verde
The Gambia
Guinea
Mali
Mauritius
Mozambique
Nigeria
Tanzania
Tunisia
Zimbabwe
10.
The African Commission continues to invite those Member States which have not
yet done so, to present their Initial and Periodic Reports. Member States are further
reminded that all the outstanding Reports can be consolidated into a single Report for
submission to the Commission.
11.
During its 39th Ordinary Session, the African Commission considered the
Periodic Reports of the following countries and adopted the relevant concluding
observations and recommendations: the Republic of Cameroon, the Central African
Republic, the Republic of the Libyan Arab Jamahiriya. The Commission expressed
satisfaction with the discussions held with the delegations of these States. The Republic
Rwanda, Uganda and Zambia presented their Periodic reports, which will be examined
during the 40th ordinary session of the Commission.
EX.CL/279 (IX)
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12.
The Initial Report of the Republic of Seychelles was considered in the absence of
the State since the State of Seychelles did not send a representative to the Session.
The Initial Report of the Republic of Seychelles was received by the Secretariat of the
Commission on 21st June 2004 and was scheduled for consideration at the 36th, 37th and
38th Ordinary Session. However, this Report was not considered due to the absence of
the Republic of Seychelles to present the Report, despite several reminders.
13.
Consequently, the African Commission decided to examine this Report in the
absence of the Seychelles delegation. The Commission regretted the fact that it had not
been afforded the opportunity to have constructive discussions with the Member State.
Adoption of Mission Reports
14.
During its 39th Ordinary Session, the African Commission adopted the following
Reports:
a)
Report on the fact finding mission to the Republic of Togo;
b)
Reports on the missions of the Special Rapporteur on Women’s Rights in
Africa to the Democratic Republic of Congo;
Organisation of Seminars
15.
Depending on the availability of funds, the African Commission plans to organise
seminars on the following topics in 2007:
•
•
•
•
Terrorism and Human Rights in Africa;
Islam and Human Rights;
Contemporary Form of slavery;
Refugees and internally displaced persons in Africa ;
Resolutions
16.
In accordance with decision Assembly/AU/DEC.101(VI) of the 6th ordinary
session of the Assembly of Heads of State and Government of the African Union, the
African Commission received written responses from Ethiopia, Uganda, Sudan and
Zimbabwe on the resolutions concerning the Human Rights situation in their countries
adopted by the African Commission at its 38th Ordinary Session. The full text of the
Resolutions and the responses from the States of Ethiopia, Uganda, Sudan and
Zimbabwe are attached as Annex three (3) of this Report. During its 39th Ordinary
Session, the African Commission granted audiences to the States of Ethiopia Uganda,
and Zimbabwe who requested to make oral presentations and seek clarifications on the
said Resolutions.
EX.CL/279 (IX)
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Cooperation between the African Commission and Human Rights National
Institutions and NGOs
17.
During the Session, the African Commission discussed co-operation with the
National Human Rights Institutions and Non Governmental Organisations. The African
Commission urged State Parties that are yet to establish National Human Rights
Institutions to do so and build the capacity of existing ones, in accordance with the Paris
Principles and its own resolution on these Institutions.
18.
The 2nd African Union Conference of National Human Rights Institutions was held
along with the Ordinary Session of the African Commission from the 12th to 14th May
2006, in Banjul, The Gambia. The Conference was organised in collaboration with the
Office of the United Nations High Commissioner for Human Rights (OHCHR) and the
Coordinating Committee of National Human Rights Institutions. Members of the African
Commission participated in this Conference.
19.
During the 39th Ordinary Session, the African Commission granted Observer
Status to 7 (seven) Non Governmental Organisations :
¾
¾
¾
¾
¾
¾
¾
Prison fellowship of Ethiopia (Ethiopia)
Institut Panos de l’Afrique de l’Ouest (Senegal)
WITNESS (USA)
Foundation for Women’s Health Research and Development (United
Kingdom)
Citizens for a Better Environment (Zambia)
Cameroon Environmental Protection Association (Cameroon)
Stop Poverty (Mauritania)
20.
This brings the number of NGOs with Observer Status to the Commission to three
forty nine (349) as of May 2006.
SECTION III:
Promotion Activities
Promotion Activities of the Chairperson and Members of the African Commission
during the Intersession
21.
In their capacities as Members of the Bureau of the African Commission, The
Chairperson, Commissioner Salamata Sawadogo and the Vice Chairperson,
Commissioner El-Hassan supervised the operations of the African Commission during
the Intersession. The Chairperson, Commissioner Sawadogo sent two appeals to the
Heads of States of Botswana and Zimbabwe relating to human rights.
22.
Due to lack of funds, the Members of the African Commission were unable to
conduct most of the missions scheduled for the period covered by this Report.
EX.CL/279 (IX)
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Nevertheless, some promotion activities were undertaken, and workshops and seminars
attended, at the invitation of the Partners of the African Commission.
23.
The Chairperson of the African Commission, Commissioner
Sawadogo undertook the following activities:
Salimata
From 16th to 23rd December, 2005, in Addis Ababa, she undertook a mission
with the Vice Chairperson and the Acting Secretary of the Commission, to
hold discussions with the Chairperson of the Commission of the African Union
and the Commissioner for Political Affairs on urgent problems of the
Secretariat of the Commission that needed to be resolved. The issues
included: the Staffing and Administrative problems of the Commission as well
as the need for co-operation between the African Commission and the Organs
of the African Union;
From 17th to 23rd January in Khartoum, Soudan, she participated in the
meeting of the Executive Council preceding the Khartoum Summit whereby
the 19th Activity report was considered. During the Summit, the Chairperson
had a meeting with Mrs Gertrude Mongela, Chairperson of the Pan African
Parliament on how to foster fruitful cooperation between the two Institutions;
On 8 April, 2006, in Dakar, Senegal, the Chairpersin Conference at the
Interstate Institute for Tertiary Education (CESAG). She delivered a paper on:
“Human Rights: the African Experience”. This afforded her the opportunity to
inform the students and participants from diverse sectors of the activites of
the African System of Human Rights and to promote existing mechanisms and
instruments especially those related with the African Commission and the
African Charter on Human and Peoples’ Rights;
From the 9th to 13th April, 2006, the Chairperson undertook a mission to Addis
Ababa with the Vice Chairperson Mr. El Hassan on the situation of the
Secretariat, which far from being resolved in a sustainable manner was
deteriorating. The Delegation raised the following salient points including: the
vacant post of the Secretary, the contracts of the Legal Officers paid by the
African Union which was drawing to an end and the same applying to Legal
Officers paid from extrabudgetary funds, and vacancy of the post of
Documentation Officer. At the meeting, the delegation dilated on all these
issues with The Chairperson of the Commission of the African Union, His
Excellency Alpha Konaré, the Vice Chairperson of the Commission of the
African Union, Mr Patrick Mazimahaka, the Commissioner for Political Affairs,
Mrs Julia Dolly Joiner and the Human Resources Manager, Mrs. Masire;
On 27th April 2006, in Dakar, Senegal, the Chairperson was a resource person
at a Conference organised by the Embassy of South Africa to commemorate
the 12th anniversary of the Liberation and the 30th anniversary of the Women’s
march. The topic of the meeting was ‘’the current and future role of women in
government and the judiciary’’
EX.CL/279 (IX)
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24.
Commissionner Yassir El Hassan, Vice Chairperson of the African Commission
undertook the following activities:
On 5th November 2004 the Bureau held a meeting with the Minister of Justice of
the Republic of The Gambia to discuss various issues.
•
From 9th to 13th April 2006, Commissioner El Hassan and the Chairperson
of the African Commission in Addis Ababa, Ethiopia. They also met with
the Commissioner for Political Affairs and staff of the Recruitment Section
of the AU Commission. Administrative issues as well as other matters
relating to human rights were discussed during these meetings;
•
On the 14th of April 2006, the vice chairperson Commisioner El Hassan
held a meeting with the Vice Chairperson of the AU Commission in Addis
Ababa, Ethiopia in the presence of the A.U Commissioner for political
affairs. The meeting discussed mainly staff admistrative matters and
problems of recruitment at the Secretariat of the ACHPR;
•
From 17th to 23rd of January 2006, in Khartoum, Sudan, he attended the
extra- ordinary session and the 9th ordinary session of the Executive
council of AU, as well as the 6th Assembly of Head of State and
Government. He took the opportunity during this meeting and met with the
Ministers and delegates from some countries which fall under his
responsibility for promotional activities and discussed with them the future
cooperation with the African Commission. He met together with the
Chairperson and the acting Secretary of the African Commission, upon
their request, members of the Zimbabwe delegation to the Executive
Council meeting in Khartoum and discussed issues of mutual concerns;
•
From 27th to 28th March 2006, he participated in a United Nations Regional
Consultation on Human Rights Responsibilities of Transnational
Corporation and Other Business Enterprises. The meeting took place in
Johannesburg, South Africa;
•
From 6th to 9th March 2006, he attended the 2nd Arab National Human
Rights Institutions Conference held in Doha, State of Qatar. The meeting
was held in collaboration with International Coordinating Committee of the
Human Rights National Institutions, the UNHCHR, the Arab League, the
UNESCO and the national commission on Human rights of the State of
Qatar;
•
He has been nominated by the Chairperson to represent the African
Commission at the African Peace and Security Council meeting held in
Addis Ababa in March 2006. He could not undertake this mission;
EX.CL/279 (IX)
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25.
•
On the 25th of April 2006 in Khartoum Sudan, he participated in a one day
Seminar organized by the Women Division of the Sudan Advisory Council
of Human Rights. He spoke as the main commentator on a Paper entitled
“the Legal Protection of HIV/AIDS Infected Persons in International and
National Instruments” presented by Mr. Uostaz Badria Souliman former
Legal Advisor on Legal Affairs of the President of the Republic and Current
Member of Parliament.
•
On the 14th of February, 2006 in Khartoum Sudan he participated in a one
day consultation on the Sudanese new draft law establishing the National
Institution on Human Rights.
Commissionner Kamel Rezag Bara undertook the following activities:
He represented the African Commision at the European Union NGO Forum on
Human Rights devoted to freedom of Expression, held in London on 8th and
9th December, 2005;
On 28th and 29th January 2006, at the invitation of the Minister Delegate for
Family and Women’s Affairs, the Commissioner attended a Seminar on the
implementation of the National Strategy to fight against violence on women
and children in Algeria;
From 14 to 24 February 2006, Commissioner Rezag Bara undertook a fact
finding mission to the Republic of Niger in his capacity as Chairperson of the
Working Group on Indigenous people and Communities;
From 8th to 12th March, 2006 in Rabat, Morocco, at the invitation of the
United Nations Institute for Training and Research (UNITAR), he participated
in the regional capacity building programme for Representatives of Indigenous
Peoples and Communities in the areas of Conflict Prevention and the
Consolidation of Peace. The Commissioner made a presentation on the
African Approach to the promotion and protection of the right to citizenship of
the Indigenous Populations and Communities as a factor of social stability and
cohesion;
From 19th to 25th March 2006, the Commissioner held a meeting with the
Head of the Department for economic and social affairs and responsible for
the technical Secretariat of the UN, New York office on the preparation of the
Permanent Forum of the United Nations on issues of indigenous populations,
scheduled to be held from 15 to 25 May, in New York, USA;
From the 3rd to 5th May 2006, in Algiers, Algeria, the Commissioner was
invited to participate in the meeting of African Experts on Migration. The
opening remarks were made by Mr.Alpha Omar Konaré, Chairperson of the
Commission of the African Union. Mrs Bience Philomina Gawana,
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Commissioner of the African Union responsible for Social Affairs, was also
present.
26.
Commissioner Musa N. Bitaye undertook the following activities:
He participated from 2nd to 7th January, 2006 in Dakar, Senegal, in an
intensive institute organised by the International Centre for Ethics, Justice and
Politic Life of Brandeis University for International Jugdes in recognition of the
African Court on Human and People’s Rights coming into force. Presentations
were made at this institute by reknowned International Judges. Mr. Hans
Correll, former Under Secretary General for Legal Affairs at the United Nations
volunteered to arrange financing to facilitate communications between the
Commissioners of the African Commission;
He attended the Donors Round Table Conference in Nouakchott, Mauritania
for the funding of the Mauritanian elections scheduled for the end of this year
or early 2007. This Roundtable Conference was well-attended by Donors
including France, United States of America, and the European Union. The
outstanding amount for the funding of the elections was 7 million US Dollars
and the meeting noted several official pledges that would cover over half of
the required amount. Senegal pledged 200.000 US dollars and the AU
100.000 US dollars. At the end of the round table, the African Union
Delegation, including Commissioner Bitaye was received by His Excellency,
Mr. Mohammed Ould Val, the Mauritanian Head of State.
27.
Commissioner Mumba Malila reported that he was not able to carry out
promotional missions to any country since he took office at the 38th Ordinary Session. A
request to the Ugandan Government to visit Uganda had not been responded to,
probably due to the elections that took place in that country during the period proposed
for the visit. The Ugandan government has now expressed willingness to receive the
Commissioner in July 2006. Commissioner Malila reported that he however was able to
carry out promotional activities in his own country where he requested the Government
to submit its State report under Article 62 of the Charter. He also held discussions with
some NGOs in the country to explain the importance of obtaining observer status.
28.
Commissioner Bahame T. Nyanduga undertook the following activities:
Between 9 and 11 February 2006, in Kampala, Uganda, took part in a
workshop, on the International Criminal Court, aimed at sensitizing Ugandan
lawyers and NGOs from Northern Uganda on the ICC universal criminal
jurisdiction, following the referral of the LRA by the government of Uganda.
Between 27 February and 1 March 2006, in Nairobi, Kenya, he took part in a
Judicial Colloquium on Domestic Application of International Human Rights
norms, at the invitation of the OHCHR. The Judicial Colloquium brought
together Supreme, Appellate, and High Courts judges from Kenya, Mauritius,
Uganda, Rwanda, South Africa, Tanzania and Zambia. The Colloquium
EX.CL/279 (IX)
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addressed the need to strengthen the implementation of human rights treaty
bodies’ recommendations through enhancement of national protection
mechanisms and domestication of regional and international human rights
instruments.
Between 7 and 9 March 2006, he was at the Centre for Human Rights, of the
University of Pretoria, Tswane, South Africa, and gave lectures to the 2006
LL.M Human Rights and Democratization programme, on the mandate and
mechanisms of the African Commission.
On the 7th April 2007, he gave a lecture to graduate students from the Centre
for African Studies, Gothenburg University, Sweden, visiting Tanzania and
gave a presentation on the Africa Commission, its mandate, and mechanisms,
and the situation of human rights in Tanzania.
Between 9th and 10th May, 2006, I attended the Brainstorming meeting on the
African Commission, organized by the African Union in Banjul, The Gambia.
29.
Commissioner Sanji M. Monageng reported that she undertook a promotional
mission from 3rd to 7 April 2006 to the Kingdom of Lesotho, during which she had fruitful
discussions with the government authorities, international organisations and local non
governmental organisations.
Activities of the Special Mechanisms during the Intersession
30.
In her capacity as Special Rapporteur on the Rights of Women in Africa,
Commissioner Melo undertook the following activities:
In December, 2005, she addressed a letter to Honourable Gertrude Mongella,
Chairperson of the African Parliament to set in motion co-operation in the
domestication of the Protocol in the National Laws;
From 27th to 28th January, 2006 in London, UK, she participated at the 14th
session of the Board of Directors meeting of Penal Reform International (PRI)
in London and was nominated with six other persons as a Member of the
Committee of Experts;
In March 2006, in Abuja Nigeria, Commissioner Melo attended a workshop to
design a Strategic Plan for the ECOWAS region on violence against Women;
From 6 to 8 May 2006, in Banjul, The Gambia, she participated in the NGO
Forum of the African Centre for Democracy and Human Rights Studies and
lobbied for the ratification of the Protocol by all Member States and for the
enforcement of Women’s Rights in Africa.
EX.CL/279 (IX)
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31.
As Special Rapporteur for Refugees, Asylum Seekers and Internally
Displaced Persons in Africa, Commissioner Nyanduga, said that the situation of
refugees in Africa is improving in some areas with the consolidation of peace in postconflict situations such as, in South of Sudan and Burundi. Fighting between factions in
Somalia is paralyzing the Transition Institutions, affecting security and the efforts at
stabilizing the situation as well as the return of refugees.
On the issue of Asylum seekers, the Rapporteur mentioned the situation of
migrants who leave for Europe where immigration/asylum policies are
becoming restrictive and intolerant;
He described the situation of displaced persons in Africa, estimated at 13
million- that is more than half the total number of displaced persons the world
over. He stated that these statistics may not reflect the actual situation of
Africa, because development induced displacement under the urban
generation programmes which occur in almost all African countries and
natural disasters such as the drought in Burundi and the Eastern Africa has
affected many people. Most displaced people included in the Statistics for
Africa have been displaced as a result of conflict;
He commended Angola, Burundi, Liberia and Uganda for adopting legislations
and national IDP policies based on the UN Guiding Principles on Internally
Displacement;
The Rapporteur reminded the partners of the Commission, namely the
National Human Rights Institutions and the NGOs to sensitize the State
Parties which have not done so to adopt the legislation national policies on
internal diplacement;
He mentioned positive points which is the recent signature of the Darfur
Peace Agreement between the Government of the Republic of Sudan and
SLAM and hoped that this Agreement will put an end to the suffering of the
people of Darfur;
The Rapporteur commended the States of the Great Lakes region for
adopting a Protocol on IDPs.
32.
In her capacity as Special Rapporteur on the Freedom of Expression in
Africa, Commissioner Pansy Tlakula received information concerning arrests and
detentions of journalists, administrators and staff of certain Radio Stations and
Newspapers in some African countries.
On the 10th May 2006, the Special Rapporteur seized the opportunity of her
presence in The Gambia to meet the members of the Gambia Press Union as
well as the competent Government Authorities to inform them about her
mission and to discuss the situation on the right to the freedom of expression
in the country;
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On the 3rd May 2006, the Special Rapporteur on the Freedom of Expression,
Ms. Pansy Tlakula together with the United Nations Special Rapporteur on the
promotion and protection of the right to the freedom of opinion and
expression, Mr. Ambeyi Ligabo, the Special Rapporteur on the freedom of
expression of the Organisation of American States, Mr. Ignacio Alvarez, the
Representative of the freedom of the media of the Organisation for Security
and Cooperation in Europe, Mr. Miklos Haraszti prepared and issued a
statement in commemoration of World Press Freedom Day.
33.
In her capacity as Special Rapporteur on Human Rights Defenders in Africa,
Commissioner Reine Alapini-Gansou reported on the situation of these men and women
who, in spite of the risks they run, continue to denounce the violations of human rights
which they have witnessed with the hope of building a world of greater justice and
respect for fundamental freedoms. The Rapporteur pointed out that these past few
months have been marked by an upsurge of threats and harassment against human
rights defenders, and by the increasing use of the judicial system to sanction their
activities. She called on the NGOs to work hand in hand with their Governments in order
to eliminate the tensions and climate of suspicion. The Rapporteur also launched an
appeal to the Member States to engage in constructive dialogue and to guarantee a
conducive environment for the work of the human rights defenders in the Continent. The
Rapporteur carried out various activities during the intersession period comprising:
From the 12th to 21st December 2005,a fact finding mission to Togo with
Commissioner Tom Nyanduga;
From the 2nd to 7th January 2006, in Dakar, Senegal, participated, in a
programme organized by the International Centre for Ethics, Justice and Public
Life of Brandeis University;
34.
In his capacity as Special Rapporteur on Prisons and Conditions of
Detention in Africa, Commissioner Mumba Malila presented a brief Report on prisons
and conditions of detention in Africa. He urged the Member States to strengthen the
measures guaranteeing good detention conditions in the prisons as well as in Police
cells.
The Special Rapporteur reported that he held meetings with several partners,
including a delegate from the French Foreign Affairs, Association for the
Prevention of Torture and Penal Reform International who are interested in
working with the Special Rapporteur mechanism.
35.
The Working Group on Economic, Social and Cultural Rights reported that
the Group had appointed two experts to prepare the draft guidelines on the
implementation of the economic, social and cultural rights in Africa. However,
considering that the two experts have not yet finalized the drafting of the guidelines, the
Working Group intends to hold at least one meeting to examine the contents of the last
version of the guidelines before submitting it to the African Commission for adoption at
its next session.
EX.CL/279 (IX)
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36.
The Working Group on Indigenous Populations/Communities in Africa
presented its Report describing the activities carried out in relation to the missions to
countries, research and information visits, conferences, the publication and
dissemination of the Report of the Working Group, the finalization of the Reports
adopted during the 38th Ordinary Session of the African Commission, the preparation of
a data base, the information index card (booklet), the bulletin and preparation for a
regional seminar in September 2006. The Working Group also outlined the activities that
are to be carried out in the next six months.
37.
The Working Group on the Death Penalty submitted a report stating that during
the intersession the Working Group had not been able to meet not only for financial
reasons but also because the consultations for the appointment of the independent
experts have not yet been concluded. The process of identifying the five experts to be
recommended to the Commission for appointment is concluded. Work on improving the
draft document on the death penalty in Africa is on course. Considering the controversy
surrounding the subject of death penalty, as is the case everywhere else in the world,
the Working Group tried to get experts representing various cultures, religions and legal
systems in the Continent. The Working Group also intends to pursue its efforts in
collecting contributions and ideas from partners, from the public and from as many
sources as possible.
38.
The Working Group on Specific Issues relating to the work of the African
Commission held a meeting in April 2006 in Pretoria, South Africa at which the
following issues were discussed:
The Review of the Rules and Procedures of the African commission;
The Relationship between the African Commission and the African Court
on Human and Peoples’ Rights.
39.
The Working Group on the implementation of the Robben Island Guidelines
was not able to carry out any activities during the intersession period due to lack of
funds. It is important to point out that all the activities undertaken by the Working Group
had been funded by the Association for the Prevention of Torture (APT) which is a
member of the Working Group but which is currently in financial difficulties.
Commissioner Monageng, Chairperson of the Working Group had, thus, launched an
appeal to the Secretariat to set up efforts for the acquisition of funds and to all the
Organizations concerned present at the 39th Ordinary Session to help support the work
of the Working Group in this regard.
SECTION IV:
Protection Activities
40.
During its 39th Ordinary Session, the African Commission considered fifty nine
(59) Communications three (3) of which were for review, eight (8) were decisions on
seizure, thirty one (31) were decisions on admissibility and seventeen (17) were
decisions on the merits. Besides, after consideration, it decided to strike off two
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Communications from its register. The list of Communications figures in Annex four (4)
of this Report. For various reasons, the Commission deferred consideration of the other
Communications to the 40th Ordinary Session.
Entry into force of the Protocol to the African Charter on the Rights of Women in
Africa
41.
It is important to recall that the Protocol to the African Charter on the Rights of
Women had been adopted by the 2nd Ordinary Session of the Assembly of Heads of
State and Government of the African Union on the 11th July 2003 in Maputo,
Mozambique. To date, eighteen (18) State Parties have deposited their instruments of
ratification of the said Protocol. These are:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Benin
Cape Verde
Comoro Islands
Djibouti
The Gambia
Libya
Lesotho
Malawi
Mali
Mauritania
Mozambique
Namibia
Nigeria
Rwanda
Senegal
Seychelles
South Africa
18. Togo
42.
The African Commission invites the Member States of the African Union who
have not yet done so to ratify this Protocol as early as possible.
SECTION V:
Administrative and Financial matters
43.
Under Article 41 of the African Charter, the Commission of the African Union is
responsible for meeting the costs of the African Commission’s operations, including the
provision of staff, financial resources and services. However, the work of the Secretariat
of the African Commission continues to be severely compromised due to lack of funding.
Even for its staffing requirements, the African Commission continues to depend more on
extra-budgetary resources than on the AU for funding. Notwithstanding the extrabudgetary resources, the staffing situation still remains inadequate, given the increasing
EX.CL/279 (IX)
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workload of the African Commission. There is an urgent need to recruit more staff of all
categories to ensure the smooth running of the Commission.
44.
In order to supplement the limited resources allocated to it by the African Union,
the African Commission continues to seek financial and material assistance from
external partners.
45.
During the period under review, the African Commission benefited from such
financial and material support from the following partners -:
a) Danish Human Rights Institute
46.
The Secretariat of the African Commission received extra-budgetary resources
from the Danish Human Rights Institute (former Danish Human Rights Centre) to finance
the post of a Policy Phasing and Resource Mobilisation Officer, as well as research
activities.
b) Rights and Democracy
47.
The Canadian NGO, Rights and Democracy-made a grant to the African
Commission for the following activities -:
•
•
•
•
Campaign for the Ratification of the Protocol to the African Charter on the
establishing an African Court of Human and Peoples Rights;
Ratification of the Protocol to the African Charter on the Rights of Women in
Africa;
Meeting on democracy and elections in Africa; and
The services of 4 Fellows to the Special Rapporteurs on the Rigths of Women,
Freedom of Expression, Prisons and Refugees, Internally Displaced Persons,
Asylum Seekers and Migrants in Africa.
c) Danish International Development Agency (DANIDA)
48.
DANIDA continues to support activities of the Working Group on Indigenous
Populations/Communities. This support will continue until 2007.
d)
The Office of the UN High Commissioner for Human Rights (OHCHR)
49.
The OHCHR continues to finance the activities of the Special Rapporteur on
Human Rights Defenders in Africa and for an Assistant to this mechanism; however,
these funds will come to an end in June 2006.
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50.
The African Commission expresses its profound gratitude to all donors and
partners, whose financial, material and other contributions have enabled it to discharge
its mandate during the period under review.
SECTION VI:
Adoption of the Twentieth Activity Report
51.
After consideration of the present Twentieth Activity Report by the Executive
Council of the African Union the latter will submit it to the 7th Ordinary Session of the
Assembly of Heads of State and Government of the African Union, meeting in Banjul,
The Gambia in July 2006. This is for the purpose of enabling the Assembly to adopt the
said Report and to authorize its publication.
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LIST OF ANNEXES
Annex I
Agenda of the 39th Ordinary Session held from 11 to 25 May
2006 in, Banjul, The Gambia
Annex II
Report of the Brainstorming meeting
Annex III
Resolutions adopted during the 38th Ordinary Session and
Responses from States
Annex IV
Communications
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Annex I
Agenda of the 39th Ordinary Session
11th to 25th May 2006,
Banjul, The Gambia
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Annex I
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AGENDA OF THE 39th ORDINARY SESSION OF THE AFRICAN
COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
(From 11th May to 25th May 2006, Banjul, The Gambia)
Item 1: Opening Ceremony (Public Session)
Item 2: Adoption of the Agenda (Private Session)
Item 3: Organisation of Work (Private Session)
Item 4: Human Rights Situation in Africa (Public Session)
a) Statements by State Delegates and Guests;
b) Statements by Intergovernmental Organisations;
c) Statements by National Human Rights Institutions; and
d) Statements by NGOs.
Item 5: Cooperation and Relationship with National Human Rights Institutions
and NGOs (Public Session)
1. Cooperation between the African Commission on Human and Peoples’
Rights and National Human Rights Institutions:
a) Relationship with National Human Rights Institutions; and
b) Consideration of applications for affiliate status from National Human
Rights Institutions.
2. Cooperation between the African Commission on Human and Peoples’
Rights and NGOs.
a) Relationship with NGOs; and
b) Consideration of applications of NGOs for Observer Status.
Item 6: Consideration of State Reports (Public Session):
a) Status of Submission of State Party Reports
b) Consideration of -:
I)
II)
III)
IV)
The Initial Report of Seychelles;
The Periodic Report of Cameroon;
The Periodic Report of Libya; and
The Initial Report of the Central African Republic
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Item 7: The Establishment of the African Court on Human and Peoples’
Rights: (Public Session)
Status of ratification of the Protocol to the African Charter on the Establishment of
an African Court on Human and Peoples’ Rights and the effective establishment of
the same.
Item 8: Promotion Activities (Public Session)
a) Presentation of the Activity Reports of the Chairperson, Vice-Chairperson
and Members of the African Commission;
b) Presentation of General Report on the Brainstorming / Consultation
meetings;
c) Presentation of the Report of the Special Rapporteur on Prisons and
Conditions of Detention in Africa;
d) Presentation of the Report of the Special Rapporteur on the Rights of
Women in Africa and the status of ratification of the Protocol to the African
Charter on the Rights of Women in Africa;
e) Presentation of the Report of the Special Rapporteur on Refugees, Asylum
Seekers and Internally Displaced Persons in Africa;
f) Presentation of the Report of the Special Rapporteur on Human Rights
Defenders in Africa;
g) Presentation of the Report of the Special Rapporteur on the Freedom of
Expression in Africa;
h) Presentation of the Report of the Chairperson of the Working Group on the
Implementation of the Robben Island Guidelines;
i) Presentation of the Report of the Chairperson of the Working Group on the
Situation of Indigenous Peoples/Communities in Africa;
j) Presentation of the Report of the Chairperson of the Working Group on
Economic, Social and Cultural rights in Africa;
k) Presentation of the Report of the Working Group on Specific Issues
Relevant to the Work of the African Commission;
l) Report of the Working Group on the Death Penalty; and
m) Organisation of Conferences and Seminars.
Item 9: Appointment/Renewal of the term of the Special Rapporteur on
Refugees, Asylum Seekers and Internally displaced Persons in Africa (Private
Session)
Item 10: Consideration and Adoption of draft Reports (Private Session)
1. Consideration and adoption of mission reports of the African
Commission:
a) Draft Reports on the Promotional Missions to Burundi, Rwanda
and Mali;
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Annex I
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b) Draft Report of the Missions of the Special Rapporteur on the
Rights of Women in Africa to Democratic Republic of Congo and
Cape Verde;
c) Draft Report of the Fact-finding Mission to Togo;
d) Draft reports of the mission of the Working Group on Indigenous
Populations/Communities to Niger.
2. Consideration and adoption of -:
The final report of the Working Group on Specific Issues Relevant to
the Work of the African Commission.
Item 11: Establishment of a Hotline on Prisons in Africa: Modalities of Status of
Establishment and operationalisation of the Hotline on Prisons in Africa (Private
Session)
Item 12: Consideration of: (Private Session)
a) The Working Document on the relationship between the African
Commission and the proposed African Court of Justice and Human
Rights;
b) The Paper on Locus standi before the African Commission;
c) The Proposed Project by the international Centre for Ethics, Justice and
Public Life at Brandeis University on “Promoting the knowledge of Rights
in African languages”;
d) The Report of Studies on Violence Against Women in Africa;
e) The Guidelines for States Reports on the implementation of the Protocol
on the Rights of Women
Item 13: Protection Activities: (Private Session)
Consideration of Communications
Item 14: Methods of Work of the African Commission: (Private Session)
a) Review of the mandate of the Special Rapporteur on Arbitrary Executions
and Extra-Judicial Killings in Africa;
b) Follow-up, implementation and publication of the African Commission’s
decisions, resolutions and recommendations; and
c) Matters arising from the consideration of the 19th Activity Report of the
African Commission by the 8th Ordinary Session of the Executive Council of
the African Union (20th - 21st January 2006) and the 6th Ordinary Session of
the Assembly of Heads of State and Government of the African Union (23rd 24th January 2006) in Khartoum, Sudan.
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Item 15: Administrative and Financial Matters: (Private Session)
a) Report of the Secretary on the administrative and financial situation of the
African Commission and its Secretariat; and
b) Construction of the Headquarters of the African Commission.
Item 16: Consideration and Adoption of Recommendations, Decisions, and
Resolutions including: (Private Session):
a) Recommendations of the NGO Forum; and
b) Concluding Observations on the initial reports of Seychelles and the Central
African Republic and the periodic reports of Cameroon and Libya.
Item 17: Dates and Venue of the 40th Ordinary Session of the African
Commission (Private Session)
Item 18: Any Other Business (Private Session)
Item 19: Adoption of the 20th Activity Report of the African Commission, the
report of the 39th Ordinary Session and Final Communiqué of the 39th
Ordinary Session (Private Session)
Item 20: Reading of the Final Communiqué and Closing Ceremony (Public
Session)
Item 21: Press Conference (Public Session)
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Annex II
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ANNEX II
REPORT OF THE BRAINSTORMING MEETING ON THE
AFRICAN COMMISSION
EX.CL/279 (IX)
Annex II
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Report of the meeting of the Brainstorming Meeting on the African Commission
on Human and Peoples’ Rights (ACHPR): 9-10 May 2006,
Corinthia Atlantic Hotel, Banjul, The Gambia
INTRODUCTION:
1.
The African Union Commission organized a two day brainstorming session on the
African Commission on Human and Peoples’ Rights (ACHPR) on 9-10 May 2006 in
Banjul, the Gambia. The session brought together participants who included a
representative of the government of the Republic of the Gambia, the Commissioner for
Political Affairs of the African Union, members of the ACHPR, representatives of the Pan
African Parliament, Permanent Representative Committee, members of staff of the
Department for Political Affairs, the Acting Director for Administration of the AU, the
Peace and Security Department, ECOSOCC, representatives of the OHCHR, UNHCR,
the Chairperson of the Coordinating Bureau of National Human Rights Institutions, and
Civil Society1.
Opening Ceremony:
2.
H.E. Ambassador Salamata Sawadogo, Chairperson of the ACHPR welcomed
the participants to the Brainstorming meeting and stated that it was a very important
initiative by the AU Commission, to discuss highly important matters pertaining to human
rights.
3.
She declared that recommendations of the 2001 Mauritius Plan of Action, the
2003 Addis Ababa Retreat, and the 2004 Uppsala International Conference were aimed
at the enhancing the efficiency of the African Commission. She expressed the hope that
the brainstorming would clarify various issues relating to the mandate of the African
Commission, and the role of the various AU organs and institutions.
In that regard, she welcomed the presence of the Commissioner for Political Affairs and
officials from the AU Commission, AU organs as well as partners of the ACHPR. She
added that the ACHPR would raise all relevant matters for discussion, and propose
recommendations.
4.
The Chairperson of the ACHPR added that urgent steps should be taken to give
effect to the result of the meeting, in the areas of funding, staff matters and other areas
because the prevailing situation seriously hampers the work of the ACHPR. She added
that in the past, the ACHPR has set up a Working Group and organised a number of
meetings with relevant actors from institutions and partners to enhance the efficiency of
the ACHPR.
1 The list of participants is attached to this report.
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5.
In his address, the representative of the Government of the Gambia, Dr. Andrew
Carroll stressed the high the importance of the Brainstorming meeting to the ACHPR.
He pointed out that human rights are universal, and that their violation should be the
concern of everyone, especially the ACHPR, which is the main African institution
created in that regard. State Parties to the African Charter should abide by the African
Charter, which they adopted.
6.
Dr. Carroll further declared that all Conventions on human rights should be
respected by all States, whether or not they have ratified them.
7.
H.E Mrs. Julia Joiner, Commissioner for Political Affairs, delivered the keynote
address and observed that the Brainstorming is expected to enhance the relationship
between the ACHPR and other organs of the AU. She pointed out that the
representatives from the PAP, the ACRWC, the ECOSOCC, PSC, PRC Sub Committee
on Structures, independent experts, former members of the ACHPR, representatives
from UN agencies, National Human Rights Institutions have been invited to attend the
meeting.
8.
She said that the African Union recognizes the constraints and challenges facing
the African Commission She urged the meeting to identify new synergies, existing gaps,
appropriate responses, and opportunities in the protection of human rights in Africa. She
assured the meeting that State Parties were committed to translate the African regional
human rights instruments into practical reality. She expressed the commitment of the
African Union to implement the recommendations of the meeting.
9.
Prior to the Brainstorming, the ACHPR held a two day consultation meeting in
preparation for the same. The meeting was also preceded by a meeting of experts in
Addis Ababa, Ethiopia, organised by the OHCHR.
Progress of the Brainstorming meeting
10.
The meeting elected a Bureau composed of the H.E Salamata Sawadogo,
Chairperson of the ACHPR and HE Ambassador Emile Ognimba, Director for Political
Affairs, Vice Chairperson. Commissioner Bahame Tom Nyanduga, was appointed as the
Rapporteur.
Program of work
11.
The brainstorming session discussed the following themes and topics;
The legal framework and operational arrangements,
1.
the status , mandate and independence of the African Commission;
2.
reports on the African Commission;
(a)
(b)
ACHPR Evaluation report,
Addis Ababa Retreat,
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Annex II
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(c)
Uppsala International Conference Report;
The functioning of the African Commission;
(a) the financial, administrative and staff matters,
(b) construction of the headquarters;
Relationship with cooperating partners;
Relationship with other organs of the African Union;
Networking between the African Union and organs.
12.
The thematic discussions were introduced by members of the African
Commission, who identified constraints, challenges and made recommendations.
Participants contributed to the discussions. The representatives from the African Union
Commission made clarifications on the policy and administrative issues.
Item 1:
The status, the mandate and the independence of the ACHPR
13.
Discussions on the status, independence and impartiality of the ACHPR raised
the following challenges:
a)
incompatibility of Members of the ACHPR in the context of Articles 31 and
38 of the African Charter;
b)
Some current Members of the ACHPR hold official positions in their
respective State, thereby creating a perception of lack of independence.
c)
The effect of Assembly/AU/Decision 101(VI) on the preparation and
publication of the Annual Activity reports under articles 59 (1) and (3) in
relation to the mandate of the ACHPR under Article 45;
14.
Constraints arising out of the insufficiency of resources that the African Union
provides to the ACHPR for the discharging of its mandate under Article 41 of the
Charter.
15.
Some State Parties have accused the ACHPR of being too much dependent on
donor funds thereby affecting its independence and credibility.
16.
The ACHPR considers that the decision adopted by the Assembly of Heads of
State and Government of the AU during the Khartoum Summit needs to be revisited,
bearing in mind its impact on the publication of its decisions and resolutions under the
terms of Article 59(1) of the Charter, and the independence of the ACHPR.
17.
The current number of Members of the ACHPR is insufficient to adequately
implement its mandate.
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Recommendations:
a) In order to safeguard the independence and impartiality of ACHPR, State Parties
should comply strictly to the AU Eligibility criteria on the nomination of candidates
and election of members of the ACHPR, and not elect candidates holding portfolios
and positions that might impede their independence as Members of the ACHPR.
b) The AU criteria shall apply to members of the ACHPR, whose status shall change
after their election.
c) The AU should provide adequate funding to the ACHPR for it to successfully
discharge its mandate.
d) Extra budgetary resources allocated to the ACHPR for its activities should be
channelled through the African Union Commission.
e) The number of members of the ACHPR should be increased from 11 to between 15
or 18 in order to enable the institution efficiently discharge its mandate.
f) The ACHPR should attend the budgetary meetings of the AU in order to present and
defend its budget.
g) The AU Commission should ensure that the ACHPR takes part effectively in the
meetings of the policy organs of the AU bearing in mind the AHG/AU 2003 decision
in Maputo recognised its status as an organ of the AU.
h) The ACHPR should submit to the AU Commission its opinion on the interpretation of
Article 59 (1) of the Charter concerning the publications of its reports.
i) The ACHPR requests that the Executive Council of Ministers recommends the
AHG/AU to revisit its decision adopted in Khartoum as far as it concerns activities of
the ACHPR that do not fall within the scope of protection mandate of the ACHPR.
Item 2:
Reports on the work of the ACHPR:
18.
The meeting discussed the presentation on the Evaluation Report, the Addis
Ababa Retreat report and the Uppsala conference Report, which identified challenges to
the efficient functioning of the ACHPR since its inception
Challenges:
19.
The ACHPR has barely 30 days in a year to reflect on a lot of issues relating to
reports, communications and others. These constraints are critical to its efficiency.
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20.
There is a necessity to establish a follow up mechanism on the publication of the
Annual Activity Reports of the ACHPR.
21.
There is lack of visibility and lack of public awareness on the work of the ACHPR,
due to lack of resources to publish the reports of the ACHPR.
22.
Failure by States to comply with requests for adoption of provisional measures
under communication procedure. The delay in States replies under the communications
procedure has negative impact on the speed of consideration of the communication by
the ACHPR.
23.
There is insufficient expertise at the Secretariat, due to insufficient number of
Legal Officers, to deal with communications.
24.
States do not understand fully what is expected from them in their reports. Some
do not comply with the requirement of Article 62.
25.
Special mechanisms of the ACHPR have been doing a good work but are facing
constraints of inadequate financial and administrative support, and the successful
special mechanisms have been fully funded by donors.
26.
The Strategic plan of the ACHPR comes to an end by December 2006 and it
would be necessary to ensure that a new plan is prepared taking into account specific
needs of the ACHPR within the broad framework of the AU Strategic Plan.
Recommendations:
a) States should appoint Focal Points, to deal with issues related to Human Rights.
b) The capacities of the Website of the ACHPR should be enhanced in order to
ensure more visibility of its work. AU should allocate more resources to the
ACHPR to enable it publish, disseminate ad publicise its reports.
c) The guidelines on State reporting should be made user friendly to enable State
Parties to understand better what is required from them in their reports under
Article 62 of the Charter. States should cooperate with NGOs and NHRI in the
preparation of their reports.
d) The ACHPR should consider the human rights situation in States that do not
comply with Article 62, with the information available.
e) The AU should consider a review of the Charter to render the submission and
presentation of State reports under Article 62 from 2 years to 4 years.
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Item 3:
Administrative and financial matters and the construction of the
Headquarters of the ACHPR
27.
The meeting discussed the presentation on the administrative and financial
situation of the Secretariat and the construction of the Headquarters of the ACHPR. A
number of concerns were raised, particularly the delay in the recruitment of the
Secretary to the ACHPR and its impact on the effective implementation of the mandate
of the ACHPR. The participants regretted the situation affecting the staff of the
Secretariat and urged the relevant authorities to address all issues affecting staff
benefits and conditions of service.
Challenges:
28.
Problems relating to adequacy of the budget, its preparation and presentation
through the administrative and political organs of the AU.
29.
The Secretary and staff of the Secretariat of the ACHPR are presently recruited
by the AU Commission without due consideration of the Rules of Procedure of the
ACHPR.
30.
The position of Secretary to the ACHPR has been vacant over the past five
months and this seriously affects the work of the Secretariat.
31.
Only 2 Legal Officers are presently paid by the AU. 5 Legal Officers have always
been paid from extra budgetary resources and the funding of these staff is running out
by end of 2006.
32.
The terms of service and conditions of work for the staff of the Secretariat are
deplorable and do not always comply with the regulation in force. There is very low
moral among the staff.
33.
The functions of Administration and Finance Officer are presently discharged by
one staff and this has implications as far as transparency in the management of
resources is concerned.
34.
The AU allocates USD 45000 for promotional missions per annum. This is
enough to cover just 4 missions whereas at least 2 missions per Commissioner are
necessary annually.
35.
The DSA and honoraria paid to Commissioners since the inception of the ACHPR
for their administrative expenses are not enough to cover the expenses they face.
36.
When an activity of the ACHPR is undertaken in a country where a member of
the ACHPR is resident, he takes part in those activities without receiving perdiem.
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37.
The AU allocates USD 200000 per ordinary session of the ACHPR, which is
inadequate to cover the cost of conducting a session. The amount is short by USD
50000 for the costs of conducting the 2006 sessions. State Parties have not sufficiently
hosted sessions of the ACHPR, thus imposing and additional burden on the Republic of
The Gambia to host successive sessions.
38.
The special mechanisms of the ACHPR function exclusively on extra budgetary
resources.
39.
The Gambia has not been able to construct the Headquarters of the ACHPR.
40.
There is need to rationalise the efficacy of location of the ACHPR in relation to
the AU Sirte Criteria for hosting African Union organs in view of the different locations for
the Court. That should reflect the rational utilisation of resources for the sake of better
promotion and protection of human rights.
41.
Transparency and integrity should be the guiding principles in the management of
the Secretariat. There should not be differences in salaries, terms and conditions of
service for staff working at the same level.
Recommendations:
a) For the efficient functioning of the ACHPR, the Secretary to the ACHPR should
be appointed without delay by the AU Commission in consultation with the
Bureau of the ACHPR.
b) The authority of the AU Commission over the Secretary and staff of the
Secretariat of the ACHPR should be exercised in consultation with the Bureau of
the ACHPR.
c) The ACHPR shall submit to the PRC proposals to enable the recruitment by the
AU Commission of more staff at the secretariat, including at least 11 Legal
Officers and a Public Relation Officer. Recruitment of staff of the ACHPR should
always be done in consultation with the Bureau of the ACHPR.
d) The AU Commission should allocate adequate resources, necessary for
promotional and protection missions of the ACHPR, Special Mechanisms of the
ACHPR after being presented and defended in the PRC and the Executive
Council by the ACHPR Bureau.
e) The honorarium of the Members of the ACHPR should be raised. Honorarium
should be paid to Members of the ACHPR when they participate in an activity of
the ACHPR. At least half perdiem should be paid to members of the ACHPR who
attend activities in countries where they reside.
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f) The Chairperson of the ACHPR should be invited to present and defend the
budget of the ACHPR at AU budgetary meetings.
g) Urgent steps must be taken to ensure that the functions of Finance and
Administrative Officers at the ACHPR are separated.
h) The Government of the Republic of The Gambia should take appropriate steps to
construct the Headquarters of the ACHPR.
i) The AU Commission should speed up the process of setting up of a Voluntary
Fund on Human Rights to assist funding the activities of the ACHPR and other
human Rights Institutions. The Fund should be managed by the AU Commission.
j) The Republic of The Gambia and the AU should review the Headquarters
Agreement in line with the Sirte Criteria on the hosting of AU organs.
Item 4: Relationship between the ACHPR and its partners
42.
The ACHPR described the cooperation it enjoys with its partners, namely the
State Parties, the National Human Rights Institutions (NHRI), the international
cooperating partners and the NGOs. Appreciation was expressed for the support
received from partners, namely the OHCHR, the UNHCR, the ICRC, international
development assistance agencies and NGOs, in the discharge of the mandate of the
ACHPR, evolution of its jurisprudence and support for special mechanisms.
43.
The ownership of the activities of the ACHPR was however emphasised. The
meeting identified challenges experienced in relationship with partners.
State Parties
Challenges:
44.
Need for State Parties to fulfil their financial obligations to the AU.
45.
Certain State Parties do not grant the ACHPR authorisation to undertake
missions in their countries.
46.
There is no formal relation between the ACHPR and national Parliaments.
47.
Certain State Parties do not accept to work with NGOs and do not facilitate the
work of the NGOs.
48.
Certain State Parties do not comply with the recommendations of the ACHPR
and this impedes on the work of the ACHPR
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Recommendations:
a) The ACHPR should explore the possibility of the Peace and Security Council of
the AU (PSC) to enforce the decisions of the ACHPR within the framework of
Article 19 of the PSC Protocol.
b) State Parties to favourably consider granting authorisation to requests from the
ACHPR to visit their countries.
c) ACHPR should develop and execute an implementation plan for the follow up of
their decisions, resolutions and recommendations.
d) State Parties should be encouraged to host sessions of the ACHPR, alternating
with The Gambia in order to give visibility to the ACHPR and promote the African
Charter.
e) State Parties should involve NHRI in the drafting of State reports at national level.
f) The ACHPR should reflect on ways and means to establish formal relationship
with African national Parliaments in the human rights areas, including the
domestication of human rights instruments.
National Human Rights Institutions (NHRI):
Challenges:
49.
NHRI need to enhance the role of NHRI through their regular and active
participation in ordinary sessions of the ACHPR.
50.
NHRI enjoying affiliate status with the ACHPR, do not send reports to the ACHPR
on a regular basis and do not fulfil their obligations under the Resolution on Affiliate
status.
51.
Lack of independence and autonomy by some NHRI and the problem of
inadequate funding, which makes them inefficiency.
52.
Lack of an appropriate forum between the NHRI and the ACHPR to exchange
experiences.
Recommendations:
a) ACHPR should provide the NHRI with an enhanced affiliate status and establish
a Focal Point in the Secretariat in order to communicate easily with NHRI
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b) NHRI should endeavour to file shadow reports to the ACHPR and they should
encourage their States to comply with recommendations of the ACHPR and the
African Charter in general.
c) NHRI should be involved in the meetings of the ACHPR on a regular basis
d) NHRI should set up a Forum to reflect on their contribution to the work of the
ACHPR.
Non Governmental Organisations (NGOs)
Challenges:
53.
The information supplied by NGOs on human rights situation in African countries
may, in certain cases, be inaccurate, and this affects the credibility of the work of the
NGOs. Many NGOs do not comply with the principles of cooperation with the ACHPR
54.
Many NGOs face the problem of the orientation imposed by donor on the
financial assistance they grant them. Some State Parties also view NGOs funding of
certain activities of the ACHPR as compromising the credibility of the ACHPR
55.
Grave cases of violations of human rights in Africa are in certain cases done by
powerful non state actors within and outside Africa, in particular violating economic,
social and cultural rights.
56.
There is need for the setting up of a triangular relationship between the ACHPR,
NGOs and relevant AU organs.
57.
Certain States do not cooperate with NGOs at national or international levels:
Governments do not provide them with funding or information. Human rights activists
are sometimes arrested for their activism.
58.
NGOs are not involved in the drafting of State reports under Article 62 of the
African Charter
Recommendations:
a) The ACHPR should enforce the existing provisions regarding its relations with
NGOs and take appropriate action against those that do not comply with the said
provisions.
b) NGOS should provide accurate information in their draft resolutions and the
ACHPR should set up a verification mechanism to that extent
c) NGOs should assist in disseminating information on the work of the ACHPR
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d) Organisations working in the promotion and protection of women rights should be
encouraged to bring more communications before the ACHPR.
e) NGOs should work with the ACHPR to enhance mechanisms for the better
protection of economic, social and cultural rights, and the rights of indigenous
minorities in Africa.
f) The ACHPR should reflect with the AU Commission and NGOs on the setting up
of a relationship between the three entities.
g) The ACHPR should address the human rights violations committed by non state
actors including those based within and outside Africa.
International Cooperating partners:
Challenges:
59.
More non African interns are funded by donors, which leads to development of
non local talents.
60.
The perception that donors impose conditions on the utilisation of the resources,
which they grant the ACHPR, and NGOs in Africa.
61.
There is need for better use of skills, experience and expertise of UN and other
intergovernmental institutions to strengthen the capacity of the ACHPR and develop
closer working relationship with the OHCHR.
Recommendations:
a) International partners should be encouraged to fund more African interns to the
ACHPR, over and above those from outside Africa, so that Africa develops
capacity and expertise.
b) The Bureau of the ACHPR should be fully involved in the process of soliciting for
external funding by the Secretariat of the ACHPR and the execution of
agreements with donors.
c) The ACHPR and AU should develop guidelines on donations to be received by
the ACHPR and their utilisation.
d) The OHCHR should assist in fostering the cooperation between the Special
mechanisms of the ACHPR and the UN.
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Item 5:
Relationships between the ACHPR and other UA organs and
Institutions:
62.
The presentation highlighted the historical and legal basis upon which the
ACHPR was requested to examine its relationship with the various organs and
programmes of the AU. It also highlighted the areas of complementarity and the need for
mutual engagement between the ACHPR and the various organs and programmes of
the AU. The participants recognised the need to urgently establish cooperation among
the various organs and programmes in order to avoid inefficient utilisation of scarce
resources, duplication, mutual suspicion and lack of knowledge about the programmes,
mandates and activities of the respective organs. They recalled their respective
obligations to ensure the fulfilment of the objectives and principles provided for under
the Constitutive Act of the AU. A number of practical recommendations were made to
address these concerns.
Challenges:
63.
The ACHPR is yet to finalise the item on its relationships between the other AU
organs and institutions. As such, there are no formal relationship with the PAP, the
ECOSOCC, the PSC, the African Court on Human and Peoples’ Rights, the African
Committee on the Rights and Welfare of the Child, the NEPAD, the CSSDCA/CIDO, the
Division on Refugees, IDPs and Humanitarian Affairs, as well as other relevant regional
organisations.
64.
There is need for a rationalisation of the utilisation of resources for the promotion
and the protection of human rights in Africa.
65.
There is need for regular interaction between the ACHPR and its partners, to
reflect in a coordinated manner on the functioning of the African human rights system.
66.
There is uncertainty relating to which category the decisions and
recommendations of the ACHPR belong within the framework of the AHG/AU Decisions,
(Directives, Declarations or Recommendations) and this causes problem as to the legal
status and the implementation of the said decisions and recommendations.
Recommendations:
In order to ensure sustainable coordination of human rights activities discharged by
different organs of the AU, cooperating partners shall assist the Department for
Political Affairs of the AU Commission to built its capacity to coordinate the
expanding scope of institutions dealing with human rights issues in Africa, by inter
alia seconding and/or funding a post to that effect.
There is an overriding and urgent need for the ACHPR to initiate consultations with
the organs of the AU, namely, the PAP, the PSC and the ECOSOCC, with a view
EX.CL/279 (IX)
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to establishing modalities to formalise their relationship and develop common
programmes.
The ACHPR should invite representatives from the above named organs to attend its
sessions and vice versa, in order to reinforce mutual cooperation.
The OHCHR and other similar organisations as appropriate, should support the AU
Commission to convene a donor conference to mobilise resources for the
implementation of its Agenda on Democracy, Good Governance and the
promotion and protection of human and peoples’ rights.
The ACHPR, while reviewing its Rules of Procedure, should start consultations with
the African Court on Human and Peoples’ Rights, immediately after its
operationalisation, in order to establish modalities of cooperation and
consultation.
The ACHPR should establish formal relationship with the African Committee of
Experts on the Rights and Welfare of the Child. This should be done in line with
the necessity of rational utilisation of the resources for the promotion and
protection in Africa.
The ACHPR and the APRM should formalise modalities of cooperation with the view
to enabling the ACHPR participating in the APRM Review process, in order to
ensure that all human rights and international humanitarian law indicators are
taken in to account.
Focal Points should be appointed within regional organisations to enhance
cooperation with the ACHPR in the area of human rights.
The AU Commission should enhance the cooperation already established between
the Special Rapporteur on Refugees, IDPs and Asylum Seekers in Africa and the
Division on Refugees, IDPs and Humanitarian Affairs of the AU. Similar
arrangements should be developed between other special mechanisms of the
ACHPR and relevant AU departments or organs.
The ACHPR should reflect on how to interact on a regular basis with its partners, on
ways and means to enhance its work and relationship with other relevant organs.
The ACHPR should provide information on its work to all relevant AU organs
including the PRC.
The AU Commission should clarify the legal status of the ACHPR decisions and
recommendations, within the context of Rule 33 of the AHG/AU Rules of
Procedure, in order to facilitate implementation of decisions of the ACHPR and
respect of the African Charter.
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The AU Commission shall facilitate briefing sessions on human rights once every two
years or as the need arises to brief the members of the PRC and other relevant
organs of the AU.
CONCLUSION:
67.
All participants acknowledged the importance of the Brainstorming meeting and
urged the AU to institutionalise a mechanism for dialogue among the various organs,
institutions and programmes of the AU, every two years before the session of the
ACHPR, in order to ensure that similar concerns are addressed in future.
68.
The participants emphasised the need for the AU and the ACHPR to immediately
finalise the process of recruiting the Secretary to the ACHPR so that the implementation
of these recommendations are not delayed.
Banjul, The Gambia, 10 May 2006
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ANNEX III
Resolutions Adopted During the 38th Ordinary Session and
Responses from States
¾ Resolution on the human rights situation in Ethiopia;
¾ Resolution on the human rights situation in the Darfur region in
Sudan;
¾ Resolution on the human rights situation in Uganda;
¾ Resolution on the human rights situation in Zimbabwe
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RESOLUTION ON THE SITUATION OF HUMAN RIGHTS IN ETHIOPIA
The African Commission on Human and Peoples’ Rights meeting at its 38th
Ordinary Session held in Banjul, The Gambia from 21 November to 5 December 2005;
Considering that the Democratic Federal Republic of Ethiopia is a State Party to
the African Charter on Human and Peoples’ Rights;
Recalling that freedom of opinion and expression as well as the right to
assembly are fundamental rights enshrined in international instruments ratified by
Ethiopia, and notably Articles 9 and 11 of the African Charter on Human and Peoples'
Rights;
Recalling Article 7 of the Charter which ensures the right to a fair trial and the
Guidelines and Principles on the Right to a Fair Trial and to Judicial Assistance in Africa
developed by the African Commission on Human and Peoples’ Rights;
Deeply concerned about the situation going on in Ethiopia since June 2005 and
notably the arbitrary arrests and other serious human rights violations directed at
suspected members and supporters of opposition groups, students and human rights
defenders;
Recalling that on 8th June and 1st November 2005 security forces killed and
injured demonstrators during a demonstration protesting the results of the parliamentary
elections in Addis Ababa and other towns;
Concerned by the arbitrary detention of opposition leaders and journalists in
Ethiopia;
Noting the creation by the government of Ethiopia of a National Parliamentary
Commission to investigate the facts concerning the acts of violence in the country;
1. Deplores the killing of civilians during confrontations with security forces;
2. Requests that the Ethiopian authorities release arbitrarily detained political
prisoners, human rights defenders and journalists;
3. Calls on the Ethiopian government to guarantee, for any accused individual, the
right to a fair trial as provided by the African Charter on Human and Peoples’
Rights and other relevant international human rights instruments, including the
right to seek pardon or commutation of sentence;
4. Calls on the Ethiopian government to ensure the impartiality, independence and
integrity of the National Parliamentary Commission investigating the recent acts
of violence in the country and to bring the perpetrators of human rights violations
to justice;
5. Urges the Ethiopian government to guarantee, at all times, freedom of opinion
EX.CL/279 (IX)
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and expression as well as the right to hold peaceful demonstration and political
assembly;
6. Requests that the Ethiopian government guarantees, in all circumstances, the
physical and psychological integrity of human rights defenders in compliance with
international instruments especially the Declaration of Human Rights Defenders
adopted by the U.N. General Assembly in December 1998;
7. Calls on the Ethiopian government to comply with the international instruments
ratified by Ethiopia, most notably the African Charter on Human and Peoples’
Rights (ACHPR), the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR).
Done at Banjul, The Gambia, December 5th 2005
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SUBMISSION BY
THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA
IN ACCORDANCE WITH RESOLUTION NO. EX.CL/DEC. 257(VIII)
OF THE EXECUTIVE COUNCIL OF THE AFRICAN UNION
CONCERNING THE 16TH ACTIVITIES REPORT OF
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
April 2006
EX.CL/279 (IX)
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1.
INTRODUCTION
The Government of the Federal Democratic Republic of Ethiopia presents, in this
report its views on the resolution passed by the African Commission on Human and
Peoples’ Rights (hereinafter referred as the Commission) during its 38th Ordinary
Session held from 21 November to 5 December 2005 in Banjul, the Gambia on human
rights situation in Ethiopia. The report is prepared on the basis of the decision adopted
by the 8th Ordinary Session of the Executive Council of the African Union wherein the
Council requested the concerned governments against whom the Commission passed a
resolution to submit their clarifications on the resolution.
During the 8th Ordinary Session of the Executive Council held in the Sudan in July
2006, H.E. the Minster of Foreign Affairs of the Federal Democratic Republic of Ethiopia
made it clear that by raising its objection on the resolution, Ethiopia does not question
the Commission’s competence to exercise its mandate as stipulated under the African
Charter on Human and Peoples’ Rights (hereinafter referred as the Charter), its rules of
procedure and other legal instruments. In this report, Ethiopia rather aims at providing
the Commission with relevant and necessary facts relating to some of the salient
developments in the country following the May 2005 federal and regional legislative
elections for the Commission to be acquainted with reality on the ground.
The report incorporates ten sections covering major developments connected
with the May 2005 elections. Section One introduces the structure and content of the
report. Section Two discusses the nature of the Commission’s resolution on human
rights situation in Ethiopia, and Ethiopia’s position on the resolution based on the
Commission’s Rules of Procedure and other relevant legal instruments. Section Three
highlights the background and salient features of the May 2005 election starting from the
pre-election phase to post election developments. An attempt is made to focus on
issues that are relevant to the points covered by the Commission’s resolution. These
include conduct of voter’s registration, amendment of electoral laws, campaigning,
voters education, voting, vote counting and election related dispute settlement
mechanisms. Section Four provides an overview of the legal and institutional aspect of
Ethiopia’s electoral regime concerning the role of the National Electoral Board, domestic
courts, and domestic and international election monitors.
Section Five to Section Nine discuss the post election violence in the country and
the role of some members of the opposition political parties, the press and nongovernmental organizations in masterminding the street violence that seriously
endangered the constitutional order. These sections also explain the background for
measures taken by the government in the interest of peace, order and democracy.
Section Ten provides for an overview of the newly established independent
parliamentary inquiry mandated to investigate the circumstance surrounding the postelection violence that resulted in the death of scores of civilians, law enforcement
officers, and destruction of million USD worth of public property. Section Eleven
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provides the concluding
Commission’s resolution.
2.
remarks
and
Ethiopia’s
submissions
regarding
the
Ethiopia's Position on the Procedure and Nature of the Resolution
During its 38th Ordinary Session held in the Gambia from 21 November to 5
December 2005, the Commission adopted a resolution on human rights situations in a
number of member states including Ethiopia. Even though the Ethiopian delegation
participating at the 38th Ordinary Session of the Commission made statements, had
discussions with members of the Commission and distributed relevant documents
informing the Commission on the accurate picture of developments in the Country, the
Commission, nonetheless, adopted the resolution in a manner that is inconsistent with
the Charter and the Commission’s Rules of Procedure.
At the consideration of the 19th annual activity report of the Commission during
the 8th Ordinary Session of the Executive Council of the African Union held in the Sudan
between 20-21 January 2006, Ethiopia and other concerned countries objected to the
manner in which the Commission adopted the contentious resolution and the baseless
allegations contained in the resolution, distorting government measures which are in fact
taken with the view to ensuring law and order. Due to the objection forwarded by
Ethiopia and other concerned states, the Council, in its decision entitled Decision on the
19th Activity Report of the African Commission on Human and Peoples’ Rights1 decided
to exclude the resolutions against the objecting countries from the activity report of the
Commission and gave the concerned governments three months to submit a report
regarding the Commission’s resolution for the latter’s consideration.
This section would analyze the procedure of adoption of resolutions by the
African Commission. A brief recollection of the discussion during the 38 Ordinary
Session of the Commission is also included. Ethiopia argues that the Commission’s
decision to publicize the resolution in its website is also inconsistent with acceptable
practice.
2.1. African Commission's Procedure
The Commission often adopts, following the conclusion of its ordinary sessions,
resolutions on human rights issues. The nature and content of these resolutions tend to
vary. Occasionally they focus on procedural issues, i.e. requesting the particular state to
create the modality of working with the Commission in investigating certain human rights
violations in that country. At times, its resolutions take a stand on allegations of certain
human rights violations and incorporate statement of condemnation. In other occasions,
the Commission used resolutions to create special mechanisms or working groups for
the implementation of its broad mandate by adopting resolutions. The mandate of the
Commission to establish the aforementioned mechanisms is clearly provided for in
1 EX.CL/Dec.257 (VIII)
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Article 28 of the Rules of Procedure of the Commission. Even though there is no specific
provision in the Commission’s Rules of Procedure that clearly empowers the
Commission to adopt a resolution. Adopting resolutions has now become
standard
practice in passing its decisions.
2.2. The Nature of Dialogue between Ethiopia's delegation and the
Commission at its 38th Ordinary Session
The 38th Ordinary Session of the Commission was held in Banjul, the Gambia
from 21 November to 5 December 2005. In its opening remarks, the Ethiopian
delegation briefed the Commission on the various measures that the Government has
been taking to further advance human rights protection in the country and updated the
Commission on the circumstances surrounding recent human rights developments
following the May 2005 federal and regional legislative elections.
A number of non-governmental organizations made statements during the
Commission’s public session that made reference to human rights developments in
Ethiopia.
The delegation of Ethiopia responded to all the allegations and claims made by
non-governmental organizations. It was stated that the legislative and administrative
measures were put in place to settle election related disputes. Nonetheless, the
opposition parties opted for their illegal street protest aimed at overthrowing the
constitutional order. The Ethiopian delegation further stated that the measures taken by
law enforcement agencies were aimed at protecting law and order. It was also made
clear that the Government has not closed down private news papers and that there are
several private news papers that are on print currently in the country. The delegation
also made it clear that the House of Peoples’ Representatives of FDRE (the House) has
established an Independent Inquiry Commission to investigate the circumstance
surrounding the confrontations in Addis Ababa and some other towns in the country.
2.3. The Commission’s Resolution on Human Rights Situation in Ethiopia
The Commission’s resolution covers a number of human rights related
developments in Ethiopia following the May 2005 elections. One remarkable feature of
the resolution is its stark similarity with the resolution passed by the NGO Forum that
was held immediately preceding the meeting of the Commission.
In its resolution, the Commission expressed its concern on “…notably the
arbitrary arrests and other serious human rights violations directed at suspected
members and supporters of opposition groups, students and human rights defenders.” It
charges that Government security forces killed and injured demonstrators on 8th June
and 1st November 2006. It also stated that journalists and human rights defenders are
arbitrarily arrested.
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The resolution calls the Government to:
a. release arbitrarily detained political prisoners, human rights
defenders and journalists,
b. to guarantee, for any accused individual, the right to a fair trial as
provided by the African Charter on Human and Peoples’ Rights and
other relevant international human rights instruments, including the
right to seek pardon or commutation of sentence,
c. to ensure the impartiality, independence and integrity of the
National Parliamentary Commission investigating the recent acts of
violence in the country and to bring the perpetrators of human rights
violations to justice,
d. to guarantee, at all times, freedom of opinion and expression as
well as the right to hold peaceful demonstration and political
assembly, and
e. guarantees, in all circumstances, the physical and psychological
integrity of human rights defenders in compliance with international
instruments especially the Declaration of Human Rights Defenders
adopted by the U.N. General Assembly in December 1998.
The Government of Ethiopia indicates that the duplicate nature of this resolution
compared to the resolution adopted at the non-governmental organization forum held
immediately proceeding the meeting of the Commission demonstrate the flawed nature
of the procedure the Commission followed in replicating the resolution from the nongovernmental forum. It showed that the Commission adopted the non-governmental
resolution without further scrutiny and assessment.
2.4. Publicity Given to the resolution at the Commission's Website
Following the adoption of the resolutions, the Commission immediately publicized
them through its communiqué and particularly via its official website.1 The Government
of Ethiopia submits that the manner in which the Commission gave publicity to its
resolutions contravenes the Commission’s Rules of Procedure.
Resolutions which are often part and parcel of annexes to the Commission’s
Annual Activity Report are confidential documents until they are adopted by the relevant
organ of the African Union. Article 77 of the Rules of Procedure clearly stipulates that
such a report shall be confidential. The Commission can only publish them after such
reporting and only when the African Union’s relevant organ does not give instructions
otherwise. 2 Regarding the specific issue of the Commission’s activity report, the
1
2
See the Commission’s website at < www.achpr.org>.
Ibid, Article 77 (2).
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Chairman of the Commission can only publish them after the Assembly of the African
Union considered it.1
The Government of Ethiopia is of the view that the publication of the resolutions
in the Commission’s official website prior to their consideration by the Commission
contravenes the aforementioned provision of the Rules of Procedure.
2.5. Decision of the AU Executive Council
During its 8th Ordinary Session, the Executive Council of the African Union
passed resolution no EX.CL/Dec.257 (VIII) entitled Decision on the 19th Activity Report
of the African Commission on Human and Peoples’ Rights. This follows the submission
of the annual activity report of the Commission to the African Union decision making
organ in accordance with article 41 of the Commission’s Rules of Procedure.
In the Resolution the Council requested;
1. the Commission to exclude the resolution on human rights situation in Ethiopia,
Eritrea, Zimbabwe, Uganda and the Sudan from the annexes to its 19th Activity
Report;
2. the concerned member states to make available to the Commission, within three
months since the adoption of the Council’s decision, their views on the
resolutions, and
3. the Commission to ensure that in future, it enlists the responses of all States
parties to its Resolutions and Decisions before submitting them to the Executive
Council and/or the Assembly for consideration.
3. May 2005 National and Regional Legislative Elections in Ethiopia
The first democratic and multi-party legislative elections were held in Ethiopia in
1995. These elections marked a turning point as political parties were able to participate
in contested elections for the first time in the country’s history. These were followed in
2000 by the holding of the second multi-party elections2. Both elections were generally
endorsed as free and fair and as tangible proofs that the country was successfully
pursuing its democratisation process3.
1
Ibid, Article 79.
Facts about the Parliamentary Elections in Ethiopia, News Release, November 2005, Ethiopian Embassy website in
the United Kingdom
.http://www.ethioembassy.org.uk/news/press%20releases/Facts%20about%20the%20Recent%20Ethiopian%20Parlia
mentary%20Elections.htm;
3
GFN- SSR, Resource Centre, Wellington Hall, Cranfield University, Shrivenham, http://www.gfnssr.org/gfn_papers_pages.cfm?id=5;
2
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The May 2005 federal and regional legislative elections held in Ethiopia have
heralded a new and crucial chapter in the democratization process that the country has
embarked upon over the last fifteen (15) years and was characterized by the
participation of thirty-five (35) political parties, four-hundred twenty three independent
candidates, record number voter turnout, a level playing field for all contending parties
and candidates, the active role played by election monitors and observers, and an
inclusive as well as free and fair complaints investigation mechanism. The Government
left no stone unturned in endeavouring to ensure that these elections were free, fair and
orderly.
What transpired during the pre-election phase, on the ballot day and in the postelection period as well as the active role and assessment of election monitors and
observers in the entire electoral process are testimonials of the unequivocal commitment
of the Government.
3.1. Pre-election Phase
According to the National Electoral Board (NEB), some thirty-five (35) eligible and
certified political parties, some having formed coalitions, and four hundred twenty-three
(423) independent candidates at the federal and regional levels, participated in the
elections 1 . The NEB further indicated that more than twenty-six (26) million eligible
voters were registered to cast their ballots, constituting by far the largest number of
voters to have ever registered for elections in the country2.
As acknowledged by the numerous international and local election monitors and
observers,3 the Government put in place, during the pre-election phase a level playing
field for all contending parties and independent candidates so as to enable them
compete on an equal footing.4
The pre-election phase was, thus, characterized by:
a) dialogue and heated debate between the ruling and opposition parties on the
existing electoral law and the necessary amendments made thereto;
1
NEB holds first press conference, Press release, National Electoral Board, 29 March 2005, “Kemal
also indicated that a total of 1,845 and 3,662 candidates have been registered to contest seats in the
House of peoples’ Representatives and regional councils respectively. Some 423 of the candidates for
federal and state legislatures are independent, while the remaining are fielded by 35 political parties”,
http://www.electionsethiopia.org/Whats%20New5.htm; National Electoral Board, List of registered political
parties, http://www.electionsethiopia.org/Election%20Results.html;
2
Ibid, 13 May 2005.
Please find attached in the Annex the African Union Election Observation and Monitoring Mission Report
4
Supra, at 7, 14 May 2005.
3
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b) free and vibrant political campaigning,
c) allotment of equitable airtime to all contending parties and;
d) the active role of election monitors and observers.
3.1.1. Amendments to the Electoral Legislation
In preparation for the federal and regional legislative elections of May 2005, the
ruling party and the opposition parties held numerous negotiations and discussions on
the existing electoral law and on the ways and means of ensuring that the election
process would be free, fair and orderly. As a result of these negotiations, the House,
passed an amendment to the existing electoral legislation, Proclamation no. 111/19951.
Accordingly, provisions pertaining to voter registration were amended in order to
ensure the participation of the maximum number of voters in an inclusive approach
aimed at encouraging higher voter turnout. In this regard, the requirement of a minimum
of two (2) years residence for the registration of voters was reduced to six (6) months.2
As regards to contending political parties and private candidates, amendments
designed to facilitate participation in these elections were passed by the House. Hence,
political party candidates were allowed to register without the five-hundred (500)
endorsement signatures required previously. This amendment, by removing a restrictive
condition for candidates’ registration, allowed for even greater participation in the
elections by political parties and candidates.
These amendments greatly enhanced the ability of contending political parties
and private candidates to campaign freely without any restriction or interference.
From the aforementioned, it is evident that the amendments to the electoral
legislation ensured the holding of democratic elections by increasing voter participation
and facilitating the registration and the free campaigning by political parties and
candidates.
3.1.2. Political Campaigning
Election campaigns were conducted for more than six months throughout the
country. Hotly contested debates between the opposition and ruling party candidates
were conducted. Town hall meetings and huge rallies were organized. Political parties
had been presenting their programmes to the public through unpaid media airtime and
newspaper space. They had also been using public rallies and street campaigning to
convey their policy platforms to the electorate.
1
2
Please find attached in Annex no. No. 1 a copy of the amendment Electoral Legislation Proclamation;
Id.
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The electoral law allows campaigning in all places except churches and
mosques, military camps, educational institutions during class time and public
institutions where regular work is underway.1
The Ministry of Information allotted equitable television and radio airtime to all
contending political parties and candidates. The Ministry allotted fifty-six (56) percent of
airtime to the opposition parties and forty-four (44) percent to the ruling party. The
opposition parties and candidates were given significantly more television and radio
airtime at the detriment of the ruling party, despite their very low representation in the
outgoing federal and regional parliaments. This was done in order to allow the
competing opposition parties and candidates to have sufficient media space to present
their political programs to the electorate and for the latter to be able to make an informed
choice.
Thus, during the pre-election phase both the public and private media were
intensely engaged in the dissemination of election-related information to the electorate.
Equally, with the objective of affording the electorate an informed choice between
the different political parties and candidates vying for public office, a series of live
televised as well as radio transmitted debates were organized between the ruling party
and the opposition parties. These debates were centred around the main policies and
programs that the contending parties and candidates were proposing in order to gain the
support of the electorate and concentrated, inter alia, on their economic, educational,
urban development, foreign and national security policy options.
The Government spared no effort in ensuring that these debates were free, fair
and open with all the contending parties and candidates being given ample opportunity
to convey to the electorate their political message. This transparent, open and fair
airtime allotment was deservedly lauded by the international and national election
monitors and observers.
3.1.3. Voter Education Campaign
It is with the same objective of allowing the electorate to make an informed choice
that the Government, numerous civil society and non-governmental organizations
conducted various voter education programs both in urban and rural areas:
“…The National Election Board of Ethiopia (NEBE) implemented
these reforms and adopted other important measures to increase
transparency and responsiveness to political parties. Civil society
organizations contributed greatly to the electoral process by
organizing public forums, conducting voter education training, and
1
Supra, at 7, 13 May 2005;
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deploying domestic observers. Most importantly, the Ethiopian
public demonstrated their commitment to democracy through their
active and enthusiastic participation in the May5 poll. As a result of
these efforts and others by diverse Ethiopian actors and institutions,
the overwhelming majority of Ethiopians had the opportunity to
make a meaningful choice in the May 15 elections. This significant
accomplishment has the potential to lead to further democratization
and to consolidate multiparty competition…”1
As the irreversible democratization process the country has embarked upon is
relatively new to the country, these voter education programs were quite opportune in
sensitising the voters on their rights as citizens, at what was at stake during the federal
and regional legislative elections and about the overall conduct of free, fair and orderly
elections.
Undoubtedly, these voter education campaigns also contributed their share in the
success of the elections as exemplified by the record number of voter registration and
turnout on balloting day.
3.2. Election Day
On 15 May 2005, the federal and regional legislative elections were conducted as
planned throughout Ethiopia. These elections, as attested by all international and
national election monitors and observers, including the African Union, the European
Union and the Carter Centre, were peaceful and regular.2
No significant or major irregularity was witnessed either by the NEB or the
election observers and monitors. The reports of the observers and the media coverage
show the irrefutable fact that these elections were peaceful and orderly.
3.2.1. Record number turnout
After the casting of the ballots, the NEB indicated that some ninety (90) percent of
the twenty-six (26) million registered voters had actually participated in the elections, a
record number turnout and an unequivocal testimony of the voters’ confidence in the
entire electoral process.3
1
Final Statement, Carter Center Observations of the Ethiopia 2005 National Elections, 15 September 2005,
http://72.14.207.104/search?q=cache:oNsRXjrswmUJ:www.cartercenter.org/documents/2199.pdf+voter+education+
in+the+may+2005+election+in+ethiopia&hl=en&gl=et&ct=clnk&cd=6;
2
Former US President Jimmy Carter, one of the 319 international election observers, said on Sunday the elections
had gone smoothly, IRINnews.org (IRIN), 16 May 2005,
http://www.irinnews.org/report.asp?ReportID=47123&SelectRegion=Horn_of_Africa&SelectCountry=ETHIOPIA;
3
Supra, at 7, 16 May 2005;
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This extremely high turnout by any measure, even if compared to elections in
countries where there is a long and deeply entrenched democratic culture, is an
unambiguous proof of the truly democratic nature of the electoral process.
3.2.2. Free and fair conduct of ballot counting
With the aim of ensuring the scrupulous respect of the will of the electorate as
expressed through its record turnout on 15 May 2005, joint committees comprising of
representatives from both the ruling and opposition parties were set up in each of the
electoral districts across the country.
Thus, in each of the electoral districts, the actual counting of the ballots was
conducted by NEB election officials in the presence of representatives of the ruling and
opposition parties. This, more than anything else, despite allegations by some
opposition parties to the contrary, is a clear substantiation of the fact that the ballot
counting and tallying process was largely free, fair and open to the scrutiny of all the
contending parties.
In addition, international and national election monitors and observers were
deployed throughout the country to witness the free, fair and orderly nature of the
counting process. The African Union, the Carter Centre as well as hosts of other
international observers and national observers hailed and praised the counting process
as being free and fair, and as reflecting the will of the voters.
Naturally, grievances were bound to arise after such hotly contested elections. In
order to address these complaints, which emanated both from the ruling and opposition
parties, inclusive investigation complaints mechanism was established by the NEB
based on agreement reached by all the contending parties.
3.2. Post Election Development
Given the tense political situation that followed the hotly contested elections, it
was imperative that a mechanism be devised with a view to addressing the allegations
of irregularities and vote rigging emanating from all parties.1
Thus, the NEB devised a mechanism for investigating complaints based on
agreement between all the parties. The NEB established Complaint Investigation Panels
where all parties were represented with international observers and monitors.
1
Supra, at 7: NEB reviewing complaints in 299 constituencies, Press Release, National Electoral Board, “Complaints
investigating committees drawn from contending parties, international observers and the Board will be established
by the end of this week,” says Kemal. “The number and size of the committees will be determined based on the
number of complaints decided to be investigated. ”The committees will present their findings to the Board, which
will pass final decisions. After reviewing the findings, the NEBE may uphold provisional results or order revote or
recounting…”
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Twenty-six Complaints Investigation Panels (CIPs) established under the NEB to
look into alleged election irregularities were deployed to disputed constituencies. Each
CIP has three voting members drawn from the NEB (Chair), the complainant and the
other interested party (declared winner in provisional results). Where the CIP has more
than one complainant as a member, the voting members would be two members of the
NEB, representatives of complainants and the other interested party.
The CIPs carried out their investigations by examining witnesses brought by each
party and by hearing the cases of party nominated agents as well as by examining any
NEB documentation or other relevant documentary evidence relating to the elections,
where necessary. The CIPs finalized their investigation and dispatched a copy of the
Summary of Facts and Notes of Recommendation to the NEB after the conclusion of the
hearing in a constituency.
A CIP could recommend to the NEB to reject a complaint, or to allow a complaint
but not to take further actions, or to order rerun in specific polling stations of a
constituency or to order rerun across the constituency depending on the nature of the
irregularities committed.
Upon the receipt of the Summary of Facts and Note of Recommendation, the
NBE decided on whether to accept the recommendation of the CIP and on whether to
accept or reject the complaint. The Complaints Review Body of the NEB had
recommended for investigation complaints submitted on 140 constituencies out of the
299.1 Determinations of the panels were subject to an appeal to the NEB and the NEB’s
decisions could be submitted to the judiciary. International observers represented by the
European Union, the Carter Center and African Union observed the complaints
investigation process.
The NEB, in cooperation with the election monitors, conducted extensive
investigations into the complaints made by the opposition. As a result of this
investigation, the NEB conducted election re-runs in thirty-one (31) constituencies where
major problems had been found.
Hence the investigation mechanism put in place ensured that a fair and transparent
evaluation of each complaint was conducted and accordingly in those constituencies
where the evidence substantiated serious irregularities in the counting and tallying of the
vote, rerun elections were conducted.
1
Supra, at 7, 30 June 2005
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After the holding of rerun elections, the NEB certified that the ruling party, the
Ethiopian Peoples’ Revolutionary Democratic Front, had won the largest share of the
seats in the federal legislative elections enabling it to form the Government1.
As to the opposition parties, they made strong gains in the elections with the
Coalition for Unity and Democracy (CUD) winning a clean sweep in the capital Addis
Ababa. 2
Despite having made unprecedented gains and winning in the capital city, the
opposition parties and in particular the CUD, with complete disregard and contempt to
the will of voters; orchestrated violent street confrontations that lead to numerous
fatalities on law enforcement officers and innocent civilians as well as to severe
destruction of public property.3
These actions were instigated by the CUD for the sole purpose of seizing power
illegally and dismantling the constitutional order through street violence as the actual
vote had unambiguously been in favor of the ruling party.
In this regard, the tremendous damage caused by the European Union electoral
observation mission report leaked to opposition party leaders can never be
underestimated. The Mission’s report based on a deeply flawed and unrepresentative
census conducted in just a few polling stations out of the existing tens of thousands
envisaged an opposition win and was used by the CUD to justify its unjustifiable violent
actions.
1
Supra, at 5: May 2005 Parliamentary Facts Sheet: Members of the AU Observer Team participated fully in the
observation activities and submitted a comprehensive report to the AU Chairperson. In the report, issued on 14th
September, they concluded that: “the election of 2005 and subsequent investigation processes were conducted and
organized in accordance with the country’s electoral laws.. The AU wishes to commend the Ethiopian people’s
display of genuine commitment to democratic ideals and urges them to accept the outcome of the results in order to
build on the gains that have been recorded.”, 16 January 2006, May 2005 Parliamentary Facts Sheet: The Carter
Center expressed its pleasure at being invited to observe the elections. In a 15th September statement it said: “The
elections process demonstrated significant advances in Ethiopia's democratization process, including most
importantly the introduction of a more competitive electoral process…” May 2005 Parliamentary Facts Sheet: A
press statement dated 13thSeptember endorsed by twenty-four representatives of the donor countries residing in
Ethiopia stated: “The final results of Ethiopia’s historic 2005 elections issued by the NEBE.. confirm the Ethiopian
Peoples’ Revolutionary Democratic Front’s majority in Parliament…”
2
Ethiopia ruling party claims victory, BBC News, Tuesday 17 May 2005
3
Ibid, More violence in Ethiopia capital, BBC News, Thursday 3 November 2005,: "…The city's streets are littered
with debris, and many businesses are closed. The riots were part of protests against the general election in May,
which the governing party won..."
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4. Institutions, Laws and Procedures of Settling Election Related Disputes
4.1. Overview of Ethiopian Electoral Law
The legal instruments that govern elections in Ethiopia have devised mechanisms
with a view to addressing allegation of irregularities in the voting process. These legal
instruments include the Constitution of the FDRE, the Proclamation to make the
Electoral Law of Ethiopia conform with the Constitution of the FDRE,1 the Proclamation
to provide for the Amendment of the Proclamation to make Electoral Law of Ethiopia
conform with the Constitution,2 and the National Electoral Board of Ethiopia Regulation
No.1, 1994 that defines the procedure for electoral execution and determination of
decisions. These electoral laws provide for means through which complaints and
disputes arising from the electoral process are to be regulated in the event of the
occurrence of irregularities related to elector registration, candidate registration, voting
and counting of ballots.
Accordingly, the National Electoral Board, federal and regional courts and
election monitors play significant role in addressing allegation of irregularities in the
voting process. As such, it would be necessary to highlight the role each of these
organs play in settling election related disputes as envisaged by the electoral laws of
Ethiopia.
4.2. The National Electoral Board
The National Electoral Board of Ethiopia is the responsible organ for
administering elections and recall elections at federal and regional levels, as well as
those of Zonal/Special Woreda (District) Councils, Woreda Councils, Kebele
(Neighborhood) Councils and Municipal Elections.3 The NEB was established in 1993 as
an independent body for conducting, in an impartial manner, free and fair elections in
federal and regional Constituencies.4
The NEB has seven members who are appointed by the House upon the
recommendation of the Prime Minister on account of their allegiance to the Constitution,
non-partisanship of any political organization and professional competence.5 The term
of office of members of the board is six years provided, however, that a member of the
NEB may serve for a second term.6 The NEB has been given the responsibility to draw
up its own rules of procedure.7 NEB's decisions are made by majority vote. In case of a
tie, the Chairman has a casting vote.8
1
Supra, at 11
Proclamation No. 438/2005
3
Supra, at 11, Art. 5
4
The Constitution of the Federal Democratic Republic of Ethiopia Proclamation No. 1/1995
5
Supra, at 24, Art. 3
6
Id.
7
Supra, at 11, Art. 6
8
Ibid, Art. 3
2
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The NEB has a Secretariat headed by Chief Executive and a Deputy Chief
Executive that are appointed by the House upon recommendation of the Prime Minister
in consideration of their experience and competence. The Secretariat has the duty to
perform day to day electoral functions vested in the NEB under the electoral law and
perform such other duties that are assigned to it by the NEB. 1
The NEB's functions and powers are set out in the Constitution of FDRE and the
Proclamation to make the Electoral Law of Ethiopia conform to the Constitution of the
Federal Democratic Republic of Ethiopia No. 111/1995, as amended by Proclamation
No. 438/2005 ahead of the May 2005 general election. In addition to appointing and
training electoral officers, the powers and duties of the NEB include issuing the
necessary regulations and directives to help conduct its duties, providing the public with
civic education relating to the elections, confirming results and officially announcing
them. It also has the power to rectify electoral irregularities and investigate complaints
submitted to it. It may cancel election results and order rerun of elections where it finds
that there have been violations of directives or fraudulent acts or disturbances of the
peace of such magnitude, that they would create irregularities in the election process.
According to the electoral law of Ethiopia, a person who is denied registration as
an elector or where an elector is denied of voting, has the right to lodge a complaint with
the electoral office of the polling station, within limited hours of such occurrence, and
receive a determination thereon. Complaint against this determination shall be decided
by Woreda electoral office.2 At this point, upon the determination made by the Woreda
electoral office, electoral offices of the polling station shall proceed with the voting
operation accordingly. Nonetheless, the individual or the elector may, upon
dissatisfaction with the determination made by the Woreda electoral office, appeal to the
Woreda court.3
In the same vein, where a person is denied registration for candidature, and when
there is grievances on the counting of ballots, and the results thereof have individuals
the right to lodge a complaint with the Woreda electoral office immediately upon the
occurrence of such event and receive a reply thereon. 4 Complaint against this
determination shall be decided by the Zonal or Regional electoral office in the case of
the complaints related to candidature registration; 5 and to the NEB in the case of
complaints relating to counting of ballots.6 The individual may, upon dissatisfaction with
the determination made, appeal to the Regional Supreme Court in the former case and
the Federal High Court in the later case.7
1
Ibid, Art. 11(i), (k)
Supra at 11, Art. 69(1), Art 71(1)
3
Ibid, Art. 69(4), Art. 71(4)
4
Ibid, Art 70(1), Art 72(1).
5
Ibid, Art. 70(4).
6
Ibid, Art. 72(3).
7
Ibid, Art. 70(4), Art. 72(4), as amended by Proclamation 438/2005.
2
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Both the ruling party and the main opposition had numerous complaints relating
to the counting and tallying of the votes in several constituencies. The NEB, hence,
devised a mechanism for complaint investigation based on agreement reached among
the parties.1 The NEB adopted rules of procedure and complaint investigation panels
where all the parties are entitled to be represented. The NEB, based on the
recommendations from the Panels, called for a rerun in a number of constituencies.
4.3. The Role of Courts
As an impartial and independent institution, the role of courts in settling election
related disputes could never be underestimated. As such, under the electoral law of
Ethiopia, courts render the final juridical decision in settling complaints and disputes
arising from the electoral process. Judicial power is vested in both the federal
government and the regions. The jurisdiction of the courts is determined by law based
on the Constitution.
According to Proclamation No. 438/2005, complaints relating to electoral
registration, candidate registration and voting shall be brought to Woreda court, Zonal or
Regional Court as the case may be. Individuals dissatisfied with the determination
made by Woreda, Zonal or Regional offices, individuals have the right to appeal to
courts. Even in cases where the NEB had examined and rendered decision on a
complaint, such as counting of ballots, appeal may be taken to the Federal High Court,
upon objection to the determination of the NEB.2 In the case of any serious irregularities
of operation, petition may be made to the Federal High Court against determinations
made by the NEB.
A number of cases were brought to the courts as regards the election process. In
charges filed before the Federal High Court by the CUD against the NEB3 as regards
copies of decisions of complaints hearing bodies, minutes, audio cassettes and other
relevant documents, the Court passed its verdict ordering the NEB to give copies of
decisions of complaints hearing bodies, minutes, audiocassettes and other relevant
documents to CUD. The Court indicated in its decisions that CUD had submitted
evidences that substantiated its charges.
4.4. The Role and Assessment of Election Monitors
Generally international and national election observers and monitors played a
positive and constructive role in the entire electoral process. Of particular importance is
the exemplary role played by the election observation and monitoring mission of our
continental organization, the African Union. The observation mission of the African
Union expressed its appreciation on the manner the elections were conducted and
praised the elections as being free, fair and orderly.
1
See 3.3.2. of Chapter 3.
Supra, at 11, Art. 73.
3
www. ENA.gov, 8/22/2005.
2
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It is of the utmost importance to underline the presence of national and
international election monitors and observers during the entire process. It is at the
invitation of the Government, committed to the transparency of the elections process,
that a number of governments and international organizations observed the conduct of
the elections starting from the pre-election phase, to the election day, the counting and
tallying of the vote to the post-election investigation mechanism.1
In order to give the appropriate legal framework to the electoral monitoring and
observation missions, Memoranda of Understanding (MoU) were signed between the
Government and international monitors and observers. These MoUs were designed to
outline the role and duties of the international monitors and observers as well as the
Government’s obligations towards the latter.2
Furthermore, non-governmental organizations and associations based in Ethiopia
were accredited to monitor and observe the elections. A new Code of Conduct was
signed between the Government and election observation missions.3
All these endeavours had the same purpose, namely that of ensuring the conduct
of free, fair and orderly elections by inviting and facilitating the work of electoral
observation missions. Their active participation in the entire process from the preelection phase, to the election day, the counting and tallying of the vote to the postelection investigation mechanism is a testimony to the Government’s commitment to
holding democratic elections and their praise of the electoral process definitively
establishes the truly democratic nature of the elections.
5. Post-Election violence and Measures Taken by the Government
As it has been laid out under Section 3 above, the May 2005 federal and regional
legislative elections held in Ethiopia were hailed for being free and democratic with a
level playing field for independent as well as party contenders, while winning praise both
locally and internationally, for the record voters turn out it enjoyed.4 All independent and
party candidates were given wider opportunity to express their views without any
restrictions before the election date. Although it was quite obvious that these candidates
were expected to campaign genuinely respecting the tenets of the Constitution of FDRE,
most of the opposition parties were campaigning in contravention to the supreme law of
the land.
As campaigning started to gather pace, the leadership of the opposition parties
officially declared a strategy to seize power if possible through the democratic process
or if that fails through an insurrection. Opposition parties announced plans to imitate
1
Supra, at 7, 2 May 2005.
Id.
3
Id.
4
Supra, at 15.
2
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Orange Revolution of Ukraine in Ethiopia. 1 Insurrection is a punishable offence
according to the provisions in the Criminal Code and the FDRE Constitution. However,
the government exercised maximum restraint against repeated pronunciation by the
opposition, which made it abundantly clear that they will use violence to attain their
objective of seizing power at whatever cost.
The difficulty encountered during the pre-election and election period was mainly
limited to writings and speeches though occasionally there were small and minor
offences. But soon the trend to launch an illicit campaign in writing and speech has
transformed itself into wider illegal act following the elections. And owing to this,
complex and exacerbated security set backs were encountered.2
The security problems following the polling date could be analyzed by dividing it
into two separate periods. The first involves security problems encountered beginning
the first few days after polling up day the formation of the government. At this particular
period, the major task was to carry out the investigation process of alleged election
irregularities and legally so as to identify the winning party to definitively determine the
victorious party through a system devised for the purpose following disputes over
rejection of election results by the opposition parties. The second is the period in which
security problems were encountered following the formation of government after the
announcement of the winning party by the NEB of FDRE.
In spite of the fact that the election was conducted successfully winning local and
international recognition, opposition parties particularly the CUD in line with their plan to
come to power either through the ballot box or insurrection were engaged in different
illegal activities. In their bid to achieve their goals, particularly the CUD was busy
issuing press statement at times twice a day since May 24, 2005 seeking to incite
violence among the public. The parties have used as a pretext of what they alleged as a
fraudulent vote counting, a complete fabrication, to incite violence despite unstinted
efforts made by the government to make use of established systems to look into the
allegations and take corrective measures if proven. Notwithstanding the efforts, the
CUD, officially declared that it would act to reclaim what it called stolen votes through
the use of force.3
The Government has time and again made it abundantly clear that the violence
that the opposition particularly the CUD, chose to pursue was unconstitutional and
punishable by law. The opposition were preoccupied with preaching violence mobilizing
the unemployed youth in towns where cumulative effect of socio-economic problems
and poverty is chronic. Though the Government has declared a one-month ban, which
was effective from May 15, 2005 to June 15, 2005 and it could be renewed if the
situation deems necessary, to ward off destruction that could result from riots and
violence allowing strong feelings reflected during the elections to cool down, the CUD
1
Dr. Negede Gobezie, Constitution, Election and Democracy in Ethiopia, 2005.
Report of the Federal Police Commission to the House is available on the web, <: www. waltainfo.com>, (
Accessible on 14 November 2005).
3
AFP's Interview with Engineer Hailu Shawel, August 10, 2005.
2
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and other opposition groups pursuing similar tactics irresponsibly called for violence
declaring that they will not heed to the ban. They organized and carried out street
violence on 8 June 2005 while the government ban was still in force.
The violence, which occurred on 8 June 2005, has nothing to do with a peaceful
demonstration. The whole exercise was a street violence called and organized by the
CUD and carried out by destroying public property, rock pelting and tire burning at a
time when there was a ban. Pieces of information presented below depict activities and
movements of the CUD in the week before the 8 June violence proving beyond any
doubt the whole unrest was the making of the party. For example:
1. On June 2, 2005, the leadership of the CUD has called on students of the Addis
Ababa University to go on hunger strike. But facilitates most of the students
refused to heed to the call, it was a failure.1
2. On June 3, 2005, the CUD leadership urged the Muslim faithful to denounce the
government under the cover of religion. Similarly, on June 5, 2005, they called
on the Christian faithful to denounce the government again using religion as a
pretext. But both calls were ignored.2
3. Following incitation at the Sidist Kilo Campus of the Addis Ababa University by
the CUD leadership, some students, followers of the party, blocked the gates on
6 June 2005 causing chaos, which disrupted free movement of the University
community. Warning by the police to the CUD sympathizers went unheeded. A
scenario that is similar to the Sidist Kilo Campus unfolded at Arat Kilo Campus
through the instrumentality of Addis Ababa University students supporting the
CUD and members of the party that somehow made it to the University. The
security force, upon the request of the university management, was engaged in
peacefully dispersing the strike. As a result, it rounded those students who were
blocking the gates of the Campuses.3
4. On the same day, while police were transporting members and supporters of
CUD who took part in the illegal activities to a police custody unemployed youth
and members brought together by the CUD, carried out an assault smashing
government vehicles and attacking the police force with stones after blocking the
roads. A vehicle belonging to the Defense Force was set ablaze by the gangs
while in regular patrol though it had nothing to do with the incident. When the
situation begun to worsen and things were getting out of hand that included
attempts to free those detained, police officers were forced to fire into the air to
enforce law and order. Amidst the chaos a young woman was regrettably killed
with a stray bullet. After causing such mayhem and damage to property and
human life, the street action showed a sign of cooling down for the time being.4
1
Supra, at 46
Id.
3
Id.
4
Id.
2
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5. On 7 June 2005, though peace prevailed in most of the localities of Addis Ababa,
in a violence, which broke out around a Vocational School in the afternoon, rocks
started to rain from every direction against policemen who were busy maintaining
peace and order. In an effort to put the situation under control, and offer an
effort to dispel the rioters peacefully, having been outnumbered by the gangs, the
policemen had to pull back to defend themselves. In Addis Ababa, a situation
was unfolding in which the rule of law could not be maintained. The government,
realizing that the situation should not be allowed to continue unabated and that
the violent gangs in addition to the large number of unemployed youth in the city
were posing serious danger, a decision was made to stop the gangs and to use
riot police to dispel them, supported by the appropriate action aimed at
maintaining the rule of law.1
On 8 June 2005, violent forces from different directions were engaged in
destroying public and private property violating the ban on demonstrations imposed by
the Government. Moreover, obstructing unhindered movement of the inhabitants of the
city by burning tyres and blocking the roads, they went on smashing buses, private cars,
shops and government institutions, while trying to mount arson attacks on gas stations
in the localities.2
Though police used water cannons and firing into the air to disperse the
demonstrators, the gangs remained adamant in their illicit acts. Failing to disperse the
rioters by firing into the air, the limited number of policemen were surrounded by the
gangs directed and organized by the CUD and were exposed to eminent danger.
Eventually, with concerted effort of the security forces, the rioters were put under control
and relative calm and peace returned to Addis Ababa. On this day, some individuals
those who were involved in the riot lost their lives. Many were wounded. In the
mayhem 26 people died, including those who were killed by stray bullets.
On June 9, 2005 the situation was calming down as the dialogue between opposition
and the ruling party under the mediation of the European Union continued and the
parties signed a Joint Agreement on June 10, 2005.3
The Government, considering the unfortunate and regrettable death of 26 people in
the violence instigated especially by the CUD on 8 June 2005, and taking into account
the position of the opposition parties that could possibly instigate more violence as a
tactic, had been making wide-ranging preparations to minimize the possibility of further
causalities. Accordingly, since it is the belief of the government that violence can be put
under control with minimal damage when the police force are trained adequately, a
three-month training on riot-policing was given to members of the security force.
1
Id.
Id.
3
Id.
2
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On the other hand, though CUD and United Ethiopian Democratic Forces (UEDF),
especially CUD, had the opportunity to adhere to a peaceful engagement through the
Constitutional system and seizing the opportunity the government has created for them
by handling matters with restraint, they expressed unambiguously their determination to
carry on with a series of riots they called to take place on October 2, 2005. This is a
continuation of acts by the CUD, such as in August 2005 when holding meetings at
public halls in the various sub-cities of Addis Ababa to build up a riot force and was bent
on breaking and rendering useless the furniture in the public halls. As these acts of the
party were evident, the government time and again demanded that they retract their call
for violence on October 2, 2005 underlining that it was illegal and would have serious
consequences. On the contrary, in their statements they remained adamant to pursue
their violent ways. The CUD Chairman even asserted that between 10 to 15 thousand
persons would die in the next unrest, indicating that he was planning an insurrection that
could result in the death of countless people.1
On September 26, 2005, riotous forces organized by the CUD tried to instigate
violence that could lead to bloodshed at Meskel Square while the Christian faithful were
celebrating Meskel, the founding of the true cross.2 The CUD leadership, tried to use
the religious ceremony as a trial ground for violent act. They were determined to make
use of every opportunity where there is a big gathering for their sinister motives. The
government brought under control the leaders of the violence.
As a result of the government’s strong stance in which it declared it would no longer
tolerate incitement, opposition leaders were forced to cancel their plan for street action
on 2nd October 2005 by giving three statements on October 1, 2005. The first statement
announced that the demonstration they called to take place on October 2, 2005 was
postponed indefinitely urging the public to remain alert in anticipation of their call. The
second call, which came up a few hours later, declared that the demonstration was
cancelled and that a stay-at-home strike would take place instead for three consecutive
days, starting from October 3, 2005. The Government notified that both were
statements postponing the strike for another schedule, that they were unacceptable, and
that the opposition leadership who called the strikes would be legally accountable for
their deed unless they refrain from such acts. Consequently, the leadership, through a
statement they gave at midnight, made it clear that they would pursue their objectives
democratically and within the parliamentary framework. Thus, the strikes planned for
October 2, 2005 and the subsequent three days were aborted.
After the opposition declared that they would pursue their objectives democratically
and within the parliamentary framework, the government facilitated forum for dialogue
with them. Even though CUD, UEDF and the ruling party announced that they had
agreed on eight agenda items at the forum, two days later, CUD announced that it would
not continue as party to the negotiations unless other items are included in the agenda.
The CUD, on the days that followed, changing its stance has decided not to take its
1
2
Id.
www.ena.gov.et, September 26, 2005.
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parliament seats and rejected its responsibility to run the Capital-Addis Ababa.1 The
government on its part has made it clear that the issue of taking parliamentary seats and
taking over of the Addis Ababa Administration by the winning party were matters of legal
responsibility of those elected and not points for negotiation, and hence the precondition
is unacceptable.
Meanwhile, the CUD leadership, which was persistent in the use of violence as an
instrument of achieving political objectives, planned a series of unrests that would
stretch from October 31 to November 14, 2005, and made public a detailed eight-point
program.
In accordance with this program, the CUD called on the society to alienate groups of
people subscribing to differing views on what they call government sympathizers, in an
unprecedented move even unthinkable during the dictatorial military regime that was
ousted from power in 1991 by the armed struggle of the Ethiopian people.2 It called its
followers to cut off the deep-rooted social interactions and to ostracize members and
supporters of the ruling party, urging them not to attend their weddings and funerals.
CUD’s attempt to implement its third scheme of violence was to begin to honking car
horns at a time when the African Heads of State and Government converged in Addis
Ababa to hold their 5th Extra Ordinary Session. 3 That particular moment required a
peaceful atmosphere for it was the end of the fasting season for Muslim faithful and they
were getting ready to celebrate Id-Al-Fitir. Though well aware of the fact, the leaders of
the CUD, paying no attention to both holidays of the Christians and the Muslims did not
refrain from making their calls for riots. But the people of Addis Ababa have
unambiguously demonstrated their wish for peace in the city and only between 30-40
people were brought under control by police while attempting to disrupt peace by
honking car horns as per CUD’s call.
The CUD leadership, who have realized that the Monday’s disturbance through
honking car horns was unsuccessful, held a meeting in the afternoon of the same day,
and took a firm stand that the defeat they encountered was never acceptable, and that it
should not happen again. Moreover, they decided to further exacerbate the violence by
mobilizing all the forces of destruction they had organized on November 1, 2005.
On November 1, 2005, they arranged a minibus to transport a few of their gangs to
Addis Ketema Secondary School where the gangs threw stones in a bid to disrupt the
teaching-learning process. As a result, the students panicked and were forced to leave
the school compound. Parents gathered in the area to pick their children. The large
crowd comprising students, their parents and bystanders, created a conducive
environment for the gangs to launch street actions in the Merkato area of Addis Ababa.
1
Hailu Shawel's interview with the Voice of America, September 19, 2005; Ethiopian Review.Com, September 18,
2005; www.sudantribune.com, October 9, and 11, 2005.
2
Press Release by Coalition for Unity and Democracy, October 29, 2005; Reuters, October 1, 2005.
3
Press Release by Coalition for Unity and Democracy, October 29, 2205.
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Thereafter, the violent leaders of the CUD mobilized their clandestine riotous forces,
which they instigated and organized in 55 selected areas all over Addis Ababa. These
rioters, set out to accomplish their mission by blocking roads with rocks, burning tyres,
smashing and burning buses, looting and burning local Kebele offices, surrounding
police stations so as to help prisoners escape, burning private houses and property,
burning government owned factories, and other property, firing guns and throwing hand
grenades at policemen, and snatching rifles from the policemen, to fire at the security
forces and civilians. They attempted to set ablaze gas stations and big business
institutions. Lives were lost due to these outrageous illegal acts.
After forces of the CUD unleashed their violent acts simultaneously in the various
localities of Addis Ababa, it became apparent that the situation demanded no other
alternative than arresting it swiftly. The security forces, though unable to attain the
desired speed because of the blocked roads, have set out to control the riot first by
clearing the roads. The security forces tried to bring the situation under control by
pumping 75 thousand liters of water, firing 141 vollies of tear gas and numerous plastic
bullets. The security forces paid huge sacrifices, as the gangs attacked them with
grenades, guns shots, stones and inflammable objects.
What makes the recent street violence of November 2, 2005 different from the one
that preceded it is the simultaneous launch of the street action at 55 different localities of
Addis Ababa. This clearly shows it was done with the intention of weakening the
security force, as it would have to stretch to all these areas. Modern communication
technology, especially mobile telephones were used to coordinate the assaults. Some
of the detained rioters have admitted during investigations that soldiers and officers of
the defunct regime were among those CUD leadership masterminded the violence. 1
These individuals who possessed military expertise, have utilized financial resources of
the CUD to purchase grenades, weapons, machetes and other instruments in addition to
preparing homemade explosives.
The CUD tried to extend the violence to other parts of the country with the help of the
violent local media, on the one hand, and by making use of the Amharic services of the
Voice of America and Deuche Welle functioning under the full control of the opposition
forces. 2 Accordingly, civil unrests called by the CUD took place in Amhara Region:
Bahir Dar, Desie, Woldiya, etc; in Southern Nations, Nationalities and Peoples Region:
Awassa and Arba Minch; and in Oromiya Region: Jima.
However, the violence provoked by OLF resulted in the loss of life; two in Ambo and
one in Tikur Inchini towns. In general, the violence instigated by the CUD and similar
other violent forces, which continued unabated until they were brought under control by
the security forces working in tandem with the public, have caused mayhem and
damages to property. The following is a list of damages incurred as a result of the
violence orchestrated by the CUD.
1
2
Supra, at 46.
Supra at 56, October 30, 2005.
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Casualties among civilians include:
•
Twenty four civilians lost their lives in Addis Ababa, 5 have died in Bahir Dar, 1 in
Debre Tabor, 3 in Tikur Inchini, and 2 in Arba Minch. Totally, 35 civilians have lost
their lives in the third scheme of street-riot.
•
Some 156 civilians sustained injuries, out of which 11 were seriously wounded with
the rest sustaining light injuries.
Casualties among police officers include:
•
•
Seven policemen lost their lives.
338 members of the police force sustained injuries out of which 79 were serious and
the rest light injuries.
The extent and nature of the damage on property include:
•
Three city buses, two police vehicles and one vehicle belonging to the Ethiopian
Telecommunications Corporation were burned. The public and the security forces
rescued one vehicle belonging to the Ethiopian Airlines, while under fire.
•
103 city buses, 28 police vehicles and 22 other private and government vehicles, 153
in total were damaged, the glasses were smashed and the body parts heavily
damaged.
•
Three local Kebele offices, one Kebele recreation center, one city buses’
coordination office were burnt and rendered out of use.
•
Two private houses and three shops were burnt and were totally destroyed with all
the properties inside.
•
One government owned factory was set ablaze and destroyed partially.
•
The doors and windows of 114 condominium houses built around a place called
Gulelie were smashed while others were heavily damaged.
•
101 helmets, 101 shields, 18 staffs and two Kalashnikov guns were broken into
pieces. Other public and private properties were broken into pieces on the roads.
The Government concluded that the tactic employed by the CUD was well thought
and carried out according to plan and as a result has stretched the period of
confrontation which significantly contributed to the rise in lose of human life and
property. The Government rounded up as a useful means to curb the violence having
learned the tactics of the rioters and later put under custody multitudes of them following
a crack down launched on the basis of a careful study.
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The police put under custody certain members of the leadership of the CUD
determined to remain violent among the ranks that incited and organized the violence. It
has left unscathed those who have distanced themselves from violence.
Each measure taken by the police were taken in line with the training it received and
the capacity building it undertook regarding averting violence with minimum damage.
6. Detention and Trial of the Leadership and Members of the Main Opposition Parties
6.1.
Detention and Condition of Detention of the Leadership and Members of the
Main Opposition Parties'
It is universally accepted principle that, not only no one may be deprived of liberty
except in cases or circumstances expressly provided by law, but further, any deprivation
of individual liberty must strictly adhere to the procedures defined under the law. The
failure to comply with such procedures creates the possibility, and eventually the
probability of abuse of the rights of citizens.
The Constitution of the FDRE under its Chapter III dealing with fundamental rights
and freedoms provides that no one shall be deprived of his or her liberty except on such
grounds and in accordance with such procedures as are established by law and
everybody is safeguarded by the Constitution from arbitrary arrest.1 The leadership and
members of the CUD were arrested in line with the requirements of the Constitution and
the Criminal Procedure Code of Ethiopia.
Some of the leadership and members of the CUD were arrested flagrant delicto in
accordance with the provisions of the Criminal Procedure Code of flagrant offences.2
According to the provisions of the Criminal Procedure Code, a police officer can arrest
without warrant a person who has committed a flagrant offence.3 An offence is deemed
to be flagrant where the offender is found committing the offence, attempting to commit
the offence or has just committed the offence.4 The police put in custody and conducted
investigation against those involved in the street-riot organized by the CUD in
accordance with the procedures prescribed by law. The suspects are put in Ziway and
Kaliti prisons. These are federal prisons.
Moreover, concerning the rights of persons in custody, the Constitution of FDRE
outlines that all persons held in custody and persons imprisoned upon conviction and
sentencing have the right to treatments respecting their human dignity.5 Moreover, he
1
The Constitution of FDRE, Art. 17.
Article 17(1) of the Constitution of FDRE, Articles 19, 26, 49, 50, and 51, of the Criminal Procedure Code of
Ethiopia.
3
The Criminal Procedure Code of Ethiopia, Art. 50.
4
Ibid. Article 19.
5
Supra, at 62, Art. 21(1).
2
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cannot be held incommunicado. The right to communicate with and be visited by
spouses, close relatives, and friends, on the one hand and by professionals giving
religious counsel, medical and legal services on the other, are specifically provided
under the Constitution.1
Moreover inhuman treatment or punishment is expressly prohibited under the
constitution and international instruments Ethiopia is a party to. The Constitution, in a
verbatim restatement of the Universal Declaration of Human Rights, reaffirms that
everyone has the "right to be protected from cruel, inhuman or degrading treatment or
punishment.2
The present regime of management of federal prisons in Ethiopia, including the
treatment of prisoners, is governed by the legislation issued for the Establishment of the
Federal Prison Commission. 3 In accordance with this law, the Federal Prison
Commission, is one of the law enforcement organs of the Federal Government
established by law, with accountability to the Ministry of Federal Affairs and with duties
and responsibilities of the administration of federal prisons and proper treatment of
persons subject to detention and imprisonment.4
Following the adoption of Proclamation No. 365/2003, the Federal Prisons started to
receive their budget directly from the Federal Government and are being administered
by the Federal Prison Commission. The legislative measures taken with an objective to
improve the federal prison administration and treatment of prisoners, is nothing but, an
expression of the Government's commitment to improve the welfare of its prisoners in
accordance with its available resources.
In this regard, the Report of the Mission of the African Human and Peoples' Rights
Commission Special Rapporteur on Prisons and Conditions of Detention in Africa to the
FDRE, 15 - 29 March 2004, states in its findings that "the Federal prisons are better in
terms of infrastructure, budgetary allocations and managements than regional prisons.5
The Addis Ababa Administration being under direct federal authority has prisons
including Kaliti prison and Ziway prison. The Kaliti prison is a federal prison situated in
the heart of the capital of the country. It is one of the largest prisons in the country.
The prison is divided into a total of 11 cells, called blocks. The male prisoners
occupy 10 of the cells or blocks, while the female prisoners occupy the remaining cells.6
The female cells are called villas. The male section of the prison is separated from the
1
Ibid, 21(2).
Ibid, 18(1).
3
The Federal Prison Commission Establishment Proclamation No. 365/2003.
4
Id.
5
Report on the Mission of the African Commission Special Rapporteur on Prisons and Conditions of Detention in
Africa to Ethiopia, P.8.
6
Ibid, P. 12.
2
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female section using a fence. In all these prisons the female sections are well
separated from the male section and are guarded by female guards.1
According to the report of the Special Rapporteur, the subsidiary legislation of the
country that deals with the administration of prisons and treatment of detainees, by
stipulating the duty of the Government to ensure the welfare and health of the detainees,
is compatible with international law. 2 The observations and findings of the Special
Rapporteur clearly states that all the detention centers, except police stations, have
clinics that offer treatment to detainees. Medical problems that cannot be handled by
the clinics are referred to nearby hospitals.3
In connection with medical care, it sometimes happens that detainees who are ill and
require specialist treatment, are transferred from the "Kaliti" prison to specialized
medical institutions or civil hospitals. Among the medical treatments given by the Addis
Ababa Prison Administration in serious medical cases, was the timely efforts made by
the Administration to enable Engineer Hailu Shawel, leader of the CUD, to receive the
necessary treatment. Accordingly, ophthalmic specialists from Minelik II Hospital and
Police Hospital referred him to undergo a major eye surgery.4 Foreign experts brought
by the Government conducted successful operation and Engineer Hailu Shawel is now
in good health following a successful surgery undertaken by ophthalmic specialists from
home and abroad.5
The detainees are being provided with adequate opportunities to be visited by and to
communicate and consult with their families, spouses, relatives, friends, lawyers, without
delay, interception or censorship and in full confidentiality. Prison regulations allow
family visits twice a week, usually on Saturdays and Sundays.6 In Addis Ababa Prison,
there is a visiting room where inmates and detainees can meet and discuss. 7 The
leadership and members of CUD, apart from their relatives, friends and spouses, have
been visited by the Prison Fellowship, (local NGO), the Ethiopian Human Rights
Commission and the Ethiopian Orthodox Church. After their visit, Head of the Office of
the Patriarch of the Ethiopian Orthodox Church (EOC), Director of Prison Fellowship
Ethiopia and Commissioner of the Ethiopian Human Rights Commission jointly declared
their findings that detained CUD leaders and journalists are in good hands with all their
rights respected.8 Moreover, the EU Commissioner Mr. Louis Michel, during his recent
visit to Ethiopia met with relatives and lawyers of the detained leaders of the opposition
as well as the detainees from 15 - 17 February 2006.9 Detainees are allowed to write
and receive letters.
1
Ibid, P. 25.
Supra, at 69, Art. 27.
3
Supra, Note 35, p. 28.
4
Eng. Hailu Shawel undergone Opthalmic Surgery, The Ethiopian Herald Vo. LXII No. 140. 21 February, 2006.
5
Id.
6
Supra, at 71, p. 30.
7
Supra, at 71, P. 31.
8
Supra, at 56 11 November 2005.
9
Ethioblog News, http://europ.eu.int/comm/commission, brasso 103/06/106
2
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The Addis Ababa prison adopted its own rules to maintain law and order in the
prison. Most of the rules and regulations are consistent with international human rights
norms and the treatment of persons deprived of their liberty.1 The Report of the Special
Rapporteur states the striking feature as to how these rules are enforced as follows:
" It is interesting to note that prison authorities do not enforce the rules and
regulations of the prison. Discipline is "self-administered". The prisoners
discipline themselves through the prisoners' committee."2
According to the findings made by the Special Rapporteur, there are no secret or
underground prisons in Ethiopia. There are only three official places where people
could be detained in Ethiopia- the civilian prison, the military prison and the police
station. The place where the leadership and members of CUD are detained is one of the
official and legitimate places of detention.
Generally, prisons in Ethiopia are in good conditions. The relationship between
the detainees and prison authorities is good.3 The Report of the Special Rapporteur
clearly witnessed that in all the prisons visited, during the close door meetings with
detainees, there were very little complaints about the prison administration and
prisoners are generally happy with the way they are being treated.4
6.2. Protection of Due Process Rights of Detainees
The Constitution of FDRE contains, a list of legal guarantees to arrested persons.
Article 19 of the Constitution lists down the rights of detained persons pending
investigation and trial. These rights consist of the following:
a) the right to be informed promptly, in a language they understand, of the reasons
for their arrest and of any charge against them;
b) the right to remain silent;
c) the right to be brought before a court within 48 hours of their arrest;
d) an inalienable right to petition the court to order their physical release;
e) the right against self-incrimination;
f) the right to be released on bail. In exceptional circumstances prescribed by law,
the court may deny bail or demand adequate guarantee for the conditional
release of the arrested person.
During detention, both substantive as well as procedural rights of detained CUD
leaders and their supporter are guaranteed. The detainees were denied bail on grounds
that the requirements of the Criminal Procedure Code of FDRE regarding bail were not
1
Supra, at 71, p.34.
Id.
3
Supra, at 71, p. 38.
4
Supra, at 71.
2
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met.1 Hence this cannot be raised as a ground to claim that due process entitlements
were not respected.
Once the investigation is complete, both the Constitution and relevant provisions of
the Criminal Procedure Code provide that persons arrested should be brought before a
court of law. This has been scrupulously implemented. Moreover, the leadership and
supporters of CUD enjoyed the right to a public trial by an ordinary court of law within a
reasonable time after having been charged.2 Once the trial process has started, the
accused persons are also entitled to:
a)
b)
c)
d)
e)
the right to be provided with sufficient particulars of the charge brought
against them or the precise offence which they are alleged to have
committed and to be given the charge in writing;
the right to be presumed innocent until proved guilty according to law,
during the proceeding all the way up to a final court verdict is given and not
to be compelled to testify against themselves;
the right to have access and confront any evidences presented against
them;
the right to be represented by legal counsel of their choice, in the case of
indigent defendant includes the right to be provided with legal
representation at state expense where, in the opinion of the court, in justice
would otherwise result; "where in justice would otherwise result" has
traditionally meant serious crimes that entail loss of life, loss of liberty
beyond two years, or comparable punitive measures; and
the right of appeal to the competent court against an order or judgment of
the court of first instance.3
The rights of accused persons set out above as special safeguards under the
Constitution and other laws of the country are fundamental to a fair system of criminal
justice. Following the initiation of criminal proceeding against the opposition leaders,
steps were taken towards guaranteeing the basic rights of the defendants such as, to be
timely notified of the precise offences which they are alleged to have committed, when
and where their hearing will take place, a public trial, to be represented by attorney in
accordance with Ethiopian law and in accordance with universally accepted human
rights instruments which Ethiopia signed and ratified. Cognizant of the valuable
functions that the publicity of criminal proceedings serves in the society, the trial hearing
is made public.
As regards the implementation of the rights of the defendants to have the
assistance of a legal counsel, the court informed the defendants that their rights to seek
legal counsel is guaranteed. With respect to bail, the accused submitted their request to
1
Supra, at 64, Art. 28.
Supra, at 62, Art. 20(1).
3
Ibid, Art. 20 (2-6).
2
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be released on bail by a petition on 28 December 2005.1 The Second Criminal Bench of
the Federal High Court issued an order, rejecting, the request to be released on bail by
the suspects who face charges of crime against the Constitution and the Constitutional
system and other serious offences. 2 The Bench denied the suspects' request to be
released on bail after looking into their petition against the prosecutor’s counter
argument that referred to a relevant legal stipulation and the non-bailable nature of the
criminal charges brought against them.3 The Bench ruled out the suspects' argument
based on Article 9(3) of the International Covenant on Civil and Political Rights of 1966
and Article 19 of the Constitution cum Article 63 of the Criminal Procedure Code of
Ethiopia.4
6.3. The Trial of the Leadership and Members of the CUD
Following the May 2005 National Elections, the leadership and members of CUD,
opted for unconstitutional means of assuming power, by inciting violence and
insurrection with the intention of destabilizing the constitution and the constitutional
order. They have committed serious crimes endangering national security of the country.
The law recognizes that it is the responsibility of the government to prosecute
serious violations of the constitution and other laws of the country. Thus, after
examining the investigation of the federal police and obtaining sufficient evidence, the
federal prosecutor charged the leadership and members of CUD who are suspected in
the May 2005 post election violence. The prosecutor charged the suspects under a
single charge containing different counts and being described separately. The charge
has been filed against 131 defendants.
The seven counts of the charge include: outrages against the constitution or the
constitutional order (Articles 32(1)(a)(b), 34, 38, 27(1) and 238(2)/258 of the Criminal
Code of FDRE); obstruction of the exercise of constitutional powers (Articles 32(1)(a)(b),
34, 38, and 239 of the Criminal Code of FDRE); armed rising or civil war (Articles
32(1)(a)(b), 34, 38, and 240(2)/258 of the Criminal Code of FDRE); attack on the
political or territorial integrity of the State (Articles 32(1)(a)(b), 38, and 241 of the
Criminal Code of FDRE); impairment of the defensive power of the state (Articles
32(1)(a)(b),34,38, and 247(a)(c)/256 of the Criminal Code of FDRE); high treason
(Articles 32(1)(a)(b),34, 38, and 248(b)/258 of the Criminal Code of FDRE) and
genocide (Articles 32(1)(a)(b), 34, 38 and 269(a) of the Criminal Code of FDRE).
All defendants are accused of the first count of the charge. The second and third
counts of the charge have been filed against defendants listed under number 1 to 39
and 96 to 131 of the charge. The fourth and fifth counts of the charge have been filed
against defendants listed under number 1 to 39, 70 to 90 and 127 to 131 of the charge.
1
High Court rejects Eng. Hailu Shawel et al. bail appeal, The Ethiopian Herald, Vol. LXII, No. 100, 5 January,
2006, P.1.
2
Id.
3
Id.
4
Id.
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The sixth count of the charge has been brought against defendants listed under number
1 to 39 and 127 to 131 of the charge. And the last count of the charge has been filed
against the 1st to 39th, 70th to 90th and 96th to 131st of the defendants.
The trial of the 131 opposition leaders and supporters, including 14 publishers and
editors of private newspapers, is being attended by representatives of international
organizations and embassies of several countries in Addis Ababa and families and
friends of the suspects.
The prosecutor, on 22 March 2006 withdrew the 4th count out of the seven counts of
the charge instituted against the suspects and it also requested the court to release 18
defendants.1 The Federal Prosecutor has decided to drop all the charges against 18 out
of 131 defendants after having taken into consideration the degree of participation and
the age of the defendants. The Court ordered for the release of Wondwossen Tsega,
Wondimu Desalegn, Solomon Abebe, Menbere Cherinet, Abraham Abiye, Zinash
Moges, Biniam Tadesse, Teferi Berhe and Gebre-Medhin Teferra. It also order the
withdrawal of the charges filed against Negussie Mengesha, Addisu Abebe, Solomon
Kifle, Tizeta Belachew, Adanech Fissehaye, Kassa Kebede, Isayas Lisanu, Teferra
Zewdie and Tilahun Maru, the cases of whom was being heard in absentia.2 The 18
defendants whose charges are lifted or suspended are released by the order of the court
included five journalists working for the Voice of America and charged in absentia.3
It should also be mentioned that the trial process is being conducted as expediously
as possible without being unduly prolonged. So far the trial hearing is adjourned twice.
All of the defendants except three, pleaded not guilty by remaining silent. It appears to
the Court in the course of proceedings that "where the accused says nothing in answers
to the charge..., a plea of not guilty shall be entered".4 After establishing "plea of not
guilty", the court adjourned the hearing, requiring the prosecutor to call such evidences
for the prosecution as it considers necessary. It is expected that the hearing of both
prosecution and defense evidences and the final verdict would be given within a
reasonable period of time. It will be up to the Court to determine the validity of these
charges. The government will obviously abide by the verdicts of the court.
7. The Right to Freedom of Demonstration and Assembly
Article 30(1) of the Constitution of FDRE guarantees the people of Ethiopia the
right to demonstrate and assemble peaceably and unarmed. The Constitution, however,
allows the imposition by law of a certain measures of restriction on the manner of
exercise of this right. Restrictions imposed accordingly may relate to the location of
open-air meetings and the route of movement of demonstrators and may be imposed for
the sake of public convenience or for the protection of democratic rights, public morality
and peace during a meeting or demonstration. The Constitution also spells out that this
1
Supra, at 90, 23 March 2006.
Id.
3
Id.
4
Supra, at 64, Art. 13(1).
2
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right may not be exercised in a manner that would affect the well being of the youth or
the honor and reputation of individuals, and to disseminate war propaganda and to
express opinions in public intended to injure human dignity.
The restrictions permitted by the Constitution are also allowed under the African
Charter on Human and Peoples' Rights and the International Covenant on Civil and
Political Rights.
Particulars as to the usage of this right are set forth in Proclamation no. 3/1991
issued to establish the procedure for peaceful demonstration and public political
meeting. The restrictions and requirements imposed by this Proclamation are only
concordant with those sanctioned by the Constitution and are not meant to create undue
hurdles to the exercise of the right but rather to facilitate its enjoyment to its fullest extent
possible without, of course, infringing against other constitutionally protected rights.
7.1. Protection of the right of demonstration: before and after the election
Before the Election Day, political parties employed a number of methods to
amass support from voters. They introduced their candidates and national agenda
through different channels of communication, took part in national political parties'
debates, called their members and supporters for discussion and organized and held
demonstrations and counter demonstrations.
As the right to demonstrate was always protected, public rallies including the one
called by one of the main opposition parties, the CUD, were held in the capital, Addis
Ababa, and cities of regional states. Almost all the rallies held in support of the different
contending political parties were peaceful.
The government lived up to its
responsibilities with respect to facilitating for the rallies to be concluded with out any
security problem.
Rallies organized by opposing parties were held not because they suited the
purposes of the government and hence gained its blessing but because the constitution
obligates the government to allow them so long as all the statutory legal requirements
are met.
Following the election, the government found it necessary to impose a monthlong ban on demonstration in Addis Ababa and its surroundings to prevent any threat
against public peace. The decision to ban public rallies was not made arbitrarily. The
government had the responsibility to ensure that the security of the people was
protected at all times and under all circumstances. Moreover, it recognized the fact that
it would bear the blame if, although it did not expect any major problem to happen, lives
were to be lost and property to be damaged owing to its failure to take preparatory
actions.
During the month in which the ban on demonstration was in force, riots erupted in
Addis, and other parts of the country, which claimed the lives of people and inflicted
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damage on property. This fact, therefore, necessitated the extension of the ban for one
more month. Given the volatile situation that prevailed in the city, not extending the ban
would have been an irresponsible act on the part of the government that would have
made matters even worse.
The ban on demonstration once the extended for a brief period was rescinded.
Here, it must be noted that the purpose served by the imposition of the ban cannot be
contested on grounds whether it was necessary or its legal standing.
7.2. Protection of the Right of Assembly
The right to assemble has never been restricted at anytime before or after the
election except for those two months when only outdoor meetings- and demonstrations
as discussed just above- were banned temporarily to eschew possible threat against
public peace. Before the Election Day, opposition parties gathered - both outdoor and
indoor - their members, supporters and other voters to introduce their candidates and
political agenda.
Following the actual election, these political parties continued meeting their
members and supporters indoor to discuss problems and challenges they might have
faced during the election and the actions they intended to take. The most notable of
such occasions were the strings of meetings the CUD held in Addis Ababa and other
parts of the country to deliberate with its members and supporters on whether to join or
boycott parliament and whether the Party should take over the administration of Addis
Ababa from the incumbent EPRDF.
Therefore, except for that brief spell of temporary ban imposed for cause only on
open-air gatherings, the right to assemble was never restricted.
8. The Right to Freedom of Expression
8.1. Overview of Ethiopian Press law and the State of Press in Ethiopia
8.1.1. Overview of the Ethiopian Press Law
Free and vibrant press is a fundamental aspect of the right to freedom of
expression. Thus, the existence, promotion and expansion of a free and strong press is
a fundamental prerequisite for the full realization of freedom of expression.1
Free press, not only provides forum for citizens to freely express their opinions,
but also plays a preeminent role in the protection of individual and people's rights and
the development of democratic culture as well as in affording citizens the opportunity to
form balanced views on various topical issues and to forward their opinions on the
1
Proclamation to provide for the Freedom of the Press, Proc. No. 34/1992, Preamble, Para. 2.
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directions and operations of government. 1 But press can play this role only when
appropriate conditions are created under which it can operate freely and responsibly
without any censorship and restrictions of similar nature. 2 To materialize this, it is
necessary to issue the appropriate law providing for the freedom, rights and duties of the
press.3
Ethiopia is a state party to the International Covenant on Civil and Political Rights
(ICCPR) of 1966, and the African Charter on Human and People's Rights (ACHPR) of
1981.
The FDRE Constitution and the Proclamation to Provide for the Freedom of the
Press (the Proclamation) provide the domestic legal framework in which freedom of
press is guaranteed.
Article 29 (3) of the Constitution guarantees freedom of the press and other mass
media and freedom of artistic creativity; and that freedom of the press shall specifically
include the following elements:
(a) Prohibition of any form of censorship; and
(b) Access to information of public interest. 4
Paragraph 4 of the same Article reads as follows:
" In the interest of the free flow of information, ideas and opinions which are
essential to the functioning of a democratic order, the press shall, as an
institution, enjoy legal protection to ensure its operational independence and its
capacity to entertain diverse opinions."5
According to Article 4 of the Proclamation, the main purpose of the Ethiopian
Press Law is to promote the pursuit of fundamental freedom, peace, democracy, justice,
and equality and for the acceleration of social and economic development.6 Accordingly
the press:
a) gathers and disseminates news;
b) expresses opinions on various issues;
c) forwards criticism on various issues;
d) participates in forming public opinion by employing various other methods;
and;
e) undertakes other activities necessary for the accomplishment of its purposes.7
1
Ibid, Para. 3.
Ibid, Para. 4.
3
Ibid, Para. 5.
4
Supra, at Art. 29(3).
5
Ibid, Art. 29(4).
6
Supra, at 98, Art. 4(1).
7
Ibid, Art. 4(2).
2
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The Proclamation also prohibits censorship of the press and any restrictions of a
similar nature1. This has created a fertile ground for the free press to flourish in Ethiopia
in the last decade and half.
8.1.1.1 Restrictions/Limitations on the Free Press
There are acceptable grounds for limitations and restrictions on the right to freedom
of the press. Under Article 19(3) of the ICCPR, freedom of expression (that includes the
right to freedom of the press) may be subject to certain restrictions that shall only be
such as provided by the law and are necessary:
1. for respect of the rights or reputations of others; and
2. for the protection of national security or public order (order public), or of public
health or morals. 2
Article 9(2) of the ACHPR clearly shows that the individual's right to express and
disseminate his opinions can be restricted with in the bounds of the law.3 Limitations on
freedom of expression are also provided for in other regional legal instruments.
The Constitution, under Article 29(6), shows that legal limitations can be laid down
on the right to freedom of the press in order to protect the well being of the youth, and
honor and reputation of individuals.4 The Proclamation also prohibits any propaganda for
war as well as the public expression of opinion intended to injure human dignity.5 The
Constitution, under 29 (7), also provides that any individual citizen who violates any
legal limitations on the exercise of this right may be held liable under the law.6
Articles 10 to 14 of the Proclamation provide for rules defining what are considered
as the responsibilities of the press.7 In particular, Article 10 of the Proclamation reads:
1. Every press has the duty to ensure that any press product it circulates is free
from any content that can give rise to criminal and civil liability,
2. Without prejudice to the generality of sub-article 1 of this Article, any press
shall have the duty to ensure that any press product it issues or circulates is
free from:
a) any criminal offence against the safety of the state or of the
administration established in accordance with the Charter or of national
defense force;
1
Ibid, Art. 3.
Supra, at 102, Art. 19(3).
3
Supra, at 103, (emphasis added).
4
Supra, at 62, Art. 29(6).
5
Id.
6
Ibid, Art. 29(7).
7
Supra, at 98.
2
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b) any defamation or false accusation against any individual,
nation/nationalists, people or organizations;
c) any criminal instigation of one nationality against another or incitement
of conflict between peoples; and
d) any agitation for war.
3. Responsibility for carrying out the duties specified under sub-articles 1 and 2
of this Article shall lie as follows:
a) in case of a periodical press such as a news paper, magazine or
journal, on the concerned editor, journalist or publisher;
b) in case of press other than those specified under this sub-article 3(a),
on the publisher,
c) in any press product disseminated by radio or television, on the
concerned journalist and program editor.
8.1.1.2. Amendment of the Law of the Press
According to Article 74 of the Constitution, H.E the Prime Minister shall submit to
the House periodic reports on the work accomplished by the executive as well as its
plans and proposals.1 In accordance with this constitutional provision, H.E. the Prime
Minister submitted the second quarterly report of the fiscal year 2006. During the
discussion on the report, H.E. the Prime Minister explained that, at present, the
government is making maximum effort to retain the services of experts from Canada,
United kingdom, Germany and India on the study to amend the press law.2 According to
H.E. the Prime Minister, all appropriate institutions will continue to work with the
government and organizations who give support in this regard; and upon the completion
of the study, a draft press law would be prepared through dialogue and negotiation
among the parties who participate in the parliament and the draft will then be submitted
to the House.3 Owing to the Government’s belief that the issue affects actors beyond
political parties, it is currently organizing various forums need to be organized that could
facilitate the presentations of inputs from other stakeholders will help enhance the
democratic nature of the process.4
8.1.2. The State of the Press in Ethiopia
In addition to creating the appropriate political environment and legal regime for
the strengthening and further development of the right to freedom of the press,
encouraging activities have been conducted and tangible results have been achieved so
far.
Institutions that seek to strengthen the capacity of the media sector have been
established and are now graduating qualified professionals in the country. For instance,
the School of Journalism and Communication at Addis Ababa University is providing
1
Supra, at 62, Art. 74(11).
Report of the Prime Minister to the House of Peoples' Representatives (January 2006), P. 23, Para. 2.
3
Id.
4
Id.
2
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postgraduate programmes and other short-term and long-term trainings for numerous
participants. Mass Media Training Institute in Addis Ababa has also been providing
diploma programmes and trainings for professionals from the public media sector. The
role of the private sector in this regard cannot be overemphasized. Numerous private
owned institutions are now flourishing and are playing their role in graduating qualified
journalists who can contribute towards the promotion and development of the press. The
government is keen in promoting public-private partnership in the sector. Accordingly it
has developed numerous initiatives that provide support and assistance to private
institutions that provide trainings in journalism. The Government is also facilitating the
availability of various opportunities to media staff and other press personnel so that they
would get short and long-term training in foreign institutions.
With the view to creating conducive environment for the free press and independent
media, the following additional measures were taken:
1. The Freedom of Information Act (FOIA) was drafted by the relevant authority and
commented by foreign consultants. It is expected to be submitted to the House
for adoption through the National Committee established for that purpose.
2. Revision of the existing press law is being conducted. More than three
consultative meetings were held among the government and journalists and
concerned bodies. The details on the amendment of this law are discussed
under section 8.1.1.2 above.
3. The establishment of the Broadcasting Agency is another achievement in this
regard. The Agency has given license permits to 2 private FM Stations and they
have begun operating.
Encouraged by the conducive environment created, journalists have created several
associations. For instance, mention could be made of the Ethiopian Journalists
Association, the Ethiopian Free Press Association, the Ethiopian Women Journalists
Association, Ethiopian Sport Journalists Association and etc.
Considerable number of private publishing enterprises, newspapers, magazines and
news agencies are also operating in the country. Since 1992, a total of 1, 113 press
licenses have been granted i.e. license permits for 684 Newspapers, 276 Magazines, 3
News Agencies, 150 Electronics Publishing Enterprises have been issued. Currently,
71 Newspapers and 34 Magazines are in circulation, 2 News Agencies are operating
and 100 electronics (Audiovisual) publishing enterprises are functioning.
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8.2
Participation of Ethiopian Private Press during Pre-election, Election and
Post-election periods
8.2.1 Pre-Election Period
Recognizing and respecting the right of the press; prohibiting censorship and any
similar restrictions of the press; establishing institutions that build the capacity of
journalists; encouraging private sector to participate in establishing these institutions;
encouraging publishing enterprises and creating conducive environment to this effect
are the most important factors that contributed for the private press to flourish in
Ethiopia.
The private press often criticized polices of the government and one would
expected them to contributed for the democratic culture in the country. It obtains
information from any government sources of news and information, and publicizes
reports based on such information. The private press disseminates news and
information regarding the country's political, economic and social aspects. During the
pre-election period, the free press had access to the debates among political parties.
They disseminated news and information on election campaign including open debates
and peaceful campaign rallies. They had access to the activities of the NEB and other
relevant government agencies.
8.2.2. The Election Day
During the Election Day, the press operated in a similar environment under which
it conducted itself during the pre-election phase. The private press had unfettered
access to the polling stations during the Election Day as can be witnessed from the
various reports that appear in numerous media outlets at the time. Such access was
available without any restriction during the opening, voting, counting and tallying of the
ballots. They obtained information and disseminated their press products on this matter.
8.2.3. Post Election Period
As it was during the pre election period and Election Day, the private press
continued to obtain information and disseminate press products. The day-to-day post
election events were widely published on the newspapers and magazines that belonged
to the private press regardless of their contribution to the process positively or
negatively. They had access to all relevant governmental and non-governmental
institutions even during the post-election violence.
8.3 Detention of Some Journalists
As explained above, it is not uncommon to have restrictions on a certain right
under any law.1 There are, indeed, certain limitations on the right to freedom of the
1
Supra, at 109, 102, 103, 62.
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press under Ethiopian Law.1 If a press circulates a product which goes against legal
limitations, then the press that violates these legal limitations may be held liable under
the law.2
The 14 journalists who are detained after the street violence instigated by some
of the opposition parties are brought before the law not because they violated the legal
limitations on the freedom of expression and press law but it is because they took part
in:
outrages against the constitutional order,
attack on the political and territorial integrity of the state,
impairment of defensive power of the state; and
genocide. 3
Hence the acts committed by the journalist are not minor infractions of the press law but
serious violation of the criminal code.
9.
Rights and Protection of “Human Rights Defenders”
9.1. “Human Rights Defenders” in Ethiopia
The Ethiopian Constitution enumerates in its chapter three (3) a comprehensive
list of the fundamental human and democratic rights and freedoms under Articles 13 to
444. It affirms that the provisions contained therein shall be respected and enforced by
all federal and state organs, and that they shall be interpreted in a manner conforming to
the principles of the Universal Declaration of Human Rights, international covenants on
human rights and international instruments adopted by Ethiopia.
In light of the foregoing, the Government attaches particular significance to its
obligations to ensure the respect of the fundamental human and democratic rights and
freedoms of its citizens. It is this strong attachment to the respect and enforcement of
these rights and freedoms that led Ethiopia’s parliament to establish in 2004 the
Ethiopian Human Rights Commission and the Institution of the Ombudsman (See Annex
3).
These institutions have been entrusted with the task of examining individual
cases of human rights violations and where, deemed appropriate, to give redress or
transmit the case for remedy to the appropriate organ. These institutions have started
operating and are currently examining numerous cases brought to their attention
Along side these institutions truly dedicated to the advancement of the cause of
human rights in Ethiopia, there have been for several years now a non-governmental
organization called the Ethiopian Human Rights Council founded and headed until
1
Id.
Supra, at 62.
3
The charge by public prosecutor to the Federal High Court, 1st, 4th, 5th, 7th Charges (See Annex 2).
4
Supra, at 62.
2
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recently by a prominent opposition figure, Professor Mesfin Woldemariam and others.
The Council has been using this institution to propagate false information about human
rights abuses in Ethiopia in order to advance his sinister political motive of discrediting
the Government.
The motives of the founder became even more apparent to all when in the run-up
to the May 2005 elections, he formed the Rainbow Movement for Social Justice and
Democracy, a party which became part of the CUD and orchestrated the street violence
in Ethiopia in June and November 2005 with the objective of overthrowing the
constitutional order and seizing power illegally. He is currently facing in a court of law
along with other CUD leaders charges of high treason and genocide for his role in the
violence that gripped the country after the elections with his rights to due process
entitlements fully respected. (See the charge annexed to this document)
Thus, it should not come as a surprise that individuals working for this
organization would attempt to lure organizations truly dedicated to the cause of human
rights under the guise of “human rights defenders” by feeding and propagating
falsehoods for hidden political motives.
When examining reports of alleged human rights abuses, it is of the utmost
importance to take the greatest care possible in identifying the sources of the reports.
Only zero credibility can be attached to reports emanating from organizations such as
the Ethiopian Human Rights Council operating under the guise of human rights
defenders but in actual fact openly pursuing a political agenda.
It is, therefore, clear that any report emanating from the abovementioned
organization of the elections will only contain a litany of lies, falsehoods and
misinformation designed to discredit what has been otherwise hailed as a free, fair and
orderly electoral process.
9.2.
Participation of “Human Rights Defenders” during the Pre-election,
Election and Post-election Periods
As stated above, numerous international and national electoral monitors and
observers were invited by the Government to observe and monitor the May 2005
elections. Some of these national observers came from local and locally-based
international non-governmental organizations working in the developmental field.
These organizations were allowed to participate in the electoral process from the
pre-election period, to the Election Day and post-election periods with the hope that they
would play constructive roles in the process.
Although the vast majority did indeed fulfill their role with the diligence and
professionalism that one expects of them, few, unfortunately did not. Limited number of
individuals working for some NGOs have been charged on an individual basis with the
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crimes stated in the charge attached to this document1. The organization to which these
accused individuals belong have continued to operate in the country.
Despite this regrettable fact, it is, nonetheless, important not to let these limited
cases of illegal acts committed by some individuals working in the NGO community
overshadow the work done by numerous other members of the NGOs and religious
organizations that observed the election process and declared it as being free, fair and
orderly.
10. Establishment of Independent Parliamentary Inquiry Commission
10.1. Parliamentary Debate Over Post-Election Developments In Ethiopia
The House of the FDRE, which is the highest authority of the Federal
Government,2 in its first extraordinary session of the first year term dated 14 November
2005, thoroughly deliberated on the report presented by the Police Commissioner on
actions taken by security forces to suppress the street-violence orchestrated by the
opposition political parties in the capital city and some other towns of the country
following the May 7, 2005 national election. The Police Commissioner has submitted
the report in accordance with Article 55(17) of the Constitution of the FDRE.3 The said
provision empowers the House to call and to question the Prime Minister and other
Federal officials and to investigate the Executive's conduct and discharge of its
responsibilities. The House called the Police Commissioner, who is the official of the
Federal Government, heading of the institution that is vested with the power to prevent
any activities in violation of the Constitution that may endanger the constitutional order
under Proclamation No. 313/95 on the FDRE Police Commission.
In the report, the Police Commissioner explained the security problems, which
occurred in the country by anti-peace forces and the subsequent measures police has
taken to resolve the problems.4 As it has already been mentioned under section five of
this document, the violence has claimed the lives of civilians and police forces and
destroyed public and private property. The House, after having discussed on the report,
endorsed it with 322 votes for, 44 against and 37 abstentions and issued a five-point
resolution.
In the resolution, the House expressed that it is considerably saddened by the
loss of lives and property damages due to the recent street-riots in Addis Ababa and
other towns. It also asserted that any complaint that might arise in connection with the
third federal and regional elections could have been handled through the laws and legal
institutions of the country, leaving the legal and peaceful path, to disturb the peace and
stability of the people, as well as making an antidemocratic and anti-constitutional call to
destroy the age old social fabric of the people is an extremely dangerous approach.
1
Supra, at 62, Art. 50(3).
Ibid, Art. 55(17).
3
Supra, at 46.
4
www.ethiopar.net, November 14, 2005.
2
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Furthermore, the resolution states that in the belief that any political struggle
could be pursued peacefully, legally and democratically, underlining the measures taken
by the government to address the recent problems and maintain the constitutional order
and ensure peace and stability. The House, in addition, decided to establish an
Independent Inquiry Commission to investigate the violence in Addis Ababa and some
other towns and if there were measures taken by the government outside of the law.
Finally, the House decided that the Legal and Administrative Affairs Standing Committee
of the House to make available a draft proposal on the Independent Inquiry
Commission's formation and members of the commission to the House in two weeks'
time. At this juncture, it needs to be understood that the House forwarded the motion to
set up an Independent Inquiry Commission pursuant to Article 55(7) of the Constitution
that gives the House the power to carry out investigations and take necessary measures
if the conduct of national force, public security and a national police force infringe upon
human rights and the nation's security. Moreover, the action taken by the House to form
an Independent Inquiry Commission emanates from the belief that ongoing system of
the country is self-corrective and governed by the rule of law.
10.2. Powers and Duties of the Independent Parliamentary Inquiry
Commission
The House, in its regular session on 29 November 2005, approved the bill to form
an Independent Inquiry Commission which steers the violence occurred on 8 June 2005
in Addis Ababa and between 1st of November and 10th of November 2005 as well as
between the 14th of November and 16th of November 2005 in Addis Ababa and in some
parts of the country. The bill was prepared by the Legal and Administrative Affairs
Standing Committee of the House which was empowered to submit the said bill in the
House's first extraordinary session of the first year term on 14 November 2005.
An Independent Parliamentary Inquiry Commission has been constituted by virtue
of Proclamation No. 478/2005 with the following powers and duties. (See Annex 4).
These are:
1. to investigate whether the force used by the security force to control the
disorder was excessive or not;
2. to investigate whether the handling of human rights in matters related to the
problem was conducted in accordance with the Constitution and the rule of
law; and
3. the damage caused to life and property as the result of the incident.
The Commission is also empowered by the aforementioned Proclamation with
powers to effectively carry out its duties:
1. It shall order the production of documents in the possession of any
organization or individual if it deems such document is necessary for its work.
2. It hall summon individuals that have relevant information and order them to
give their statements.
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3. It shall order appearance of unwilling individual or organization by police to
give information or statements of testimony that are relevant to the duties of
the Independent Parliamentary Inquiry Commission. And
4. It shall require professional, material and other cooperation from any
organization that are necessary for the proper discharge of its duties.
On the other hand, the Commission is responsible under the Proclamation to
accept relevant information presented to it by a concerned individual or body. Pursuant
to the Proclamation, the Independent Parliamentary Inquiry Commission, while
undertaking investigation, shall cause efficient investigators to be assigned and decide
their numbers in accordance with the work load when it deemed necessary. Finally, the
Proclamation vests the Independent Parliamentary Inquiry Commission with the power
to send warrant to any person to appear before it for question in a specified place and
time. In this connection, if the person who has to appear before the Independent
Parliamentary Inquiry Commission for question is a prisoner, the Proclamation reads,
"the Independent Parliamentary Inquiry Commission shall order the head of the prison to
cause him to appear before it." If the person is an admitted patient with ability to appear
before the Commission, it shall order to the health institute to cause him to appear
before it. And if the person is out of Ethiopia, the Independent Parliamentary Inquiry
Commission shall send the warrant through his address and if he is in Ethiopia but with
unknown address it shall call him to appear before it by announcing through mass
media.
10.3. Members of the Independent Parliamentary Inquiry Commission
The Proclamation that establishes the Independent Parliamentary Inquiry
Commission states that the members of the Commission shall be nominated by the
Legal and Administrative Affairs Standing Committee to be appointed by the House of
FDRE. In this regard, the House has appointed 11 members of the Commission in its
regular meeting on 6 December 2005. The members of the Commission are drawn from
different professional, educational and ethnic backgrounds and they are renowned for
their goodwill and integrity in the society.
The names and responsibilities of members of the Commission are:
1. Mr. Firehiwot Samuel
- Chairperson of the Commission
2. Mr. Shiferaw Jamo
- Deputy Chairperson of the Commission
3. Bishop Elsa
- Member of the Commission
4. Sheik Elias Redman
"
"
5. Mr. Abel Muse
"
"
6. Priest Derejie Jenberu
"
"
7. Mrs. Hakimet Abdela Mefek
"
"
8. Dr. Gemechu Megerssa "
"
9. Mr. Tamirat Kebede Gebrie
"
"
10. Mr. Abdu De'ad Ibrahim "
"
11. Mr. W/Michael Meshesha "
"
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The Commission is lead by a chairperson who is responsible to:
1. supervise and control overall activities of the Independent Parliamentary Inquiry
Commission;
2. assign support staffs that are necessary to undertake the duties of the
Independent Parliamentary Inquiry Commission and
3. represent the Independent Parliamentary Inquiry Commission in its all dealings
with other bodies.
The Proclamation provides that the Commission shall have a deputy chairperson
who represents the chairperson in his absence. Furthermore, he shall make sure that
the minutes of the Commission are properly kept; supervise whether the daily recorded
activities of the Independent Parliamentary Inquiry Commission are transcribed and
properly recorded in written form; sign and send warrants to persons who shall appear
before the Commission for question; check whether any document presented to the
Commission are kept; supervise and control duties of the office of the Commission and
undertake other activities assigned to it by the Commission and the chairperson.
Decision making by the members of the Commission is made by majority vote of
the members present at a given meeting. The presence of six members of the
Independent Parliamentary Inquiry Commission shall constitute a quorum pursuant to
the Proclamation.
10.4. Independence of the Parliamentary Inquiry Commission
The Independent Parliamentary Inquiry Commission administers its affairs without
the intervention of external bodies. The Commission prepares and gives relevant terms
of reference to investigators, assigned by it to take testimonies from witnesses. It is
independent from external bodies in drawing its work plan and rules of procedure, to
enable it undertake its duties properly.
The House is responsible under the
Proclamation to provide the necessary staff, budget and office to the Independent
Parliamentary Inquiry Commission. In return, the Proclamation that constituted the
Independent Parliamentary Inquiry Commission provides that, the latter is duty bound to
submit report and its findings to the House by investigating the violence and its
consequences.
A deadline is set by the Proclamation for the Independent Parliamentary Inquiry
Commission to make a report on its findings. It has to submit the report of its findings
within three months of its formation (December 27, 2005 to March 27, 2006).
Nevertheless, if it requires more time to complete its work, it shall present the case to
the Speaker of the House and when convinced the Speaker could grant an extension for
not more than one month. As per the Proclamation, if the Independent Parliamentary
Inquiry Commission requires an extension of more than one month, it shall be decided
by the House.
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The Proclamation that created the Independent Parliamentary Inquiry
Commission ensures that the Commission is protected from the interference of the
executive branch of the government.
11. Conclusion
The Government of the Federal Democratic Republic of Ethiopia is of the view
that the facts presented in this report are compelling and persuasive evidence showing
that the Commission’s resolution which failed to take into account the environment
within which Ethiopia’s freest and most democratic election has taken place, and rushed
to condemn Government measures taken with the view to safeguarding the
constitutional order, was not warranted. It is also the view of the Government that
passing the resolution without sufficient opportunity for the Government to respond and
without adequate assessment by the Commission is indeed inconsistent with the African
Charter on Human and Peoples’ Rights, the Commission’s Rules of Procedure and
other relevant legal instruments. The unbecoming manner in which the resolution was
passed cannot be overemphasized. The Government therefore requests the
Commission to exclude the resolution from its report.
The report has provided the Commission with sufficient information on the
institutional, legal and practical aspect of the May 2005 federal and regional legislative
elections in Ethiopia, which is by far the most competitive election held in the country.
The hardliners in the opposition camp tried to manipulate the free and fairness of the
elections to seize power through unconstitutional means. As clearly stipulated in so
many of the African Union’s legal instruments, this cannot and should not be tolerated.
This report clearly establishes that political campaigning during the election was
undertaken in a free and open environment. The report establishes that the individuals
who are in prison following the carefully marshaled street violence in Addis Ababa and
other parts of the country are not political prisoners. The few journalists and individuals
who misused their status in civic society organizations that are arrested in connection
with the street violence are ordinary prisoners. The law enforcement bodies have
concrete evidence that is now being presented in their trial. The report has shown that
both during their detention and the ongoing trial, their due process rights enshrined in
the FDRE Constitution and relevant international human rights instruments are fully
guaranteed and protected.
Ethiopia remains committed to its international obligations. As such the
unfortunate killing of civilians and law enforcement officers is a matter of utmost regret to
the Government. This is indeed why, as comprehensively discussed in the report, the
House of Peoples’ Representatives of the Federal Democratic Republic of Ethiopia
adopted a Proclamation establishing an Independent Inquiry Commission that will look
into the circumstances surrounding the post-election violence. The constituting
legislation, reporting mechanism, membership and financing are designed in such a
manner that ensures the independence of the Commission. The report of this
Commission will be debated in parliament.
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For the reasons adduced in the report, the Government reiterates it request to the
Commission to put aside the ill-conceived resolution. It wishes to express its
commitment to encourage positive dialogue between the Government and the
Commission in the future in the context of the promotional and protection mandates of
the Commission and in the context of Ethiopia’s initial and periodic reports that are being
finalized for submission to the Commission.
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RESOLUTION ON THE SITUATION OF HUMAN RIGHTS IN
THE DARFUR REGION IN SUDAN
The African Commission on Human and Peoples’ Rights meeting at its 38th
Ordinary Session in Banjul, The Gambia from 21 November to 5 December 2005;
Considering the provisions of the Constitutive Act of the African Union (AU) and
the Charter of the United Nations Organisation (UN), as well as those of the African
Charter on Human and Peoples’ Rights and other regional and international human rights
instruments to which the Sudan is a State Party;
Recalling relevant Decisions and Communiqués adopted by the AU Assembly of
Heads of State and Government and those of the Peace and Security Council on the
situation in Darfur, most notably Decisions AU/Dec.54(III) and Assembly/AU/Dec.68 (IV)
adopted at the 3rd and 4th Ordinary Sessions of the AU Assembly of Heads of State and
Government respectively, as well as Communiqués PSC/PR/Comm.(XIII) and
PSC/PR/Comm.(XVII) adopted by the AU Peace and Security Council at their 13th and
17th Meetings respectively;
Recalling Resolutions 1556/2004 of 30 July 2004 and 1590/2005, 1591/2005
and 1593/2005 adopted by the UN Security Council on the situation in Darfur, Sudan in
March 2005;
Recalling also Resolution ACHPR /Res.74 (XXXVII) 05 adopted by the 37th
Ordinary Session of the African Commission on Human and Peoples’ Rights on 11th
May 2005 on the situation in the Darfur region of Sudan and Resolution ACHPR/Res.68
(XXXV) 04 adopted by the 35th Ordinary Session on 4th June 2004, as well as
Resolution E/CN.4/RES/2005/82 adopted by the UN Commission on Human Rights on
21st April 2005 on the situation of human rights in Sudan;
Deeply concerned about the continuing grave violations of human rights and
international humanitarian law in Darfur committed by parties to the conflict, in particular
the continued depopulation of vast areas in the region of their indigenous owners,
threats of violence, intimidation and assault against UN agencies and humanitarian
organizations, the targeting and killing of AU troops in Darfur, and the killing and
abduction of staff members of national and international humanitarian organisations;
Concerned that the African Commission undertook a Fact-Finding Mission to the
Darfur region of Sudan in July 2004 and dispatched its report to the government of
Sudan but has not yet received a response;
1. Calls on the government of Sudan to submit its comments to the African
Commission with respect to its report on the 2004 Fact-Finding Mission to Sudan;
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2. Calls on the government of Sudan to comply with its obligations under the African
Charter on Human and Peoples’ Rights, the AU Constitutive Act, the UN Charter
and other relevant instruments to which the Sudan is a State Party, and comply
with the following:
a. Cease, with immediate effect, all attacks against civilians in Darfur and end
the grave violations of human and peoples’ rights, in particular the forced
de-population of entire areas in the region, rape and sexual violence
against women and girls, abduction of women and children, and to cease
all support to the Janjaweed militiamen, including the provision of supplies.
b. Provide the necessary support to all international agencies and
humanitarian organisations in order to ensure effective and full access to
the war affected areas of Darfur and to facilitate delivery of humanitarian
assistance to civilian populations.
c. Fully and unconditionally cooperate with the Office of the Prosecutor of
the International Criminal Court in his efforts to investigate and bring to
justice all persons suspected of perpetrating war crimes and crimes against
humanity as prescribed in the report of the International Commission of
Inquiry on Darfur.
d. Take all appropriate measures to ensure the effective implementation of
the Resolutions 1556/2004 of 30 July 2004 and 1590/2005, 1591/2005 and
1593/2005 adopted on 29 and 31 March 2005 by the United Nations
Security Council;
3. Calls on all parties to the conflict to return to negotiations and to cooperate with
the international organs and humanitarian organisations.
Done at Banjul, 5th December 2005
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In the Name of Allah, The Gracious, the Merciful
Comments of the Sudan on the Decision of the African Commission on Human
and Peoples Rights concerning Darfur during its 38th Ordinary Session held in
Banjul, the Gambia, from 21 November to 5 December 2005.
We wish to refer to the above subject and the Decision of the AU Assembly of
Heads of State and Government held in Khartoum from 16-24 January 2006 asking for
Sudan's view on, and response to the Decision of the African Commission on Human
and Peoples Rights on Darfur during its 38th Ordinary Session held in Banjul, the
Gambia, from 21 November to 5 December 2005.
We wish to further state that the points raised in the Decision only reflected what
was orchestrated by some media quarters which rely on allegations that cannot be
substantiated.
We wish to also point out that the situation in Darfur was examined in accordance
with the AU Constitutive Act and resolved in line with UN Charter where the UN Security
Council issued Resolution 1593 referring the case in Darfur to the International Criminal
Court. Resolution 1591 establishing a Committee of Experts was also adopted among
other resolutions. It is worth noting that the Decision of the African Commission on
Human and Peoples Rights has also made reference to the Decisions of the African
Union and its Peace and Security Council as well as those of the UN Security Council.
First Observations on the Report of the African Commission on Human and
Peoples Rights on the Fact Finding Mission that visited the Sudan in 2004. We
had earlier submitted our response to the First Report of the Mission. Our response to
the Second Report had articulated Sudan's position on the holding of an Extraordinary
Session in Pretoria, South Africa without the approval of, or funding by the African Union
Commission. The Sudan had lodged a complaint on this to the Chair of the African
Union, but no response has so far been forthcoming.
Second, regarding Sudan's commitment to the African Charter on Human and
Peoples Rights and to other international agreements and conventions, the Sudanese
Government takes all necessary measures to promote human rights in the Sudan and
ensure decent life by eliminating poverty, disease and illiteracy inherited from
colonialism. At the same time, Sudan strives to preserve its political sovereignty and
territorial integrity. Since the eruption of the troubles in Darfur, the Sudan has been
keenly engaged in the search for solutions to the problem through direct negotiations
with the rebels as a result of which the Abeeche, Njamina and Abuja Agreements were
concluded. However, negative signals sent by several external circles have encouraged
the rebels not to care much about the implementation of these Agreements.
The Government has always shown concern about the safety of civilians by
taking measures against all those who break the law. As a proof of that, civilians have
been fleeing from abuses by the rebels to the areas under Government Control. Even in
the areas that were shelled by mistake, the Government has compensated the victims.
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The International Community as a whole is witness to that and the most glaring example
is the victims of air raid in the Habila area where the government blood money of those
killed and compensated the inhabitants for their properties. As for the question of forced
displacement, as we said earlier, this is in conflict with the reality as displacement only
occurs after rebel attacks on villages using such displacement as a weapon against the
government. The Government of the Sudan has concluded an agreement with IOM
which supervises the programmes of repatriating the displaced persons.
The
Government is concerned with the rehabilitation programme in the areas of
displacement and it has also established a committee which is now one of the three
committees set up based on the recommendations of the National Investigation
Committee presided over by the Former Head of the Judiciary to define the pastoral
routes and confirm land ownership.
Concerning the alleged rape and violence against women, the Sudanese courts
receive statements on the basis of which it has tried a number of police and army
officers and names have been submitted to human rights observers in this regard. A list
is hereto attached.
The government has also adopted a plan for the prevention of violence against
women in Darfur (copy attached) and amended the criminal proceedings to enable the
victims of violence to receive treatment without filling Form No. 8 with the police
authorities. Hospitals and foreign treatment units of the international and voluntarily
organizations have also been allowed to treat those affected. Groups of the AU troops
participate in joint patrols to escort women when they go out of their camps in search of
firewood, which has considerably minimized cases of violence against women.
As for the need to open the way for the international organizations, and
humanitarian agencies, the entire international community is witness to Sudan's
cooperation and facilitation of humanitarian work without any customs restrictions or
formalities. It has issued visas to the personnel of some 600 voluntary organizations
that now work in Darfur.
The Government has affirmed that it does not give support to any of the parties in
Darfur, that are prohibited under the Ceasefire Agreement, from any movement without
prior knowledge of the AU troops, and are also banned from the use of air-force.
On cooperation with the Office of the Prosecutor General of the International
Criminal Court, even though this is not within the jurisdiction of the African Union
Commission on Human and Peoples Rights, our response is that the Sudan has
provided all the facilities to enable the said Office to perform its duty and provided it with
the necessary documentation.
Regarding the implementation of UN Security Council Resolutions 1556/2005,
1590/2005, 1591/2005 and 1593/2005, the Sudan has always cooperated with the UN.
This has been confirmed by the Representative of the UN Secretary General in the
Sudan in his monthly reports. There are more than 25 human rights observers in Darfur
and they are allowed to visit the prisons in all parts of the Sudan as indicated in the
reports of the UN Secretary General. Meetings are also held between the Human
Rights Division of the United Nations and the Human Rights Consultation Council at the
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office of the Sub-Jim every two weeks. Fact-finding missions are undertaken by both
sides in Darfur and joint seminars organized to amend the criminal proceedings and the
rules of implementing Form No.8.
In conclusion, we would have liked to see the African Commission, instead of
sending timid signals about the atrocities by the rebels, adopt a bold and firm position by
considering the atrocities they have been perpetrating in Darfur since the eruption of the
war, particularly their recruitment of child soldiers to attack humanitarian workers and
their convoys.
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RESOLUTION ON THE HUMAN RIGHTS SITUATION IN UGANDA
The African Commission on Human and Peoples’ Rights, meeting at its 38th
Ordinary Session held in Banjul, The Gambia, from the 21st November to 5th December
2005.
Bearing in mind Article 45 of the African Charter on Human and Peoples’ Rights
which stipulates the mandate of the African Commission on Human and Peoples’
Rights;
Considering that conflicts in many African countries, including the Republic of
Uganda have been responsible for the violation of the Human Rights of civilian
population, in particular vulnerable groups such as the elderly, women and children;
Concerned that the said conflict has been responsible for insecurity in Northern
Uganda leading to displacement of an estimated 1.8 million people; among whom are
young children who are constantly trekking between their villages and towns at night to
avoid abduction;
Taking note of the previous concerted efforts by the Government of the Republic
of Uganda to bring this conflict to an end;
Welcoming the investigations by the Office of the Prosecutor of the International
Criminal Court and the subsequent issuance of arrest warrants in respect of the top
leaders and commanders of the Lord Resistance Army (LRA);
Aware that the Republic of Uganda is committed to the independence of the
Judiciary and legal profession in that country, as stipulated under Article 26 of the
African Charter on Human and Peoples’ Rights;
Recalling Article 7 of the African Charter and the Guidelines and Principles on
the Rights to Fair Trial and to Judicial Assistance developed by the African Commission
on Human and Peoples’ Rights;
Deeply concerned and disturbed that the LRA has committed grave Human
Rights violations against the civilian population in particular, the mutilation of their
victims, abduction of young boys into its rebel forces as child soldiers and forces the
young girls into sexual slavery;
Disturbed by recent events on 16th November 2005 threatening the judiciary and
lawyers in Uganda;
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1. Calls on the parties to the conflict to immediately open negotiation with a view to
a conclusion of a ceasefire and peace agreement;
2. Calls on the LRA to free immediately all the child soldiers, young girls and
women held by them and demobilize all combatants;
3. Supports the efforts of the Office of the Prosecutor of the International Criminal
Court in its investigations against conduct and activities by the parties to the
conflict deemed to be violations of the Rome Statute and to bring those
responsible for war crimes in Northern Uganda to justice;
4. Calls on the international community to urge the parties to the conflict in
Northern Uganda to find a peaceful and lasting resolution to the conflict;
5. Urges the international community to offer material support to take steps to
demobilize the combatants of the LRA, and to assist the people of Northern
Uganda in their rehabilitation after 19 years of conflict;
6. Condemns the recent incidents of violence in Uganda, which threatens the
peace and stability of the country, in particular the threats to the independence of
the judiciary and the legal profession in Uganda;
7. Calls on the Government of the Republic of Uganda to guarantee the
independence of the Judiciary and the integrity of the members of the legal
profession, in order to ensure impartiality in rendering justice, without intimidation
or interference;
8. Calls on the Government of Uganda to undertake amendments to its laws and
abolish the practice of bringing civilians before the Court Martial, and reserve its
exclusive jurisdiction to matters affecting serving members of the military in
Uganda;
9. Urges the Government of the Republic of Uganda to ensure that it guarantees
the respect, promotion and protection of human and peoples’ rights in Uganda.
Done in Banjul, 5 December 2005
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THE REPUBLIC OF UGANDA
EXECUTIVE SUMMARY OF THE GOVERNMENT OF
UGANDA’S RESPONSE TO THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS RESOLUTION ON THE
HUMAN RIGHTS SITUATION IN UGANDA
(99. ACHPR/RES. 94 (XXXVIII) 05
PRESENTED AT THE 39TH ORDINARY SESSION OF THE
COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
BANJUL, THE GAMBIA - 18TH MAY 2006
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Bearing in mind that the delegation of the Republic of Uganda met the
Commissioners of the African Commission on Human and Peoples’ Rights (hereinafter
referred to as the ‘Commission’) at a private session on the 17th of May 2006 in Banjul,
the Gambia.
Whereas Uganda is a state party to the Charter and is in possession of the
resolution on the human rights situation in Uganda (99. ACHPR/Res. 94(xxxviii) 05);
Aware and conscious of Uganda’s obligations as a state party to the African
Charter on Human and Peoples’ Rights and has been progressively complying with and
implementing the provisions of the Charter;
Deeply concerned about the spirit of operative paragraphs 1, 6, 7 and 8 of the
resolution;
Given that during a constructive dialogue between the two, it was agreed that the
formal response submitted to the Commission as well as the addendum and annexes be
condensed into a concise executive summary responding to the operative paragraphs of
the said resolution.
THE GOVERNMENT OF UGANDA, while welcoming the efforts of the Commission
to address the implementation and sanctity of the Charter, hereby responds to the
concerns raised in the resolution as follows and traversed seriatim:
1. Calls on the parties to the conflict to immediately open negotiations with a
view to a conclusion of a cease fire and peace agreement,
Response:
The Government of Uganda has over the years consistently offered to hold peace talks
and negotiations with the rebels to reach a cease fire and a comprehensive peace
agreement. Government policies to address this include:
i.
ii.
iii.
iv.
v.
The Kategaya Commission headed by the then Ist Deputy Prime Minister and
Minister of Internal Affairs, Eriya Kategaya.
The Betty Bigombe and Dr. Ruhakana Rugunda (current Minister of Internal
Affairs)-led peace talks which are still ongoing;
Traditional and religious leaders acting as mediators between the government
and the rebels;
Bilateral agreements between the governments of Uganda and Sudan for the
latter to stop giving sanctuary and logistical support to the LRA.
The enactment of the Amnesty Act of 2000 and the establishment of the
Amnesty Commission to facilitate surrender, rehabilitation and resettlement of
rebels.
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However, despite all these efforts by the Ugandan Government, the leadership of
both the LRA and ADF have not responded to government’s offers for peace and
ceasefire.
2. Calls on the LRA to free immediately all the child soldiers, young girls and
women held by them and demobilise all combatants.
Response
i.
ii.
The Government of Uganda supports this call. Furthermore, the Government
has rescued over 3000 abducted children, women and young girls. It has reintegrated them into their communities as well as providing counselling
services and rehabilitation.
Under the Amnesty Act the demobilised rebels are rehabilitated and resettled
by the Amnesty Commission. This applies to all former rebels including the
ADF, UNRF and West Nile Bank Front II.
3. Supports the efforts of the Prosecutor of the International Criminal Court
in its investigations against conduct and activities of the parties to the
conflict deemed to be in violation of the Rome Statute and to bring those
responsible for war crimes in Northern Uganda to justice.
Response
Uganda welcomes the support of the Commission. The Government of Uganda initiated
the case before the International Criminal Court (ICC). Government is working hand in
hand with the Office of the Prosecutor (OTP) as well as the Governments of Sudan and
the Democratic Republic of the Congo (DRC) to effect the warrants of arrest issued to
the leadership of the LRA.
4. Calls on the international community to urge the parties to the conflict in
Northern Uganda to find a peaceful and lasting resolution to the conflict.
Response
The Government is in support of this call and reiterates its appeal to the international
community to do more. Furthermore, the Government of Uganda has established the
Joint Monitoring Committee which is overseen by the Office of the Prime Minister. The
latter is in charge of the rehabilitation, resettlement of the IDPs and post- conflict
resolution of the situation in Northern Uganda. It caters for short, medium and long term
measures.
5. Urges the international community to offer material support to take steps
to demobilise the combatants of the LRA, and to assist the people of
Northern Uganda in their rehabilitation after 19 years of war.
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Response
The Government of Uganda welcomes this appeal and wishes to reiterate its appeal to
the UN and its agencies as well as the international community to fulfil their commitment
as well as calling upon the UN Mission in the DRC, MONUC, and the Governments of
Sudan and DRC to arrest the LRA rebels who have taken sanctuary in their territories.
6. Condemns the recent incidents of violence in Uganda, which threaten the
peace and stability of the country, in particular the threats to the
independence of the judiciary and the legal profession in Uganda.
Response:
i.
ii.
iii.
Government categorically states that the alleged incidents of violence did
not amount to a threat of peace and stability of the country. The
Government is in full control of the country.
The Government of Uganda strongly condemns the acts of violence
instigated by the opposition on the 14th of November 2005 that led to
pillage, destruction and looting of property by some hooligans instigated by
the opposition in protest to a legitimate act of arresting suspects.
The alleged violence of the 16th Nov 2005 that was construed to threaten
the independence of the judiciary and the legal profession was a gross
misrepresentation of the facts. The fact of the matter is that the judiciary
released suspects on bail after due representation by their lawyers without
any interference from the security forces. The Government security forces
only intervened to ensure that the dangerous suspects remained under
official custody on the basis of credible intelligence information- that they
posed a security threat to the public. This was done out-side the court
rooms. Regarding the allegation of threat to the lawyers, at no time has
any lawyer representing any of the accused persons been denied access
to his/her clients.
7. Calls on the Government of the Republic of Uganda to guarantee the
independence of the Judiciary and the integrity of the members of the legal
profession, in order to ensure impartiality in rendering justice without
intimidation or interference.
Response
Uganda is committed to the principle of guaranteeing the independence of the Judiciary
and in fact Government has never threatened such independence whether by conduct
or otherwise. It remains committed to these noble principles of good governance.
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8. Calls on the Government of Uganda to undertake amendments to its laws
and abolish the practice of bringing civilians before the Court Martial, and
reserves its exclusive jurisdiction to matters affecting serving members of
the military in Uganda.
Response
i.
ii.
iii.
iv.
Government has a permanent Law Reform Commission which regularly
revises and reviews laws.
The trial of civilians before the Court Martial is provided by the UPDF Act
No. 7 of 2005.
It should be noted that in Uganda there exists a prevalence of civilians
colluding with armed persons either in rebel activities or armed robbery.
The legal provision of trying civilians in court martial is founded against this
background.
This issue has been challenged in the Constitutional Court by the Uganda
Law Society and judgement has been given. Trial proceedings have been
stayed in the Court Martial and the suspects are now being tried in the
High Court. If necessary, the amendment of the law will be done after the
outcome of this court process.
9. Urges the Government of Uganda to ensure that it guarantees the respect,
promotion and protection of human and peoples’ rights in Uganda.
Response
Government reiterates its continued commitment to the Charter and all the international
human rights instruments to which it is a party as well as its national laws and the Bill of
Rights enshrined it the Constitution. Furthermore, Uganda has submitted its
consolidated Periodic Report for the period 2000-2006 to the African Commission on
Human and Peoples’ Rights in compliance with Article 62 of the Charter. This report
details the progressive implementation and observance of human rights by the
Government.
PRAYER
The Government of Uganda requests that the resolution be amended as appropriate
and that any allegations not based on facts be expunged. Government hereby reiterates
its willingness to continue carrying out constructive dialogue with the African
Commission on Human and Peoples’ Rights to address human rights in Uganda and the
continent.
DONE AT BANJUL
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RESOLUTION ON THE SITUATION OF HUMAN RIGHTS IN ZIMBABWE
The African Commission on Human and Peoples’ Rights meeting at its 38th
Ordinary Session in Banjul, The Gambia from 21 November to 5 December 2005;
Considering that Zimbabwe is a Party to the African Charter on Human and
Peoples’ Rights and other international human rights instruments;
Recalling the recommendations to the government of Zimbabwe contained in the
African Commission Report of the Fact-Finding Mission to Zimbabwe in June 2002;
Further recalling the recommendations to the government of Zimbabwe by the
United Nations Special Envoy on Human Settlement Issues in Zimbabwe contained in
her Report published on 22 July 2005;
Deeply concerned by the continued undermining of the independence of the
judiciary through defiance of court orders, harassment and intimidation of independent
judges and the executive ouster of the jurisdiction of the courts;
Further concerned by the continuing human rights violations and the
deterioration of the human rights situation in Zimbabwe, the lack of respect for the rule
of law and the growing culture of impunity;
Alarmed by the number of internally displaced persons and the violations of
fundamental individual and collective rights resulting from the forced evictions being
carried out by the government of Zimbabwe;
1. Condemns the human rights violations currently being perpetrated in Zimbabwe;
2. Urges the government of Zimbabwe to cease the practice of forced evictions
throughout the country, and to adhere to its obligations under the African Charter
on Human and Peoples’ Rights and other international human rights instruments
to which Zimbabwe is a party;
3. Urges the government of Zimbabwe to implement without further delay the
recommendations contained in the African Commission Report of the 2002 FactFinding Mission to Zimbabwe and the recommendations in the July 2005 Report
of the UN Special Envoy on Human Settlement Issues, in particular to ensure full
and unimpeded access for the provision of aid and protection to the victims of the
forced evictions and demolitions by impartial national and international
humanitarian agencies and human rights monitors, and to ensure that those
responsible for the violations are brought to justice without delay;
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4. Calls on the government of Zimbabwe to respect the fundamental rights and
freedoms of expression, association and assembly by repealing or amending
repressive legislation, such as the Access to Information and Protection of
Privacy Act, the Broadcasting Services Act and the Public Order and Security Act;
5. Calls on the government of Zimbabwe to uphold the principle of separation of
powers and the independence of the judiciary and urges the government of
Zimbabwe to repeal or amend Constitutional Amendment (No.17) and provide an
environment conducive to constitutional reform based on fundamental rights;
6. Calls on the government of Zimbabwe to cooperate with the African Commission
Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced
Persons in Africa and other African Commission Special Mechanisms, including
allowing a Fact-Finding Mission to investigate the current situation of internally
displaced persons in Zimbabwe;
7. Urges the African Union to renew the mandate of the African Union Envoy to
Zimbabwe to investigate the human rights implications and humanitarian
consequences of the mass evictions and demolitions.
Done at Banjul, 5th December 2005
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THE RESPONSE BY THE GOVERNMENT OF THE REPUBLIC OF ZIMBABWE TO
THE RESOLUTION ON THE HUMAN RIGHTS SITUATION IN ZIMBABWE
ADOPTED BY THE AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS
DURING ITS 38TH ORDINARY SESSION HELD IN BANJUL, THE GAMBIA
FROM 21 NOVEMBER TO 5 DECEMBER 2005
1.0
INTRODUCTION
1.1
During its 38th Session held in Banjul, the Gambia, from the 21st November to 5th
December 2005, the African Commission on Human and Peoples Rights (ACHPR)
adopted a resolution on the human rights situation in Zimbabwe. The ACHPR
submitted its 19th activity report which contained the Resolution quoted below together
with other country- specific resolutions on the human rights situations in Sudan,
Uganda, Ethiopia and Eritrea to the Executive Council of the African Union held in
Khartoum, the Sudan from 20 to 21 January 2006.
“RESOLUTION ON THE SITUATION OF HUMAN RIGHTS IN ZIMBABWE [paragraphs
of the preamble have, for purposes of convenience and reference been numbered as
paragraphs (a) to (h)]
(i)
The African Commission on Human and Peoples Rights meeting at its 38th
ordinary Session in Banjul, the Gambia from 21 November to 5 December
2005;
(ii)
CONSIDERING that Zimbabwe is a State Party to the African Charter on
Human and Peoples Rights and other human rights instruments;
(iii)
RECALLING the recommendations to the Government of Zimbabwe contained
in the African Commission Report of the Fact Finding Mission to Zimbabwe in
June 2002;
(iv)
FURTHER RECALLING the recommendations to the Government of Zimbabwe
by the United Nations Special Envoy on Human Settlement Issues in Zimbabwe
contained in her Report published on 22 July 2005;
(v)
DEEPLY CONCERNED by the continued undermining of the independence of
the judiciary through the defiance of court orders, harassment and intimidation
of independent judges and the executive ouster of the jurisdiction of the courts;
(vi)
FURTHER CONCERNED by the continuing human rights violations and the
deterioration of the human rights situation in Zimbabwe, the lack of respect for
the rule of law and the growing culture of impunity;
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(vii)
ALARMED by the number of internally displaced persons and the violations of
fundamental individual and collective rights resulting from the forced evictions
being carried out by the Government of Zimbabwe;
1.
CONDEMNS the human rights violations currently being perpetrated in Zimbabwe
2.
URGES the Government of Zimbabwe to cease the practice of forced evictions
throughout the country, and to adhere to its obligations under the African Charter
on Human and Peoples Rights and other international human rights instruments to
which Zimbabwe is a party;
3.
URGES the Government of Zimbabwe to implement without further delay the
recommendations contained in the African Commission Report of the Fact Finding
Mission to Zimbabwe and the recommendations in the July 2005 Report of the UN
Special Envoy on Human Settlement Issues, in particular to ensure full and
unimpeded access for the provision of aid and protection to the victims of the
forced evictions and demolitions by impartial national and international
humanitarian agencies and human rights monitors, and ensure that those
responsible for the violations are brought to justice without delay;
4.
CALLS on the Government of Zimbabwe to respect fundamental rights and
freedoms of expression, association and assembly by repealing or amending
repressive legislation, such as the Access to Information and Protection of Privacy
Act, the Broadcasting Services Act and the Public Order and Security Act;
5.
CALLS on the Government of Zimbabwe to uphold the principle of separation of
powers and the independence of the judiciary and urges the Government of
Zimbabwe to repeal or amend Constitutional Amendment (No. 17) and provide an
environment conducive to constitutional reform based on fundamental rights;
6.
CALLS on the Government of Zimbabwe to cooperate with the African
Commission Special Rapporteur on refugees, Asylum Seekers and Internally
Displaced Persons in Africa and other African Commission Special Mechanisms,
including allowing a Fact Finding Mission to investigate the current situation of
internally displaced persons in Zimbabwe;
7.
URGES the African Union to renew the mandate of the African Envoy to Zimbabwe
to investigate the human rights implications and humanitarian consequences of the
mass evictions and demolitions.
Done at Banjul, the 5th December 2005.”
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1.2
Article 59 of the Charter provides that the report of the ACHPR shall not be
published until it has been considered by the Assembly of Heads of State and
Government (the Assembly). Article 59 (1) further provides that measures adopted
by the Commission shall remain confidential until the Assembly has made a
decision on the matter.
1.3
The resolution on Zimbabwe constitutes measures adopted by the ACHPR. These
measures were published on the website of the ACHPR and other NGO sponsored
websites. This was subsequently published in the print and electronic media which
was awash with articles on the resolution before its consideration by the Assembly.
Though the resolution had been withdrawn from the website by the time the
Executive Council met, Zimbabwe questions the motive of the ACHPR in
publishing the resolution.
1.4
This is not the first instance that the ACHPR has acted in this manner. The June
2002 fact finding mission report on Zimbabwe was also published by the ACHPR
before it was considered by the Summit. The publication of the report prior to its
consideration by the Assembly was clearly intended to give an erroneous
impression that Zimbabwe was being condemned by the African Union.
1.5
For the reasons set out in the following paragraphs, Zimbabwe submits that the
ACHPR should revoke its resolution on the human rights situation in Zimbabwe in
its entirety and;
1.5.1 Comply with its laid down Rules of Procedure and make decisions after following
all the procedures and finalising considerations of all Communications lodged in
accordance with Article 45 of the Charter.
1.5.2 Adhere to Rules of Natural justice in all present and future deliberations, giving
State Parties a right to be heard before any decisions are taken to adopt any
resolutions pertaining to them;
1.5.3 Not to exceed its mandate as set out in the Charter which does not include the
passing of condemnatory resolutions against State Parties;
1.5.4 To observe the rules of equity in the allocation of time to States Parties in
exercising the right of response to allegations by NGOs;
1.5.5 By adopting the Amnesty International draft resolution as its own, the ACHPR has
undermined its independence, integrity and impartiality.
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2.0
Background to the adoption of the resolution
2.1
Prior to the 38th Session, Amnesty International co-hosted a briefing session for NGOs.
Commissioners of the ACHPR were invited and attended the Session. This event was
a culmination of a sustained anti-Zimbabwe campaign by Amnesty International which
published unsubstantiated damning articles on Zimbabwe on its own website, and
various other newspapers in the run up to the 38th Session. In particular, on 22
November 2005, Amnesty International urged the ACHPR to adopt its draft resolution
on Zimbabwe, which the ACHPR subsequently adopted on 5 December 2005:
2.2
The operative elements of the draft resolution by Amnesty International provided for the
following:
[for purposes of convenience and reference the paragraphs of Amnesty’s resolution
have been numbered as (a) to (h) respectively)
“ (a) Condemning the human rights situation in Zimbabwe;
(b) Urging Zimbabwe to adhere to its obligations under the African Charter on
Human and Peoples Rights, including by refraining from committing further
human rights violations and by providing redress to victims of those violations
already committed;
(c)
Urging Zimbabwe to implement without further delay the recommendations
contained in the African Commission 2002 fact finding report;
(d) Urging Zimbabwe to implement the recommendations of the UN Special Envoy
on Human Settlement Issues in Zimbabwe, in particular calling for full and
unimpeded passage of aid provided by impartial humanitarian organisations and
UN agencies;
(e) Urging the Government of Zimbabwe to cooperate with the African Commission
Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced
persons in Africa, including by allowing a fact finding mission to investigate the
current situation of internally displaced persons in Zimbabwe;
(f)
Calling on the African Union to place the human rights situation of Zimbabwe on
the agenda of its January 2006 Assembly of Heads of State and Government;
(g)
Calling on the African Union to encourage the Government of Zimbabwe to
implement recommendations of the African Commission and the UN Special
Envoy;
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(h)
3.0
Calling on the African Union to renew the mandate of the African Union Envoy
on Zimbabwe.”
THE RESOLUTION
3.1
The preamble of the ACHPR resolution stands on the following three pillars which
cannot stand under close scrutiny: 3.1.1 The report of the fact- finding mission of the ACHPR of June 2002;
3.1.2 The report of the UN Secretary General’s Special Envoy on Human Settlement
issues in Zimbabwe, which was published on 22 July 2005; and
3.1.3 Communications filed with the ACHPR against Zimbabwe by NGOs in accordance
with Article 54 of the Charter.
3.2
Firstly, the report of the ACHPR fact-finding mission of June 2002, which was
adopted by the ACHPR during its 34th Session held in Niamey, Niger in November 2003,
was tabled before the Assembly of Heads of State and Government in July 2004. The
Summit did not authorise publication of the report, but directed that Zimbabwe should be
given an opportunity to respond. The Government of Zimbabwe submitted its comments
prior to the 36th Ordinary Session of the ACHPR, which took place in November 2004.
The ACHPR declined to consider the comments by the Government of Zimbabwe and
merely attached them to the Fact Finding Mission’s report as an addendum. In January
2005 the AU Summit noted the Fact-Finding Missions’ report and the response given by
Zimbabwe and authorised publication of both the report and the Government’s response.
This closed the chapter on the issue and cannot be revived at the whims of the ACHPR.
The resolution cannot therefore stand on this basis.
3.3
Secondly, the report of the UN Secretary General’s Special Envoy on Human
Settlement issues in Zimbabwe, which was published on 22 July 2005. This report was
produced under the auspices of the UN Secretary General’s ‘good offices role’ in order to
determine how to assist, and not to punish, Zimbabwe. The mission’s report is not a
document of the United Nations but an instrument under the ‘good offices role’ of the
Secretary General who noted both the report and the response by the Government of
Zimbabwe. The Secretary General of the United Nations has not called for the
enforcement of any of the recommendations. Even the Security Council of the United
Nations could not take any punitive measures against Zimbabwe on the basis of the
report that it did not cause. The ACHPR cannot call for punitive action on the basis of a
report that it did not originate. This is inconsistent with the Charter. Therefore, the
resolution cannot stand.
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3.4
Thirdly, the resolution was based on Communications filed with the ACHPR
against Zimbabwe by NGOs in accordance with Article 55 of the Charter. To date, 13
Communications have been filed against Zimbabwe. Seven of the Communications are at
the admissibility stage while the remaining six are at the consideration of merits. The
ACHPR has therefore not finalised consideration of any of the Communications. No valid
resolution can be passed on the basis of Communications which are still pending. The
ACHPR in this regard has actually pre-empted its own decisions. In January 2006, a
month after the adoption of the resolution based on the pending Communications, the
ACHPR requested the Government of Zimbabwe to file its submissions in respect of the
very same Communications for consideration during its 39th Session in May 2006. The
resolution therefore cannot stand on this basis.
3.5
The other possible basis of the resolution could be statements made by Western
funded NGOs during the 38th Session.
The resolution on Zimbabwe was adopted
following a public session of the ACHPR in November 2005. While the 17 NGOs who
spoke on Zimbabwe were collectively given about one and a half hours (90 minutes), the
Government was given only five (5) minutes. This is against the rules of natural justice
and equity. The imbalance calls for a review of the ACHPR’s Rules of Procedure to
ensure that the principle of equity and proportionality is incorporated into its rules. The
allegations by NGOs were never substantiated. The basis for this resolution is therefore
non-existent.
3.6
The resolution of ACHPR is an improper reproduction of the Amnesty International
resolution. This indicates that the resolution by Amnesty International found its way into
the AU Organs for rubber-stamping. This brings to question the relationship of the
ACPHR with Western NGOs, more particularly those based in Europe like Amnesty
International, which use their financial contributions to the ACHPR budget to unduly
influence ACHPR decisions in pursuit of the agendas of Western countries to effect
regime change in Zimbabwe. It follows therefore that the funding of the ACHPR by donors
and influential NGOs should be brought under the close scrutiny of the Executive Council.
Failure to act could further compromise the mandate, the independence and the integrity
of the ACHPR. In the case of Zimbabwe, teaming up of the ACHPR with Western funded
NGOs further advances the agenda of the Governments of UK and its allies who are
pressing for regime change in Zimbabwe under the guise of alleged human rights
violations. It would not be improper therefore to conclude that the Resolution on
Zimbabwe is a resolution of Western sponsored NGOs, either resident in the West, or
who though on Zimbabwean soil, are set up and are being solely funded by the West in
order to demonise Zimbabwe and further their not so hidden agenda of regime change.
3.7
The origins of the current demonisation of Zimbabwe can be traced from the
inception of the land reform programme in 2000. Western Countries, led by UK and its
allies felt that their economic interests in Zimbabwe had been threatened by the land
reform and swiftly imposed illegal sanctions on Zimbabwe. In addition, as part of their
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broader destabilisation agenda, they created NGOs which are accountable to them to do
the bidding on their behalf on the pretext of promoting the rule of law, democracy and
good governance.
3.8
Amnesty International in paragraph (a) of its resolution contained in document AI
Index: IOR/ 10/ 003/ 2005 (Public) which was circulated on 22 November 2005 and
posted on its website condemned the human rights violations currently being perpetrated
in Zimbabwe. This was repeated in paragraph 1, of the ACHPR’s resolution. The same
condemnation was also called for in Communication 245/ 2002, 288/ 2004, 306/ 2005 and
314/ 2005. All these Communications are still being considered by the ACHPR. It is only
in respect of Communication 245/ 2002, which was filed in 2002, where submissions on
the merits were made. The ACHPR is still to finalise their consideration thereof as
indicated in its Note Verbale dated January 2006. The other three are to be considered at
the forthcoming 39th Session in May 2006 as per correspondence from the ACHPR. The
condemnation is therefore premature and without basis as it pre-empts the ACHPR’s
decision on the Communications. This paragraph therefore cannot be allowed to stand.
3.9
Amnesty International in paragraphs (b) and (g) of its proposal called on the
Government of Zimbabwe to cease the continued violations of human rights and to
implement the decision of the African Commission and the UN Secretary General’s
Special Envoy. Paragraph 2 of the resolution adopted by the ACHPR repeats the same
calls. Amnesty International further in paragraph (d) proposes that the Government of
Zimbabwe should allow full and unimpeded passage of aid provided by impartial
humanitarian organisations and UN agencies. This is repeated in paragraph 3 of the
ACHPR’s resolution. These paragraphs of the ACHPR’s resolution are also premised on
the fact- finding mission report of the ACHPR and the UN Secretary General’s Special
Envoy’s report which cannot both be revived in a resolution of the ACHPR since they
were dealt with at the appropriate fora. Furthermore, the paragraph
pre-empts the
decision on Communication 306/ 2005 which relates to the case of Muzerengwa and 110
others, and Communication 314/2005 concerning Operation Restore Order. In both
Communications, which the ACHPR is scheduled to consider submissions on
admissibility at the 39th Session in May 2006, the parties allege forced evictions.
Zimbabwe is filing its submissions as per the request of the ACHPR on Communication
306/ 05 dated 14 January 2006, and on Communication 314/ 05 dated March 2006. This
process has however become meaningless in view of the pre-emptive position taken by
the ACHPR.
3.10 Amnesty International under paragraphs (b) and (c) of its proposed resolution
proposes that Zimbabwe should comply with the obligations under the Charter and
implement the recommendations of the June 2002 report of the fact - finding mission of
the ACHPR which called for the repeal of POSA, AIPPA, and the Broadcasting Services
Act. Paragraph 4 of the ACHPR resolution calls on the Government of Zimbabwe to
respect fundamental rights and freedoms and to repeal or amend ‘repressive’ legislation
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like AIPPA, POSA and Broadcasting Services Act. This echoes the call by the report of
the fact - finding mission of the ACHPR and Communications 288/ 2004, 297/2004, 298/
2004 and 305/ 2005 which were filed by NGOs before the ACHPR. All the four
Communications allege violation of freedom of the press and the right of access to
information and call for the amendment or repeal of the same legislation as in the
ACHPR’s resolution. These communications are still pending before the ACHPR.
3.11 In Communication 284/ 2004 Zimbabwe Lawyers for Human Rights sought a
provisional order for the Government of Zimbabwe to release the equipment of ANZ
Newspapers, which was seized following its defiance of an order of the Supreme Court to
stop publishing until it complied with the law. The order has not been granted to date.
The second form of relief sought was a declaration by the Commission that the dirty
hands doctrine is in violation of the Charter, and a repeal of AIPPA. The parties made
submissions on the admissibility of the Communication at the 37th Session. At the time of
the Summit of Heads of State and Government held in Sudan, Khartoum in January 2006,
the ACHPR had not communicated its decision on admissibility to the Government of
Zimbabwe. However, after the Summit, where the decision was made to give the
Government of Zimbabwe an opportunity to respond to the resolution, the ACHPR has
since written to the Government of Zimbabwe, requesting submissions on the merits for
consideration during the 39th Session in May 2006. In Scanlen and Holderness and
others/ Government of Zimbabwe (Communication 297/ 04) the Commission is
scheduled to consider the merits of the complaint during the 39th Session in May 2006. In
Article 19 and others/ Government of Zimbabwe (Communication 305/ 05) the
ACHPR became seized with the Communication, which alleges violation of freedom of
expression during the 38th Session. Arguments on admissibility will be made during the
39th Session. In Zimbabwe Lawyers for Human Rights (representing Andrew Barclay
Meldrum)/ Government of Zimbabwe, Communication 298/ 2004, the arguments on the
merits will be considered at the 39th Session in May 2006. However, paragraph 4 of the
resolution, in line with paragraphs (b) and (c) of the draft resolution by Amnesty
International grants the relief sought in all these Communications that are still pending for
the consideration by the ACHPR in May 2006. The relief was granted without even
hearing the submissions on the merits of the case. This amounts to the ACHPR preempting its own decision. The Commission therefore cannot seek to use the
Communications as a basis for its resolution.
3.12 Amnesty International in paragraph 11 of its public statement document referenced
AI Index: IOR 10/003/ 2005 (Public) dated 22 November 2005 deemed the Constitutional
Amendment No 17 of 2005 to be in violation of the international standards and called for
its repeal. Paragraph 5 of the ACHPR’s resolution deals with the principle of separation
of powers, independence of the judiciary and Constitutional Amendment No 17 of 2005
and calls for the repeal of this amendment thereby adopting the position laid down by
Amnesty International. The focus is more on the issues of land acquisition. Land has
never been a legal but political issue for which multitudes of Zimbabweans lost their lives
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in order to regain it. This right to reclaim the land is recognised in Articles 14 and 21 of the
Charter.
3.13 Regarding independence of the judiciary, this is repetitive of the fact- finding
mission’s report and Communication 308/ 2005 concerning Mr Michael Majuru, a former
President of the Administrative Court. The ACHPR became seized with this
Communication during the 38th session and requested Zimbabwe on 14 January 2006 to
file its submissions on admissibility in preparation for the 39th Session to be held in May
2006 where the same shall be considered. The ACHPR has already made a finding to
the effect that the Executive has ousted the jurisdiction of the Courts and further that the
independence of the judiciary is compromised notwithstanding that Communication 308/
2005 is still to be considered.
3.14 Amnesty International in paragraph (e) calls on the Government of Zimbabwe to
cooperate with the African Commission’s Special Rapporteur on Refugees, Asylum
Seekers and Internally Displaced Persons in Africa. This is repeated in paragraph 6 the
operative part of the resolution which makes the same call on the Government of
Zimbabwe to cooperate with the ACHPR’s mechanisms, more particularly with the office
of the same Special Rapporteur. The Special Rapporteur landed in Zimbabwe in June
2005 without prior authorisation, and without observing the established procedures and
protocol. Infact, the Government of Zimbabwe only became aware of the visit when the
Commissioner was already in the country. Both the Chairperson of the Commission of
the African Union and the Chairperson of the ACHPR denied having sanctioned the
mission. The Charter in Article 58 and the practice of the AU provides for the mechanisms
and procedures that have to be complied with regarding the dispatch of investigatory
missions to State Parties, which in this case were not complied with. Therefore, this
paragraph should not be allowed to stand.
3.15 Paragraph 7 of the resolution, which echoes paragraph (h) of the proposal of
Amnesty International calls for the renewal of the mandate of the African Union Envoy on
Zimbabwe. Since both the Chairpersons of the AU Commission and of the ACHPR itself
did not sanction the mission, then there is no basis for the renewal of the mandate that
was never granted in the first instance. This paragraph is therefore baseless in its entirety
and should be struck out.
3.16 Zimbabwe has always co-operated with the ACHPR. The Government received a
fact-finding mission of the African Commission in 2002, as well as the mission of the
Special Rapporteur on Prisons prior to that. We have worked with the Commission on
Communications that have been filed, and have always submitted responses to the
Communications filed. Where we have failed to meet a deadline, we have always sought
the indulgence of the Commission to extend the time limit.
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4.0
Conclusions
4.1
For the reasons set out in this document, Zimbabwe submits that the resolution in
its entirety should be revoked.
4.2
Zimbabwe was judged before it was heard. This is against the rules of natural
justice. Since the ACHPR’s resolution clearly pre-empts its future decisions on the
admissibility and merits of the 13 Communications currently under its consideration, the
Government of Zimbabwe fears that the objectivity of the ACHPR is already compromised
and thus stands in serious question, especially taking into account the remarks of the
Chairperson of the ACHPR before the Executive Council in January 2006 that “everyone
knows that Zimbabwe is a gross violator of human rights.” In order to allow fair play and
undue interference with the process of considering the 13 Communications before it,
Zimbabwe submits that all the Commissioners who deliberated on or associated
themselves with the Resolution, thereby pre-empting their decision on the
Communications should recuse themselves from consideration of any of the 13
Communications pending before it. In addition the ACHPR should amend its Rules of
procedure to allow equity and fair play during the exercise of the right of response in the
Public Sessions.
GOVERNMENT OF THE REPUBLIC OF ZIMBABWE
HARARE, ZIMBABWE
19 APRIL 2006.
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ANNEX IV
COMMUNICATIONS
Communication 227/ 1999 – Democratic Republic of Congo / Burundi,
Rwanda, Uganda
Communication 249/ 2001 – Institute for Human Rights and
Développement in Africa/ République de Guinea
Communication 290/ 2004 – Open Society Justice Initiative / Cameroon
Communication 299/ 2005 – Anuak / Ethiopia
Communication 231/ 2005 – Interights / Egypt
Communication 227/99 - D. R. Congo / Burundi, Rwanda and Uganda
Rapporteurs:
25th Session :
26t Session :
27th Session :
28 th e Session :
29 th Session :
30 th Session :
31 th Session :
32 thSession :
33 thSession:
Summary of Facts:
Commissaire Ben Salem
Commissaire Ben Salem
Commissaire Isaac Nguéma
Commissaire E. V. O. Dankwa
Commissaire Ben Salem
Commissaire Isaac Nguéma
Commissaire E. V. O. Dankwa
Commissaire Ben Salem
Commissaire Isaac Nguéma
Commissaire E.V.O. Dankwa
Commissaire EVO Dankwa
Commissaire Rezag Bara
Commissaire Ben Salem
Commissaire EVO Dankwa
Commissaire Rezag Bara
Commissaire Ben Salem
Commissaire EVO Dankwa
Commissaire Rezag Bara
Commissaire Ben Salem
Commissaire EVO Dankwa
Commissaire Rezag Bara
Commissaire Ben Salem
Commissaire EVO Dankwa
Commissaire Rezag Bara
Commissaire Ben Salem
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On 8 March 1999, the Secretariat of the African Commission on Human and Peoples’
Rights received from Mr. Léonard She Okitundu, Minister of Human Rights of the
Democratic
Republic
of
Congo,
a
letter
with
Reference
No
CABMIN/MDH/MM/201/MZ/99, dated 24 February 1999, a communication presented on
behalf of the Congolese government based on the provisions of Article 49 of the
Charter.
The communication is filed against the Republics of Burundi, Rwanda and Uganda
(hereinafter referred to, respectively, as “Burundi”, “Rwanda ”and “Uganda”). It alleges
grave and massive violations of human and peoples’ rights committed by the armed
forces of these three countries in the Congolese provinces where there have been rebel
activities since 2 August 1998, and for which the Democratic Republic of Congo blames
Burundi Uganda and Rwanda. In support of its complaint the Democratic Republic of
Congo states that the Ugandan and Rwandan governments have acknowledged the
presence of their respective armed forces in the eastern provinces of the Democratic
Republic of Congo under what it terms the “fallacious pretext” of “safeguarding their
interests”. The complaint states, furthermore, that the Congolese government has
“sufficient and overwhelming evidence of Burundi’s involvement”.
In particular, the Democratic Republic of Congo asserts that on Monday, 3 August 1998,
thirty-eight (38) officers and about 100 men of the Congolese forces were assassinated,
after being disarmed, at Kavumu airport, Bukavu, in the Congolese province of South
Kivu. Relatedly, on Tuesday, 4 August 1998, over fifty (50) corpses were buried in
Bukavu, about twenty of them near the fuel station at the Nyamwera market, opposite
Ibanda mosque. Other corpses (mostly civilians) were found at the military camp called
“Saïo camp” in Bukavu. On 17 August 1998, the Rwandan and Ugandan forces who had
been on Congolese territory for many weeks, besieged Inga hydroelectric dam, in Lower
Congo province, a wholly civilian facility. The presence of these forces disrupted the
lives of millions of people and the economic life of the Democratic Republic of Congo. It
also caused the death of many patients including children in hospitals, due to the cutting
off of electricity supply to incubated operating theatres and other respiratory equipment.
On Monday, 24 August 1998, over eight hundred and fifty-six (856) persons were
massacred in Kasika, in Lwindi chiefdom, and Mwenga. The bodies found over a
distance of sixty kilometres (60 km) from Kilungutwe to Kasika (in South Kivu province)
were mainly those of women and children. The women had been raped before being
killed by their murderers, who slashed them open from the vagina up to the abdomen
and cut them up with daggers. On 2 September 1998, in a bid to ambush the men of the
Congolese army based in Kamituga, the Rwandan and Ugandan forces in Kitutu village
massacred thirteen (13) people. On 6 October 1998, forty-eight (48) civilians were killed
in Lubarika village. In Uvira town, on the banks of Lake Tanganyika, a massacre of the
population including intellectuals and other able-bodied persons took place. This was
partly evidenced by the discovery of three hundred and twenty-six (326) bodies in
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Rushima river, near Luberizi. Five hundred and forty-seven (547) bodies were also
discovered buried in a mass grave at Bwegera, and one hundred and thirty-eight (138)
others were found in a butcher’s shop in Luvingi village. From 30 December 1998 to 1
January 1999, six hundred and twelve (612) persons were massacred in Makobola,
South Kivu province. All these atrocities were committed by the Rwandan and Ugandan
forces which invaded territories of the Democratic Republic of Congo, according to the
complaint of the Democratic Republic of Congo.
The Democratic Republic of Congo also claims that the forces of Rwanda and Uganda
aimed at spreading sexually transmitted diseases and committing rape. To this end,
about two thousand AIDS suffering or HIV-positive Ugandan soldiers were sent to the
front in the eastern province of Congo with the mission of raping girls and women so as
to propagate an AIDS pandemic among the local population and, thereby, decimate it.
The Democratic Republic of Congo notes that 75% of the Ugandan army are suffering
from AIDS. A white paper annexed to the communication enumerates many cases of
rape of girls and women perpetrated by the forces of Rwanda and Uganda, particularly
in South Kivu province. It further states that on Monday, 5 October 1998, in Lumunba
quarter, Babozo division, Bagira commune, under the instructions of a young Rwandan
officer nicknamed “terminator”, who was then commanding the Bagira military camp,
several young Congolese girls were raped by soldiers based at the said camp. Similar
cases of rape have been reported from Mwenga, Walungu, Shabunda and Idjwi.
The Democratic Republic of Congo avers that since the beginning of the war in its
eastern provinces, the civilian population has been deported by the Rwandan and
Ugandan armies to what it refers to as “concentration camps” situated in Rwanda. It
further states that other people are simply massacred and incinerated in crematories
(especially in Bugusera, Rwanda). The goal of these operations is to make the
indigenous people disappear from these regions and thus, to establish what it terms
“Tutsiland”.
The Democratic Republic of Congo also accuses Rwanda and Uganda of carrying out
systematic looting of the underground riches of the regions controlled by their forces,
just as the possessions of the civilian population are being hauled away to Burundi,
Rwanda and Uganda. To substantiate its accusations, it states that on 4 September
1998, the contents of all the safes of the local branch of the Central Bank of Congo in
Bukavu town were looted and the booty taken away to Rwanda. In Kalema, a town in
Maniema province, all the minerals in the factory of the SOMINKI firm were looted by the
same forces. The Democratic Republic of Congo claims that between October and
December 1998, the gold produced by the OKIMO firm and by local diggers, yielding
$100,000,000 (one hundred million US dollars) was carted to Rwanda. Still according to
its estimation, the coffee produced in the region and in North Kivu yielded about
$70,000,000 (seventy million US dollars) to Uganda in the same period. As for the wood
produced by the AMEXBOIS firm based in Kisangani town, it is exported to Uganda.
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Rwanda and Uganda have also taken over control of the fiscal and customs revenue
collected respectively by the Directorate General of Taxes. The plunder of the riches of
the eastern provinces of Congo is also affecting endangered animal species such as
okapis, mountain gorillas, rhinoceros, and elephants.
The Complaint
The Democratic Republic of Congo claims, among other things, that it is the victim of an
armed aggression perpetrated by Burundi, Rwanda and Uganda; and that this is a
violation of the fundamental principles that govern friendly relations between States, as
stipulated in the Charters of the United Nations and the Organisation of African Unity; in
particular, the principles of non-recourse to force in international relations, the peaceful
settlement of differences, respect for the sovereignty and territorial integrity of States
and non-interference in the internal affairs of States. It emphasises that the massacres
and other violations of human and peoples’ rights that it accuses Burundi, Rwanda and
Uganda of, are committed in violation of the provisions of articles 2, 4, 6, 12, 16, 17, 19,
20, 21, 22 and 23 of the African Charter on Human and Peoples’ Rights.
8. It also claims violation of the provisions of the International Covenant on Civil and
Political Rights, the Geneva Conventions of 12 August 1949 and of the Additional
Protocol on the Protection of Victims of International Armed Conflicts (Protocol I) of 8
June 1977.
9. From the foregoing, the Democratic Republic of Congo, based on the facts presented
and the law cited, requests the Commission to:
a. Declare that [t]he violations of the human rights of the civilian population of the
eastern provinces of the Democratic Republic of Congo by Rwanda, Uganda and
Burundi are in contravention of the relevant provisions of the African Charter on
Human and Peoples’ Rights cited above; and
b. Examine the communication diligently, especially in the light of Article 58 (1) & (3)
of the Charter with a view to producing a detailed, objective and impartial report
on the grave and massive violations of human rights committed in the waraffected eastern provinces and to submit it to the Assembly of Heads of State and
Government of the Organisation of African Unity.
10. The Democratic Republic of Congo also requests the Commission to:
a. “… Take due note of the violations of the relevant provisions of the Charters of
the United Nations, the Organisation of African Unity, and the one on Human
and Peoples’ Rights;
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b. Condemn the aggression against the Democratic Republic of Congo, which has
generated grave violations of the human rights of peaceful peoples;
c. Deploy an investigation mission with a view to observing in loco the accusations
made against Burundi, Rwanda and Uganda;
d. Demand the unconditional withdrawal of the invading troops from Congolese
territory in order to put an end to the grave and massive violations of human
rights;
e. Demand that the countries violating human and peoples’ rights in the
Democratic Republic of Congo pay just reparation for the damages caused and
the acts of looting; and
f. Indicate the appropriate measures to punish the authors of the war crimes or
crimes against humanity, as the case may be, and the creation of an ad hoc
tribunal to try the crimes committed against the Democratic Republic of Congo.
The ad hoc tribunal may be created in collaboration with the United Nations”.
The Procedure
11.
The communication was received at the Secretariat of the Commission on 8
March 1999. The same day, two letters were dispatched by fax, to the Ministry of
Human Rights and the Ministry of Foreign Affairs of the Democratic Republic of Congo
respectively, acknowledging receipt.
12.
In compliance with the relevant provisions of the Charter and the Rules of
Procedure, the Secretariat then submitted the communication to the Commission,
meeting at its 25th Ordinary Session from 26 April to 5 May 1999, in Bujumbura
(Burundi).
13.
At its 25th Ordinary session held in Bujumbura, Burundi, the Commission took a
decision of seizure on the communication and requested the Complainant State to
forward an official copy of its complaint to the Secretary-General of the OAU.
14.
On 28th May 1999, Note Verbales together with a copy of the communication
were each sent to the Ministries of External Affairs/External Relations of the Respondent
States informing them of the communication filed against them by the Democratic
Republic of Congo.
15.
On 2nd June 1999, the Secretariat wrote to the authorities of the Democratic
Republic of Congo informing them of the decision of seizure taken by the Commission
and requesting them to comply with the provisions of Article 49 of the Charter.
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16.
At the 26th session of the Commission held in Kigali, Rwanda, the
communication was not examined, as the Commission considered it necessary to allow
the Respondent States more time to communicate their reactions.
17.
On 14th December 1999, the Secretariat wrote to the various parties requesting
their reactions regarding the issue of admissibility.
18.
At the 27th ordinary session held from 27 April to 11 May 2000 in Algiers, Algeria,
the Commission heard oral submissions on the admissibility of the case from
representatives of the Complainant State and from two Respondent States (Rwanda
and Uganda). The Commission, after examining the case according to the provisions of
its Rules of Procedures, thereafter declared the communication admissible and
requested parties to furnish it with arguments on the merits of the case.
19.
The parties were accordingly informed of the above decision on 14th July 2000.
20. At the 28th session of the Commission held from 23rd October to 6th November
2000 in Cotonou, Benin, the communication was not considered as the Commission had
not received any response from Respondent States on the request that was extended to
them following the 27th session.
21. During the session, however, the delegation of Rwanda transmitted to the
Secretariat of the Commission, a submission, which stated that the Commission should
not have declared communication 227/99 admissible because the procedure followed by
the Democratic Republic of Congo was not valid and that the Commission itself had not
respected the provisions of its own Rules of Procedure. The submission further stated
that the matters addressed by the communication were pending before competent
authorities of the Organization of African Unity and other international bodies like the UN
Security Council and ECOSOC. Finally, Rwanda refuted allegations of human rights
violations made against it by the Democratic Republic of Congo and justified the
presence of its troops in this country on grounds of security, while accusing the
Democratic Republic of Congo of hosting groups hostile to Rwanda.
22.
The submission of Rwanda was transmitted to all States concerned by
communication 227/99.
23.
In October 2000, the Secretariat of the Commission received from Uganda a
submission on communication 227/99 in which the Respondent State recognised and
justified the presence of its troops in the Democratic Republic of Congo. The troops
were said to be in the Democratic Republic of Congo to prevent Ugandan rebels from
attacking the Ugandan territory.
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24.
Uganda stated in its submission that since the early 1990’s the territory of the
Democratic Republic of Congo (then the Republic of Zaire) has provided sanctuary to
bands of armed rebel groups. These rebel groups, which Uganda claims support former
dictator Idi Amin, have posed a significant danger for Uganda since 1996.
25.
Uganda stated that supported by both Sudan and Mobutu’s government in the
Democratic Republic of Congo, these groups grew to 6,000, posing a serious security
threat to Uganda and that therefore Ugandan troops were present in the Democratic
Republic of Congo in order to prevent Ugandan rebels from attacking the Ugandan
territory.
26.
The submission further states that after Mobutu’s overthrow in 1997, the Kabila
government invited Uganda to enter eastern Congo to work together to stop the
activities of the anti-Uganda rebels and that Ugandan armed forces remained in the
Democratic Republic of Congo at the request of President Kabila since his forces “had
no capability to exercise authority” in the remote eastern region. Uganda attached the
Protocol between the Democratic Republic of Congo and the Republic of Uganda on
Security Along the Common Border to show that both sides recognized the problem of
armed groups and decided to cooperate.
27.
According to Uganda, President Kabila revoked the above-mentioned agreement
in August 1998 as a new rebellion started in the Democratic Republic of Congo (when
the coalition that had overthrown Mobutu disintegrated) and blamed this “internal
rebellion,” on the invasion of Uganda and Rwanda. The Democratic Republic of Congo
then started looking for allies in its struggle against the rebels and it turned to forces
hostile to the governments of Rwanda and Uganda, specifically the Allied Democratic
Force and pro-Idi Amin groups. Uganda said it therefore had no option but to keep its
troops in the Democratic Republic of Congo, in order to deal with the threat of attacks
posed by these foreign-sponsored rebel groups.
28.
To support its actions, Uganda cited provisions of international instruments:
a) Article 51 of the UN Charter;
b) Article 3 of the UN General Assembly Resolution on the Definition of
Aggression;
c) The UN General Assembly Declaration of Principles of International Law
Concerning Friendly Relations and Cooperation Among States; and
d) Article 23 of the African Charter on Human and Peoples’ Rights.
29.
In its submission, Uganda also points to the lack of evidence implicating it in the
alleged human rights violations, stating for example that, Ugandan troops have never
been in some places mentioned in the communication. The submission characterises
the violations relating to HIV/AIDS as “the most ridiculous allegation”. Referring to the
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joint case against itself, Rwanda, and Burundi, Uganda claims that “[t]here is never
group responsibility for violations.” In addition, “allegations of human rights violations
must be verified by an independent body or by a fact-finding Commission.” Uganda
contrasts the allegations it faces with evidence of the Democratic Republic of Congo
government’s involvement in violations in its eastern provinces.
30.
As for the withdrawal of Ugandan troops from the Democratic Republic of Congo,
the submission relies on the Democratic Republic of Congo’s failed request to the ICJ to
order the unconditional withdrawal of Ugandan troops.
31.
Regarding payment of reparations, Uganda points to the lack of documentation
on this issue and, concerning the illegal exploitation of the Democratic Republic of
Congo’s natural resources, Uganda denied involvement and affirmed its “unconditional
support to the United Nation’s efforts to set up a panel of experts [that the Democratic
Republic of Congo has also approved] to investigate” the issue.
32.
On the issue of investigation of human rights violations, while Uganda welcomed
the Democratic Republic of Congo’s call for independent investigation, it portrayed the
Democratic Republic of Congo’s uninvestigated allegations as “disturbing.”
33.
Uganda also noted that the Democratic Republic of Congo has accused Uganda
in several other fora: the UN Security Council, the ICJ, the Lusaka Initiative, and the
OAU. According to the Respondent State, these actions “present a dilemma to the
conduct of international affairs…and adjudication,” undermining the credibility of these
institutions and the Commission as divergent opinions may be reached.
34.
In conclusion Uganda contends that “there is no legal basis on which the African
Commission can deal with the communication and declare any of the remedies sought
by the Democratic Republic of Congo against Uganda.”
35.
Copies of the submissions of Uganda on communication 227/99 were transmitted
to all States concerned by the communication.
36.
In December 2000, the Secretariat of the Commission received a set of five (5)
submissions from the Democratic Republic of Congo containing reports on alleged
violations of human rights by armed forces of the Respondent States and their alleged
allies in the territory of the Democratic Republic of Congo. The submissions also stated
that the foreign uninvited troops in the Democratic Republic of Congo were looting the
resources of the country.
37.
The Secretariat of the Commission transmitted these submissions to the
respective parties to the communication.
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38.
At the 29th session, which was held from 23rd April to 7th May 2001 in Tripoli,
Libya, the communication was not considered because the Commission had still not
received any submission from one of the Respondent State, namely, Burundi. On that
occasion, all relevant letters and submissions by the other States were transmitted to
the delegations of all the Respondent States including Burundi, for their consideration
and reaction to the Commission.
39.
In August 2001, the Secretariat of the Commission received a request from the
Ministry of Human Rights of the Democratic Republic of Congo, which deplored the
delays in the processing of communication 227/99 and invited the Commission to
summon an extraordinary session in order to deal diligently with the communication.
40.
By Notes Verbales ACHPR/COMM/044 sent to their respective Ministries of
Foreign/External Affairs on 26th September 2001, the Secretariat of the Commission
informed all States concerned by communication 227/99 that it was going to consider
the said communication on the merits, at its 30th ordinary session scheduled from 13th to
27th October 2001 in Banjul, The Gambia.
41.
In October 2001, the Secretariat of the Commission received a Note Verbale from
Rwanda, which restated the objections raised in its submission of October 2000
concerning communication 227/99, adding that if Rwanda’s arguments were not taken
into account, it should not be called upon to present a defence.
42.
At its 30th session, the Commission discussed the request by the Democratic
Republic of Congo about organising an extraordinary session to deal with
communication 227/99 and resolved to raise the issue with the relevant authorities of the
Secretariat of the African Union. The Commission also heard oral statements by the
delegations of Rwanda and Uganda on the issue, written copies of which were also
handed over to its Secretariat
43.
In its statement, the Rwandan delegation reiterated its arguments stated during
the 28th session and objected to the proposed extraordinary session to deal with the
communication on the grounds that the communication could be considered during an
ordinary session and that an extraordinary session will have financial implication.
Rwanda therefore recommended that the Commission deals with the communication
during its 31st session scheduled for May 2002 in Pretoria, South Africa. The statement
further justified the presence of Rwandan troops in the Democratic Republic of Congo
by the assistance that the Government of this country is granting elements hostile to the
Government of Kigali and concluded that as long as such a threat exists for Rwanda, it
could not withdraw its troops from the Democratic Republic of Congo.
44.
In its statement, the Ugandan delegation said that they had not received the
documents sent to them on communication 227/99 and could not present their defence
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at that stage. The delegation further objected to the holding of an extraordinary session
to deal with the communication and added that the facts complained of by the
Democratic Republic of Congo are also pending before the International Court of Justice
and that consideration of the communication by the Commission would prejudice the
court hearing.
45.
At the 31st session of the Commission, which was held from 2nd to 16th May 2002
in Pretoria, South Africa, the Commission did not consider the Communication because
there had been no response from the Organisation of African Unity regarding the
request from the Democratic Republic of Congo on the holding of the extraordinary
session on the communication. During that session, the Commission resolved to
proceed as follows: the African Commission would hold the extraordinary session in
case the Secretariat General of the OAU agree to it, or (in case the OAU did not accept
the idea of extraordinary session), the African Commission would arrange its agenda for
the 32nd Ordinary Session in such a way as to have sufficient time to deal with the
communication. That decision was communicated to the delegations of all the States
concerned who were attending the session.
46.
By Note Verbale ACHPR/COMM 227/99 of 11 June 2002, the Secretariat
transmitted that decision to the States concerned by the communication.
47.
A reminder was also sent to the same States by Notes Verbale ACHPR/COMM
227/99 on 8th October 2002.
48.
During its 32nd ordinary session which took place from 17 to 23 October 2002 in
Banjul, the Gambia, the Commission did not consider this communication because of
the circumstances of the session1 which did not provide enough time to deal with this
important communication.
49.
The Commission took a decision on the merits of the communication during its
33rd Ordinary Session, which was held from 15th to 29th May 2003 in Niamey, Niger.
LAW
Admissibility
50.
The procedure for bringing inter-state communications before the Commission is
governed by Articles 47 to 49 of the Charter. At this stage, it is important to mention that
1 Financial constraints caused the 32nd ordinary session of the Commission to last for only seven (7) days.
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this is the first inter-State communication brought before the African Commission on
Humana and Peoples’ Rights.
51.
It is to be noted that Burundi1, a Respondent State was provided with all the
relevant submissions relating to this communication, in conformity with Article 57 of the
African Charter. But neither did Burundi react to any of them nor did it make any oral
submission before the Commission regarding the complaint.
52.
The African Commission would like to emphasise that the absence of reaction
from Burundi does not absolve the latter from the decision the African Commission may
arrive at in the consideration of the communication. Burundi by ratifying the African
Charter indicated its commitment to cooperate with the African Commission and to abide
by all decisions taken by the latter.
53.
In their oral arguments before the Commission at its 27th ordinary session held in
Algeria (27 April – 11 May 2000), Rwanda and Uganda had argued that the decision of
the Complainant State to submit the communication directly to the Chairman of the
Commission without first notifying them and the Secretary General of the OAU, is
procedurally wrong and therefore fatal to the admissibility of the case.
54.
Article 47 requires the Complainant State to draw, by written communication, the
attention of the violating State to the matter and the communication should also be
addressed to the Secretary General of the OAU and the Chairman of the Commission.
The State to which the communication is addressed is to give written explanation or
statement elucidating the matter within three months of the receipt of the
communication.
55.
By the provisions of Article 48 of the Charter, if within three months from the date
on which the original communication is received by the State to which it is addressed,
the issue is not settled to the satisfaction of the two States involved through bilateral
negotiation or by any other peaceful procedure, either State shall have the right to
submit the matter to the Commission through the Chairman and to notify the other
States involved.
56.
The provisions of Articles 47 and 48 read in conjunction with Rules 88 to 92 of
the Rules of Procedure of the Commission are geared towards the achievement of one
of the essential objectives and fundamental principles of the Charter: conciliation.
57.
The Commission is of the view that the procedure outlined in Article 47 of the
Charter is permissive and not mandatory. This is borne out by the use of the word
“may”. Witness the first sentence of this provision:
1 Burundi, a State Party to the African Charter, ratified the said Charter on 28/07/1989.
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“If a State Party to the Present Charter has good reasons to believe that
another State Party to this Charter has violated the provisions of the
Charter, it may draw, by written communication, the attention of that State
to the matter”.
58.
Moreover, where the dispute is not settled amicably, Article 48 of the Charter
requires either State to submit the matter to the Commission through the Chairman and
to notify the other States involved. It does not, however, provide for its submission to
the Secretary General of the OAU. Nevertheless, based on the decision of the
Commission at its 25th ordinary session, requesting it to forward a copy of its complaint
to the Secretary General of the OAU (see paragraph 14 above), the Complainant State
had done so.
59.
Furthermore, it appears that the main reason why the Charter makes provision
for the Respondent State to be informed of such violations or notified of the submission
of such a communication to the Commission, is to avoid a situation of springing
surprises on the States involved. This procedure enables the Respondent States to
decide whether to settle the complaint amicably or not. The Commission is of the view
that even if the Complainant State had not abided by the said provision of the Charter,
such omission is not fatal to the communication since after being seized of the case, a
copy of the communication, as is the practice of the Commission, was forwarded to the
Respondent States for their observations (see paragraph 15 above).
60.
Article 49 on the other hand, provides for a procedure where the Complainant
State directly seizes the Commission without passing through the conciliation phase.
Accordingly, the Complainant State may refer the matter directly to the Commission by
addressing a communication to the Chairman, the Secretary General of the OAU and
the State concerned. Such a process allows the requesting State to avoid making
contacts with the Respondent State in cases where such contacts will not be
diplomatically either effective or desirable. In the Commission’s considered opinion that
seems to be the case here. Indeed, the situation of undeclared war prevailing between
the Democratic Republic of Congo and its neighbours to the east did not favour the type
of diplomatic contact that would have facilitated the application of the provisions of
Articles 47 and 48 of the Charter. It was also for this reason that the Commission took
the view that Article 52 did not apply to this communication.
61.
The Commission is mindful of the requirement that it can consider or deal with a
matter brought before it if the provisions of Article 50 of the Charter and Rule 97(c) of
the Rules of Procedure are met, that is if all local remedies, if they exist, have been
exhausted, unless such would be unduly prolonged.
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62.
The Commission takes note that the violations complained of are allegedly being
perpetrated by the Respondent States in the territory of the Complainant State. In the
circumstances, the Commission finds that local remedies do not exist, and the question
of their exhaustion does not, therefore, arise.
63.
The effect of the alleged activities of the rebels and armed forces of the
Respondent States Parties to the Charter, which also back the rebels, fall not only within
the province of humanitarian law, but also within the mandate of the Commission. The
combined effect of Articles 60 and 61of the Charter compels this conclusion; and it is
also buttressed by Article 23 of the African Charter.
64.
There is also authority, which does not exclude violations committed during
armed conflict from the jurisdiction of the Commission. In communication 74/92,
Commission Nationale des Droits de l’Homme et des Libertés /Chad, the Commission
held that the African Charter “unlike other human rights instruments, does not allow for
States Parties to derogate from their treaty obligations during emergency situations.
Thus, even a situation of ….war…cannot be cited as justification by the State violating or
permitting violations of the African Charter” (see also communication 159/96, UIDH &
Others v. Angola).
From the foregoing, the Commission declares the communication admissible.
The Merits
65.
The use of armed force by the Respondent States, which the Democratic
Republic of Congo complains of contravenes the well-established principle of
international law that States shall settle their disputes by peaceful means in such a
manner that international peace, security and justice are not endangered. Indeed, there
cannot be both national and international peace and security guaranteed by the African
Charter under the conditions created by the Respondent States in the eastern provinces
of the Complainant State.
66.
Rwanda and Uganda, in their oral arguments before the Commission at its 27th
ordinary
session held in Algeria had argued that the decision of the Complainant
State to submit
the communication directly to the Chairman of the Commission
without first notifying them and the Secretary General of the OAU, is procedurally wrong
and therefore fatal to the
admissibility of the case. But the African Commission found
otherwise.
67.
The Commission finds the conduct of the Respondent States inconsistent with
the standard expected of them under UN Declaration on Friendly Relations, which is
implicitly affirmed by the Charters of the UN and OAU, and which the Commission is
mandated by Article 23 of the African Charter on Human and Peoples’ Rights to uphold.
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Any doubt that this provision has been violated by the Respondent States is resolved by
recalling an injunction in the UN Declaration on Friendly Relations: “No State or group
of States has the right to intervene directly or indirectly, for any reason whatever, in the
internal or external affairs of any other States. Consequently, armed intervention and all
other forms of interference or attempted threats against the personality of the State or
against its political, economic and cultural elements are in violation of international
law…Also no State shall organize, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime of
another State or interfere in civil strife in another State.” The substance of the complaint
of the Democratic Republic of Congo against the Respondents is covered by the
foregoing prohibition. The Respondent States have therefore violated Article 23 of the
African Charter. The conduct of the Respondent States also constitutes a flagrant
violation of the right to the unquestionable and inalienable right of the peoples of the
Democratic Republic of Congo to self-determination provided for by Article 20 of the
African Charter, especially clause 1 of this provision.
68.
The Complainant State alleges grave and massive violations of human and
peoples’ rights committed by the armed forces of the Respondent States in its eastern
provinces. It details
series of massacres, rapes, mutilations, mass transfers of
populations and looting of the
peoples’ possessions, as some of those violations. As
noted earlier on, the series of violations alleged to have been committed by the armed
forces of the Respondent States fall within the province of humanitarian law, and
therefore rightly covered by the Four Geneva Conventions and the Protocols additional
to them. And the Commission having found the alleged occupation of parts of the
provinces of the Complainant State by the Respondents to be in violation of the Charter
cannot turn a blind eye to the series of human rights violations attendants upon such
occupation.
69.
The combined effect of Articles 60 and 61 of the African Charter enables the
Commission to draw inspiration from international law on human and peoples’ rights, the
Charter of the
United Nations, the Charter of the Organisation of African Unity and
also to take into
consideration, as subsidiary measures to determine the principles of
law, other general or
special international conventions, laying down rules
recognized by Member States of the
Organization of African Unity, general
principles recognized by African States as well as legal precedents and doctrine. By
virtue of Articles 60 and 61 the Commission holds that the Four Geneva Conventions
and the two Additional Protocols covering armed conflicts
constitute part of the
general principles of law recognized by African States, and take same into consideration
in the determination of this case.
70.
It is noted that Article 75(2) of the First Protocol of the Geneva Conventions of
1949, prohibits the following acts at any time and in all places whatsoever, whether
committed by civilian or by military agents:
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(a) Violence to life, health, or physical or mental well-being of persons, in
particular;
(b) Murder;
(c) Torture of all kinds, whether physical or mental;
(d) Corporal punishment;
(e) Mutilations; and
(f) Outrages upon personal dignity, in particular, humiliating and degrading
treatment; enforced prostitution and any form of indecent assault.
71.
The Complainant State alleges the occupation of the eastern provinces of the
country by the Respondent States’ armed forces. It alleges also that most parts of the
affected provinces have been under the control of the rebels since 2 August 1998, with
the assistance and support of the Respondent States. In support of its claim, it states
that the Ugandan and Rwandan governments have acknowledged the presence of their
respective armed forces in the eastern provinces of the country under what it calls the
“fallacious pretext” of “safeguarding their interests”. The Commission takes note that this
claim is collaborated by the statements of the representatives of the Respondent States
during the 27th ordinary session held in Algeria.
72.
Article 23 of the Charter guarantees to all peoples the right to national and
international peace and security. It provides further that "the principles of solidarity and
friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed
by that of the Organisation of African Unity shall govern relations between states. The
principles of solidarity and friendly relations contained in the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations (Res. 2625 (XXV), adopted by the
UN General Assembly on 24 October 1970, prohibits threat or use of force by States in
settling disputes. Principle 1 provides: Every State has the duty to refrain in its
international relations from the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations. Such a threat or use of force constitutes a violation of
international law and the Charter of the United Nations and shall never be employed as
a means of settling international issues.
73.
In the same vein, Article 33 of the United Nations Charter enjoins "parties to any
dispute, the continuance of which is likely to endanger the maintenance of international
peace and security…first of all, to seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements,
or other peaceful means of their own choice". Chapter VII of the same Charter outrightly
prohibits threats to the peace, breaches of the peace and acts of aggression. Article III
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of the OAU Charter states that " The Member States, in pursuit of the purposes stated in
Article II, solemnly affirm and declare their adherence to the following principles:
…2 Non-interference in the internal affairs of States
3. Respect for the sovereignty and territorial integrity of each State and
for its inalienable right to independent existence.
4. Peaceful settlement of disputes by negotiation, mediation, conciliation
or arbitration.
74.
It also contravenes the well-established principle of international law that States
shall settle their disputes by peaceful means in such a manner that international peace
and security and justice are not endangered. As noted in paragraph 66 above, there
cannot be both national and international peace and security guaranteed by the Charter
with the conduct of the Respondent States in the eastern provinces of the Complainant
State.
75.
The Commission therefore disapproves of the occupation of the complainant's
territory by the armed forces of the Respondent forces and finds it impermissible, even
in the face of their argument of being in the Complainant's territory in order to
safeguard their national interests and therefore in contravention of Article 23 of the
Charter. The Commission is of the strong belief that such interests would better be
protected within the confines of the territories of the Respondent States.
76.
It bears repeating that the Commission finds the conduct of the Respondent
States in occupying territories of the Complainant State to be a flagrant violation of the
rights of the peoples of the Democratic Republic of Congo to their unquestionable and
inalienable right to self-determination provided for by Article 20 of the African Charter.
77.
As previously stated, the Commission is entitled, by virtue of Articles 60 and 61 of
the African Charter, to draw inspiration from international law on Human and Peoples'
Rights, the Charter of the United Nations, the Charter of the Organisation of African
Unity…and also take into consideration, as subsidiary measures to determine the
principles of law, other general or special international conventions, laying down rules
recognised by Member States of the Organisation of African Unity…general principles
recognised by African States as well as legal precedents and doctrine. Invoking these
provisions, the Commission holds that the Four Geneva Conventions and the two
Additional Protocols covering armed conflicts, fall on all fours with the category of
special international conventions, laying down rules recognised by Member States of the
Organisation of African Unity and also constitute part of the general principles
recognised by African States, and to take same into consideration in the determination
of this case.
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78.
The Commission finds the killings, massacres, rapes, mutilations and other
grave human rights abuses committed while the Respondent States' armed forces were
still in effective occupation of the eastern provinces of the Complainant State
reprehensible and also inconsistent with their obligations under Part III of the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War of 1949 and
Protocol 1 of the Geneva Convention.
79.
They also constitute flagrant violations of Article 2 of the African Charter, such
acts being directed against the victims by virtue of their national origin; and Article 4,
which guarantees respect for life and the integrity of one's person and prohibits the
arbitrary deprivation rights.
80.
The allegation of mass transfer of persons from the eastern provinces of the
Complainant State to camps in Rwanda, as alleged by the complainant and not refuted
by the respondent, is inconstent with Article 18(1) of the African Charter, which
recognises the family as the natural unit and basis of society and guarantees it
appropriate protection. It is also a breach of the right to freedom of movement, and the
right to leave and to return to ones country guaranteed under Article 12(1) and (2) of the
African Charter respectively.
81.
Article 56 of the First Protocol Additional to the Geneva Conventions of 1949
provides:
(1) Works or installations containing dangerous forces, namely dams, dykes
and nuclear electrical generating stations, shall not be made object of
military attack, even where these objects are military objectives, if such
attack may cause the release of dangerous forces and consequent severe
losses among the civilian population.
(2) The special protection against attack provided by paragraph 1 shall cease:
(a) for a dam or dyke only if it is used for other than its normal function in
a regular, significant and direct support of military operations and if such
attack is the only feasible way to terminate such support…
(3) In all cases, the civilian population and individual civilians shall remain
entitled to all the protection accorded them by international law, including
the protection of precautionary measures provided for in Article 57.
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82.
As noted previously, taking Article 56, quoted above into account, and by virtue of
Articles 60 and 61 of the African Charter, the Commission concludes that in besieging
the hydroelectric dam in Lower Congo province, the Respondent States have violated
the Charter.
83.
The besiege of the hydroelectric dam may also be brought within the prohibition
contained in The Hague Convention (II) with Respect to the Laws and Customs of War
on Land which provides in Article 23 that “Besides the prohibitions provided by special
Conventions, it is especially prohibited…to destroy the enemy’s property, unless such
destruction or seizure be imperatively demanded by the necessities of war”. By parity of
reason, and bearing in mind Articles 60 and 61 of the Charter, the Respondent States
are in violation of the Charter with regard to the just noted Article 23.
84.
The case of the International Criminal Tribunal for Yougoslavia vs. Zejnil Delalic,
Zdravko Mucic, Hazim Delic and Esad Landzo (the Celebici Judgment; Nov., 16, 1998 at
para. 587) is supportive of the Commission’s stance. It states, inter alia, that
“international law today imposes strict limitations on the measures which a party to an
armed conflict may lawfully take in relation to the private and public property of an
opposing party. The basic norms in this respect, which form part of customary
international law…include the fundamental principle…that private property must be
respected and cannot be confiscated…pillage is formally forbidden”.
85.
The raping of women and girls, as alleged and not refuted by the respondent
States, is prohibited under Article 76 of the first Protocol Additional to the Geneva
Conventions of 1949, which provides that “women shall be the object of special respect
and shall be protected in particular against rape, forced prostitution and any form of
indecent assault. It also offends against both the African Charter and the Convention on
the Elimination of All Forms of Discrimination Against Women; and on the basis of
Articles 60 and 61 of the African Charter find the Respondent States in violation of the
Charter.
86.
The Commission condemns the indiscriminate dumping of and or mass burial of
victims of the series of massacres and killings perpetrated against the peoples of the
eastern province of the Complainant State while the armed forces of the Respondent
States were in actual fact occupying the said provinces. The Commission further finds
these acts barbaric and in reckless violation of Congolese peoples’ rights to cultural
development guaranteed by Article 22 of the African Charter, and an affront on the noble
virtues of the African historical tradition and values enunciated in the preamble to the
African Charter. Such acts are also forbidden under Article 34 of the First Protocol
Additional to the Geneva Conventions of 1949, which provides for respect for the
remains of such peoples and their gravesites. In disregarding the last provision, the
Respondent States have violated the African Charter on the basis of Articles 60 and 61
of this instrument.
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87.
The looting, killing, mass and indiscriminate transfers of civilian population, the
besiege and damage of the hydro-dam, stopping of essential services in the hospital,
leading to deaths of patients and the general disruption of life and state of war that took
place while the forces of the Respondent States were occupying and in control of the
eastern provinces of the Complainant State are in violation of Article 14 guaranteeing
the right to property, articles 16 and 17 (all of the African Charter), which provide for the
rights to the best attainable state of physical and mental health and education,
respectively.
88.
Part III of the Geneva Convention Relative to the Protection of Civilian Persons in
Time of War 1949, particularly in Article 27 provides for the humane treatment of
protected persons at all times and for protection against all acts of violence or threats
and against insults and public curiosity. Further, it provides for the protection of women
against any attack on their honour, in particular against rape, enforced prostitution, or
any form of indecent assault. Article 4 of the Convention defines a protected person as
those who, at a given moment and in any manner whatsoever, find themselves, in case
of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of
which they are not nationals.
89.
The Complainant State alleges that between October and December 1998, the
gold produced by the OKIMO firm and by local diggers yielded $100,000,000 (one
hundred million US dollars) to Rwanda. By its calculation, the coffee produced in the
region and in North Kivu yielded about $70,000,000 (seventy million US dollars) to
Uganda in the same period. Furthermore, Rwanda and Uganda took over control of the
fiscal and customs revenue collected respectively by the Directorate General of Taxes.
The plunder of the riches of the eastern provinces of Congo is also affecting endangered
animal species such as okapis, mountain gorillas, rhinoceros, and elephants.
90.
Indeed, the respondent States, especially, Uganda, has refuted these allegations,
pretending for example that its troops never stepped in some of the regions they are
accused of human rights violations and looting of the natural resources of the
complainant States. However, the African Commission has evidence that some of these
facts did take place and are imputable to the armies and agents of the respondent
states. In fact, the United Nations have acknowledged that during the period when the
armies of the Respondent States were in effective control over parts of the territory of
the Complainant State, there were lootings of the natural resources of the Complainant
State. The United Nations set up a Panel of Experts to investigate this matter1.
1 See Resolution 1457 (2003) of the Security Council of the United Nations adopted on 24/01/2003 on the Panel of
Experts on the illegal exploitation of the natural resources of the Democratic Republic of Congo.
Also see presidential statement dated 2 June 2000 (S/PRST/2000/20), whereby the Security Council requested the
Secretary General of the United Nations to establish a Panel of Experts on the Illegal Exploitation of Natural Resources
and Other Forms of Wealth in the Democratic Republic of the Congo for a period of six months
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91.
The report of the Panel of Experts, submitted to the Security Council of the
United Nations in April 2001 (under reference S/2001/357) identified all the Respondent
States among others actors, as involved in the conflict in the Democratic Republic of
Congo1. The report profusely provides evidence of the involvement of the Respondent
states in the illegal exploitation of the natural resources of the Complainant State. It is
stated in paragraph 5 of the Summary of the report: “During this first phase (called
Mass-scale looting phase by the experts), stockpiles of minerals, coffee, wood, livestock
and money that were available in territories conquered by the armies of Burundi,
Rwanda and Uganda were taken, and either transferred to those countries or exported
to international markets by their forces and nationals.”2.
92.
Paragraph 25 of the reports further states: “The illegal exploitation of resources
(of the Democratic Republic of Congo) by Burundi, Rwanda and Uganda took different
forms, including confiscation, extraction, forced monopoly and price-fixing. Of these, the
first two reached proportions that made the war in the Democratic Republic of the Congo
a very lucrative business.
93.
The Commission therefore finds the illegal exploitation/looting of the natural
resources of the complainant state in contravention of Article 21 of the African Charter,
which provides:
(1) All peoples shall freely dispose of their wealth and natural resources. This
right shall be exercised in the exclusive interest of the people. In no case
shall a people be deprived of it…
(2) States Parties to the present Charter shall individually and collectively
exercise the right to free disposal of their wealth and natural resources with a
view to strengthening African Unity and solidarity.
94.
The deprivation of the right of the people of the Democratic Republic of Congo, in
this case, to freely dispose of their wealth and natural resources, has also occasioned
another violation – their right to their economic, social and cultural development and of
the general duty of States to individually or collectively ensure the exercise of the right to
development, guaranteed under Article 22 of the African Charter.
95.
For refusing to participate in any of the proceedings although duly informed and
invited to respond to the allegations, Burundi admits the allegations made against it.
1 See Point 10(a) of the summary of the Report.
2 Also see Paragraphs 26, 27, 32, 55, 64, etc. of the report.
EX.CL/279 (IX)
Annex IV
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96.
Equally, by refusing to take part in the proceedings beyond admissibility stage,
Rwanda admits the allegations against it.
97.
As in the case of Rwanda, Uganda is also found liable of the allegations made
against it.
For the above reasons, the Commission:
Finds the Respondent States in violation of Articles 2, 4, 5, 12(1) and (2), 14, 16,
17, 18(1) and (3), 19, 20, 21, 22, and 23 of the African Charter on Human and Peoples'
Rights.
Urges the Respondent States to abide by their obligations under the Charters of
the United Nations, the Organisation of African Unity, the African Charter on Human and
Peoples' Rights, the UN Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States and other applicable international
principles of law and withdraw its troops immediately from the complainant's territory.
Takes note with satisfaction, of the positive developments that occurred in this
matter, namely the withdrawal of the Respondent States armed forces from the territory
of the Complainant State.
Recommends that adequate reparations be paid, according to the appropriate
ways to the Complainant State for and on behalf of the victims of the human rights by
the armed forces of the Respondent States while the armed forces of the Respondent
States were in effective control of the provinces of the Complainant State, which
suffered these violations.
Done at the 33rd Ordinary Session of the African Commission
on Human and Peoples’ Rights - May 2003, Niamey, Niger
EX.CL/279 (IX)
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249/2002 - African Institute for Human Rights and Development (on behalf of
Sierra Leonean refugees in Guinea)/Republic of Guinea
Rapporteur:
31st Session: Commissioner Badawi
32nd Session: Commissioner Badawi
33rd Session:
Commissioner Badawi
th
34 Session:
Commissioner El-Hassan
35th Session:
Commissioner El-Hassan
th
36 Session:
Commissioner El-Hassan
Summary of facts
It is alleged by the Complainant that on 9th September 2000, Guinean President
Lansana Conté proclaimed over the national Radio that Sierra Leonean refugees in
Guinea should be arrested, searched and confined to refugee camps. His speech incited
soldiers and civilians alike to engage in mass discrimination against Sierra Leonean
refugees in violation of Article 2 of the African Charter.
The Complainant alleged that the discrimination occasioned by President Conté speech
manifested itself primarily in at least five ways:
First, widespread looting and extortion occurred in the wake of President Conté’s
speech. Guinean soldiers evicted Sierra Leoneans from their homes and refugee
camps. The soldiers further looted the homes, confiscated food, personal property and
money from refugees at checkpoints. They also extorted large sums of money from
detained refugees. These items were never returned to the refugees.
Second, the speech motivated soldiers and civilians to rise up against Sierra Leonean
refugees inside and outside of the refugee camps. The resulting physical violence
ranged from beatings, rapes, to shootings. Countless refugees died in these attacks,
and many have scars as permanent reminders of their time in Guinea.
Third, after President Conté’s speech, Guinean soldiers targeted Sierra Leonean
refugees for arrest and detention without any just cause. Soldiers at checkpoints would
inspect refugees for supposed rebel scars, calloused hands from carrying a gun,
speaking Krio (the local language in Sierra Leone), or carrying a refugee card. However,
the refugees had scars from tribal markings rather than the rebels and calloused hands
from farming not carrying a gun. These false identifications were used to then detain
refugees for hours and days for no other reason than being “a rebel” based upon being
Sierra Leonean.
EX.CL/279 (IX)
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Fourth, the speech instigated widespread rape of Sierra Leonean women in Guinea.
Furthermore, Guinean soldiers subjected men and women to humiliating strip searches.
These searches were conducted sometimes several times a day and in front of large
groups of people and on-looking soldiers.
Finally, Sierra Leonean refugees were forced to decide whether they were to be
harassed, tortured and die in Guinea, or return to Sierra Leone in the midst of civil war
where they would face an equally harsh fate. Thousands chose to flee back to their
native Sierra Leone in response to the Guinean mistreatment. Furthermore, Guinean
soldiers collected refugees, bussed them to Conakry seaport, and physically put them
on the ferry forcing their return to Sierra Leone. The Guinean government was therefore
not providing refuge and protection required by law, reported the Complainant.
Complaint:
The Complainant alleges that Articles 2, 4, 5, 12(5) and 14 of the African Charter on
Human and Peoples’ Rights have been violated.
Procedure:
The communication dated 17th April 2002, was submitted by the Institute for Human
Rights and Development in Africa on behalf of the Sierra Leonean refugees.
On 18th April 2002, a letter was sent to acknowledge receipt and inform the Complainant
that the communication would be scheduled for consideration at its 31st session.
At the 31st Ordinary Session held from 2 – 16 May 2002 in Pretoria, South Africa, the
Commission decided to be seized of the case and requested the parties to submit their
observations on the admissibility of the case.
On 29th May 2002, the Secretariat of the African Commission informed the parties of the
decision of the African Commission.
On 24th June 2002, the Complainant forwarded to the Secretariat of the African
Commission its written submission on the admissibility of the case, a copy was sent to
the Respondent State by post on 16 August 2002.
By letters dated 28 November 2002, 17 January 2003 and 20 March 2003, the
Secretariat wrote to the government requesting it to react to this complaint. Up to the
holding of the 33rd Ordinary session in Niamey, Niger, from 15 – 29 May 2003, the
Secretariat had not received any feedback from the Respondent State.
EX.CL/279 (IX)
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At the 33rd Ordinary Session the African Commission declared this communication
admissible, and the parties were requested to forward their written submission on the
merits.
On 18th June 2003, the Secretariat informed the parties of the above decision and
requested them to transmit their brief on the merits to the Secretariat within a period of 3
months, the Note Verbal to the Respondent State was hand delivered.
On 29th August 2003, the Complainant forwarded its written submission on the merits of
the case. On 22 September 2003, the Secretariat of the African Commission forwarded
the written submission from the Complainant to the Respondent State
On 9th October 2003, the Secretariat of the African Commission received a Note Verbale
from the Respondent State stating that they had not received the written submission
from the Complainant.
By note Verbale dated 14th October 2003, the Secretariat of the African Commission
forwarded once again the written submission from the Complainant to the Respondent
State by DHL.
During its 34th Ordinary Session held in Banjul, The Gambia from the 6th to 20th
November 2003, the African Commission heard the oral presentations on admissibility of
the parties concerned and decided to postpone consideration on the merits of the case
to its 35th Ordinary Session. By note verbale dated 4 December 2003, and by letter
bearing the same date both parties were accordingly informed of the commission’s
decision.
The Commission instructed the Secretariat to have the comments of the Complainant
translated into French and have the translation sent to the Respondent State to enable it
submit its written comments on the merits of the communication.
These submissions on the merits of the case submitted by the Complainant were
translated into French and sent to the Respondent State by Note Verbale on the 11th
December 2003. The Respondent State was also informed that the communication
would be considered on the merits at the Commission’s 35th ordinary session.
By Note verbale dated 26 December 2003, the Secretariat received an
acknowledgement from the Respondent State to its note verbale of 11 December 2003
noting that the Respondent State will forward its submission on admissibility within three
months.
By note verbale dated 9 March 2004 the Secretariat reminded the Respondent State to
forward its submission on admissibility noting further that the communication will be
EX.CL/279 (IX)
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considered at the 35th ordinary session to be held in Dakar, Senegal from 3 – 17 May,
2004.
The Respondent State sent its reaction as to the merits of the communication to the
Secretariat of the Commission on the 5th April 2004.
At the 35th Ordinary session, the Respondent State was not represented due to the
change of the venue. At the 35th Ordinary Session, the Commission heard oral
submissions from complainants and testimonies from witnesses on the merits of the
communication.
By note verbale dated 18 June 2004 the Secretariat of the African Commission informed
the State of its decision taken at the 35th ordinary session and by letter of the same date
informed the complainant accordingly.
At its 36th Ordinary Session held from 23 November to 7 December 2004 in Dakar,
Senegal, the African Commission considered this communication and decided to deliver
its decision on the merits.
LAW
Admissibility
The admissibility of communications brought pursuant to Article 55 of the African
Charter is governed by the condition stipulated in Article 56 of the Charter. This Article
lays down seven (7) conditions for admissibility.
The African Commission requires that all these conditions be fulfilled for a
communication to be declared admissible. Regarding the present communication, the
two parties do not dispute that Article 56 (1, 2, 3, 4, 6 and 7) have been fulfilled, and the
only article that is in dispute is Article 56(5) of the African Charter.
Article 56(5) requires the exhaustion of local remedies as a condition of the presentation
of a complaint before the Commission is premised on the principle that the Respondent
State must first have an opportunity to redress by its own means within the framework of
its own domestic legal system, the wrong alleged to have been done to the individual.
Concerning the matter of exhausting local remedies, a principle endorsed by the African
Charter as well as customary international law, the Complainant argues that any attempt
by Sierra Leonean refugees to seek local remedies would be futile for (3) three reasons:
First, the persistent threat of further persecution from state officials has fostered an
ongoing situation in which refugees are in constant danger of reprisals and punishment.
When the authorities tasked with providing protection are the same individuals
persecuting victims an atmosphere in which domestic remedies are available is
EX.CL/279 (IX)
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compromised. Furthermore, according to the precedent set by the African Commission
in Communication 147/95 and 149/96 Sir Dawda K. Jawara / the Gambia, the need to
exhaust domestic remedies is not necessarily required if the Complainant is in a lifethreatening situation that makes domestic remedies unavailable.
Second, the impractical number of potential plaintiffs makes it difficult for domestic
courts to provide an effective avenue of recourse. In September of 2000, Guinea hosted
nearly 300,000 refugees from Sierra Leone. Given the mass scale of crimes committed
against Sierra Leonean refugees – 5,000 detentions, mob violence by Guinean security
forces, widespread looting – the domestic courts would be severely overburdened if
even a slight majority of victims chose to pursue legal redress in Guinea. Consequently,
the requirement to exhaust domestic remedies is impractical.
Finally, exhausting local remedies would require Sierra Leonean victims to return to
Guinea, the country in which they suffered persecution, a situation that is both
impractical and unadvisable. According to precedent set by the Commission in
Communication 71/92 Rencontre Africaine pour la Défense des Droits de l’Homme /
Zambie, victims of persecution are not necessarily required to return to the place where
they suffered persecution to exhaust local remedies.
In this present case, Sierra Leonean refugees forced to flee Guinea after suffering
harassment, eviction, looting, extortion, arbitrary arrests, unjustified detentions, beatings
and rapes. Would it be required to return to the same country in which they suffered
persecution? Consequently, the requirement to exhaust local remedies is inapplicable.
For these reasons, the communication is declared admissible.
Merits
In interpreting and applying the African Charter, the African Commission relies on its
jurisprudence and, as provided by Articles 60 and 61 of the African Charter, on
appropriate and relevant international and regional human rights instruments, principles
and standards.
The African Commission is therefore amenable to legal arguments that are supported by
appropriate and relevant international and regional human rights principles, norms and
standards.
The Petitioners have enclosed several affidavits from Sierra Leonean refugees who
suffered widespread human rights abuses including harassment, evictions, looting,
extortion, arbitrary arrests, beatings, rapes and killings while seeking refuge in the
Republic of Guinea.
EX.CL/279 (IX)
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These accounts are based on interviews obtained from collaboration between the
Institute for Human Rights and Development in African and Campaign for Good
Governance, a Sierra Leonean NGO. Lawyers from both organisations interviewed and
recorded statements from refugees who had returned to Sierra Leone from Guinea. For
the most part, the depiction of events is substantiated by reports from Human Rights
Watch and Amnesty International who have documented the situation of Sierra Leonean
refugees in Guinea during the period in question.
The Republic of Guinea has ratified several regional and international human rights
instruments which include the African Charter, the OAU Convention on the Specific
Aspects of Refugee Problems in Africa, the International Covenant on Civil and Political
Rights, the UN Convention Against Torture, and the 1951 UN Convention on the Status
of Refugees, together with its 1967 Optional Protocol.
While the efforts of the Guinean authorities to host refugees are commendable, the
allegations that the government instigated and directly discriminated against Sierra
Leonean refugees present a picture of serious human rights abuses which contravene
the African Charter and the other international human rights instruments to which
Guinea is a party.
The statements made under oath by several refugees indicate that their refugee camps
were direct targets and taken together with accounts of numerous other abuses,
constitute tangible evidence that the Sierra-Leonean refugees in this situation had been
targeted on the basis of their nationality and had been forced to return to Sierra Leone
where their lives and liberty were under threat from the on-going war.
In view of the circumstances, the Complainant alleges that the situation which prevailed
in Guinea in September 2000 manifestly violates Article 12 (5) of the African Charter
which sets forth that:
“The mass expulsion of strangers is prohibited. Mass expulsion is that which
targets national, racial, ethnic or religious groups as a whole”.
Among the Articles and other legal instruments to which the Respondent State is a party
and by which it is bound to protect all persons against discrimination can be noted:
Article 4 of the OAU Convention on the Specific Aspects of Refugees, Article 26 of the
International Covenant on Civil and Political Rights and Article 3 of the 1951 United
Nations Convention on the Status of Refugees.
The Complainants allege that in his speech of the 9th September 2000, delivered on
radio in Susu language, President Conte incited soldiers and civilians to engage in large
scale discriminatory acts against Sierra-Leonean refugees, the consequences of which
had been that these persons were the direct victims of harassment, deportations,
looting, stealing, beatings, rapes, arbitrary arrests and assassinations. It is further
EX.CL/279 (IX)
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alleged that the President made no effort to distinguish between refugees and rebels
and that the Government is therefore directly responsible for the violation of this
fundamental precept of international law: Non-discrimination.
The Complainants also allege that the Respondent State violated the principle of nonrefoulement under which no person should be returned by force to his home country
where his liberty and life would be under threat.
The Complainants contend that President Conte’s speech not only made thousands of
Sierra-Leonean refugees flee Guinea and return to the dangers posed by the civil war,
but it also clearly authorized the return by force of Sierra-Leonean refugees. Thus, the
voluntary return of refugees to Sierra Leone under these circumstances cannot be
considered as voluntary but rather as a dangerous option available for the refugees.
The Respondent State alleges that on the 1st September 2000, the Republic of Guinea
was victim of armed aggression perpetrated by elements from Liberia and Sierra Leone.
These surprise attacks which were carried out simultaneously at its South and SouthEastern borders resulted in the fleeing en masse, of the populations from these zones.
Matching reports which came from all fronts to the Respondent State denounced
persons who had lived for a long time in Guinea as refugees, and who had turned out to
be, where they did not figure among those who had attacked Guinea, at least as
accomplices of the attackers.
The President of the Republic, by virtue of the powers granted him under the
Constitution, jumped to it by taking the measures necessary for safeguarding the
nation’s territorial integrity. In the process he recommended that all refugees be
quartered and that Guineans scatter in all districts in order to unmask the attackers who
had infiltrated the populations.
The Respondent State emphasises that such measures are in conformity with the
provisions of Article 9 of the 1951 UN Convention on the Status of Refugees on
refugees and Article 41 of the Laws of Guinea which provides that: “the President of the
Republic is the guarantor/custodian of the independence of the nation and of territorial
integrity. He is responsible for national defence……….”
The Respondent State intimates that for the majority of the refugees the statement by
the Head of State had been beneficial since the refugees had been registered, given
supplies and placed in secured areas.
The State underscored the fact that at the time of the events there were not only Sierra
Leonean refugees in Guinea but also Liberians and Guinea Bissau nationals. Guinea
therefore had no interest in targeting Sierra Leonean refugees since it was public
knowledge that all the attacks against the country had been directed from Liberia.
EX.CL/279 (IX)
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The Respondent State points out that there is no violation of the right to nondiscrimination, since the speech referred to never mentioned specifically Sierra Leonean
refugees. The Respondent State recalled that during the 34th Ordinary Session the
Complainant had been requested to produce a transcript of the entire statement, which
had not been done, whereas it is the responsibility of the Complainant to provide
evidence.
The Complainants allege that almost immediately after the broadcast of President
Conte’s speech, the Guinean Authorities and civilians started to harass the Sierra
Leonean refugees and to carry out large scale looting, expulsions and robbery of assets.
The Complainants contend that the rapes and physical searches carried out by the
Guinean Authorities to establish a kind of discrimination against Sierra Leonean
refugees constitute some form of inhuman treatment, thereby violating the dignity of the
refugees.
The Complainants allege that the President’s speech had given rise to widespread
sexual violence largely against the Sierra Leonean women in Guinea with the Guinean
soldiers using rape as a weapon to discriminate against the refugees and to punish
them for being so-called rebels. The communication contains detailed reports of the
raping of women of various ages in the prisons, in houses, control posts and refugee
camps.
The Complainants contend that the violence described in the statements made under
oath was undeniably coercive, especially since the soldiers and the civilians used arms
to intimidate and threaten the women before and during the forced sexual relations.
The Complainant reports large scale acts of violence carried out by the soldiers, police
and Guinean civilian protection groups against the thousands of Sierra Leonean
refugees in the camps and in the Capital, Conakry. Different cases are mentioned,
namely S.B. who is said to have been seriously injured, his hip dislocated and his knees
broken with a gun in the Gueckedou Camp. S.Y. talks about soldiers who had shot her
in the leg; she reports having been witness to a scene where soldiers were cutting off
the ears of Sierra Leoneans with bayonets. L.C. recounts that Guinean soldiers had
been shooting at random at the Sierra Leone Embassy on a group of Sierra Leoneans
who had been waiting to be repatriated and that a large number of these refugees had
been killed; he mentioned having also been witness at a scene where soldiers in trucks
were shooting at Sierra Leoneans who were boarding the ferry to be repatriated: several
of them fell into the water and were drowned.
The Respondent State, in a critical appraisal of these testimonies as reported, not only
made comments but also raised some questions. With regard to isolated cases like
those of S.B., M.F., and S.Y., the issues alluded to remain to be proved, declared the
Respondent State, since they constitute a simple gathering of evidence. Concerning
EX.CL/279 (IX)
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S.Y.’s testimony, who contends that she saw Guinean soldiers cutting off the ears of
Sierra Leoneans with bayonets, it has to be pointed out that if such practices have been
noted in certain countries, they do not figure among the habits of the Guinean Army.
The Complainants allege that the Guinean soldiers also subjected the Sierra Leonean
men and women to humiliating physical searches. These searches were frequently
carried out, sometimes in the presence of a group of soldiers and curious onlookers,
which constituted a serious insult to their dignity.
The Respondent State disputes the testimony of L.C. who recounts that in front of the
Sierra Leone Embassy building Guinean soldiers were shooting at random at a group of
Sierra Leoneans who were waiting to be repatriated.
The Respondent State recalls that the Republic of Guinea and the Republic of Sierra
Leone have always enjoyed relations of fraternity and good neighbourliness. This is
evidenced by the fact that the Government of Sierra Leone has never complained to the
Government of Guinean about any such situation. To say that Sierra Leonean refugees
have been shot at by Guinean soldiers is more fiction than reality.
Considering all the accusations thus described by the Complainant, the Respondent
State wonders if it is only Sierra Leonean refugees who live on Guinean soil. The
Respondent State alleges that some hundreds of thousands of Liberian refugees also
live in Guinea and enjoy the same privileges and protection as do the Sierra Leoneans.
It requested the Complainant to provide evidence with regard to the number of persons
killed or injured and to indicate where or to which hospital they had been taken during
the so called shooting incident by the Guinean soldiers of Sierra Leonean refugees.
The Respondent State recognises that if these testimonies as reported by the
Complainant are proved they can only give rise to emotion and reprobation. But it insists
that evidence must be produced and it is the responsibility of the Complainant to
produce all the required evidence on the cases reported. The Respondent State points
out that if these accounts have a basis the necessary investigations will be carried out
and those responsible will be punished for their crimes.
The African Commission is aware that African countries generally and the Republic of
Guinea in particular, face a lot of challenges when it comes to hosting refugees from
neighbouring war torn countries. In such circumstances some of these countries often
resort to extreme measures to protect their citizens. However, such measures should
not be taken to the detriment of the enjoyment of human rights.
When countries ratify or sign international instruments, they do so willingly and in total
cognisance of their obligation to apply the provisions of these instruments.
Consequently, the Republic of Guinea has assumed the obligation of protecting human
rights, notably the rights of all those refugees who seek protection in Guinea.
EX.CL/279 (IX)
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In Communication 71/92 Rencontre africaine pour la Défense des Droits de
l’Homme/Zambia, the African Commission pointed out that “those who drafted the
Charter considered large scale expulsion as a special threat to human rights”. In
consequence, the action of a State targeting specific national, racial, ethnic or religious
groups is generally qualified as discriminatory in this sense as it has no legal basis.
The African Commission notes that Guinea is host to the second largest refugee
population in Africa with just under half a million refugees from neighbouring Sierra
Leone and Liberia. It is in recognition of this role that Guinea was selected to host the
30th Anniversary celebrations of the 1969 OAU Convention on the Specific Aspects of
Refugee Problems in Africa, which was held in Conakry, Guinea in March 2000.
The African Commission appreciates the legitimate concern of the Guinean Government
in view of the threats to its national security posed by the attacks from Sierra Leone and
Liberia with a flow of rebels and arms across the borders.
As such, the Government of Guinea is entitled to prosecute persons that they believe
pose a security threat to the State. However, the massive violations of the human rights
of refugees as are outlined in this communication constitute a flagrant violation of the
provisions of the African Charter.
Although the African Commission was not provided with a transcript of the speech of the
President, submissions before the Commission led it to believe that the evidence and
testimonies of eye witnesses reveal that these events took place immediately after the
speech of the President of the Republic of Guinea on 9 September 2000.
The African Commission finds that the situation prevailing in Guinea during the period
under consideration led to certain human rights violations.
For the above reasons, the African Commission,
Finds the Republic of Guinea in violation of Articles 2, 4, 5, 12 (5) and 14 of the African
Charter and Article 4 of the OAU Convention Governing the Specific Aspects of
Refugees in Africa of 1969.
Recommends that a Joint Commission of the Sierra Leonean and the Guinea
Governments be established to assess the losses by various victims with a view to
compensate the victims.
EX.CL/279 (IX)
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Adopted at the 36th Ordinary Session of the African Commission
held from 23 November to 7 December 2004 in Dakar, Senegal
EX.CL/279 (IX)
Annex IV
Page 143
Communication 290/2004: Open Society Justice Initiative (on behalf of Pius Njawe
Noumeni) / Cameroon
Rapporteur:
36th Ordinary Session Commissioner EVO DANKWA
37th Ordinary Session Commissioner EVO DANKWA
38th Ordinary Session Commissioner Angela Melo
39th Ordinary Session Commissioner Angela Melo
Summary of Facts
1.
The complaint is lodged by the NGO, Open Society Justice Initiative on behalf of
a Cameroonian citizen, Pius Njawe Noumeni, against the Government of Cameroon (A
state Party to the African Charter)
2.
The communication was submitted in accordance with article 55 of the African
Charter on Human and Peoples’ Rights and the complainant alleges that in November
1999 the Messager Group based in Douala, Cameroon and headed by Mr. Pius Njawe
began operating a radio station in Douala whilst an illegal decision banning the
operation of private radio stations was in place.
3.
The complainant maintains that following the formal liberalization of air waves in
April 2000, the Messager Group submitted an application with the Ministry of
Communications of Cameroon for a license to operate a radio station. After the six (6)
months period required under the law, the Ministry of Communication did not respond
favorably to the request arguing that the application was still being considered.
4.
The complainant, moreover maintains that the Ministry of Communications of
Cameroon was in the habit of processing applications for operational licenses in an
arbitrary, illegal and discriminatory manner and had on many occasions refused to grant
statutory license to operators of radio stations, and on the contrary resorting to the
practice of informally issuing temporary authorization to operate on some frequencies,
which did not provide any legal cover to the operators of radio stations but only placed
them in a situation of uncertainty since the informal authorization could at any given time
be withdrawn. In addition, the complainant maintains that by refusing to process
applications for operating licenses or providing reasons for refusal to grant licenses, the
Ministry of Communications tends to ban, in an arbitrary, discriminatory and politically
motivated manner existing operators from continuing to operate.
5.
Taking into consideration that the Ministry of Communications did not respond
within the legally prescribed period to the Messager Group’s request and in view of the
practice of arbitrarily refusing to grant operating licenses for stations, the complainant
EX.CL/279 (IX)
Annex IV
Page 144
further maintains that the Messager announced in mid May 2003 that it will begin
broadcasting programs on Radio Freedom FM on 24th May 2003. But on 23rd May 2003,
even before Freedom FM began broadcasting, the Ministry of Communications took the
decision to ban the broadcasting of the said programs and the police and the army
sealed the premises of the radio station.
6.
In September 2003, the Messager took the matter to court requesting for a break
of the seals. After 5 months of consecutive adjournments, the court of first instance of
Douala decided that the matter came under the competence of the administrative court
and took 3 months to deliver a written judgment which should have enabled the
Messager to appeal. Whilst the Court of Appeal should be considering this appeal,
equipments worth $110,000 continue to daily depreciate because of inadequate storage
conditions.
7.
As the procedure in the civil court followed its course, the Ministry of
Communications took Mr. Pius Njawe and the Messager Group to court for having “set
up and operated” without a license a radio broadcasting company.
The Complaint
8.
The complainant maintains that the facts stated above constitute a violation by
Cameroon of articles 1, 2, 9, and 14 of the African Charter on Human and Peoples’
Rights and consequently request the African Commission to consider as such and
request Cameroon to pay adequate compensation to the victims for multiple violations of
their rights and freedoms.
9.
The complainant moreover, requests the African Commission, in accordance with
article 111 of its rules of procedure to request Cameroon to adopt provisional measures
with a view to:
a. Immediately lifting the ban affecting the programs of Freedom FM and
authorize it to operate whilst awaiting the outcome of the African
Commission’s decision on the complaint;
b. Break the seal on the premises of Freedom FM so that the equipments could
undergo proper maintenance whilst awaiting the African Commission’s
decision on the complaint;
c. Undertake a quick review of the legislative framework and administrative
practices on issuing licenses for operating radio stations with a view to
harmonizing them with the provisions of article 9 of the African Charter and
the 2002 Declaration of Principles.
EX.CL/279 (IX)
Annex IV
Page 145
Procedure
10.
The complaint was received at the Secretariat of the African Commission on
28/06/2004.
11.
By a letter ref. ACHPR/COMM 290/2004/RK addressed to the complainant, the
Secretariat of the African Commission acknowledged receipt of this communication on
5th July 2004 and indicated that the seizure of the complaint will be considered by the
African Commission at its 36th Ordinary Session (23rd November to 7th December 2004,
Dakar, Senegal).
12.
By a letter ref. ACHPR/GOV/COMM/3/RK of 15th July 2004, the Chairperson of
the African Commission sent an urgent request for the adoption of provisional measures
in accordance with the provisions of article 111 of the African Commission’s rules of
procedure, to H.E Mr. Paul Biya, President of the Republic of Cameroon requesting that
provisional measures be taken to ensure that no irreparable damage is done to the
equipment of Radio Freedom FM.
13.
By a letter of 16th November 2004, the complainant informed the Chairperson of
the African Commission, Commissioner Sawadogo, that the request for provisional
measures had not been complied with and that further the complainant had received
death threats over the matter.
14.
During the 36th Ordinary Session held in Dakar, Senegal from 23rd November to
7th December 2004, the African Commission considered the communication and
decided to be seized of it. The Complainants made oral submissions on the failure of the
State to comply with the request for provisional measure. The State delegates indicated
that they has not been made aware of the request and the head of delegation, Minister
Joseph Dion Ngute offered his good offices with a view to facilitating an amicable
solution of the matter.
15.
On 22nd December 2004, the Secretariat informed the parties that the African
Commission had been seized of the communication and requested them to submit
arguments on admissibility in three months from the date of notification.
16.
On 22nd February 2005, the Secretariat reminded the State through a Note
Verbale to submit its arguments on admissibility within one month from the date of the
reminder.
17.
On 22nd March 2005, the complainant submitted further arguments on
admissibility, which were transmitted to the Respondent State on 29th March 2005
through the Embassy of the Respondent State.
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18.
At its 37th Ordinary Session, which was held from 27th April to 11th May 2005 in
Banjul, The Gambia, the African Commission considered the case and heard oral
submissions from the parties. The African Commission subsequently deferred its
decision on admissibility of the case pending receipt of arguments of the Respondent
State on the same.
19.
On 8th December 2005, the Respondent State sent to the Secretariat a letter
informing it that amicable settlement was underway in the matter.
20.
On 4th October 2005, the Secretariat informed the complainant of the above letter
and forwarded the attached documentation and requested them to send in their
comments on the same.
21.
At its 38th Ordinary Session held from the 21st November to 5th December 2005 in
Banjul, The Gambia, the African Commission deferred its decision on the matter
awaiting for comments of the complainant on the outcome of the said amicable
settlement
22.
On 28th April 2006, the Secretariat received a note from the complainant
informing it that:
1. The Government of Cameroon dropped the criminal charges against the
Freedom FM director and released the equipment of the Radio;
2. The Government committed itself to grant Radio Freedom FM a provisional
authorization to broadcast, and process its application for a full license in a
fair and equitable manner;
3. Freedom FM, for its part, agreed to discontinue the communication before
the Commission, and settle the case;
4. The ongoing negotiations between the parties on the compensation issue
have now produced a mutually acceptable compromise, wit the
Government of Cameroon agreeing to re-open the discussions with Radio
Freedom FM in relation to the compensation of the damages suffered by
the radio, with a view to reaching a fair, comprehensive and final
settlement of the case; and
5. The Government has reiterated its commitment to grant Freedom FM a
provisional authorization as soon as consideration of the current
Communication is discontinued – as well as process the Radio’s
application for a broadcasting license in a fair, transparent, and
expeditious manner.
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23.
In consideration of the above, the Open Society Justice Initiative, acting on behalf
of Mr. Pius Njawe and Groupe Le Messager, requested the African Commission to
discontinue the consideration of Communication 290/04 against the Republic of
Cameroon and that the amicable settlement be registered in its lieu.
24.
At its 39th Ordinary Session held from 11th to 25th May 2006 in Banjul, The
Gambia, the African Commission considered the communication and decided to close
the file.
Decision
25.
The African Commission takes note of the above request and decides to close
the file.
26.
The African Commission also requests the parties to forward to the Secretariat
the written copy of the said amicable settlement for inclusion in the file.
Done at the 39th Ordinary Session held in Banjul, The Gambia,
from 11th to 25th May 2006
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Communication 299/05--Anuak Justice Council/ Ethiopia
Rapporteur:
37th Ordinary Session: Commissioner EVO Dankwa
38th Ordinary Session: Commissioner Nyanduga/Malila
39th Ordinary Session: Commissioner Malila
Summary of facts
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
in the United States of America against the Federal Democratic Republic of Ethiopia, the
Respondent State, a party to the African Charter on Human and Peoples’ Rights since
1998
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 twentyfour civilians, the wounding of over two hundred civilians and the disappearance of over
eighty-five civilians in the Gambella region in the three day period of December 13 -15,
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 1000 Anuak deaths and that, over 51,000
Anuak have been displaced within the Gambella region.
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
4,5,6,12,14,18.
The Anuak Justice Council requests the African Commission on Human and People’s
Rights to grant provisional measures and declare them binding on the Ethiopian
government.
The complainant states that the Anuak are an indigenous minority group living in southwestern Gambella region of Ethiopia and that despite their dominance in the region, the
Ethiopian government has a long history of marginalizing, excluding and discriminating
against them. The complainant claims that due to Gambella’s natural resources, the
Ethiopian government has resettled over sixty thousand Highlanders’, who had almost
completely destroyed the Anuak way of life within Gambella.
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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.
The complainant submits that the December 2003 massacre was sparked by the killing
of eight 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.
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 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.
The complainant further allege that many Anuak have been detained in prison without
charge both in Gambella and Addis Ababa which accounts to about 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.
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.
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’s of Inquiry set up by the
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Government was biased and ineffectual and did not investigate the behaviour of the
Ethiopian Defence Forces as an organization despite numerous reports.
The Complaint
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 on Human and
Peoples Rights to intervene to prevent further human rights abuses of the Anuak by the
Ethiopian government.
The Compalaint further makes an urgent request for provisional measures under Rule
111 of the Rules of Procedures of the African Charter that the African Commission may
intervene to “avoid irreparable damage being caused to the victim of the alleged
violation.”
Request for provisional measures – summary
The complainant, requests for provisional measures to the African Commission on
Human and Peoples’ Rights pursuant to Rule 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 on Human and Peoples’
Rights, the Federal Democratic Republic of Ethiopia, has and continues to violate
Articles 4, 5, 6, 12, 14, and 18 of the African Charter.
The Anuak Justice Council therefore seeks the 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.
The Anuak Justice Council notes that it does not request the Commission to evaluate
the merits of this case rather, in this provisional measures submission, the Anuak
Justice Council merely asks that the 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.
That the Commission has jurisdiction to issue provisional measures under Article 111 of
the rules of procedure of the African Charter of Human and Peoples’ Rights. See
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Registered Trustees of the Constitutional Rights Project v. the President of the Federal
Republic of Nigeria and Five Others. Similar to the Nigeria case, many Anuak have
also been and continue to be sentenced to death. The Commission should therefore
find the Anuak situation as even more sever and compelling than the Nigeria case and
grant provisional measures.
The complainant notes further that while the African Commission on Human and
Peoples’ Rights 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.
The complainant seeks the 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 Human and Peoples’ Rights 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
The communication was received at the Secretariat of the African Commission on 4
April 2005
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 Council/Ethiopia and that the communication will be considered on
seizure at the 37th ordinary session of the African Commission.
At its 37th 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.
By note Verbale of 24 May 2005 the Secretariat of the African Commission notified the
State of the Commission’s decision and forwarded the complaint to the State with a
request for the 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 Commission’s decision.
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On 23 August 2005, the Secretariat received the Respondent State’s submissions on
admissibility.
On 25 August 2005, the Secretariat transmitted the Respondent State’s submission on
admissibility to the complainant, requesting the latter to respond thereto before 25
September.
On 21 complainant wrote to the Secretariat informing the latter that the legal
representative of the Anuak Justice Council had changed adding that they received the
Secretariat’s letter of 25 August only on 9 September and would like the deadline for the
submission of their arguments on admissibility to be moved to 9 October 2005. The
Complainant also requested for provisional measures to be taken by the Commission.
On 10 October 2005, The Secretariat received the complainant’s response on the
Respondent State submissions on admissibility.
On 19 October 2005, the Secretariat transmitted the complainant’s response to the
Respondent State with a request to the latter to make its comments, if any, before 31
October 2005.
At its 38th Ordinary Session, the African Commission deferred consideration on the
admissibility of the communication and to enable the Secretariat get additional
information from the parties.
By Note Verbale of 19th January 2006 and by letter of the same date, the Secretariat of
the African Commission notified the parties of the African Commission’s decision.
At its 39th ordinary session held in Banjul, The Gambia from 11 – 25 May 2006, the
African Commission considered the communication and decided to declare it
inadmissible.
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
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.
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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 Annuak or those
supporting them within the legal system.
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.
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.
The complainant also alleges that bringing the case before Ethiopian courts would
unduly prolonging the process as the Ethiopian judiciary suffer 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.
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
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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.
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.
Respondent State’s submissions of admissibility
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 9 such cases including their file
numbers and previous and future dates of adjournments.
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.
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:
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
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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 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.
The law
Admissibility
EX.CL/279 (IX)
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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 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.
The complainant in the present communication argued that it has satisfied the
admissibility conditions set out in Article 56 of the 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.
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”.
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 v. Zaire and Rencontre Africaine pour la
Défense de Droits de l’Homme [RADDHO] v. Zambia, 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 an international body.”1
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.
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
1
See Comm. Nos. 25/89, 47/90, 56/91, 100/93, para. 36, 1995 and Comm. No. 71/92, para. 11.
EX.CL/279 (IX)
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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.
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 recognizes 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 concomitantly with article
7, which establishes and protects the right to fair trial.”1 In interpreting the rule, the
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 criteria can
therefore not be understood without some knowledge of that general context.
A local remedy has been defined as “any domestic legal action that may lead to the
resolution of the complaint at the local or national level.”2 The Rules of Procedure of the
African Commission provide that “[t]he Commission shall determine questions of
admissibility pursuant to Article 56 of the Charter.” 3 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 local remedies.4
According to the 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.
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 sufficient.” 5 According to this Commission, a remedy is
considered to be available if the petitioner can pursue it without impediments6 or if he
1
2
3
4
Amnesty International v. Sudan, para. 31.
See Constitutional Rights Project [CRP] v. Nigeria, Comm. No. 60/91.
Rule 116 of the Commission’s Rules of Procedures.
Ceesay v. The Gambia,
5
Jawara v. The Gambia, Comm. Nos. 147/95, 149/96, para. 31,
6
Id. para. 32
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can make use of it in the circumstances of his case. 1 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 and call.”2 In other words, “remedies, the availability of which is not evident, cannot
be invoked by the State to the detriment of the complainant.”3
A remedy will be deemed to be effective if it offers a prospect of success.4 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, real, valid.”5 Lastly, a remedy will be found
to be sufficient if it is capable of redressing the complaint.6 It will be deemed insufficient
if, for example, the applicant cannot turn to the judiciary of his country because of a
generalized fear for his life “or even those of his relatives.”7 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, abundant; . . . satisfactory.”8
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…”.
1
Id para 33
2
LONGMAN SYNONYM DICTIONARY 82 (1986)
3
Jawara supra, para. 33.
4
Id para 32.
5
Longman supra.
6
Jawara supra para 32.
7
Id para 35.
Longman supra at 1183.
8
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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”.
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.
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?
It must be observed here that the complainant’s submissions seems 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”.
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 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
EX.CL/279 (IX)
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African Commission would like to refer to the decision of the Human Rights Committee
in A v Australia1 in which the Committee held that “mere doubts about the effectiveness
of local remedies … did not absolve the author from pursuing such remedies”.2 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.
The complainant also argue that the violations alleged are serious and involve a large
number of people and should be declare admissible as the Commission can not hold the
requirements of local remedies to apply literally in cases where it is impracticable or
undesirable for the complainant to seize the domestic courts in the case of each
violation. In the Malawi African Association case 3 , 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 v. Sudan case 4 involved the
arbitrary arrest, detention, and torture of many Sudanese citizens after the coup of July
30, 1989. The alleged acts of torture included forcing detainees into cells measuring 1.8
meters wide and 1 meter 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 favor 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 people involved, the Commission concluded,
“render[ed] such remedies unavailable in fact.”5
1
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
2
See also L Emil Kaaber v Iceland, Communication No. 674/1995. UN Doc. CCPR/C/58/D/674/1995 (1996).
See also Ati Antoine Randolph v. Togo, Communication No. 910/2000, UN Doc. CCPR/C/79/D/910/2000
(2003).
3
4
5
See combined Communications. Nos. 54/91, 61/91, 98/93, 164/97, 210/98, para. 80,
Comm. Nos. 48/90, 50/91, 52/91, 89/93, para. 32.
Ibid.
EX.CL/279 (IX)
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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 local remedies, especially where the state took no
steps to prevent or stop them.1
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.
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 national courts. In Civil Liberties Organization v. Nigeria,2 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 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).
For the above reasons, the African Commission declares communication 299/2005 –
Anuak Justice Council/Ethiopia inadmissible for non-exhaustion of local remedies in
conformity with Article 56 (5) of the African Charter on Human and Peoples’ Rights.
1
2
Organisation Mondiale Contre la Torture and Association Internationale des Juristes Démocrates, Commission Inter.nationale des
Juristes (C.I.J.), Union Interafricaine des Droits de l’Homme v. Rwanda, Comm. Nos. 27/89, 46/91, 49/91, 99/93.
Comm. No. 45/90.
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EX.CL/279 (IX)
Annex IV
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312/2005 - INTERIGHTS & the Egyptian Initiative for Personal Rights / Egypt1
Rapporteur:
38th Ordinary Session: Commissioner Yaser Sid Ahmed El-Hassan
39h Ordinary Session: Commissioner Yaser Sid Ahmed El-Hassan
Summary of the facts:
1.
The complaint is filed by the International Centre for Human Rights
(INTERIGHTS)2, and the Egyptian Initiative for Personal Rights pursuant to Article 55
and 56 of the African Charter on Human and Peoples' Rights (“the African Charter”).
2.
The authors allege that the victim under the present communication is a religious
training Egyptian graduate of Al-Azhar University in Cairo, Egypt, who continuously
sought to challenge the legality of his arrest after being arrested from his home on 18th
of May 2003 with out being given no reason but due to presumably his unpublished
religious researches refuting the oftenly held opinions of the ‘duty of Muslims to kill
converts from Islam to other religions’ and ‘prohibition on Muslim women marrying nonMuslim men’ which was distributed widely. Despite several appeals of the applicant.
Despite his several appeals and official complaints and the repeated release orders of
the Emergency Court, the victim still continues to be in prison. They further alleged that
applicant has been made subject to assaults and harassments consequent to his arrest,
and his complaints to get protection and investigation proved to be futile.
3.
The authors submit that the applicant’s rights have been violated under Articles 2,
5, 6, 7(1)(d), 8 and 9(2) of the Charter as he was discriminated against in his enjoyment
of Charter rights on the basis of his religious beliefs; inhumanely detained and denied
the protection and respect of the right to dignity; arbitrarily arrested and detained and
denied effective judicial remedy; and when arbitrarily restricted to exercise his freedom
to express his religious thoughts.
4.
It is further alleged that the violations of the applicants rights have been made
possible by the respondent states’s State of Emergency which the African Commission
has had, on a number of occasions, the opportunity of to consider and emphasis that the
Charter does not permit states to derogate from their responsibilities during states of
emergency, and that this is “an expression of the principle that the restriction of human
rights is not a solution to national difficulties”.
1
Egypt ratified the African Charter on the 20th of March 1984.
2
International Centre for Human Rights (INTERIGHTS) is a Non-government Organization which was granted
Observer Status with the African Commission during the 18th Ordinary Session in October 1990.
EX.CL/279 (IX)
Annex IV
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5.
The authors averred that each time the Emergency Court has ordered the
applicant’s release the Minister for Interior, Mr.Habib El-Adli has issued a new
administrative detention decree under Article 3 of the Emergency Law which allows the
President, or the Minster for the Interior to order, orally or in writing, the arrest and
detention of those who “pose a threat to public security”.
6.
The authors also alleged that the applicant has appealed his detention several
times before the State Security Emergency Court, the only and final judicial body
designated for that purpose under the Emergency Law, and the same court has passed
seven orders for his release but none of them have been implemented. In addition the
authors alleged that the applicant has submitted five complaints to the State Security
Prosecutor’s Office and ten complaints to the National Council of Human Rights but no
response has been received.
The Complaint
7.
The authors of this Communication contend that applicant’s arbitrary arrest and
detention, his subsequent treatment under detention, the failure of the Government of
Egypt to provide the former with adequate and effective judicial remedy, and the manner
in which the 24-year long State of Emergency has been applied in practice violates
Articles 2, 5, 6, 7(1)(d), 8 and 9(2) of the Charter.
The Procedure
8.
The present communication was received by the Secretariat of the African
Commission on the 22nd of November 2005.
9.
The Secretariat of the Commission acknowledged receipt of the Communication
to the contact persons of the INTERIGHTS and the Egyptian Initiative for Personal
under letter ACHPR/LPROT/COMM/ 312/2005/RK of 29 November 2005, and informed
the same that the Communication will be the Commission’s agenda for consideration at
seizure stage at the 38th Ordinary Session of the Commission which is being held from
21st November 2005 to 5th December 2005 in Banjul, The Gambia.
10.
During its 38th Ordinary Session, the African Commission considered the
communication and decided to be seized thereof.
11.
On 19 December 2005, the Secretariat informed the parties of this decision,
transmitted a copy of the complaint to the Respondent State and requested both parties
to send in their arguments on admissibility.
12.
On 16 February 2006, the complainant forwarded its arguments on admissibility
of the case.
EX.CL/279 (IX)
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13.
On 29 March 2006, the Secretariat acknowledged receipt of the arguments and
forwarded them to the Respondent State whose rejoinder was requested within 3
months.
14.
By letter dated 19 May 2006, the Complainant informed the African Commission
that the alleged victim, Mr. Methwalli Ibrahim Methwalli was released and was
requesting that the complaint be withdrawn.
15.
During its 39th Ordinary Session that took place from 11 to 25 May 2006 in
Banjul, The Gambia, the African Commission considered the complaint and heard the
parties. On that occasion, the Complainant reiterated his wish to withdraw the complaint.
Consequently, the
communication.
African
Commission
decides
to
strike
out
this
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