Oocusign Envelope ID: C25O5EBD-FC29-4080-B173-4CA932226O94
(1f f
6~!Js t:1"1
Human Rights our
Collective Responsibility
Human and Peoples' Rights
Communication 419/12
The Indigenous Peoples of the Lower Omo
(represented by Survival International
Charitable Trust)
V
Federal Democratic Republic of Ethiopia
Adopt«Jbytk
African Comml.uion on Human and P«)J)la • Righi.,
During the 7r' Ordinary Seuion done vlrtual1yfrom 19 July to 02 .August 2022.
«-C,
,0
~
.
'
I
..
Hon.
~~=~~
~oyLumbu
Chalrpers
Commission
on Human and Peoples' Rights
- ~ ~ ~rMI
African
Peoples'
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.inUO o a
"'101J'llithe
African (~,
Union ~
Ms.
Exe
Com
Rights
ec/prc/AIO
l'CHPJt.
,:
.,,,
/.
.'
~
ACHPR
Human Rights our
Collective Responsibility
African Commission on
Human and Pl➔aples' Rights
Communication 419/12 - The Indigenous Peoples of the
Lower Omo (represented by Survival International
Charitable Trust) v Federal Democratic Republic of Ethiopia
Summary of the Complaint:
1.
This Complaint was brought against the Federal Democratic Republic of Ethiopia
(Respondent State)1 by Survival International Charitable Trust (the Author) on
behalf of the Indigenous Peoples of the Lower Omo (the Complainants) on 20 th
April 2012. The Lower Omo Peoples are a collection of distinct communities
comprising the Bodi, Daasanech, Harnar, Karo, Kwegu (or Muguji), Mursi, and
Nyangatom peoples domiciled in the Southern Nations Nationalities and
Peoples' Regional State (SNNPRS) in southwest Ethiopia.
2.
The Complainants allege that the Respondent State is undertaking two major
development projects - the Gibe III darn construction and the Kuraz Sugar Project
both in the SNNPRS of Ethiopia which has a potential to greatly imperil the
economic, social and cultural life of the Lower Omo Peoples.
3.
The Complainants claim that the Lower Omo Peoples are mostly agropastoralists whose primary means of subsistence is the cultivation of food crops
such as sorghum and corn, and who rely on milk, meat and cattle for food and
trade. The Complainants also claim that the Lower Omo Peoples depend on
hunting in the surrounding forests to supplement their food sources, obtain hyde
from animals for clothes, and cultivate bees for honey.
4.
The Complainants claim that the Lower Omo Peoples depend on a combination
of flood retreat cultivation, rain fed farming in the bush belt, and cattle herding
in the woody grasslands all over the Lower Omo. To exploit these resources, the
Complainants claim that the Lower Omo Peoples often move from place to place
within their territories, according to the flood circle of the Lower Omo valley.
5.
The Complainants allege that the two projects undertaken by the Respondent
State will deprive the Lower Omo Peoples the ability to continue to practice the
flood retreat cultivation on which they have depended for centuries, and that the
associated large-scale irrigation from the darn for the Kuraz
will affect lands traditionally used by indigenous communiti
to graze livestock and grow food.
1 The Federal Democratic Republic of Ethiopia ratified the African Charter on
,____~
African Com
AnO,yan of!he
African
Union \
31
1
Phone: (
1
c
les' Rights
........,_;,u,n;:i;.
orth District,
~~;;;':;~' 0)he441Gambia
05 04
Emai I: au-banjul@africa-union.org
hltps:/achpr.au.int/0 0 a
-,:·;f'Q:·. ACH PR
G
,•
,.
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples' Rights
• ·aru m
6.
The Complainants state that, while the affected indigenous Omo communities
recognize that the state is entitled to exploit its vast hydropower and sugar
production potential, the Government has neither made an effort to inform the
Lower Omo Peoples of the adverse impacts of the project nor obtained their prior
consent on the Gilgel Gibe III Hydroelectric Power Project (Gibe III dam) before
work commenced in 2006.
7.
The Complainants claims that the Kuraz Sugar Project involves the involuntary
resettlement of large numbers of people, especially the Mursi who are billed to
be removed, from their ancestral land to larger population centres in the vicinity
of the Eastern irrigation canal without any effort by the Respondent to inform or
consult the people prior to the start of the project.
8.
In order to make way for the Kuraz Sugar project, the Complainants allege that
many members of the Bodi Community have already been forcibly moved from
their traditional land and habitations against their will to a much more arid land
at Gura. In order to continue with the projects, the Respondent State is allegedly
maintaining a strong military presence in South Omo and night patrols are
carried out in parts of the affected communities in order to stifle dissent. Those
opposed to the projects have been arrested and that at the time this
Communication was filed, about 200 Bodi, 30 Mursi and 20 Suri people were
already in custody in Hana or Jinka.
Articles alleged to have been violated
9.
The Complainants allege that the Respondent State has violated the provisions of
Articles 20(1), 21(1), 22(1) and 24 of the African Charter.
Prayers of the Complainants
10. The Complainants pray the Commission to:
(a) Urge the Respondent to conduct independent investigations into the
effect of Gibe III and the Kuraz Sugar Project on human rights, health
and means of subsistence of the Complainants;
(b) Urge the Respondent to make an objective appraisal, based on the data
from such independent investigations, to determine whether these
projects can operate without endangering the Lower Omo oe.~re::i!rffl~
their livelihoods, and prepare a detailed "livelihood develo6.6:ienFfor the affected communities in the Lower Omo.
/
0
u
AA Organ of !he
African Commissio
31 Bijilo A
AfriGan (~"i
Union "'"ii
-----~
Phone: (220)
:~~~~~
Email:
-
2
ts
t,
ia
04
ion.org
https:/achpr.au.int/0 0 a
ACH PR
( ~c••r\J African Commission on
Human Righ1s our
Collective Responsibility
Human and Peoples' Rigt1ts
cw.uo
(c) Call upon the Respondent to suspend further work on both the Gibe III
and Kuraz and any further villagization of the complainants while these
steps are undertaken.
Procedure
11. The Complaint dated 16 th April 2012 was received at the Secretariat of the
Commission (the Secretariat) on 20 April 2012 and registered as Communication
419/12 - The Indigenous Peoples of the Lower Omo (represented by Survival
International Charitable Trust) v the Federal Democratic Republic of Ethiopia.
12. At its 12th Extra-Ordinary Session, the Commission became seized of the
Communication and the Parties were notified thereof on 17th August 2012. The
Complainant was accordingly invited to make its submission on admissibility.
13. In response to the notification of seizure, the Complainants wrote to the
Secretariat on 23 rd August 2012 to request that the original Complaint be
considered as its Submission on Admissibility. By email dated 14 th Novem ber
2012, the Complainants again wrote to reaffirm its intention to rely on the original
Complaint as its Submission on Admissibility.
14. On 14th November 2012, the Secretariat transmitted the Complaint as the
Complainants' Submission on Admissibility to the Respondent State and
requested the latter to submit its Observations on the Admissibility of the
Communica tion. On 30U1 January 2013, the Secretariat received the Respondent
State's Submission on Admissibility and forwarded the Submission to the
Complainant on 7th February 2013.
15. On 4th March 2013, the Secretariat received the Complainants' comments on the
Respondent State's Submission on Admissibility along with the Complainant's
request for Provisional Measures.
16. The Complainants request for Provisional Measures was considered and granted
by the Commission in July 2013. On 16th July 2013, the letter requesting the
Respondent State to take measures to prevent further eviction of the Victims was
sent to the Respondent State.
17. At its 14 th Extra-Ordinary Session held in Nairobi, Kenya from 20 to 24 July 2013,
the Commission declared the Communication admissible.
Commission's decision was transmitted to the parties by letter a
respectively of 12th August 2013 w ith a request to the Compl
submissions on the merits.
I
AA Oryan of the
African Commissi
31 Bijrlo
African r,,, I'\'\
Union ' i
Phone: (22
3
~~:;!iP~
,
a
04
https:/achpr.au.int/0 0 a
/ . ; ~HP~
· .
ACH PR
Human Rights our
Collective Responsibility
• African Commission on
Human and Peoples' Rights
18. On 17 th October 2013 the Secretariat received the Complainant's submissions on
the merits which it acknowled ged and transmitted by courier to the Respondent
State on 21 st December 2013 with a request for the latter to present its written
observations on the merits within 60 days of notification.
19. After the 60 days for filing of the Respondent's written submissions had elapsed
without the Respondent State presenting any arguments on the merits, the
Commission adopted a default decision on merits at its 17th Extra-Ordinary
Session held in Banjul, the Gambia from 19th to 28 th February 2015.
20. On 2nd and 4th March 2015, the Commission informed both parties of the adoption
of the decision based on the submissions before it at the time. However, the text
of the decision was not transmitted to the parties' pending authorisation of
publication under the 38 th Activity Report of the Commission by the African
Union (AU) Executive Council and AU Assembly.
21. During the 56 th Ordinary Session of the Commission held from 21 s t April to 7th
May 2015, before the 38 th Activity Repor t of the Commission was presented to
the AU policy organs, the Respondent State submitted a request via Note Ver bale
N° 4-1 / 4/ 67/ 15 dated 6th and 7th May 2015 for a reconsideration of the
Commission's default decision on the ground that it had not been afforded a fair
hearing.
22. Upon receipt of the Respondent's request, the Commission withdrew the merit
decision from its 38 th Activity Report to the AU policy organs to allow for a
consideration of the Respondent's application.
23. After a review of its internal processes, the Commission found that while there
was
some
evidence
suggesting
that
a
Note
Verbale
N°
ACHP/ 419/ 12/ ETH / 1418/ 13 transmitting the Complainant's merits
submissions to the Respondent State and inviting the latter to submit its
observations on the merits had been shipped to the Respondent State by OHL
courier on 21 s t December 2013, there was no proof of delivery of the parcel to the
latter.
24. Given the lapses encountered with transmitting the Complainant's submission
on the merits to the Respondent State, the Commission during the 18th ExtraOrdinary Session in Nairobi, Kenya held from 29th July to 7 th August 2015
considered that the Resp ondent State may not have been invited
observations on the merits and, thus, not accorded the oppor
on the merit. As such, the Commission:
(a) Set aside the merit decision adopted during the 17th Extrao
M Organ o' tile
African Commis
31 Bijil
Phone:
4
~.n.......r-:
~ ..:_TJ
~ ~';;;;.41!
: = ~~
ts
ct,
ia
4
(fi\ ACHPR
, ,, ,.,'
J •' ) African Comm1ss1on on
c.toux~r(
,,
Human Rights our
Collective Responsibility
Human and Peoples· RitJhts
(b) Re-opened the procedure for written submissions on the merits of the
Communication;
(c) Directed the Secretariat to transmit the decision on admissibility and the
Complainants' submissions on the merits to the Respondent State with a
request to the latter to present its observations on the merits in accordance
with Rule 108(1) of the 2010 Rules of Procedure, and the Complainants to be
subsequently accorded the opportunity to present a reply, if any, in terms of
Rule 108(2) of the Rules of Procedure; and
(d) Affirmed that both parties retain all other procedural rights.
25. By Note Verbale N°ACHPR/COMM/419/12/ETH/1334/15 date 25th August
2015, the Commission retransmitted its decision on admissibility as well as
transmitted the Complainants' Submissions on the Merits to the Respondent
State.
26. On 3rct September 2015, the Complainants submitted an Addendum to
Complainants' Brief on Merits dated 4th September 2015 with the Final Report by
the Development Assistance Group (DAG).
27. On 27th November 2015, the Respondent State submitted its written arguments
on the merits in response to the Complainants' Submissions on the merits.
28. On 16th December 2015, the Complainants requested for extension of time to
submit additional observations on the Respondent's brief on the ground they had
only received the Respondent State's written submissions on 14th December 2016.
By correspondence dated 5th January 2016, the Commission approved the
Complainants request for the deadline for replying to the Respondent's written
submissions to be extended pursuant to Rule 108(2) of the 2010 Rules of
Procedure of the Commission. The deadline for the Complainants to submit their
reply was ex tended to 27th January 2016.
29. On 27th January 2016, the author submitted the Complainants' Additional
Observations dated 4th September 2015 together with an additional supplemental
bundle, which were duly forwarded to the Respondent by the Secretariat.
30. By Note Verbale dated 30th March 2016, the Respondent State made a request for
extension of time to respond to the Complainants' additional obs
merits filed on the 27th January 2016. By correspondence date
M Oryan of the
African Com
31
Afriqan f('\5'
Urnon,,.,,,,t
5
cl'!'QLil-Jlo'!ITT
ights
strict,
ambia
05 04
nionorg
https:/achpr,au,int/0 0 a
(:i;f, ACHPR
·t
}. African Commission on
o r.u_1.1;
Human Rights our
Collective Responsibility
Human and Peoples' Rights
31. On 6th June 2016, the Respondent State submitted its response to the
Complainants' Additional Observations and an annexed batch of documentary
evidence in support of the Respondent's arguments.
32. Following a 5th May 2021 request by the Commission to both parties for updated
information on this Communication with regard to the current status of the Gibe
III Dam Project and the Kuraz Sugar Project, the Complainants and the
Respondent submitted information update on 20 th May 2021 and 15th June 2021,
respectively.
33. With all the parties' submissions duly entered, the matter was set down for the
Commission's determination.
Admissibility
Submissions of the Complninants
34. The Complainants have not presented any submissions on the Admissibility
requirements in Article 56(1), (2), (3), (4), (6) and (7) of the African Charter but
dwells on Article 56(5) of the Charter and submit that they have complied w ith
the requirements for Admissibility under the African Charter.
35. In relation to Article 56(5) of the African Charter, the Complainants contend that
they do not need to exhaust local remedies because the exceptions to the
requirement to exhaust local remedies apply to this Communication on the
grounds that effective and sufficient local remedies are not available in the
Respondent State. The Complainants provide two main reasons for their
contention that effective local remedies are not available to the Victims in the
present Communication.
36. First, the Complainants argue that local remedies are not available to the Victims
because the Respondent State does not recognize their legal right to their
h·aditional territories in spite of constitutional provisions which guarantee the
right of pastoralists to free land for grazing and cultivation as well as a right not
to be displaced from their lands. The Complainants argue that legislation for
implementation of the Constitutional provision has not been enacted and existing
legislation that guarantees compensation for acquired land is only available to
holders of formal land title which excludes the present Victims.
37. Secondly, the Complainants argue that local remedies are not a
effective because the Victims are too scared to access these remed •
the consequences for them or their families". The Complainants
that Non-Governmental Organisations (NGOs) in Ethio
~ =...._
.
I.I'
C> '
:x:
....
M Organ of tile
African Commission
31 Bijilo An
AfriGan c~n
Union ,.m:,
Phone: (22
E
6
.
r~c••r,) 6~,ttEr
~ru:1m:
Human Rights our
Collective Responsibility
Human and Peoples' Rights
repercussions for bringing domestic action against the Respondent State. Citing
a "Campaign for Reform of the World Bank" report, the Complainants claim that
"no groups are talking publicly about the risks of the dams due to concerns of
government persecution".
38. Further citing an Amnesty International Report, the Complainants argue that
NGOs are unable to bring actions on behalf of the Victims because one of the
effects of the Respondent State's Charities and Societies Proclamation is
"entrench ... and institutionalise the climate of fear pervading the work of human
rights defenders in Ethiopia".
39. The Complainants argue further that apart from the difficulties already pointed
out, there appears to be no fora capable of providing effective redress for a Victim
in the Respondent State because "neither the Human Rights Commission nor the
courts are able to provide the Lower Omo peoples with an effective remedy". The
Complainants contend that the Ethiopian Human Rights Commission lacks the
power to provide effective redress while the courts are physically and financially
inaccessible to the Lower Omo peoples.
40. While it concedes that the access to justice situation in the Respondent State has
improved since 2004, the Complainant alleges that the Lower Omo communities,
including individual members of those communities cannot afford a lawyer and
no member of those communities is a qualified lawyer that can take up the case.
41. The Complainants argue further that the Lower Omo peoples are also prevented
from exhausting local remedies because there is no procedure for bringing legal
action relating to peoples' rights before courts of the Respondent State since only
individual rights are accorded legal recognition. The Complainants allege further
that even a representative action is not possible as organizations such as the
Mursi Indigenous Community Association which could have brought such
action have had their licences revoked without reasonable cause. Accordingly,
the Complainants conclude that there are no adequate, effective and sufficient
local remedies to be exhausted.
Submission of the Respondent Stnte
42. The Respondent State does not present any arguments on the Admissibility
requirements in Article 56 (1)(2)(3)(4)(6) and (7) of the African Charter. However,
the Respondent State contends that the Communica tion is ina
grounds tha t local remedies have not been exhausted as require
of the African Charter.
An Organ ot the
African Commissi
3 1 Bij1lo
African (4 ~-~
Union " wt
.
ia
Phone: (220)
~,i;z.g;;:;;~r,
04
Email: au-banjul@africa-union.org
7
https·/achpr au int/0 0 a
r-tr) 6.~,ttEr
~ c im m
Human Rights our
Collective Responsibility
Human and Peoples' Rights
43. With regards to Article 56(5) of the African Charter, the Respondent State
contends that local remedies have not been exhausted despite the fact that they
are available, effective and sufficient. The Respondent State submits that contrary
to the claims in the Complaint, its legal system provides for both the legislative
and the institu tional framework for the realisation of the rights of the Victims in
this Communication.
44. On the legislative framework, the Respondent State submits that Article 40(5) of
its Constitution as well as its Rural Land Administration and Land Use
Proclama tion No 456/2006 jointly guarantee pastoralists such as the Victims a
right of access to land and a right not to be displaced from their own lands
without the payment of com pensation proportional to the developments made
on the land. The Sta te Party states further that the rights claimed on behalf of the
Victim are all guaranteed in its Constitution in addition to the fact that by Article
9(4) of its Constitution, international agreements such as the African Charter are
an integral part of its domestic law and serve as a basis for legal claims before its
national courts.
45. The Respondent State submits further that local remedies are available to the
Victims because under its laws, an alleged victim of human rights violation has
an option to either approach the Ethiopian Human Rights Commission or the
regular courts for redress. The Respondent State contends that access to its
Human Rights Commission is open to anyone including spouse, family member,
representative or even a third par ty acting on behalf of an alleged victim. Based
on its submission that none of these national institutions were approached, the
Resp ondent State con tends that available effec tive and sufficient local remedies
have not been used by the Complainants and the Communication should be
declared inadmissible.
Complainant's Comments on Respondent State's Submission
46. The Complainan ts su bmit, in response to the Respondent State's observations,
that effective and sufficient local remedies are not available to the Victims
because only a court order would assist the Victims in prohibiting their
involuntary d isplacement.
47. The Complainants contend further that as a result of the Ethiopian Charities and
Societies Proclamation which prohibits foreign organisations from operating in
the territory of the Respondent State, the Author is unable to assist them access
the national courts. The Com plainants state further that even if it
:.ill'!~ "'" e
tsi.o
for a foreign organisation to assist in bringing a case before th ... - ,."'~'
the Respondent State's legal system is not equ ipped to deal
'(;.
An Q,gan of the
Afri~an( ~
Urnon ~'N, 'JI'
8
African Commiss
31 Bijilo
s
t.
Phone:
a
4
--~
g
D
(;·:f) ACH PR
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples· Rigt1ts
large scale such as the present case. Citing Article 19 v Eritrea,2 the Complainants
argue that they d o not need to exhaust local remedies in such a situation.
48. The Complainants further submit that apart from the fact that the Ethiopian
Human Rights Commission is not a judicial remedy as envisaged under the
African Charter, neither the Ethiopian Human Rights Commission nor the
regular courts would be able to make the kind of orders that will protect the
Victims from further displacement or villagisation. Citing Cudjoe v Ghana,3 the
Complainants sum up that there are no effective or sufficient local remedies for
the Victims to exhaust in respect of the present Communication.
49. In relation to the legislative framework necessary to sustain the claims of the
Victims, the Complainants submit that Articles 40(4) and (5) of the Respondent
State's Constitution creates a dichotomy between the land rights of peasants and
pastoralists. The Complainants ar gue that the Implementation law that the
Respondent State refers to in its observations relate to the rights of peasants but
not pastoralists such as the Victims. Accordingly, the Complainants argue that
Constitutional provision in favour of the pastoralists such as the Victims remain
unenforceable by the national courts and are subject to Proclamation 456/2005
which empowers the State to displace or evict pastoralists from land supposedly
for public purposes.
50. The Complainants submit further that the right to self-determination guaranteed
in the Respondent State's Constitution is only available to peoples with a
legislative council. It being the case that the Victims have no such legislative
council, the Complainants argue that the right is not available to the Victims. The
Complainants add that even the African Charter is not in practice applicable
before the local courts because the African Charter has not been published and
translated into the local language as required by the Constitution.
51. The Complainants submit finally that the courts are not empowered to directly
apply or interpret the Constitution and its provisions as the power to do so
resides in the Parliamen t which is a political body. The Complainant therefore
submits that the Communication satisfies Article 56(5) of the African Charter
since the Respondent State has failed to prove that effective and sufficient local
remedies are available to the Victims.
The Commission 's A nalysis on Admissibility
2
3
Communication 275/ 2003 - A rticle 19 v Eritrea (2007) ACHPR.
Communication 221/ 98 - Cudjoe v Gltn11n (1998) ACHPR.
An Organ of U,e
Afriqan rx ,n
Union ~ ""-,
9
Afric an Commission on
31 Bijilo Annex
West Coa
Pho ne: (220) 230 4361 Fax: (220) 441 05 04
Email: au-ban1ul@africa-union.org
hUps:/achpr au.int/0 0 o
/~C":f ' ACH PR
t ,''' au.u:c
f African Commission on
Human and Peoples· Rights
Human Rights our
Collective Responsibility
52. Article 56 of the African Charter requires the Communication to satisfy the seven
Admissibility conditions listed therein. The Commission notes that the Parties
have not proffered any arguments on the requirements in Article 56 (1)(2)(3)(4)(6)
and (7). H owever, the Commission's own assessment of the Communication
indicates that the conditions in those provisions are satisfied. Accordingly, the
Commission's analysis will focus on the requirement to exhaust local remedies as
set out in Article 56 (5) of the Charter.
53. Article 56(5) of the African Charter provides that Communications received by
the Commission shall be considered if the 'are sent after exhausting local
remedies, if any, unless it is obvious that the procedure is unduly prolonged'. As
the Commission has previously indicated, where local remedies are available,
effective and sufficient, the onus to exhaust such local remedies or demonstrate
that they have been exhausted or attempted lies on the author of a
Communication. 4
54. The Complainant in the present Communication does not claim to have
exhausted or even attempted to exhaust any local remedies in the Respondent
State. Instead, the Complainants have argued that it should be exempted from
the requirement to exhaust local remedies because in its opinion, effective and
sufficient local remedies are not available to the Victims in the Respondent State.
55. The Respondent State disputes the claim that local remedies are not available and
asserts instead that effective local remedies exist and should first have been
utilised by the Complainants.
56. The Commission recalls that where a State Party asserts that effective and
sufficient local remedies are available within its legal system, the onus is on that
State Party to prove the assertion.5 In Zimbabwe Laiuyers for Human Rights and
Another v Zimbabwe, this Commission noted that where a Complainant claims that
local remedies did not have to be exhausted because they are ineffective,
unavailable or insufficient, without the need for proof on the part of the
Complainant, a burden is imposed on the Respondent State to prove the
contrary. 6 The Respondent State 'must then show that the remedy is available,
effective and sufficient' ? It is only after the Respondent State has established the
existence of effective and sufficient remedies that the burden shifts back to the
4 See
Article 19 v Eritrea (2007) para 65.
5 Article 19 v Eritrea (2007) para 51.
6 Communication 284/2003 - Zilllbabwe Lawyers for Humm, Rights & Another v Zimbabw
102.
7 As
above.
10
0
1~
\: i
-i'\ ACHPR
,. f African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Complainant to demonstrate that those remedies were exhausted or ineffective
in the specific case. 8
57. In relation to the present Communication, the Commission needs to determine
whether the legislative and institutional framework required for an effective
judicial realisation of the collective rights invoked in favour of the Victims exist
in the Respondent State.
58. The crux of the Respondent State's argument is that by a combination of its
Constitution and the Rural Land Administration and Land Use Proclamation No
456/2005, land-related human rights guaranteed in the African Charter can be
claimed within its legal system either before the Ethiopian Human Rights
Commission (EHRC) or before its national courts. The Respondent Parties argues
further that by constitutional effect, the African Charter itself is directly
applicable before its courts. Accordingly, the Respondent State submits that it has
an appropriate legislative framework and its institutions can provide effective
and sufficient remedies for the rights invoked in favour of the Victims in the
present Communication.
59. In relation to the need for an appropriate national legislative framework for
effective domestic application of Charter guaranteed rights, the Commission has
previously observed in its decision in Social and Economic Rights Action Centre
(SERAC) and Another v Nigeria,9 that where a right or set of rights is not covered
by domestic law, it is unlikely that an action invoking those rights will succeed
in that legal system . Thus, it has to be determined whether the existing legislative
framework in the Respondent State allows for domestic judicial protection of the
rights claimed in this Communication.
60. The Complainants allege that the Victims do not have any legal title to land and
therefore fall outside the constitutional and statutory protection guaranteed
under the laws of the Respondent State. In this regard, the Complainants have
demonstrated that national law required for the implementation of existing
constitutional guarantee has not been enacted as far as pastoralists are concerned.
The Complainants have also demonstrated that the conditions required for direct
application of the African Charter have not been put in place. This, according to
the Complainants, makes the Africa Charter currently inapplicable in the
Respondent State's legal system.
8 As above.
9 Communication 155/96 - Social alld
Economic Rights Centre (SERAC) and Anothe
ACHPR 37.
An Organ of thd
African Commissi
31 Bijilo
AfriGan ~· -~~
Union .;,.JI
Phone: (
11
ri"-~) ACH PR
\
n nun
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples' Rights
61. The Complainants have also demonstrated the difficulty that the Victims face if
they tried to enforce constitutional provisions that guarantee a right to selfdetermination as a means of resolving the issues at stake. In the face of the
evidence before it, the Commission agrees that if at all it exists, the legal
framework to sustain the Victims' claims in the present Communication is
uncertain. The existence of a national implementation law that is specifically
tailored to implement the constitutional provisions in favour of the pastoralist is
not doubtful. The Respondent State has also failed to show how the African
Charter can be applicable in its national courts. Accordingly, the Commission
finds that the legal framework to sustain the Victims' claim in the Respondent
State is unclear and uncertain.
62. The Commission also needs to determine whether the institutional framework
necessary for the application of the relevant laws exists in the Respondent State.
While the Complainants allege that effective and sufficient local remedies are
unavailable, the Respondent State asserts that both its National Human Rights
Commission and its courts are effective institutions available to the Victims.
63. As the Commission has previously held, the term "local remedies" as used in the
African Charter refers to an internal remedy of a judicial nature. 10 This is
consistent with the Commission's position that local remedies that a Complainant
is expected to exhaust under Article 56(5) of the African Charter should be
remedies that are effective to the extent that they offer a prospect of success and
are sufficient to the exten t that are capable of rectifying the alleged violation.11
64. The Commission notes that although it asserts that the EHRC has powers to
receive and investigate complaints alleging human rights violation, the
Respondent State has not indicated that the decisions of the EHRC are binding.
Where the local remedy held out by a State Party is one that lacks powers that
bind the government and its agencies, such a remedy falls short of the standard
of remedies that international law requires a Complainant to exhaust. 12 The
Commission is therefore, of the view that a petition to the Respondent State's
EHRC is not a judicial remedy and does not hold the promise of an effective and
sufficient remedy. The Complainants are accordingly not under an obligation to
Communication 221/98 - Cudjoe v Ghnna, para 13.
Mouvei11en tivorien des Droits Hunznins (MIDH) v Cote
55.
12 See Communication 1184/ 2003 - Brough v Australia (2006) HRC para 8.7; Co
- Sanknrn v B11rki11a Fnso para 6.4.
10
11 Communication 246/2002 -
AA Organ ot Ule
African Commis
31 Bijil
AfriGan t /,
Union ,,JI
Phone.
s
t.
ia
4
g
12
a
(,ic":f)' AC H PR
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples' Rintits
exhaust the remedy presented by the EHRC since it may be available, but it is not
effective and sufficient. 13
65. The Commission notes the Respondent State's contention that its national courts
are also available for the Complainants to have approached before bringing a
Compliant to the Commission. The Complainants provide at least four reasons
why they consider the courts in the Respondent State to be remedies that are
unavailable, ineffective and insufficient. The Complainants allege that the
Victims and the NGOs which could have acted on their behalf fear that there will
be consequences for bringing an action against the government before the courts.
66. The Complainants also allege that the courts are physically and financially
inaccessible to the Victims. While they concede that access to the courts have
improved since 2004, the Complainants insist that the Victims cannot afford to
engage a lawyer and no member of their communities is a lawyer. It is also
submitted that the Respondent State's legal system does not have any procedure
for claiming collective rights. The Complainants have also alleged that by the
operation of the Ethiopian Charities and Societies Proclamation, foreign NGOs
cannot enter into the territory of the Respondent State to litigate on behalf of the
Victims.
67. The Commission recalls its early jurisprudence that in certain conditions where
terror and fear exist it would be illogical to require the exhau stion of local
remedies. 14 Fear of reprisals against Victims and/ or their lawyers is sufficient
evidence that local remedies are not accessible. In the present Communication,
the Commission notes that the Complainants cite reports of the Campaign for
Reform of the World Bank and Amnesty International regarding an alleged
general climate of fear prevailing among civil society groups in the Respondent
State. However, the Complainants do not adduce any evidence of specific threat
to the Victims or anyone acting on their behalf regarding an attempt to approach
the courts over the facts leading to the present Complaint.
68. As the Commission noted in Anuak Justice Council v Ethiopia,15 beyond statements
of apprehension based on general reports, the Complainant needs to adduce
concrete evidence and demonstrate that the apprehension alleged is founded on
actual risk. Against the fact that the Complainants have failed to offer any
evidence that there is a basis for the alleged fear, the Commission is unable to
Also see Ejido 'Ojo do Agua' v Mexico (1999) IACtHR (Info 73/99) para 16.
Communication 147/95 - 149/96 - Jnwarn v The Gambia (2000) paras 35 - 36. Al
European Court of Human Rights in Application 21893/ 93 - Akdivar v Turkey (
15 Communication No. 299/05 - Anuak Justice Council v Ethiopia (2006) ACHPR.
13
14
.
i
African Cammi
31 Bi
M Organ of the
Afri~an f \)
Union """,.v
Phone:
-.._
_-
hts
trict.
bia
5 04
n.org
13
(.;--r, ACHPR
·.
,J African Commission on
Human Rights our
Collective Responsibility
Human and Peoples' Rights
agree that there is such a regime of fear that excuses the Complainants from
showing that local remedies have been exhausted.
69. Regarding the Complainants' submission that the local remedies presented by
the national courts are physically and financially inaccessible and that the Victims
are too indigent to afford a lawyer, the Commission notes that the Respondent
State has not presented any response. Since the Complainants concede that the
courts are now accessible physically, the Commission's analysis will focus on
whether the indigence of the Victims qualifies them to be excused from the
requirement to exhaust local remedies.
70. In Purohit and Another v The Gambia,16 the Commission noted that certain
categories of persons require legal aid in order to be able to exhaust local
remedies. While the Commission holds the view that mere indigence of a victim
does not trigger a finding that exceptions to the requirement to exhaust local
remedies apply, the Commission is conscious of the fact that the rule is neither
absolute nor capable of being applied automatically.17 ln line with Article 60 of
the African Charter, the Commission recalls the opinion expressed by the InterAmerican Court of Human Rights that although indigence on its own does not
excuse a person from exhausting local remedies, economic status can prevent a
person from enjoying the guarantees in a human rights instrument.18 The InterAmerican Court of Human Rights went further to opine that "if legal services are
required either as a matter of law or fact in order for a right guaranteed ... to be
recognized and a person is unable to obtain such services because of his
indigency, then that person would be exempted from the requirement to exhaust
domestic remedies".1 9
71. The Commission notes that the Respondent State does not dispute the
Complainants' claim that the Victims are indigent people. The Commission
further notes the particular legal regime in the Respondent State w hich prevents
foreign organisations to directly or indirectly access the national courts on behalf
of the Victims. In the face of indigence and the absence of any form of free legal
aid provided by the State Party or any other group, the Commission takes the
view that it would amount to undue formalism to require the Victims to exhaust
local remedies.
16 Communication 241/ 2001 - P11rohit v The Gambia (2003) ACHPR.
17 Lehtinen v Fill/and (2006) ECtHR (Application no 43160/ 98) 7.
Exceptions to the Exhaustio n of Domestic Re medies (art. 46(1), 46(2) and4 2 b American
Convention on Human Rights), Adv is ory O pinion OC-11/90 of Aug. 10, 1990, Int
A: Judgments and Opinions No. 11 (1990) paras 20, 22.
19 As above.
18
AA OrtJao of tne
African Commi
31 Biji
Afri~ant r :1
Union '\..;,.,,.;i/
' l{ights
c&l rict,
Gambia
u
Phone. - 0)
14
,
)0 •
·INl.clilJJJJ.~
<· 'ly4 'ffll~
'• ~-
5 04
.org
oa
i--~, ACHPR
w.1..uo
Human Rights our
Collective Responsibility
} African Commission on
Human and Peoples' Aigt1ts
,
72. Regarding the Complainants' claim that the Respondent State's legal system has
no procedure for claiming collective rights, the Commission notes that the
Respondent State replies that its courts are independent and open to everyone
with "a justiciable matter" . The Respondent State fails to respond to the specific
claim that no procedure exists for claiming collective rights protected in the
African Charter.
73. The Respondent State does not also demonstrate how the courts could have
provided effective and sufficient remedies for the Victims in this particular
circumstance. As the Commission has previously noted, merely listing "in
abstract the existence of remedies without relating them to the circumstances of
the case, and without showing how they might provide effective redress in the
circumstances of the case" does not satisfy the onus on the State Party to
demonstrate the existence of local remedies that the Complainant ought to
exhaust. 20
0
74. The Commission takes the view that the Respondent State has failed to supply
enough specific evidence to demonstrate that available local remedies have the
potential to be effective and sufficient in addressing the claims of the Victims in
this Communication. Accordingly, the Commission finds that the Respondent
State has not sa tisfactorily discharged the onus placed on to show that effective
and sufficient local remedies exist which the Complainant ought to have
exhausted. No burden has therefore shifted back to the Complainant.
75. Accordingly the Commission is convinced that the State Party has not provided
effective and sufficient remedies that the Victims could have accessed. The
Commission therefore takes the view that one of the exceptions to the
requirement to exhaust local remedies applies to this Communication as there are
no remedies to be exhausted. The Commission finds that Article 56(5) of the
African Charter has been satisfied.
Decision of the Africnn Commission on AdmissibilihJ
76. In view of the above, the Commission declares this Communication Admissible
in accordan ce with Article 56 of the African C h arter.
20 Article 19 v En·trcn (2007) ACHPR para 73. Also see Communication 1159/2003
Faso (2003) HRC.
African Commiss
31 Bijil
Phone:
g
15
oa
Human Rights our
Collective Responsibility
Merits
Summary of the parties' submissions
A. Complainants' submissions
77. The arguments below are the submissions of the Complainants, having regard to
their written submissions on the merits (including the Addendum to
Complainants' Brief on the Merits) dated 4th September 2015, the additional
observations dated 26 th January 2016, the further observations dated 31st August
2016 and the latest information update on the projects, together with all the
bundles of documentary evidence respectively attached to their submissions
before the Commission.
78. The Complainants submitted that the Respondent State, in pursuit of the Gibe!
Gibe III Dam Project and the Kuraz Sugar Project ("Gibe III and "Kuraz"), has
repeatedly violated the rights of the Complainants protected under Articles 20(1),
21(1), 22(1) and 24 of the African Charter.
79. The Complainants submitted that the Respondent's arguments, that the claims in
this Communication are designed to obstruct its development or advance a
romanticised ideal of the Lower Omo people that has no place in a contemporary
society, are misconceived. They submitted that the Lower Omo peoples are not
opposed in principle to development or dams, and do not want or expect to be
insulated from modernity. However, they submitted that contrary to what
proponents of large development projects often argue that development would
trickle down to the indigenous communities caught in the slipstream, projectaffected communities are most often the principal losers. 21
80. The Complainants submitted in the context of the Lower Omo that the sugar cane
project will take the best grazing land and leave the Complainants dependent on
food aid, earnings from casual work on the plantations, and the sale of their
photographs to tourists; and that they will not be lifted out of poverty, but driven
ever deeper into it.
81. The Complainants submitted that only if they are able to decide for themselves
whether, when and how quickly they want to change their way of life is there any
prospect that they will survive, let alone profit from, the huge projects now
underway in the Lower Omo.
21 Cemea, Michael. Reforming the foundations of involuntary resettlement: introduction, i
and HM Mathur (eds) Can compensation prevent impoverishment? Reforming resettleme
and benefit-sharing. Oxford: Oxford University Press, 2008.
AnO,yan oflhe
Africanr,:· ')
Union
Africa n Commi s
' ts
31 B1jil
icl,
Phone:
~=
rg
16
a
Human Rights our
Collective Responsibility
82. The Complainants submitted that the rights conferred by Articles 20(1), 21(1),
22(1) and 24 of the African Charter are not qualified and that the principle of selfdetermination is a common thread that connects all the aforementioned Articles
of the African Charter. They also noted that none of these Articles was subject to
the proviso attached to the right to property contained in Article 14 of the African
Charter, w hich states that property may be encroached upon " in the interests of
public need or in the general interest of the community."
83. The Complainants relied on Article 10 of the Vienna Declaration and Programme
of Action supported by the Respondent and 170 other States, which states that:
"While development facilitates the enjoyment of all human rights, the lack of
development may not be invoked to justify the abridgement of internationally
recognized human rights." They also submitted that not even the desire to
increase food security can h·ump human rights as affirmed by the United Nations
Food and Agricultural Organisation. 22
84. As such, the Complainants submitted that the issue for the Commission's
determination is not whether the Complainants will "benefit" from Gibe III or
Kuraz or whether their rights can be encroached upon in the general interest of
the community, but rather whether in its rush to complete these projects, the
Respondent State had acted in breach of Articles 20(1), 21(1), 22(1) and/ or 24 of
the African Charter.
85. The Complainants submitted that two deep-rooted attitudes of the Respondent
State have led to the breach of each of these Articles of the African Charter: Firstly,
the Respondent's apparent indifference to the rule of law. They submitted that
the Respondent State had repeatedly shown that it was not prepared to allow its
procurement and environment impact assessment laws designed to protect
people and the environment to stand in the way of "progress" .23
86. Second, the Complainants submitted that the Respondent State is determined to
get rid of the pastoralist way of life of the Lower Omo people. They submitted
that the Respondent considers the Lower Omo people as backward and
uncivilised and seeks to transform them into farmers at the earliest opportunity,24
in contravention of its constitutional obligation to protect pastoralists under the
22 The Complainants also relied on the United Nations Food and Agricultural Organisation's Guidelines on the
Re~ponsible Governance of Tenure ofLand, Fisheries and Forests in the Context of National Food Security page
I 00 of the attached bundle.
23 Article 25 of the Procurement Proclamation 430/2005; Article 3 of Environmental I
fib~~~Rlb~~
0
Proclamation 299/2002.
~o <-;,'<-e,~
1
24 See the speech allegedly made by Prime Minister Meles Zenawi in the South O
in
~,:
cited at pages 7-8 [para 20} of the Complain ants' Written Submission on the Merit §
~\
jf
AA O•yan of the
.lean ~/ )·
African Commissl
Union \,,,,/'.
Phone:
Afr
31B~o
'~~~
s
t
i:
. rg
17
·i":f, ACHPR
J African Commission on
Human Rights our
Collective Responsibility
Human and Peoples' Rights
Constitution of the Federal Democratic Republic of Ethiopia (Constitution). 25 The
Complainants submitted that in breach of the Constitution, the Respondent State
appropriated to itself vide Proclamation No. 456/2005 the power to arbitrarily
evict pastoralists from land and transfer same to private hands. 26
87. The Complainants also submitted that the view that pastoralism is unworthy of
the Respondent State's protection is also reflected in the omission, from the first
environmental impact assessment of Gibe III, of any reference at all to the impact
of the dam on downstream communities. And that the Respondent State paid no
attention to the report by the World Commission on Dams (WCD) on the impacts
of large dams on downstream communities.
88. The Author submitted that it instituted this Complaint on behalf of the
Complainants d ue to fear of the consequences for them and their families if they
had lodged the Complaint themselves; and that it had not been possible to file
witness statements of the people of the Lower Omo or obtain the assistance of
local NGOs for the same reason. The Author claimed that, in January 2013, the
officials of the Respondent State had informed a gathering of tribal peoples, nongovernmental organisations (NGOs) and missionaries in Jinka that there would
be consequences if they disclosed any information about developments in the
Lower Omo to foreigners.27 That journalists have been effectively muzzled in
Ethiopia resulting to the point of fleeing the Respondent State more than any
other counh·y in the decade preceding 2013.
89. The Complainants also submitted that whatever the truth of the criticisms that
continue to be levelled against Gibe III, it has had or will have at least two
undisputable consequences for the Complainants:
(a)
It will eliminate the annual flood on which the Complainants depend for
their subsistence; and
(b)
The steady and constant flow of water down the Omo, which will
replace the seasonal floods, will allow the irrigation of large tracts of
land in the Lower Omo. This in turn will result in the displacement of
the Complainants to make way for sugar cane, cotton and biofuel
plantations. An earth dam has already been built for this purpose, just
over 200 km downstream from the dam.
25 Article 40(5) of the Constitution of the Federal Democratic Republic of Eth
Article 5(3) of Proclamation No. 456/ 2005.
Will Hurd's w itness s tatement of October 2013 at page 211 of the Bun
Submissions.
26
27
18
https:/achpr.au.inVO O a
p.CHP~
r~ f ) 6~.!:H:'aB
~ n m,n
Human Rights our
Collective Responsibility
Human and Peoples' Rigl1ts
90. With regards to the Kuraz, the Complainants submitted that, contrary to the
Respondent State's allegations of having conducted the necessary preparations
and Environmental Impact Assessment (EIA) study, no study at all of the impact
of the Kuraz on the Lower Omo peoples was carried out "before the
commencement" of the Project; and that if such a study existed at all, the
Responden t State chose not to release it to the public.
91. The Complainants submitted that even the original EIA of Gibe III was produced
only after work had already started on the construction of the dam, but was
confined to the middle basin of the Omo and ignored altogether the Lower Omo
and the Complainants. And that it was only until 2008, after two years into the
project, that the EIA was revised to include selected findings and
recommendations from an "Additional Study" of downstream impacts and renamed the Environmental and Social Impact Assessment (the "ESIA").
92. Based on this, the Complainants submitted that the EISA appeared to have been
compiled w ithout the involvement of any of the Peoples of the Lower Omo
contrary to international guidelines and case law, which both show that the
participation of indigenous peoples is an essential component of an effective
impact assessment. 28
93. The Complainants took issu e with the ESIA's proposal to release "controlled
flood" from the dam reservoir annually to mitigate the dam's impact on
downstream communities, over a period of 10 days in late August or early
September. The Complainants submitted that the proposal to replicate the
natural flood of the Omo was not sufficient to compensa te the communities for
all adverse effects of the dam or avoid the 'severe damages [sic] to downstream
communities' for the following reasons:
(a) Any benefit that the controlled fl oods might confer on the Complainants would
be dependent on the Respondent State's determination; and
(b) The decision whether to allow a controlled flood, when and for how long, rests
alone with the Respondent State, which the latter may or may not grant if the
flood reaches a level sufficient to benefit downstream communities would also
28 C iting
the Akwe: Kon Voluntary guidelines for the conduct of cultural, environmental and social impact
assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and
on lands and waters traditionally occupied or used by indigenous and local communities (Secretariat of the
~
·
I
Convention on Biological Diversity, Geneva, 2004) Decision VIl/16 F COP-7 UN Doc. UNEP
(13 April 2004)); and Saramaka People v Suriname Interpretation of the Judgment of Pre· 'iofry~ l,~ g'i ~.
Merits, Reparations and Costs. Judgment of August 12, 2008. Series C No. 185 para 41, ~;~~H e lse ol O-<>
Pueblo lndigena Kichwa de Sarayaku ,, Ecuador, Fondo y reparaciones, Judgment of27 ~ 20 Syries
o. <~
245 paras 2 12-20 [Spanish Only].
•
C) \
African Commi
31 Bi
Pho
' R ~hts
• trict,
bia
5 04
nion.org
19
u.inVOOD
.~tf.'1 ACHPR
~
,J African Commission on
n,-1.u:o
Human Rights our
Collective Responsibility
Human and Peoples' Rights
inundate the irrigation infrastructure or if release the flood would significantly
reduce electricity production.
(i) Alleged violation of Article 20(1) of the Charter
94. The Complainants submitted that by virtue of Article 20(1) of the African Charter,
they are, at the very least, entitled to be given an opportunity to effectively
participate in the decisions whether to embark on Gibe III and Kuraz and the
opportunity either to give or w ithhold their prior informed consent to both
projects. And that the Respondent State's fai lure to afford them either of these
opportunities is a breach of Article 20(1) of the African Charter.
95. The Complainants consider that they could have effectively participated in the
decisions to proceed with Gibe III and Kuraz only if:
(i)
The Lower Omo peoples had done so prior to the making of each
decision, particularly before the Ethiopian Electric Power Corporation
(EEPCO) entered into a legal obligation to proceed with the dam;
(ii)
The Lower Omo peoples had done so in sufficient numbers to ensure
that they were representative of their communities as a whole. The
complainants claim that only about 93 members of the community,
representing 0.1 % of the community and excluding include the Hamar,
Bodi or Kwegu, were consulted during the course of six meetings held
between May and December 2007; and that even the Respondent State's
own Public Consultation and Disclosure Plan shows that people
d ownstream of the dam were not consulted until at least 10 months after
contracts had been exchanged by which time work had already
commenced on the dam;
(iii)
The Lower Omo peoples had done so with sufficient knowledge of the
likely impact of the Projects on their communities to enable them to
come to an informed view whether to support the Projects. The
Complainants claim that when the USAID and the Author visited the
affected communities, they found that the communities knew little or
nothing about the project;29
29
The Compla inants relied on the Written Witness Statement by Will Hu rd at page
Bundle of Documents attached to their Written Submissions on the Merits [the
report] and the UN Special Rapporte ur report at pages 105/ 106 - see United Na
'Report by the Special Rapporteur on the rights of indigenous peoples, J
A/ HRC/ 18/35/ Add.1 22 Augus t 2011 Annex IV para 119.
~~~~e
~
'° 0'<>
<«-
11•
-;o
' ci i hts
African Commi
AnO•~anot!ha
Afri~an/0 ~'
31 Bi
Un!Qn ~" ' Y.
Phon
ict.
- ........:~
-
~
04
nion.org
20
...,__-:::::~pt,
inVO O a
p.CHP,q
<~ r.J Cf~,!jsEB
Human Rights our
Collective Responsibility
Human and Peoples' Rights
o:nnr;
(iv)
The Lower Omo peoples had done so in the knowledge that they could
choose not to support the Project without suffering any adverse
consequences; and
(v)
The Lower Omo peoples had done so according to their customs and
traditions and 'in a form appropriate to the circumstances. 30
96. The Complainants submitted that none of the above criteria was satisfied in
connection w ith the Gibe III or Kuraz.
97. The Complainants further emphasised that, with respect to the Kuraz project,
they were given no opportunity at all to participate in the decision to plant sugar
cane on their customary lands. That their first knowledge of the project came
about from the Prime Minister's speech delivered in Jinka in January 2011; but as
the speech made clear, the decision to convert those lands to sugar cane
plantations and to proceed w ith the development that year had already been
made.
(ii) Alleged violation of Article 21 (1) of the Charter
98. The Complainants submitted that Article 21(1) of the African Charter gives effect
to the economic aspect of the right of self-determination established by Article
20(1).
99. The Complainants further submitted that the territories on which they have
traditionally grazed their livestock is an invaluable natural resource, which the
Kuraz project had already encroached on without their consent and due
consultation of the affected peoples. They submitted that the loss of their grazing
lands will make it impossible for the Complainants to maintain their herds. They
also submitted that by being forced by the Respondent State to sell their cattle
under the circumstances, their right not to be deprived of their wealth (and of
their means of subsistence under Article 1(2) of both the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights has been violated .
100. The Complainants submitted tha t even i£ the Omo River and/ or the lands
allocated to sugar were regarded in whole or part as the natural resources of the
Respondent State, the denial of access to the River Omo and/ or to their grazing
lands will still have violated their rights under Article 21(1) of the African Charter
30 E11dorois
case.
MO"l)anof oie
African Comm
31 B
AfriGan t ~~
Union ' ':I
Phon
21
hts
~~
bia
04
.org
oa
("~"·f\J ACH PR
,,nrn,
African Commission on
Human and Peoples' Rights
Hurnan Rights our
Collective Responsibility
because of the arbitrary manner in which the Respondent State has put its plans
into effect.
101. The Complainants submitted that they are "non-participants" in the Gibe III and
Kuraz and have been offered no share in the benefits that w ill accrue from sugar
cane production on their grazing pasture.
102. The Complainants also submitted that the Respondent State's claim that all
displaced persons have been or will be given substitute plots of land equal in size
to their previous holdings and proportionate compensation d oes not justify a
breach of Article 21 (1) of the African Charter.
(iii) Alleged violntion of Articles 22(1) of the Chnrter
103. The Com plainants submitted that both Gibe III and Kuraz w ill have major
impacts on their lives and that the Respondent State's failures to conduct any (or
a proper) imp act assessmen t of either Project and to seek or obtain their free, prior
and informed consent to either of them are violations of the Complainants' right
to development under Article 22(1) of the African Charter.
104. The Complainants submitted that when a large-scale development is likely to
have a major impact on the territory of a par ticular community, the State has to
obtain the community's free, prior and informed consent to it.
105. The Complainants submitted, including in the Addendum to Complainants'
Written Brief, that evidence of the Resp ondent State's breaches of Article 22(1) of
the African Charter is summarised at paragraphs 44, 55 to 68 and 81 to 90 of their
written Submissions and they also rely on the Respondent State's failure not only
to obtain their free, prior and informed consent to not undertake Gibe III and
Kuraz but also to consult them about both Projects before committing itself to it.
(iv) Alleged violntion of Article 24 of the Charter
106. The Com plainan ts submitted that Gibe III and Kuraz will deny them an
environmen t which is either satisfactory or favo urable to their development. And
that in breach of Ar ticle 24 of the African Charter, the Resp ondent State has failed
to conduct any proper study of the environmental impact of either Project or of
the risks that the projects pose to public health.
107. The Com plainants submitted that the environmental impac t of the Gibe III will
affect them more directly than anyone else in Ethiopia as it w ill end the annual
floods. The Com plainants submitted that they will no longer be able to recession
cultivate sorghum, millet, maize, peppers or beans. And that e ~ !!'!'3-1.~
re
.q"'o
An O,yan of the
African Com mis
31 B1J1I
Afri~an (" ,\\
Union ' 'ii
I
r
u
Pilon
22
~2
d£
hts
ict,
bia
04
org
a
.qk-R
IN~
Human Rights our
Collective Responsibility
offered access to and are able to use the new irrigation channels, these are likely
to be far less sustainable.
108. With regard to the Kuraz, the Complainants Submitted that the wholesale
conversion of the Complainants' territory to cultivate sugar cane has created an
unsatisfactory environment for pastoralists as the plantations have made it
virtually impossible for them to pursue their customary way of life.
109. The Complainants submitted that if the Respondent insists that it had due regard
to the adverse impacts of the Gibe III and Kuraz on the rights of the Lower Omo
peoples, then it must prove through documentary evidence that it assessed the
impacts that the Gibe III and Kuraz were likely to have on the Complainants
before it decided to embark on these Projects. And that failing w hich, the
Commission will be entitled to make an inference that it acted in violation of the
provisions of the African Charter.
110. On the basis of the foregoing, the Complainants prayed the Commission to urge
the Respondent to:
(1) conduct independent investigations into the effect of Gibe III and Kuraz on the
human rights, health and means of subsistence of the Complainants.
(2) in the light of the data generated by this communication, make an objective
appraisal whether these projects can operate without endangering the lives or
livelihoods of the Complainants; and if so, develop a detailed "livelihood
development plan" for this purpose.
(3) provide all information collated under (1) and (2) to the Complainants to enable
them to give their free and informed consent to both projects.
111. The Complainants also prayed for the Commission to urge the Respondent to
suspend further work on both the Gibe III and Kuraz and any further
villagization of the Complainants while these steps are being undertaken before
it is too late.
B. Respondent's submissions
112. The arguments below are the submissions of the Respondent State, having regard
to their written submissions on the merits dated 27 th November 2015, the
response to the Complainants' additional observations dated 6th June 2016, and
the latest information update information on the projects, toget
bundles of documentary evidence respectively attached to
before the Commission.
)
African Commis
Phone: (
23
E
::':?-..-«I~,&
hts
ict,
bia
;~~§:::;;~~:
04
https:/achpr.au.int/0 0 a
(;·:f1\ ACHPR
•I African Commission on
Human Rights our
Collect ive Responsibility
Human and Peoples' Rights
113. The Respondent State submitted that as the second most p opulous country in
Africa with a rich mosaic of nations, nationalities and peoples who speak more
than 80 languages, not only is Ethiopia one of the most diverse countries in the
world but also that pastoralism is one of the oldest socio-economic systems in the
country.
114. The Resp ondent State submitted that there are 12-15 million pastoralists who
reside on 61 % of its landmass majorly in four lowland regions - Afar, Oromiya,
Somali, and the Southern Nations, Nationalities and People's Regional States
(SNNPRS), in Gambella and Benishangul areas.
115. The Respondent State claims that the main livelihood systems of pastoralists
include pastoralism, farming, and petty income-earning activities, and that the
primary means of subsistence in almost all pastoral communities is livestock
husbandry in open grazing areas.
116. The Responden t State submitted that the Complainant's submissions provide
only a partial glimpse at the rich diversity of the people of the South Omo Zone
and their expectation for change and development in their communities. The
Respondent State submitted that there are 16 nations, nationalities and peoples
in the South Omo Zone seven of which live along the Omo River and are said to
be affected by the Gibe III and Kuraz. These are the Bodi, Dassanech, the Hamar,
the Kara, the Kwegu, the Mursi and the Nyangatom.
117. On the basis of the background to the seven affected groups of people in the
Lower Omo, the Respondent State makes the following submissions.
(i) Right to self-determination under Article 20
118. The Respondent State submitted that contrary to the Complainants' assertion that
they were denied the right to effectively participa te in the decisions to proceed
with the Gibe III and the Kuraz , all of the named peoples in the South Omo zone
have traditional leaders and are represented by officials in their local districts, in
the State Council and the Council of Nationalities of the SNNPR State and in the
House of Peoples' Representatives and House of Federation of the federal
government.
119. The Respondent State claims that all the represen tatives of the several p astoral
communities of the Sou th Omo Zone in both the State Council and the Cou ii
of Nationalities constantly engage their constituents on all matters r
livelihoods, including about the Gibe III dam and sugar factories.
An Cryan of lh•
African Commission
31 Bijilo Ann
Afriqan ((~t
Un 10n ',i/i,4':
Phone: (220)
Emai l:
24
-
-~
httos:/achpr.au.mt/0 0 a
.'
•
.~CHP~ • • .
AC H p R
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples' Rights
120. In light of the scope of representation at various levels of state and federal
governmen t, the Respondent State submitted that the Complainants' arguments
that the people of the South Omo are withou t represen tation is unfounded and
should be discountenanced .
121. The Respondent State also submitted that, despite this prima facie evidence of
representation, it conducted an extensive public consultation process that
conclusively shows that the people of Bodi, Dassenech, Hamar, Kara, Kwegu,
Mursi and Nyanga tom have "freely determine[d] their political status [and
pursued] their economic and social development according to the policy they
have freely chosen" in accordance with Article 20(1) of the African Charter.
122. The Respondent State submitted that the public consultation regarding the Gibe
III Hydro-Electric Power Project (HEPP) began in 2007 w ith the local
administrators and the EEPCO-hired experts who explained the possible impacts
of the dam on the Om o River. The Respondent State submitted that the public
consultations documented the concerns of attendees that there could be a
reduction in the fl ow of Omo River and that this could impact their livelihoods.
H owever, the consultations showed that the people were positive and that
despite their concerns, wanted to know how they could reap benefits from the
project.
123. With regards to the Kuraz, the Respondent State submitted that based on the
proximity of the sugar factories to the areas where the People of Bodi reside, the
Government of Ethiopia spent significant effort to consult practically every elder
and village chief in Selamago Woreda. That the consultations were organized at
the zonal, w oreda and kebele levels where members of the community were
invited to participate in public discussions, presentations, and question-answer
sessions with administrators as well as with representatives of the People in the
SNNPR Cou ncils, the House of Federations and House of People's
Representatives.
25
https:/achpr.au.,nVO O a
Human Rights our
Collective Responsibility
125. The Respondent State submitted that Ethiopia remains firmly committed to the
principle of self-determination, which tenet continues to be at the core of its
constitutional and political makeup. This principle, the Respondent State
submitted, is referenced in the Constitution and guarantees the rights of
Ethiopia's diverse nations, nationalities and peoples to speak, write and develop
their own languages as well as express, develop, promote and preserve their
culture and history.
126. The Respondent State submitted that Ethiopia's highly diverse pastoralist and
agro-pastoralist communities are guaranteed their full constitutional rights - in
both principle and in practice - to determine their way of life, mode of
subsistence, culture, and language.
(ii) Right to dispose of natural resources under Article 21(1)
127. The Respondent State submitted that, contrary to the Complainants' claim that
the seven affected peoples of the lower Omo will be denied their right to freely
dispose of their wealth and natural resources, there will be no deprivation of
wealth and natural resources for two reasons. First, the annual floods for retreat
agriculture will continue as the EEPCO has installed midlevel outlets to allow for
controlled flooding for those who wish to continue the practice. Second, the Sugar
Corporation did not deprive any of the seven affected peoples neither wealth or
natural resources.
128. The Respondent State submitted that, assuming the Commission accepts the
Complainants' far-fe tched arguments that the floods which are neither
predictable nor provide for sustainable food security for the Omo population,
constitute 'wealth or natural resource', no deprivation has occurred. This is
because all seven peoples have welcomed the projects wholeheartedly.
129. The Respondent State submitted that the extensive public consultations held
between 2006 and 2014 by the federal government through the representatives of
the EEPCO and the Kuraz Sugar Corporation revealed that the people view the
project as gateways for fast-tracking development in the South Omo zone and
achieving food security, an issue that has bedevilled them for decades.
130. On this basis, the Respondent State respectfully urged the Commission to reject
the Complainants' allegations that the peoples are denied their right to freely
dispose of their wealth and natural resources.
\
An 0'"gan of too
African Commissi
31 Bijilo
African 1,; ~
Union or;
Phone:
26
a
-
: CHP:
-
'·
ACHPR
• African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
(iii) Right to development under Article 22(1 )
131. The Respondent State submits that while it agrees with the Complainants that
" [t]he peoples of the Lower Omo are not opposed in principle to development,
or to dams, and do not want or expect to be cocooned from modernity", it does
not concede that the people of South Omo Zone will ultimately be the losers of
Ethiopia's development efforts in the region or driven ever d eeper into poverty.
132. The Respondent State submitted that Ethiopia, prior to the construction of the
Gibe III H EPP, generated only 2000 MW of electric power for a nation of almost
90 million inhabitants. The Respondent State submitted that such energy
constraint severely limits grow th in key areas of its economy, including the
agricultural and industrial sectors.
133. The Respondent State submitted that the major objectives of its energy sector are
to provide sufficient and reliable power sources for economic and social
development as well as for irrigation activities.
134. The Respondent State also submitted that agriculture and other services account
for 90% of Ethiopia's Growth Domestic Product. For this reason, Ethiopia has
nonetheless pursued several initiatives to help increase agricultural productivity
in the nation, one of these being the Agricultural Grow th Program (AGP), which
is a national initiative supported by the World Bank and other development
par tners that is targeting smallholder farming. The Program is designed to help
increase agricultural productivity and market access for key crops and livestock
in Ethiopia. It focused on 83 districts with high potential for agricultural growth
in four regions of the country, including the SNNPR.
135. The Respondent State submitted that the Gibe III dam and the Kuraz were borne
out of a necessity to end the cycle of poverty and underdevelopment in Ethiopia
and to help lead the agricultural transformation.
136. The Respondent State also submitted that the Commune Development Program
(CDP) was a federal government program initiated by the Ministry of Federal
and Pastoral Development Affa irs and aims to promote a suitable settlement
pattern for development and access to social services.
137. The Respondent argu es that the CDP is a 100% voluntary program, and that no
one in Ethiopia is or can be forced to reside in a place where they do not want.
Even if it d esired it, no governmental entity in Ethiopia - fed eral, stat ~ -B~
0
~ 0 ~:<c1AR14 r"' ~e:
can accomplish this folly in Ethiopia.
0
0
;:,q, <:,'<,;
t
0
U
M Organ of the
-----
~«'
<I•
~
Cl
z
C
African Commissi
31 Bijilo
Afric;an >"\
Union '.,.x;
Phone:
27
ts
I,
ia
4
- rg
(.-tf'\ ACH PR
,;"/ African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
138. The Respondent State reaffirms that the CDP does not displace anyone but
merely seeks to bring socio-economic services to people who otherwise live in
highly scattered settlements.
(iv) Right to a general satisfactory environment under Article 24
139. In response to the Complainants' submission that Gibe III and the Kuraz will
deny the people of Bodi, Dassenech, Hamar, Kara, Kwegu, Mursi, and
Nyangatom a general satisfactory environment favorable to their development
in v iolation of Article 24 of the African Charter, the Respondent submitted that
the government has enacted a series of environmental protection legislation and
policies.
140. The Respondent State submitted that the Complainants' allegations of violation
of Article 24 of the African Charter are on the most part based on fears and
assumptions because development projects and activities in Ethiopia are carried
out under strict guidelines, following a complex web of land, environmental, and
labor policies. The Gibe III and the Kuraz are no exceptions.
141. The Respondent State submitted that the allegations do not take into account the
fact that the EEPCO identified the p otential impact of the dam and put in place
mitigating measures, which in turn are included in the environmental and social
impact assessment studies of the two projects.
142. The Respondent State submitted that no cause of action, either individual or
collective, was brought in the federal or regional courts of the SNNRPS regarding
either the Gibe III or Kuraz. And that, in any case, the Complainants can do so in
the event the EEPCO and/ or the Sugar Corporation should cause any damage to
the environment.
143. With regards to the Complainants' allegation tha t an environmental impact
assessment study was not performed for Gibe III and Kuraz prior to their
construction, the Respondent State submitted that the impact assessment study
for the Gibe III was performed between 2007 and 2008 before the start of the
construction of the dam in 2010. The Respondent state submitted that this study
was available on the projects and the World Bank's website for public comment.
144. Similarly, with regards to the Impact Assessment Study for Kuraz, the
Respondent State submitted that that assessment was completed in 2012 before
•
e
the Kuraz was launched in 2013. Both studies were conducted f
Environment Impact Assessment Guideline prepared by the t
O '°
Environment & Forestry and the current Ministry of Environm
'?'~~
~0.o
Change.
African Commissio
31 Bijilo
Phone: (
28
a
(.,"'f,J ACH PR
African Commission on
Human and Peoples' Rights
u .m11 :
Human Rights our
Collective Responsibility
145. The Respondent State submitted that it was incorrect for the Complainants to
allege that the impact assessment study of the Gibe III does not include the
downsh·eam areas of the dam. This is because page 226 of the Environment and
Social Impact Assessment of Gibe III provides a summary of the impact of the
project downstream and refers to the detailed study over the downstream effects
of the dam.
146. The Respondent State also submitted that the Complainants' claims that the
impact assessment study was not transparent and failed to include a
participatory process is baseless because the study was conducted under
internationally accepted guidelines and treaties ratified by Ethiopia.
147. With regards to public consultation and the right of the people to be consulted
on the development projects in their area, the Respondent State submitted that
several consultations were held in accordance with the Environment Impact
Assessment Guideline prepared by the Environment Protection Authority of
Ethiopia w hich requires the participation of interested and affected parties. The
Respondent State submitted that the guideline was followed to the letter in the
course of conducting the environmental impact assessment of Gibe III.
148. The Resp ondent State denied that the public consultation sessions that were held
with both the upstream and downstream communities were platforms for
governmental imposition. Rather the Respondent State submitted tha t the
consultations it held with the affected Omo communities were nothing but a
genuine effort by the EEPCO to provide an honest overview of the construction
and to receive questions and concerns.
149. The Respondent State submitted that the consultations, done in the languages of
the seven peoples, were held with the sole purpose of transparency, showing the
advantages that come w ith the dam, and to ga ther the opinion and concerns of
the impacted communities to allow the government to mitigate the short- and
long-term impact of the dam.
150. The Respondent State also submitted that there is simply no evidential support
for the Complainants' assertion that the Gibe III will deprive the peoples of the
Lower Omo access to the Omo River for their livestock or lead to a loss of
vegetation cover.
151. Based on the foregoing, the Respondent State submitted that the Complainants'
claims that the Respondent State has violated Article 24 of the African Charter
should fail inasmuch as Ethiopia has not denied the affected pe
di,
N4
Dassenech, Hamar, Kara, Kwegu, Mursi, and Nyangatom a gen
~0 ,,, •
N>Organo!th<l
African {✓,
-
African Commissio
31 BiJilo A
~
Union , •
Phone: (
29
Human Rights our
Collective Responsibility
environment favorable to their development.
C. Complainants' reply
152. The Complainants submitted in reply to the Respondent State's brief on the
merits dated 27 Novem ber 2015 that both parties largely accept that the
Complainants are a "peoples". That they have the right to decide for themselves
whether, when and how to change their way of life which is a fundamental
element of Articles 20(1), 21(1), 22(1) and 24 of the African Charter. The
Complainants submitted that it is agreed by the parties tha t the rights conferred
by these provisions cannot be abridged in the interest of public need or in the
general interest.
153. The Complainants submitted that not only did the Respondent State's arguments
and the evidence in support thereof fail to refute the key allegations against the
Respondent State, but also that the Responden t State confirmed that:
(a) It failed to take into account while pursuing its development projects the
rights of the Complainants under the African Charter or any other legal
instrument contrary to Articles 20(1), 21(1), 22(1) of the African Charter;
(b) It took no effective steps to protect the Complainants' rights under Article
21 of the African Charter to freely dispose of their natural resources; and
(c)
It took no effective steps to secure the Complainants free, prior or informed
consent for either Gibe III or the Kuraz Social Development Plan.
154. In reply to the Respondent State's counter argument that the Omo annual floods
are not a natural resource, the Complainants clarified that the concept of "natural
resources" under Article 21 of the African Charter is a broad one that is
unrestricted in its use in the African Charter as decided by the Commission in the
Endorois case.
155. In reply to the Respondent State's submission or argument that flood retreat
agriculture was not in itself sufficient to sustain the Lower Omo peoples, the
Complainants submitted that Article 21 of the African Charter would have been
robbed of any effect if it applied only to a natural resource which provided an
indigenous people with its sole means of subsistence. This, they argued, is
because most indigenous peoples depend on a variety of natural resources.
156. In reply to the Respondent State's argument that its proposal for ll-~~~l
flood to allow those who wish to continue flood retreat agricultu "' [berabl#- ,
do so would be consistent with the African Charter, the Comp17f<~
8
that not only was the proposal put
t '\')
Union '.~,·-
African Commis
AnO,,ianofit>e
AfriGan
31 Biji
~
'
•
ts
n
Phan
~
30
oa
c, r') 6~~,iE,~
p.CHP1t
mmo
Human Rights our
Collective Responsibility
Human and Peoples' Rights
forward w ithout a proper assessment of the problem it was intended to solve, but
also that the proposal would still have resulted in a breach of Article 21(1) of the
African Charter. This, the Complainants submitted or argued, is because they
would have lost their right to their natural resources under Article 21 of the
African Charter without the Respondent State providing a suitable alternative.
157. The Complainants also submitted in reply that the fact that the EEPCO alone will
determine whether, when and for how long to release water from the Dam, if at
all, blatantly violates the peoples' right to freely dispose of their natural
resources. They submitted that but for the failure to obtain the free, prior and
informed consent of the Complainants, the proposal for a system of controlled
floods would have not violated the provision of Article 21 of the African Charter.
158. The Complainants submitted that contrary to the Respondent State's contention
that the vast majority of Omo pastoralists did not have a legal claim to land affect
by the development projects, Article 21 of the African Charter is not contingent
on land ownership.
159. In its further observations, the Complainants submitted that, contrary to the
Respondent State's submission that Ethiopia has a supposedly decentralized and
democratic system of political representation, they have not claimed any breach
of the right of the Complainants as individuals to participate freely in the
government of their country under Article 13 of the African Charter. Rather, the
Complainants have confined their claim to breaches of their rights as peoples
under Articles 20 to 24 of the African Charter. The co-existence of these rights in
the African Charter reflects the principle that citizens are not expected to rely on
their individual right to political representation to defend their collective rights
as II peoples". Those collective rights merit and have been granted separate
recognition.
160. The Complainants submitted that the Respondent State's submissions or
arguments that it consulted members of the Bodi and Mursi communities in Hana
City as well as in the villages on Kuraz do not sufficiently clarify whether the
consultations took place before or after the Prime Minister's speech in January
2011 that the Kuraz project would start that year.
161. The Complainants submitted in reply that had the Respondent State taken any
practical steps to identify and assess the health and other related risks which now
confront the Complainants as a result of the project development, it would have
stated this. And that the Respondent State's failure to do so suggests that the
Respondent State has not investigated and mitigate the risks
Complainants are concerned about in breach of Article 24 of the
AAO'1jano!lhe
African Commiss
31 Bijilo
AfriqanC ~\~
Union ~ ..fl
Phone:
31
p.CHP~
1 rl
6~,tH:fi
Human Rights our
Collective Responsibility
Human and Peoples' Rights
162. Based on these submissions, the Complainants invited the Commission to find
that the Respondent State has acted in breach of Articles 20(1), 21(1), 22(1) and 24
of the African Charter, and prayed to the Commission for the following reliefs:
(a) Call upon the Respondent State to ensure that the Complainants' right of access
to their traditional lands is protected by law;
(b) Call upon the Respondent State to establish an independent complaints
mechanism to protect and prevent the rights of the Lower Omo people from
encroachment;
(c) Urge the Respondent State to ensure that re-settlements are voluntary, based
on informed consent, and respect the cultural preferences of the people;
(d) Urge the Respondent State to put in place mechanisms for guaranteeing greater
transparency and more meaningful consultations;
(e) Urge the Respondent State to require the relevant local government authorities
as well as the plantation management to publish the environmental impact
assessment report for the Kuraz and provide communities with a fuller picture
of plans for the development of the valley, as required by Ethiopian law, so that
they can make informed choices on issues such as resettlement;
(f) Urge the Respondent State to provide a formal guarantee to protect communal
grazing land in accordance with the domestic system of land administration;
and
(g) Urge the Respondent State to provide the Commission with a proposal for the
livelihood reconstruction and long-term benefits for the Complainants as
victims of the Gibe III and Kuraz development projects
The Commission's analysis on the Merits
163. The present communication alleges that the Respondent State violated the rights
of the indigenous peoples of the Lower Omo under Articles 20(1), 21(1), 22(1) and
24 of the African Charter in the pursuit of two development projects in the
Respondent State, namely: the Gibe III Hydroelectric Power Project and the
Kuraz.
164. The names of the affected groups are the Bodi, the Dassanech, the Hamar, the
Kara, the Kwegu, the Mursi and the Nyangatom, which are distinct communities
located in the South Omo zone in the Southern Nations, Nationalities and Peoples
Regional State of Ethiopia.
165. An allegation of a violation of any of the rights contained in Arti
the African Charter warrants a consideration of the notion of gro
______
o~
~- ,
i
An O'1Jan of u,e
Afri~an
Union
t \TI
African Commission
31 Bijilo An
,(r,Jv
Phone: (220) 2
04
Email: au-banjul@africa-union.org
32
https:/achpr.au.inVO O a
(;":~) ACH PR
•
Human Rights our
Collective Responsibility
/ • African Commission on
Human and Peoples' Rigt1ts
is because peoples' rights are equally as important as individual rights. 31 In this
particular case, the communication alleges a violation of the rights of several
groups of indigenous populations domiciled in the territory of the Respondent
State. Having regard to the nature of the complaint, the Commission will now
proceed to consider each of the allegations of the Complainants.
Alleged violation of Article 20(1) of the Charter
166. The Complainants allege that by virtue of Article 20(1) of the African Charter, the
indigenous peoples of the Lower Omo are, at the very least, entitled to be given
an opportunity to effectively participate in the decisions whether to embark on
Gibe III and Kuraz and the opportunity either to give or withhold their prior
informed consent to both projects. And that the Respondent State's failure to
afford them either of these opportunities is a breach of the right to selfdetermination under Article 20(1) of the African Charter.
167. Article 20(1) of the African Charter provides that:
All peoples shall have right to existence. ThetJ shall have the unquestionable and inalienable
right to self-determination. They shall freely determine their political status and shall pursue
their economic and social development according to the policy they fuwe freely chosen.
168. In the case of Centre for Minority Rights Development (Kenya) and Minority Rights
Group (on behalf of Endorois Welfare Council) v Kenya (Endorois case), the
Commission held that Article 20 of the African Charter provides for peoples to
retain rights as collectives.32
169. Based on the nature of the complaint, the Commission considers it relevant to
first bear its mind on whether the victims are, indeed, "peoples" and whether
they qualify as "indigenous" groups within the contemplation of the African
Charter, before addressing the substantive issue of their right to selfdetermination under the African Charter.
170. In the recognition of collective rights, the African Charter deliberately refrains
from defining the term peoples". However, the Commission has over time
clarified its own understanding of the notion of peoples' rights in its
jurisprudence. In the case of Gunme v Cameroon (Gunme case), the Commission
held that the notion of peoples" is closely related to collective ri I
under Articles 19 to 24 of the African Charter; and that th
.
II
II
~
<I" .
Gumne v Cameroon (2009) AHR.LR 9 (ACHPR 2009) para 176.
32 Centre for Minority Rights Development (Kenya) and Minority Rights Group I
Endorois Welfare Council v Kenya (2009) AHRLR 75 (ACHPR 2009) para 150 (En
.
31
:x: :
~~
African Comm
AnOrganotthe
Afriqan ft1\\'
LJ nlOn ,,,,//
!~~~
31 s
Phone: (
-:--___:__
E
33
ghts
05 04
-union.org
https:/achpr.au.int/0 0 a
·•. ::·f1,>
J- ACHPR
''
• ,
;r .xc •• .,
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
exercised by a people, bound together by their historical, traditional, racial,
ethnic, cultural, linguistic, religious, ideological, geographical, economic
identities and affinities, or other bonds. 33
171. By this interpretation, the Commission established a set of criteria for identifying
whether a group can be considered a "people" under the African Charter. In other
words, it is only a "peoples," as a collective of individuals bound by a common
history, tradition, race, ethnicity, culture, language, religion, ideology,
geography, econom y, identity and affinity, that can be the beneficiaries of the
right to self-determination.34
172. In the Endorois case, the Commission clarified that for a group to be considered a
people, they should manifest certain objective attributes as a collective such as:
n common historical tradition, rncial or ethnic identihj, cultural homogeneity, linguistic unihJ,
religious and ideological affinities, territorial connection, and a common economic life or other
bonds, identities and affinities they collectively enjoy - especially rights enumerated under
articles 19 to 24 of the African Chnrter - or suffer collectively from the deprivation of such
rights. What is clear is that all attempts to define the concept of indigenous peoples recognise
the linkages between peoples, their land, and culture nnd that such a group expresses its desire
to be identified ns n people or have the consciousness that they are a people.35
173. In the instant case, it is not contested between the parties that the seven peoples
of the Lower Omo, namely the Bodi, the Dassanech, the Hamar, the Kara, the
Kwegu, the Mursi and the Nyangatom, allegedly impacted by the Gibe III dam
and the Kuraz are "peoples" within the meaning ascribed to the concept under
the African Charter.
174. In its written submissions, the Complainants submitted that the seven affected
communities occupy or have occupied until recently the traditional territories
delineated and show n on the maps in the attached bundle of documentary
evidence. 36 The Com plainants contended that since the Respondent State has not
disputed that the Complainants are "peoples", they are therefore entitled to the
protection of Articles 20 to 24 of the African Charter. 37
175. The Complainants further submitted that even in the Respondent State's
Submissions on Admissibility, the Respondent State itself sought to rely upon the
33 Gunme and Ot/iers v Cameroon (2009) AHRLR 9 (ACHPR 2009) pa ra 171.
Gunme case (n 33 above) para 171.
(n 32 above) para 151; Communications 279/03 and 296/ 05 Organisation and another v Sudan (2009) AHRLR 153.
36 Merits Brief for the Complainants para 1.
37 Meri ts Brief for the Complainants para 80.
34
35 Endorois case
M Organ of the
AfriGan rr-·,.n
Union~' ._.,
hts
trict
bia
Phone: (2
05 04
Email: au1ul@africa-union.org
https:/achpr.au.inVO O a
31 Bij
34
Human Rights our
Collective Responsibility
fact that as" peoples" the members of the affected communities in the Lower Omo
had an "unconditional right to self-determination" under Article 39(1) of the
Constitution of the Federal Democratic Republic of Ethiopia (Constitution). It
argued that this could only be because the Respondent State accepts that the
victims are "peoples" under the Constitution and the African Charter.
176. In its response, the Respondent State did not challenge the characterization of the
peoples of the Lower Omo as "indigenous peoples". Rather, the Respondent
submitted that Ethiopia is a "rich mosaic of nations, nationalities and peoples"
who speak more than 80 languages and has often been described as a "museum
of peoples." 38
177. From these submissions, it is not in contention that the seven identified groups
of the Lower Omo in the Respondent State are" peoples" and therefore fall within
the purview of Article 20(1) of the African Charter. However, the absence of any
contention between the parties on whether the victims are "peoples", by itself, is
not a sufficient basis for grounding a finding that they are such within the context
of the African Charter. For purposes of certainty, the Commission's criteria for
determining whether a collective of individuals constitute a "people" or group of
"peoples" weighed against the established facts of each case should continue to
be the objective basis for making such an assessment under the African Charter.
178. Based on the evidence presented before the Commission, including specifically
the Ethnographic Map of South Omo39 attached to the Complaint, it is clear that
the seven communities allegedly affected by the Gibe III dam and the Kuraz
Sugar Project have historically lived on the banks of and around the Omo River
in the Respondent State. They are said to be pastoralist in nature, with cultures
and traditions peculiar to each of them.
179. Besides the Respondent State's Constitution referencing its diverse population as
a collection of "nations, nationalities and peoples," 40 the seven affected
communities are factually shown to be domiciled along the Omo River, which is
located in a unit of the Ethiopian federation known as the Southern Nations,
Nationalities and Peoples Regional State (SNNPR). They are also factually shown
to be largely pastoralist communities, each having its own ancestral lands,
historical tradition, ethnic identity and cultural homogeneity common to it.
180. The Commission considers that the seven affected groups m
established in its jurisprudence for recognition as "people '
38
Respondent's written brief on the Merits para 15.
39 Annexure 1 to the Complaint dated 16 April 2012.
°Constitution of Ethiopia Art 8(J ).
4
An Orga1\ of the
African Commissi
31 Bijilo
35
s
t,
ia
Phone: (220
~......- - v ,
5 04
Email: au-banjul@africa-union.org
htlps:/achpr.au.inVO O o
1N1Jl'1Jolt!"i
p.CHP~
/~ r. l 6~,!:tEB
Human Rights our
Collective Responsib1l1ty
Human and Peoples' Rights
.rum
Commission has no reason to reject the characterization of the alleged victims as
"peoples" within the con text of Article 20(1) of the African Charter.
181. With regard to whether the affected peoples of the Lower Omo are "indigenous"
peoples, the Commission has noted in its Report of the Working Group of Experts
on Indigenous Populations/Communities and subsequent jurisprudence the
difficulty associated with defining the concept of "indigenous" peoples under the
African Charter. 41 However, the term is often used in recognition of certain
marginalized and vulnerable groups in a given society who suffer from particular
problems. Such groups have not often been accommodated by dominating
paradigms of development in their own country and, in many cases, they are
being victimized by mainstream policies and thinking and their human and
collective rights v iolated. 42
182. The Commission notes that the term " indigenous" is not intended to create a
special class of citizens, but rather to address historical and present-day injustices
and inequalities. 43 Due to past and ongoing processes in their countries,
indigenous peoples or ethnic minorities need recognition and protection of their
basic human rights and fundamental freedoms.
183. As the Commission has noted in its Report of the Working Group on Indigenous
Populations not only is it a fact that Africa is characterized by multiculturalism,
but also that almost all African states host a rich variety of different ethnic groups,
some of which are dominant and some of which are in subordinate positions. All
of these groups are indigenous to Africa. However, the Commission recognizes
that some are in a sh·ucturally subordinate position to the dominating groups and
the State, leading to marginalisa tion and discrimination. It is this condition that
the notion of indigenous peoples seeks to address. The concept is directed at the
root causes of the subordination and other problems that such peoples face and
emphasizes the human rights dimension for addressing them. 44
184. The Commission recognizes that, in post-colonial African countries, certain
groups who live on the fringes of modern-day society such as hunter-gatherers,
pastoralists and some small-scale farmers, fall in this category. 45 Hence, the
African Commission 'Repo rt of the Working Group of Experts
populations/ Communities' (2005) 14.
42 As above, 20.
43 £11dorois case (n 32 above) 149.
44
African Commission's Report on Ind igenous Populations (n 41 above) 11345 African Union Commission Department of Rural Economy and Agricult
Pastoralism i11 Africn: Sec11ri11g, Protecti11g and l111provi11g the Lives, Livelihood
Co1111111111ities' (2010) 2.
41
AnO!gao'. ofllle
African t✓-·
·
Un!Qn
on
Indigenous
N 4 tv
0
~ ~- -
f
African Com
~
31
.I
Pho
'°<>o
,?-«t ".;_ ,
........___~
ights
istrict.
mb1a
05 04
mon.org
36
httpsl achpr.au ,nvO O a
;··r, ACHPR
·
, ,} African Comm1ss1on on
~
Human and Peoples' Rintits
mum
Human Rights our
Collective Responsibility
Commission in its Working Group on Indigenous Populations developed a set of
four criteria for identifying indigenous peoples. These are: self-identification as a
distinct collectivity as well as recognition by other groups; occupation and use of
a specific territory; voluntary perpetuation of cultural distinctiveness; and
experience of subjugation, marginalisation, dispossession, exclusion or
discrimination.
185. In the present case, the peoples of the Lower Omo self-identify as indigenous.
They have their own cultures and traditions. They are based on lands along and
around the Omo River in the South Omo Zone which they have historically
attributed as home. While the Bodi, Mursi, Dassenech, Hamar, Kara, Kwegu and
Nyangatom are predominantly pastoralist, they have - to varying degrees - also
practiced farming on lands which they have traditionally used for flood retreat
and rain-fed cultivation and grazing. These pastoral communities live on the
fringes of Ethiopian society. As the Respondent State notes in its submissions,
many of these communities have historically lacked access to basic social services
and some of these groups such as the Mursi are one of the " most exotized and
unfortunately caricatured people in the South Omo Zone and in the country." 46
186. The Commission finds that these attributes meet the four criteria for recognizing
the peoples of the Lower Omo as indigenous. To the extent that these peoples of
the Lower Omo self-identify as an indigenous group and are recognized as a
historically vulnerable group who rely on pastoralism and flood retreat
cultivation for their continued survival, they constitute "indigenous peoples"
whose human and collective rights are entitled to be protected under the African
Charter.
187. By the tenure of Article 20(1) of the African Charter, the right to selfdetermination by indigenous peoples can be exercised only in conformity with
the sovereignty and territorial integrity of a State Party to the African Charter.47
Based on the facts before the Commission, it is clear the indigenous peoples of
the Lower Omo do not seek to challenge the territorial integrity or political unity
of the Respondent State. Rather, they seek only to claim "internal" selfdetermination. Rather, the Complainants' allegation that the right of the Lower
Omo peoples to self-de termination has been violated is in two specific respects.
First, that they were not afforded the opportunity to effectively participate in the
Respondent Written Submissions on the Merits para 21(A).
Gunme case, para 199. See a lso Katangese Peoples' Congress v Zaire (2000) AHR
Communication 328/06 - Fron t for the Liberation of the State of Cabinda v Republic of
see Principles and G11ideli11es on tlte Implementation of Economic, Social and Cultur
Charter on Human n11d Peoples' Rights para 41 .
46
.,
47
An Orya,'. 01 th•
r~~...fl
3 1 Bijil
n!Qn ": ~
ts
....._,_ ,,...-:.
Phone:
37
~'- ~
-;o
African Commis
.
Aufnqan ~ --~5)
~\
t,
04
··~ ·
.org
. c pr.au.inVO O a
.··. ,c••· •
• ., ,
·
•. .
,
ACH PR
African Commission on
Human and Peoples' Rinllts
Human Rights our
Collective Responsibility
decision-making processes leading to the Gibe III dam and the Kuraz Sugar
Projects. Second, that they were not given the opportunity to decide whether or
not to give their free, prior and informed consent to the two projects.
188. By the very nature of Article 20(1) of the African Charter, the right to selfdetermination is underscored by the freedom of peoples to determine their own
development. Where this right is sought to be exercised in conformity within the
sovereignty and territorial integrity of a State, it must be understood to include
the right of the people concerned to freely and effectively participate in the
processes of the state as well as in decisions on economic, social and cultural
matters that directly impact the rights and interests. 48
189. This also means that the protection of the right to self-determination of peoples
in the national context is not limited only to participation in the democratic
processes of a State. It extends to the ability to pursue their own economic and
social development according to the policy they have freely chosen. It also
implies the obligation on the part of States Parties to ensure that vulnerable and
marginalised peoples, including indigenous populations/ communities, are able
give or decide to withhold their free, prior and informed consent to any
development project affecting them.
190. In the Principles and Guidelines on the Implementation of Economic, Social and Cultural
Rights in the Africnn Chnrter on Human and Peoples' Rights, the Commission
declares that "States parties should ensure the prior informed consent by
indigenous populations/ communities to any exploitation of the resources of
their traditional lands and that they benefit accordingly." 49 Similarly, in the
Endorois case, the Commission held that any development or investment project
that would have a major impact on territory of indigenous populations requires
that the duty of the state not only to consult with the community, but also to
obtain their free, prior and informed consent. Consequently, the Commission
found that the consultations held by the Republic of Kenya with the Endorois
people were inadequate as the people had not effectively participated in the
process.
191. In this case, the Complainants submitted that the indigenous peoples of the
Lower Omo have been denied an opportunity to effectively participate in the
decisions to proceed with both Gibe III and Kuraz, and that their free, prior and
informed consent is not possible without their participation. Considering the
48 Article 3 of the United Nations Declaration on the Rights of Indigenous Peo
N -'1,vo
Principles and Guidelines Oil the lmplemmtation of Economic, Social and Cul
Charter on Human and Peoples' Rights para 41.
~
a~
49
"~
\>l
AA Organ of the
African
1;.• ';\
. r,
l'J'.J
Union
~ N,.J.
°2: I
>~ e~ ~ights
®rttJi~istrict,
~ he,Gambia
African Com
31
Ph
Q)> fi 1 05 04
"N.:l.fil..1-'-'
-union.org
38
pr.au.inVO O O
ElW~,
~
-
1;-·f) ACH PR
\:
1
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
potential for the Gibe III dam and the Kuraz to fundamentally change the
traditional way of liie of the Omo people, the Complainants contended that the
indigenous peoples of the Lower Omo were entitled to effectively participate in
the consultation processes. That the latter did not participate in the decisions to
proceed with Gibe III and Kuraz because they: (a) were not involved in each
decision on the two projects before the legal obligation to proceed with the dam
was concluded; (b) did not participate in sufficient numbers to ensure that they
were representative of their communities as a whole; (c) knew little or nothing
about the project and so did not have sufficient knowledge of the likely impact of
the two projects on their communities to enable them to come to an informed
view whether to support them; thought they could choose not to support the
Projects without suffering any adverse consequences, and (e) had done so
according to their customs and traditions and in a form appropriate to the
circumstances.
192. The Complainants submitted that only about 93 members of the community,
representing 0.1 % of the community and excluding the Harnar, Bodi and Kwegu,
were consulted on the Gibe III darn project over the course of six meetings held
between May and December 2007; and that even the Respondent State's own
Public Consultation and Disclosure Plan shows that people downstream of the
darn were not consulted until at least 10 months after contracts had been
exchanged. The Complainants submitted that, by that time, work had already
commenced on the dam.
193. The Complainants further submitted tha t, w ith resp ect to the Kuraz project, the
peoples' first knowledge of the project came about from the speech by then Prime
Minister, Meles Zenawi, delivered in Jinka in January 2011. To the Complainants,
the speech made it clear that the decision to convert the peoples' lands to sugar
cane farms and to proceed wi th the development that year had already been
made. 50
194. Conversely, the Respondent State submitted that Ethiopia is one of the only states
in the world with constitutional guarantees of the right to self-determination
including secession, and one that has cherished the values of independence and
self-determination throughout its history. In disputing that the Omo peoples
were not adequately consulted before the decision to proceed with the Gibe III
dam and the Kuraz, the Respondent State submitted that both projects were vital
to the economic growth and prosperity of Ethiopia. The Respondent State
50 These submissions of the Complainant are s upported by several investigative repo
Commission on Dams, the United State Agency for International Development (U
Assistance Grou p (DAG) and research articled.
~ the'•Wor
---. - ~.... 1'°<
0
~
'?,.._ \
u•
An o,yan of tt,e
African r~ '\\
Union , '
African c~~~/j~s
u ~
!;ff....,
Phone:
39
" '111\!E ET DI:
·-:;;;;::;:=~
f, RW t~
1
p,.CHPJl
;'~ 'f)
6~,!:tfnJ~
Human Rights our
Collective Responsibility
Human and Peoples· Rights
submitted that the right to self-determination of the indigenous peoples of the
Lower Omo should be assessed based on their representation within the political
structures of the Ethiopian federation. The Respondent State contended that all
the affected nations, nationalities and peoples of the Lower Omo in the South
Omo Zone of the SNNPR of Ethiopia are administered by elected representatives
at the Kebele, Woredn, state and federal government levels, respectively.
195. The Respondent State contended that the Lower Omo peoples are represented in
the SNNPR's legislature (made up of the State Council and the Council of
Nationalities) and in the State executive through various governmental bureaus
on pastoral, agricultural and other affairs. The Respondent argues that, at the
federal level, pastoralist communities are also represented in the two chambers
of the federal legislature, namely: the House of Peoples' Representatives (which
has a Standing Committee on Pastoralist Affairs) and the House of Federation.
These administrators and representatives, the Respondent argues, represented
the voices of the affected communities at the various levels of government in
which the decision to proceed with the two projects were taken.
196. The Commission notes that under the Respondent's Constitution, " [n]ationals
have the right to participate in national developmen t and, in particular, to be
consulted with respect to policies and projects affecting their community." 51 The
Respondent State submitted that the government started public consultations
with the Omo peoples on the Gibe III dam in 2007 before the project commenced
and on the Kuraz in 2013.52
197. From the foregoing, it is clear that the claim that participation in the consultations
was inadequate must be balanced against the submission that consultation was
done through the elected administrators and representatives of the peoples. That
balance can only be struck by a scrutinous look at the evidence before the
Commission. In the particular context of projects executed on indigenous lands,
this Commission has previously noted that a government must consult the
indigenous peoples on the use of their land in the public interest.53 Consultation
cannot be an alternative to obtaining the free, prior and informed consent of
indigenous communities for the use of their ancestral lands. In the Endorois case,
the Commission held that in the event that "any development or investment
projects [... ] would have a major impact within the Endorois territory, the state
51 Ethiopian Cons titution Art 43(3).
Ul,lAN-4
52 Respondent's Written Submissions o n the Merit para 37.
A
tvo
,()~
53 E11dorois case (n 32 above) para 291.
0
African Commis
31 BiJil
es'
r~
h
u
Phone~ i-20
ts
I,
ia
4
g
40
1\-4.~ t ~
il1E
a
ACHPR
•
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples' Rigl1ts
has a duty not only to consult with the community, but also to obtain their free,
prior, and informed consent, according to their customs and traditions."
198. The Commission is inspired by the decision of the United Nations Human Rights
Committee in Apirnna Mahuika v New Zealand (Mahuika case),54 where the
Committee held that the enjoyment of the right of minority communities to their
own culture "may require positive legal measures of protection by a State party
and measures to ensure the effective participation of members of minority
communities in decisions which affect them." The Committee noted that:
the acceptability of mens11res thnt affect or interfere with the culturally significant economic
activities of a minori hJ depends on wl,ether the members of the minorihJ in question have had
the opportunihJ to pnrticipnte in the decision-making process in relation to these measures and
whether they will conti11ue to benefit from their traditional economy. 55
199. In this case, there is no doubt that as pastoralist and flood-retreat farmers, the
Omo peoples have deep ties to their ancestral lands on which they depend for
their economic and cultural wellbeing and survival. Where indigenous peoples
only seek to exercise the right to self-determination in conformity with the
territorial integrity of a state, it should be understood to include the right, first,
to be duly and adequately consulted before commencing a proposed
development project and, second, to give or withhold their free, prior and
informed consent to a proposed project.
200. Pursuant to Article 60 of the African Charter, the Commission is able to draw
inspiration from the work of the United Nations in this regard. Under Article 3
of the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), Article 1(1) of the International Covenant on Civil and Political Rights
and Article 1(1) of the International Covenant on Economic, Social and Cultural
Rights, the right of indigenous communities to effectively participate in
important d ecisions affecting them is recognised as an integral part of the right
to self-determination.56
201. Also, the UN Expert Mechanism Advice No. 2 (2011) on Indigenous peoples and
the right to participate in decision-making has, in its interpretation of Article 3 of
the UNDRIP, recognised the right to free, prior and informed consent within the
context of the right to self-determination. In the Advice No. 2, the UN Expert
Mechanism observed that the requirements of consultation and free, prior and
54 Communication No. 547 / 1993, U.N. Doc. CCPR/ C/70/D/517/ 1993 (2000) par
ss Mahuika case (n 54 above) para 9.5.
56 UN Declaration on the Righ ts of Indigenous
3. _ _ _ _ _--'-l--o_-+_...::;__ _Peoples
_..:.,___Article
___
African Commi
31 Bi
Phone
l).l
~-""6o~
0
l::
I
o,
:r
- ' R"I hts
ho· rict.
mbia
05 04
on.org
41
Human Rights our
Collective Responsibility
informed consent form a crucial part of the right to self-determination.57 The UN
Expert Mechanism further noted that:
24.
The elernen ts offree, prior nnd informed consent are interrelated; the elements of'jree",
"prior" and "informed" q11nlifiJ and set the conditions for indigenous peoples' consent;
violation of any of these three elements mny invalidate any purported agreement by
indigenous peoples.
25.
The element of 'free" implies no coercion, intimidation or manipulation; "prior"
implies that coHsent is obtained in advance of the activihJ associated with the decision
being made, and includes the time necessary to allow indigenous peoples to undertake
their own decisio11-lllnki11g processes; "informed" implies that indigenous peoples have
been provided nll information relating to the activihJ and that that information is
objective, accurate and presented in a manner and form understandable to indigenous
peoples; "consent" implies that indigenous peoples have agreed to the activihJ that is
the subject of the relevant decision, which may also be subject to conditions. 58
202. In the same way, the recognition in Article 20(1) of the African Charter of the
right of peoples to "freely determine" their economic and social development
must be understood to imply not only the requirement of consultation but also of
the free, prior and informed consent of indigenous peoples. In the particular
context of the right to self-determination, States Parties have an implied
obligation to consult and obtain the free, prior and informed consent of
communities in political, economic or social decisions affecting them.
203. With regards to proposed development or investment projects on the ancestral
lands, territories or resources of indigenous populations, "consent" represents a
community's agreement to the proposed activity be undertaken. Consent is
"free" when it is given wi thout coercion, harassment, intimidation or
manipulation by government or other actors. Consent is "prior" w hen it is given
after due consultation with and participation by the affected community and
before the decision to undertake a given project is made.59 Consent is "informed"
when it is given after receiving all relevant information concerning the project
has been supplied, and the information - including its potential adverse impacts
57 UN
Expert Mechanism Advice No. 2 (2011): Indigenous peoples and the right to participate in
decision-making A/HRC/18/42 paras 20.
58 As above, paras 24-25.
59 UN Declaration on the Rig hts of Indigenous Peoples Article 18. Also see UN Declarati
e f~h.ts
of Indigenous Peoples Articles 32-34; UN H uman Rights Committee 'General Comm
. {~~l~~'Jo'°
(Rights of Minorities)' para 7; UN Committee on Economic, Social and Cultural Righ
r <o-o
No. 21: Right of everyo1Le to tnke pnrt in c11/t11ml life (nrt. 15, parn. 1(n) of tlte Intern/0
<~
1
Economic, Social n11d C11/t11ml Rights)' para 2.
'
•
Atrican Commissi
,\nOrgan of !h<
Afric;:an ( f --,~
31 Bijilo
Union ~;.,,,,¥/
Phone: (
g
42
Human Rights our
Collective Responsibility
on the community - is acc ura te, objective and presented in a form and manner
that is understandable to the community.60
204. Fur thermore, in the decision of the Inter-American Court in the case of Saramaka
People v Suriname, it was held that in cases of:
large-scale developme11 tor investment projects that would have a major impact with Saramaka
territonJ tlte State has n duhj, not only to consult with the Sarnmakas, but also to obtain their
free, prior and informed consent according to their customs and trnditions.61
205. In this case, the Complainants submitted that the Gibe III dam and the Kuraz
sugar projects meet the criterion that the free, prior and informed consent of the
alleged victims must be obtain because the projects w ill have a potentially
substantial or major impact on the affected communities.62 The Complainants
contended that none of the affected indigenous communities have hereditary
chiefs or elected representatives. That decisions are made at meetings attended
by adult males in each community. And that elders are occasionally summoned
to appear before local officials but have no authority to enter agreements on
behalf of their comm unity.
206. The Complainants fu rther submitted that the participation of the indigenous
peoples of the Lower Omo in the consultations on the Gibe III dam project was
not timely because the EEPCO had already concluded the contract to construct
the dam before actual consultations with the people occurred . The Complainants
also submitted that only 93 members of the affected communities participated in
the consultations, which was insufficient to render the consultations effective.
The Complainants fu rther submitted that the information provided to the 93
people who attended the consultations was inadequate as it did not clearly
explain to the people what the assessment of the adverse impact of the dam was
on their sources of livelihood. The Complainants submitted that none of those
interviewed understood what consequences the construction of the dam would
have on their lives and livelihoods.
207. From the Respondent State's account, not only has the government held
consultations with administra tors and elected representatives in the South Omo
Zone, it has in certain cases "spent significant effort to consult practically every
elder and village chief in Selamago Woreda" and other communities in respect of
60 As above.
1-\UMA,~ 4,v
RETAR14 O ,o
r.c,C. - - . r
61 Judgment of 28 November 2007 Inter-Am Ct HR Series C 172 para 134.
62 In support of this proposition, the relied on their earlier arguments summarised/ i "
0
~
97 which are based on the USJ\ID and DFID report.
African ./,. • '
Union
<~\
~
African Commiss'
31 Bij,I0
AnO<yanor!he
~-
s
1.
Phone:
. g
0
~~•~
oa
ACHPR
Human Rights our
Collective Responsibility
African Cornmiss,on on
Human and Peoples' Rigt1ts
the Gibe III and Kuraz projects.63 The Respondent State submitted that the
consultations were organized at the zonal, woreda and kebele levels where
community members were invited to participate in public discussions,
presentations, and question-and-answer sessions with administrators and
representatives of the communities. 64
208. Having considered the nature of the allegation and the serious human rights
concerns that the two projects raise, the Commission notes that the interviews
conducted and cited by the Complainants have no probative value having not
been authenticated nor signed by the interviewees themselves, a person in
authority or other duly au thorised official. More so, the written depositions
supporting these claims suffer from the same evidentiary d eficit having not been
duly endorsed by a notary public or a Commissioner for Oath. As an
international body, the Commission cannot rely merely on the reports of thirdparty bodies or governmental agencies and non-governmental organisations to
come to an informed conclusion.
209. Furthermore, both parties placed substantial reliance on the Final Report of the
Development Assistance Group (DAG) mission to Ethiopia made up of
representatives of the Firn1ish Embassy, the Swedish Embassy, the German
Embassy, the Dutch Embassy, the United Kingd om Department for International
Development, the United Stated Agency for International Development, and the
European Union, all in Addis. The DAG mission rep ort notes that the
Government did not offer communities any alternative but to settle permanently,
and that the focus of consulta tion appears to be an effort to persuade the
communities to go along with this process, rather than debating options. After a
careful consideration of the DAG mission report, the Commission notes that
despite identifying apparent human rights challenges associated with the statedirected resettlement in the South Omo Zone, the Mission "team found no
evidence of forced migration" .65
210. The Commission finds no indication that the peoples of the Lower Omo have
been manifestly denied their right to freely determine their economic and social
development or to participa te in the consultations on the Gibe III dam. While the
Commission agrees with the Complainants on the potential impact of the two
projects on the affected communities, there is neither a direct nor primary piece
of evidence on record to support its claim that the communities were
unrepresented in the consultation processes held by the Respondent State on
63 Respondent's Written Submiss ions on the Merit para 37(D).
64 Respondent's Written Submissions on the Merit para 37(A)-(G).
65 Development Assistance Group Final Report (2014) page 2.
AA Oryan of the
Afri93n (: ~-~
Union
.) /
44
p.CHPIJ
(, r.16~,!:LE,~
curnn
Human Rights our
Collective Responsibility
Human cJnd Peoples· Rights
Gibe III. If anything, the documents and photographic images included in its
Bundle of Documents depict various instances of such consultations. In the
absence of a critical piece of direct evidence from the affected peoples themselves
or other compelling documentary evidence, the Commission is persuaded to give
more weight to the evidence and arguments by the Respondent State, which
show that the p eoples were duly consulted on the Gibe III.
211 . The Commission, however, emphasises that mere consultation with a few village
chiefs, political administrators and traditional representatives, by itself, is
insufficient consultation, if it does not lead to the effective participation of
indigenous communities themselves, including women, persons with disabilities
and the elderly. To not clarify this would invariably permit violating
governments to substitute the international human rights requirement that
indigenous peoples be adequa tely consulted on national policies with the
consultation of a few partisan leaders. In respecting the right to selfdetermination of such communities under the African Charter, governments and
corporate actors, whose business activities have potential adverse human rights
implications on marginalised and vulnerable communities, have an implied
human rights responsibility to ensure that they seek and obtain consent and
broad community support through adequate consultation.
212. In this case, the evidence adduced by both parties shows that the seven affected
peoples have exercised their right to self-determination not just through their
representatives in the SNNPRS and federal governments, but also by directly
participating in the public consultations on the construction of the dam and sugar
factories. The Respondent State emphasises that no one in Ethiopia can be forced
to relocate or reside in p lace where they do not want to.66
213. Based on the evidence before the Commission, there is no indica tion that the
Respondent State has forced the affected communities either to support the Gibe
III dam and the Kuraz projects or to relocate to the villages built under the CDP.
Rather, through direct and indirect consultation, the Respondent State seems to
be working to persuade people to move into the alternative settlements in order
to benefit from basic social services and acquire new farming skills. While there
remains some concerns by the affected communities, they clearly are able to
ventilate those concerns to the Respondent State through the consultation process
or have recourse to the local judicial process.
214. As such, for the claim that the indigenous peoples of the Lower
given an opportunity to give or withhold their free, prior and i
66 Respondent's Written Submission o n the Merit para 52(B).
AnO,yanol th•
- -- - - - - - - - - - - - - - - '4-M---1-Afric an Comm ission
Afric;:an C ~\
Union " .'11
31 Bijilo An
Phone: (2
Em
45
.
-=
ji.CHP'1
~ r16~,!jsE,B
Hurnan Rights our
Collective Responsibility
Human and Peoples· H:qllls
to succeed, the evidence on the record must clearly support the claim. The burden
is on the Complainants to provide direct or first-hand testimony or other primary
piece of evidence in this regard. The evidence must show that the opportunity for
the people to express their right to self-determination either through
participating in the consultation processes or to legally give or w ithhold their
consent to the two projects was non-existent. This, in the Commission's view, is
not the case.
215. In light of the above, the Commission finds that the right to self-determination
under Article 20(1) of the African Charter has not been violated by the
Respondent State.
Alleged v iolation of Arlie/es 21 (1 ) of the Clinrter
216. The Complainants allege that the Gibe III dam project will deprive the Lower
Omo peoples of the annual floods and that the Kuraz Sugar Project has deprived
or will deprive them of the lands converted to sugar cane farms, in breach of the
peoples' right to freely dispose of their natural resources under Article 21(1) of
the African Char ter.
217. Article 21(1) of the African Charter provides that:
All peoples shall freely dispose of their wealth and naturnl resources. This right slzall be
exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
218. The Commission notes generally that, under Article 21(1) of the African Charter,
the term s "wealth" or "natural resources" are not defined. However, in the State
Reporting Guidelines nnd Principles on Articles 21 nnd 24 of the African Charter relating
to the Extractive !11dustries, Human Rights nnd the Environment 2018, the
Commissi on attempts to define both terms as concisely as possible. According to
the Commission :
'Wealth' as used i11 Article 21 of the African Charter refer[s] to a people's tangible and
intangible possessio11s hm 1i11g socio-eco110111ic value, including nnturnl resources; and 'natural
resources' as used i11 Article 21 refer to both the 11on-re11ewnble resources including oil, gas and
minerals a11d renewnble reso11 rces, ta11gible and intangible, including the sun, soil, water, wind,
fa una and flam. Nat11rnl resources t/111s encompass nil assets or materials that constitute the
nnturnl capital of a 11ntio11 .67
219. It is the Complainants' submission that the annual floods of the River Omo are a
" na tural resource" of the Lower Omo peoples as are their traditional
1J.bn
,o
,:::,'j
r,.E.TAR1
.---
1
"'o
-
67 African Commission 'Sin le Report G11ideli11es n11d Pri11ciples 011 Articles 21 and 24 of
relnti11g to the Extractive /11dw, lries, /--/111111111 Rights nnd the £11v iro11111ent' (2018) para 7.
Afric;:an e i.;.~
Union 1/
African Com mission
31 Bij1lo An
AnO,yanottt1e
46
Pho ne: 122
Em
•
~~~
g
http .
prau inVO O a
ACH
PR
·• J
~ C":f \
cwJ.n>
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples· Rigt1ts
Complainants also submitted that their livestock is their "wealth" within the
ambit of Article 21(1) of the African Charter. The Complainants contend that the
loss of the am1ual floods to the Gibe III dam will affect their ability to grow crops
that will sustain them for the greater part of the year and deny the people the
right to "freely" dispose of their natural resources without their free, prior and
informed consent. The Complainants submitted that the Respondent State's
proposal to r~lease annual floods will not cure the breach of Article 21(1) of the
African Charter.
220. The Complainants also submitted that the loss of the peoples' traditional lands to
the Kuraz will also entail the loss of all or most of the Complainants' livestock
which previously grazed on them and w ill have no choice but to sell their cattle.
The Complainants contend that even if the Omo River or the lands allocated to
sugar were regarded in whole or part as the natural resources of the Respondent
State, the denial of access to the River Omo and to lands upon which to graze
their cattle will still have violated the Complainants' rights under Article 21(1) of
the African Charter because of the manner in which the Respondent State has put
its plans into effect. This is because the provision of substituted lands to displaced
members of the affected communities, the Complainant submitted, would
sedentarise the pastoralist communities and justify a violation of Article 21(1) of
the African Charter.
221. The Respondent State su bmitted that the continuation of the annual floods
through midlevel outlets installed on the dam by the EEPCO to allow for
controlled will support continued flood retrea t agricul ture for those who wish to
pursue that practice. The Respondent State also submitted that the Sugar
Corporation did not deprive any of the seven named peoples their wealth or
natural resources because the people have welcomed the projects and consider
them as gateways to hasten development in the South Omo Zone.
222. The Respondent State submitted that the ancient practice of annual flood retreat
agriculture is neither predictable nor provides sustainable food security for the
people, issues which the projects are intended to solve. For those in the South
Omo Zone who wish to continue flood retreat farming, the government argues
that the EEPCO has installed outlets on the Gibe III dam at great cost to allow
those farmers much more secure, regulated, and timely flooding occurrences as
they continue to transition into more sustainable livelihoods.
223. The Respondent State also submitted that the Kuraz project will de WFuiP,9,?t
100,000 hectares rather than the initially proposed 175,000 hect ,~~ ~"'Q.f,!fra'"f\{1,.q £>-\'f
I
C
'U
,
47
Z
.o(-
0
\
cf,
..CHP't
(~ r) 6~,!JE~B
mun;
Human Rights our
Collective Responsibility
Human and Peoples' Rights
sugarcane plantations and establish a total of 4 sugar factories. 68 The Respondent
State re-emphasised that no single individual in the South Zone has been or will
be displaced from his or her home as a result of the sugar development project.
224. Article 21(1) of the African Charter is closely associated with the right to selfdetermination under Article 20(1) of the African Charter. 69 The Commission
agrees with the Complainants that the flood retreats forms part of the water
resources of the Respondent State as well as the Lower Omo peoples. In the
Guidelines 011 the Right to Wn ter in Africa 2019, the Commission observed that
indigenous peoples' access and use of natural resources in their territory are
intrinsically related to their right to life, food, self-determination and the right to
exist as a people.7° Similarly, in the Principles nnd Guidelines on the Implementation
of Economic, Social nnd Cultural Rights in the African Charter on Human and Peoples'
Rights, the Commission declares that:
States parties ILnve n11 obligntion to ensure the free, prior informed consent by indigenous
populations/co111111unities lo nny exploitation of the resources of their traditional lands and that
they benefit nccordingly.71
225. As such, indigenous peoples have a right to participate in the decision to harness
or dispose of their natural resources by the State. The Commission also affirmed
the responsibility of States to ensure natural resource stewardship with and in
the interest of the populations within their jurisdiction and affirmed the
imperative to fulfil this responsibility in conformity with international human
rights standards.72
226. Similarly, in Resolution 224(Ll)2012 on a Human Rights-Based Approach to
Natural Resources Governance, the Commission emphasised the responsibility
of States to take all necessary measures to ensure participation, including the free,
prior and informed consent of communities, in decision making related to natural
resource governance. 73 The Commission noted in that Resolution that States
should ensure that respec t for human rights in all matters of natural resources
68 Respondent's Response to the Complainant's Additional Observations on the Merits para 91.
69 African Commiss ion ' Stnfr Report Guidelines nnd Principles 011 Articles 21 and 24 of the African Charter
relati11g to the Extrnctive !11d11stries, /-111111n11 Rights nnd the £11viro11111enr (2018) paras 22 & 46.
70 African Commission 'G11irfeli11es 011 the Right to Water in Africn' (2019) para 27.
Africa11 Commission 'Pri11ciples n11d Guideli11es Oil the lmpleme11tation of Eco110111ic, Social nnd Cultural
Rights in the Africn11 Chnrter 011 /-11111in11 n11d Peoples' Rights' para 44.
~ 1 11 u,..... 1
0
72 African Commission 'G11irfeli11 es 011 the Right to Wnter i11 Africa' (2019) para 1.
~o~ c f-.ETAJ,,4; D .o,
73 ACHPR/Res.224(LI)2012: Resolution on a Human Rights-Based Approach to ,_,M ural ~""'""'~....ces (-0-<> ~
Governance 51st Ord inary Session 18 April to 2 May 2012 Banjul, The Gambia pa . I .
~71
uJ
An O~J•" of rtie
African Commis
31 Bijilq ~ n
African /" )
Union
O
•
Phone: (
48
.,,
.
..
s
t.
a
g
a
p,.CHP.<t
(1 i) 6.~.!:tEo,~
Human Rights our
Collective Responsibility
Human and Peoples' R1qhts
development, management and governance, in investment agreements
prevails.74
227. As the Commission has previously stated in its jurisprudence, the right to freely
dispose of wealth and natural resources located in ancestral or traditional lands
is also vested in the indigenous populations by virtue of Article 21(1) of the
African Charter. 75 In the case of Social and Economic Rights Acti.on Centre and
Another v Nigeria (Ogoni case), the Commission made it clear that a people
domiciled on a resource-rich territory within a state can claim the protection of
Article 21 of the African Charter. 76
228. Although the Endorois case does provide a useful guide on how the alleged use
of indigenous lands in the public interest can be determined to benefit or not
benefit indigenous p opulations, it is not on all fours with the instant case. This is
because, in that case, the Complainants claimed that they have a right to property
with regard to their ancestral land pursuant to Article 14 of the African Charter.
Hence, the Commission held - relying on persuasive jurisprudence from the
Inter-American Court on Human Rights - that the right to property in Article 14
of the African Charter is linked to the right of indigenous peoples to natural
resources located in ancestral lands. The Com1nission held that for Kenya to be
justified in limiting the rights of the Endorois to Ruby mining on their ancestral
lands, the Government was expected to satisfy the following two-pronged test
that: (a) it was in the interest of public need and the general interest of the
coID1nunity; and (b) it was in accordance with appropriate laws. The Commission
observed that none of these tests had been satisfied by the Respondent in that
case and, as such, found a violation of the rights of the Endorois people under
Articles 14 and 21 of the African Charter. The Commission held that the Endorois
people have a right to freely dispose of their natural resources in consultation
with the Respond ent in tha t case.77
229. In the present case, the Commission notes that the Respondent State has been in
consultations with the seven affected peoples of the Lower Omo. The evidence
before the Commission shows that the Omo people have been participating in
these consultations directly and through their representatives. The evidence
before the Commission also shows that the potential adverse human rights
impacts of these projects have either been avoided or significantly mitigated .
74 ACHPR/ Res.224(LI)2012: Resolulion on a Human Rights-Based Approach to
Governance 51st Ordinary Session 18 April to 2 May 2012 Banjul, The Gambia par
75 (2001) AH RLR 60 (ACHPR 2001) para 58 (Ogo11i case); Endorois case (n 32 above
76 Ogoni case (n 75 above) para 58.
77 Endorois case (n 32 above) paras 267-268.
-
- - - - - ·- --
- - -- --
°
-
~ascHHCJ;\s,
,AR
--+1-fr"-,-,...-t--__.c""-=.:c.__
African Comrr1issi
An °•·gan 1 the
AfriGan(~~
31 Bijilo
Union ~:!I
-......::::::..:..:,;;,,,·
Phone: (2
E
49
https:lachpr.au.inVO O a
,
Human Rights our
Collective Responsibility
Regarding the annual fl oods, the Respondent State has undertaken mitigation
measures to limit the impact of the construction of the dam on the peoples'
annual flood retrea t agriculture by releasing controlled floods periodically. Due
to the construction of the dam, the Respondent State contends that the people are
being taught modern farming techniques and that irrigation from the dam will
help improve the farmi ng practices of the affected communities.
230. With regard to the Kuraz, the Respondent State submits that no grazing land will
be touched and that no one has been evicted from their land. Rather, the projects
have paved the way for acquisition of private holding through the issuance of
landholding certificates for each household resulting in land certificates been
issued to 596 households in Selamago Woreda. 78 The Respondent State submitted
that, under the SNNPRS land law, priority is given to farmers and pastoralists
before lands can be provided to private developers.79 The Respondent State
submitted that there was ample state land that was used for the Kuraz Sugar
project in the South Omo Zone80 and, as such, no land was expropriated. 81 The
Respondent State submitted that the Constitution and Proclamation 455/ 2005 on
Expropriation of Land Holdings for Public Purposes and Payment of
Compensation provide for the processes and conditions that have to be fulfilled
for expropria te to take plan.
231. From the evidence before the Commission, there is no indication that the Omo
peoples are opposed to or have withheld their consent to the dam and the Kuraz
sugar projects. There is also no indication that the mitigation measures adopted
by the Respondent State to ensure that the Omo peoples have access to irrigation
and annual controlled flood are unreasonable, have led or will lead to a loss of
their livelihoods. In their information update to the Commission submitted in
2021, the Complainants acknowledged that the Respondent State had
implemented the controlled flood release but complained that the Respondent
State had only d one so once since the darn started operations in 2016. Regarding
the Kuraz, the Complainants do not dispute that the lands upon which the Kuraz
project has so far been implemented is state lands rather than indigenous
territories.
232. It is for the Complainants to show that the Omo peoples have not freely disposed
of their natural sources and wealth located within the indigenous lands. The
78 Respondent's Response to the Complaina nt's Additional Observations, para 105.
79 SNNPR Proclamation
o I 10/2007 Article 5 ( 15).
80 Respondent's Response to the Complaina nt's Add itio nal Observations, para 106.
81 Ethiopian Constirution
0
..,. e,,ST"li,,q- 0 .1:
7~c;- ,~
Article 40(8); Proclamation 455/2005: Expropriation of Lan
" ldi1
Purposes and Payment of Compensation.
! u
An Oryan of the
African Commi ss
31 Bijilo
African ('· ~
Union .
~
~\
G)
t.
a
Phone: (
4
. rg
50
Human Rights our
Collective Responsibility
evidence presented before the Commission by the Complainants does not
disclose this. Unless there is compelling evidence to show that the Omo peoples
were opposed to the construction of the Gibe III dam and that the lands upon
which the Kuraz has so far been implemented are traditional lands forcefully
acquired by the State, the Commission find s that there has been no violation of
Article 21(1) of the African Charter.
233. In the circumstances, the Commission finds that the Respondent State has not
violated the r ights of the Omo peoples under Article 21(1) of the African Charter.
Alleged violation of Articles 22(1) of the Charter
234. The Complainants allege that the Omo peoples' right to development under
Article 22(1) of the African Charter has been violated as a result of the Respondent
State's failures to conduct a proper impact assessment of the Gibe III dam and the
Kuraz and to seek or obtain their free, prior and informed consent.
235. Article 22(1) of the African Charter provides that:
All peoples slinll have the right to their economic, social and cultural development with due
regnrd to their freedom nnd irie11tihJ and in the equal enjoyment of the common heritage of
mankind.
236. The African Charter is the only binding international human rights instrument of
its kind that recognizes the right to development as a fundamental right of the
collective. In the Endorois case, the Commission noted that the right to
development is two-pronged - that is, it is both constitutive and instrumental, or
useful as both a means and an end. The Commission held that fulfilling only one
of the two prongs or a v iolation of either the procedural or substantive element
of the right will constitute a violation of the right to development under Article
22(1) of the African Charter. 82 By this Commission clarifies that the right to
development is constitutive to the extent that it is recognized and protected by
law; it is instrumental to the extent that it entitles and empowers its holders to be
consulted, to contribute to and participate in decision-making processes
concerning them so that other rights are not violated. In all of this, the freedom
of choice must be present as a part of the right to development. 83
237. Under international human rights law, the right to development is closely
associated with the rights of peoples to self-determination and to freely dispose
\Ul,lAN ,i
cRETM?14 '-'o/
.
~
82 Endoro1s case (n 32 above) para 277.
r
83 Endorois case (n 32 above) para 278. Also see Co mmunication No. 1457 / 2006 - Po, ~ "Po
<'0
11"
. 8
27 Ma rch 2009 para 7.6
! <t
An(),yanoft'><l
Afr.lean fr~,·i;,; '•~-,
Union "-,u1,/.
African Commiss
31 Bijilo
; \
Cl {
~~
D
s
t,
:PS i:
Phone:
n.org
~
~-~
. o oa
Human Rights our
Collective Responsibility
of natural resource. 84 In the United Na tions Declaration on the Right to
Development, this is affirmed in Article 1(2) which provides that:
The human right to develop111e1Lt also implies the full realization of the right of peoples to selfdetermination, which includes, subject to the relevant provisions of both International
Covenan ts on Human Rights, the exercise of their inalienable right to full sovereignhJ over all
their natural wealth anrf resources.
238. Similarly, the Commission notes that Article 23 of the United Nations Declaration
on the Rights of Indigenous Peoples provides as follows:
Indigenous peoples have tlte right to determine and develop priorities and strategies for
exercising their right to dc,oelopment. In particular, indigenous peoples have the right to be
actively involved in developing and determining health, housing and other economic and social
programmes affecting them and, as Jar as possible, to administer such programmes through
their own institutions.
239. In the Endorois case, the Commission cited with approval a Report of the United
Nations expert mechanism on indigenous peoples' rights, which states in relation
to development projects affecting indigenous people that the necessity for free,
prior and informed consent requires that "indigenous peoples are not coerced,
pressured or intimidated in their choices of d evelopment." 85
240. As such, the Commission agrees with the Complainants' submission that the
right to development entitles a community to be consulted prior to a decision that
affects it. The Complainants contend that the consultation must be conducted in
good faith, in a culturally appropriate manner and with the objective of reaching
agreement. The Complainants further submitted that when a large-scale
development is likely to have a major impact on the territory of a particular
community, the State has a responsibility to obtain the community's free, prior
and informed consent to it. And that if the project is allowed to proceed, the State
must ensure mutually acceptable benefit sharing in the exploitation of natural
resources and also improve the capabilities and choices of the affected group
during the process.
241. The Complainants submitted that for the state to execute its responsibility in this
regard, an impact assessment must be carried out before the decision is made
whether to proceed further. The Complainants submitted that by virtue of the
Communication 227/ 99 - Democratic Republic of Congo v B11n111di, Rwn11dn, Uganda, 29
95.
85 Endorois case (n 32 above) para 279. Also see Parshuram Tamang 'A11 Overview of t
Prior and Informed Co11se11t and /11dige1wus Peoples in Intenzatio1wl and Domestic Law a,
84
<<'~
p~~~ 48 (page 12).
Ano,g.,_0 the
i))
African Commission
.
Afnc~an c41u
Union ><,.,,.~
31 BijiloAn
h~ /
Regjiai:i,.,ftl
:P<I
rg
Phone: (22
E
52
ic~
i)i;;.1ii5i;ni'u
D
Human Rights our
Collective Responsibility
Environmental Impact Assessment Proclamation 299 / 2002, an environmental
and social impact assessment (ESIA) approved by the Ethiopian Environmental
Protection Agency was necessary for holding consultations on the two projects.
The Complainants contended that the requisite ESIA for the Gibe III dam was
undertaken two years after construction began, while no assessment was
undertaken for the Kuraz or, if at all, that that information relating thereto was
never made public. The Complainants submitted that construction of the dam
started in 2006 before environmental approval was received two years later in
2008.
242. In response, the Respondent State submitted that Ethiopia is recognized to have
achieved inclusive growth and, as of 2015, was on track to meet most of the
Millennium Development Goals (MDGs). The Respondent State also emphasized
that Ethiopia remained one of the continent's most vulnerable countries. The
Respondent State highlighted that it was in response to the food insecurity faced
by over seven million people and the dependence by most of its citizens on rainfed agriculture amidst increasing draught, that it launched the Growth and
Transformation Plan (GTP). The Respondent State contends that the GTP places
emphasis on ensuring effective public participation in implementation and
monitoring of the Plan. The Respondent State also submitted that the ClimateResilient Green Economy Strategy is also integrated into the GTP.
243. The Respondent State also submitted that one important green resource
identified in the Climate-Resilient Green Economy Strategy that will help the
counh·y reach its energy goal is hydroelectric power. The Respondent State
contends that prior to the construction of the Gibe III dam, the country generated
only 2000MW of electric power for a nation of almost 90 million inhabitants. The
Respondent State submitted that the rural parts of the nation where most
Ethiopians live, only a few households have access to electricity. As such, the
Respondent State contends that it would be shfrking from its responsibility if it
fails to exploit its abundant hydroelectric power resources to achieve poverty
eradication.
244. Responding to the Complainants' submission that the lack of a proper impact
assessment deprived the Omo peoples of the opportunity to give their free, prior
and informed consent, the Respondent State submitted that consultations held
between 2007 and 2008 included consultations on the impact assessment of the
dam before constructed started in 2010. With respect to the Kuraz Sugar project,
the Respondent State submitted that the environmental impact assessment for
t2.0 J.~-Kuraz Sugar Development was finalized in 2012 before the projec
· ' •o"<u
The Respondent Sta te submitted that the study outlined proba
roject and su ges ted mitigatin
~1<•'
u•,
An Oigan of t!lO
African f/
Union
i ts
• • .
a
African Cornm iss
31 Bijilo
·')
Pho ne:
A
__
4
g
53
a
Human Rights our
Collective Responsibility
measures. The process was participatory as the people of the areas concerned and
other stakeholders, including the Nyangatom and Selarnago Woredas found on
the left side of the Omo River and also the people of Bacha, Dime, and Berayle
who live on the left bank of the project area were consulted.
245. In the agricultural sector, the Respondent State submitted that it is implementing
the Agricultural Growth Programme, which was designed to help increase
agricultural productivity and market access for key crops and livestock in 83
districts, including the SNNPRS. The Respondent State submitted that both the
Gibe III dam and Kuraz were borne out of a necessity to end the cycle of poverty
and underdevelopment in Ethiopia and help lead the agricultural transformation
in the country.
246. The Respondent State also submitted that the CDP is a water centered settlement
scheme for people, livestock and crop production, which displaces no one. The
Respondent State claimed that the primary reason for the CDP's existence is to
boost food security and address the difficulties associated with making socioeconomic services available to people who live in highly dispersed settlement,
make agricultural extension work possible, and health facilities, school,
veterinary clinics, flourmills, and water supply more accessible. The Respondent
State submitted that the CDP, w hich is a programme started in 1997 in the
Benishangul regional state and now extended to other pastoralist communities in
Ethiopia, is a purely voluntary programme.
247. The Respondent State further submitted that the Government has also started the
Pastoralist Communities Development Project (PCDP). The PCDP, the
Respondent State submitted seeks to establish effective models of public service
delivery, investment and disaster management in the arid and semi-arid
Ethiopian lowlands that address pastoral communities' priority needs, improve
their livelihoods, alleviate poverty and reduce their vulnerability. The
Respondent State claims that the PCDP follows the principle of community
demand-driven development where the beneficiaries of the project identify their
own needs and contribu tc in cash and kind towards realizing them. And through
the establishment of the Pastoralist Affairs Bureau in the SNNPRS, the
Government is able to focus on issues that affect pastoral and agro-pastoral
communities in the state, improve their lives, address the economic and social
problems that affect them, and unlock their economic potential.
248. The Commission notes that the Ethiopian Constitution expressly~r ;,
~
P .~
the
'U?i1_,,
o~"':'::
right of all its peoples to sustainable development and to be;;( GAf
r
/ 0'
v
f <
"
An Organ of the
African Commi
31 Bi
African rr~ :-.
Union ',/JJ)
hts
rict.
bia
04
.org
54
.
- ~CHP~ _
· _
ACH PR
Human Rights our
Collective Responsibility
African Commission 0•1
Human and Peoples' Riqr1ts
respect to policies and projects affecting their community. 86 The full disclosure of
all information on the impact of the dam and the Kuraz project was essential for
the peoples to exercise their freedom to choose or their free, prior and informed
consent. The Commission notes that the Respondent State held public
consultations with the affected communities between 2006 and 2014, and that
public disclosure was made during those consulta tions and on the web.
However, there is no scintilla of proof to show that there was ever such a
disclosure of the environmental and social impact assessment of the Kuraz Sugar
Project to the people, the public or on the project website. 87
249. Having ruled that the evidence before the Commission does not sufficiently
support the Complainants' allega tion that the Omo p eoples have not been
adequately consulted, the Commission also finds that the evidence in support of
Complainants' case does not establish that the Respondent State had violated the
Omo peoples' right to development in respect of the Gibe III dam. The
Commission finds that the Respondent State made reasonable public disclosure
on the impact of the dam tlu·ough the national and local consultations held with
the people and on the project's website. However, with respect to the Kuraz
project, the Commission finds that there was no public disclosure of the impact
of the project on the peoples' rights, livelihoods and way of life. The absence of
such critical information was fundamental to the peoples' exercise of their free,
prior and informed consent to any development project affecting them.
250. In the circumstances and for the avoidance of doubt, the Commission makes two
findings on this issue. First, that in respect of the Gibe III dam, the Commission
finds that the Respondent State has not violated Article 22(1) of the African
Charter. Second, for the fa ilure to undertake an ESIA or publicly disclose the
report of the ESIA in respect of the Kuraz Sugar Project, the Commission finds
that the Respondent has violated Article 22(1) of the African Charter.
Alleged violation of Articles 24 of the Charter
251. The Complainants allege that the _Respondent State violated Article 24 of the
African Charter because the Respondent State failed to conduct a proper study of
the environmental impact for both Projects to identify the risks the projects pose
to public health.
86 Ethiopian Constitution Article 43.
s7 On this issue, see the observations of the UN High Commissioner for Human Rights dated 2
September 2011; UN Special Ra pporteur on the Rights of Indigenous Peoples - Jame~ f i ,et!_er:
4
Manda te of the Special Rapporteur on the Rig hts of Indige nous Peoples' 22 October,f
Q .f~'tw~ u ,
✓-~
Indigenous (2001-8) ETH 5/ 2012.
AnO,yanol,he
Afriqan (~"I
un!Qn ~-"",;'/
African Commi
ts
31 si
~~~
Phon
04
rg
55
......,_.;;;;;= -:::,,~
a
.,_cHPIJ
(i r) 6~,!J"E,~
Human Rights our
Collective Responsibility
Human and Peop es' R ~hts
252. Article 24 of the African Charter provides that:
All peoples shnll hnve the rigl,t ton genernl sntisfncton; environment favourable to their
develop me11 t.
253. In the Guidelines on the Right to Wnter in Africn, the Commission noted that States
parties should ensure that both state and non-state actors alike respect the rights
of peoples to a satisfactory environment.88
254. Similarly, in the In the Ogoni case, the Commission held that the right of peoples
to a general satisfactory environment not only entails the right of a people to a
clean, safe and healthy environment, but also imposes an implied obligation on
State Parties to take reasonable measures to avoid environmental degradation,
promote conservation and secure an ecologically sustainable development and
use of natural resources. 89 In that case, the Commission observed that
government's compliance with Article 24 of the African Charter:
... must nlso inc/11rie ordering or nt lenst permitting independent scientific monitoring of
threatened environments, req11iri11g nnd publicizing environmental nnd social impact studies
prior to any 111njor inriustrin/ deuelop111ent, undertnking nppropriate monitoring nnd providing
informatiou to those com1111111ities exposed to linzardous materials and activities and providing
meaningful opportunities for inriiviri11nls to be heard and to participate in the development
decisions nffecting their co111111unities.90
255. The Complainants submitted that the Constitution of the Respondent State
recognizes the right of the people to both consultation and expression of their
views in the p lanning and implementation of environmental policies and projects
that affect them directly.91 The Complainants submitted that in breach of both the
African Charter and its Constitution, the Respondent State failed to conduct any
meaningful assessment of the environmental impact of Gibe III or any assessment
at all of the impact of Kuraz.
256. The Complainants submitted that not only will Gibe III end the annual floods,
but that the Omo people will no longer be able to recession cultivate sorghum,
millet, maize, peppers or beans. The Complainants submitted that even if the
people are actually able to use the new irrigation channels, these are likely to be
far less sustainable. The Complainants also submitted that the Gibe III reservoir
will capture vast quantities of water w hich would have otherwise continued 600
88 African Commiss ion 'Gu irleli11es 0 11 tlie Right to Wnter i11 Africn' (2019) para 10 (also paras 3.2, 16.5, 16.9,
30.3 & 33.2).
.
89 Ogoni case (n 75 above) para 52.
,...... "
90 Ogolli case (n 75 above) para 53.
91
Ethiopian Constitution Article 91(3).
AA Qo)jan ot u.,
African (~
Union
African Commis
31 Bijil
':!, D~ rict,
' ~ights
Phon
<W1bta
1~S?04
nFo .org
.a~n oa
56
9'-'<:,
t\)
----=
=-=::, ;.,
~;;)
ACH
PR
Q
1
a um;
Human Rights our
Collective Responsibility
African Commission on
Human and Peoples· R1gt1ts
km down the Omo. This, the Complainants submitted, will result in a reduction
in the volume of water of between 57% and 60% in the river, and eliminate much
of the riverine forest and woodland on which the Complainants are also reliant.
The Complainants also submitted that the water reduction in the Lower Omo will
further reduce or eliminate the peoples' access to the river to water their livestock
and lead to a decline in fish stocks on which the Kwegus, the Nyangatoms and
Daasenachs have traditionally relied.
257. With regard to the Kuraz, the Complainants submitted that the wholesale
conversion of the Omo peoples' territory to sugar cane farms could hardly be
"satisfactory" for the pastoralists because the sugar plantations have made it
virtually impossible for them to pursue their customary way of life. The
Complainants submitted that the public health risks associated with large-scale
irrigation schemes include the increased transmission potential of vector-borne
diseases, and especially malaria, which is already endemic in the lower Omo; the
spread of disease agents such as HIV through the influx of large numbers of
migrant workers, and the contamination of ground and surface water by factory
emissions, fertilizers and crop protection chemicals. The Complainants
submitted that in the Awash Valley, below the Koka High Dam, the pollution of
water resources by pesticides, herbicides and fertilizers used on commercial
farms has been a particular problem for local people who have to use irrigation
canals for all their domestic purposes as well as for watering their livestock. And
that these problems are extremely likely to recur in the Lower Omo.
258. In response to the Complainants' allegations, the Respondent State submitted
that the allega tions are for the most part based on fears and assumptions. The
Respondent State submitted that it has a robust legal and policy framework on
environmental issues that address the rights of its peoples. 92 The Respondent
State submitted th at development activities and projects are carried out in strict
observance of environmental laws and rules, which if violated may be redress in
the courts and through other administrative processes. The Respondent State
submitted that the ESIA study on the dam was transparent, participatory and
reflective of the concerns of the affected communities. The Respondent State
submitted that during the consultation, many of those who participated were
more concerned about the impact of the dam on the floods, their access to water
for their livestock and fishing.
259. The Respondent claims that, in proceeding w ith the construction of the dam, it
adopted two mitigation measures. First is the short-term measur~ of
,t,r/ 0~
: ,, ~•
ON HUl,1,1 -1
✓
92 Ethiopian Constitution Articles 44, 92 & 93; Env ironmental Impact Assessme nt
,i,o"'
Environmental Policy of Ethiopia 2007.
~"",African Commissi
31 Bijilo
An Organ of the
Afriqan ((-~
Unionx,<1!i
Phone:
' Rigtits
~isffic\,
a&'t>fo
____ __
10$p4
n~.org
57
niJO OD
Human Rights our
Collective Responsibility
implementing a seasonal release of controlled fl oods from the dam . Second is the
long-term measure of train ing mem bers of affected communities on more
sustainable irrigation farming for improved yields and livestock production.
These claims are supported by the written declarations of the Respondent's
w itnesses. The Responden t also d ebunked the Complainants' submissions that
th e construction of the dam will lead to a loss of vegetation cover, loss of fishing
and access to the river for livestock was unsupported.
260. In the Ogoni case, the Commission fou nd that the evidence of pollution caused
by oil development on the territories of the Ogonis amounted to a violation of
the people's right to a general satisfactory environment. In the present case, the
Commission is not satisfi ed that the evidence provided by the Complainants
have mad e out a case to show tha t the Respondent State has violated the peoples'
right to a satisfactory environment. There is also no evidence before the
Commission that the developmen t of the Kuraz has affected or w ill affect any
vegetative cover or access to wa ter for their livestock and for fishing in the South
Omo zone. For the right to a general satisfactory environment to be considered
to have been violated, a Com plainant must prove that the existing conditions for
normal life have been substantially upset by the activities of the Respondent or a
third party supported by the Resp ondent. In the absence of any such evidence,
the Commission finds that there has been no violation of Article 24 of the African
Charter.
Decision of the Commission on the Merit
261. In view of the above, the Commission:
(i)
Finds that the Responden t State has not viola ted the provisions of Articles
20(1), 21(1), 22(1) (in respect of Gibe III dam) and 24 of the African Charter.
(ii)
Finds that the Respondent State violated Article 22(1) of the African
Charter in respect of the Kuraz Sugar Project.
(iii)
Requests the Respondent State to conduct an environment, social and
human rights impact assessment study on the Kuraz Sugar Project to
determ ine the potential or actual adverse impacts of the project on the
indigenous peoples of the Lower Omo; or if the report of such a study
already exists, requests that the Respondent State immediately discloses
the report p ublicly and make it d irectly available to the affected peoples
of the Lower O mo and the general public, w ithin n inety (90) days of the
notification of this decision.
-,.1, ,
1
\1 /
1\fC>;:;
<o
-0
~
c.f•
7)
AA (),yan ol th"
African Com~
31 B
Afriqan t V\
Union ".m/1
e~ ~j ghts
rt~ 1strict,
he)3amb1a
Pilon
441 05 04
-union org
58
..._,_:::::;~~""'"
.,nt/0 0 a
. ·:::;~.. ACH PR
•\
..
• African Commission on
Human and Peoples' Flinhts
Human Rights our
Collect ive Responsibility
(iv)
Requests the Respondent State to inform the Commission within onehundred and eighty (180) days of being notified of this decision, the
measures taken to implement the present decision in accordance with
Rule 112(2) of the Rules of Procedure of the Commission 2010.
Done in Banjul, The Gambia, from 19 July-2 August 2022during the 72nd Ordinary
Session of the African Commission on Human and Peoples' Rights held from 19
July to 2 August 2022.
African Commis
31 Bijil
ts
Phone:
. rg
59