Communication 341/2007 - Equality Now and Ethiopian Women Lawyers
Association (EWLA) v. Federal Republic of Ethiopia
SUMMARY OF THE COMPLAINT
1.
The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received the Complaint from Equality Now and Ethiopian Women
Lawyers Association (EWLA) (hereinafter collectively referred to as the
"Complainants") on behalf of Woineshet Zebene Negash, against the Federal
Republic of Ethiopia (the Respondent State).
2.
The Complaint is submitted pursuant to Articles 55 and 56, read with rule 102 of
the Rules of Procedure of the African Commission on Human and Peoples' Rights,
1998.
3.
The Complainants allege that on 12 March 2001, a man named Aberew Jemma
Negussie (hereinafter, "Aberew") came to the residence of Woineshet Zebene
Negash (hereinafter "Woineshet") then aged 13, and together with several
accomplices, abducted her and raped her. The abduction was reported to the police
who rescued her and arrested Aberew. They state that the police who rescued her
testified to seeing blood on the pyjamas she was still wearing since her abduction.
They allege that a medical report also showed many scratches and bruises around
her vagina and confirmed that penetration had taken place.
4.
The Complainants allege that Aberew was later freed on bail, after which he once
again abducted Woineshet again and hid her in his brother's house. She was held
there for a month and was forced to sign a marriage contract. The Complainants
allege that a month later, she managed to escape and ran to a police station. The
Complainants state that on 22 July 2003, Aberew was sentenced to 10 years
imprisonment without parole and his four accomplices were each convicted of
abduction and sentenced to 8 years imprisonment, by the Guna Woreda Court. The
Complainants added that during the trial, a police officer who provided witness
testimony attested that Aberew admitted to having abducted Woineshet.
5.
The Complainants state that Aberew and his accomplices lodged an appeal, and
that on 4 December 2003, the High Court of the Arsi Zone, sitting on appeal
quashed the decision of the lower court on the basis that the "evidence suggests
that the act was consensual", and released the five men from prison. They also
allege that neither Woineshet nor the Ethiopian Women Lawyers Association who
were providing her with legal advice, were present at the hearing or informed;©!^
the appeal.
au-ua,
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Communication 341/07 - Equality Now v Ethiopia
6.
Furthermore, the Complainants state that from the judgement, it is shown that
instead of supporting Woneishet's case, the Zonal Prosecutor recommended that
the verdict of the lower court be reversed, and stated that he had no objection if the
defendants were set free.
7.
The Complainants claim that upon a further appeal made by the Complainants
against the ruling of the High Court on 3 December 2004, the Oromia Supreme
Court held that there were not sufficient grounds to reconsider the case and
dismissed the appeal. This, the Complainants say, was later reviewed by the
Cassation Bench of the Oromia Supreme Court on 10 October 2005, which held that
there had been no fundamental error of the law in the case.
8.
The Complainants further allege that a final appeal made to the Cassation Bench of
the Federal Supreme Court by the Oromia Prosecutor's office was rejected by the
Federal Cassation Court on 12 January 2006, on the basis that it had no jurisdiction
to hear the case because no error of law had been committed.
9.
The Complainants further state that there was no further avenue of domestic appeal
for the Victim, and that the Government had failed in its obligation under the
African Charter to provide her (Woineshet) equal protection of the law and respect
for her rights to security of person, dignity and freedom from cruel, inhuman or
degrading treatment, as evidenced by the Ethiopian courts.
10.
The Complainants allege that under Ethiopian law, if a person is forced to enter a
contract against her or his will, that contract is rendered invalid. They state that
apart from the Complainant being forced to sign the marriage contract, she was
below the legal age for marriage in Ethiopia.
11.
The Complainants argue that due to the above mentioned facts, the rights of
Woineshet which are guaranteed by the African Charter have been violated by the
government of Ethiopia. They allege that there is a violation of Articles 3, 4, 5, 6,
and 18(3) of the African Charter, and Article 24(3) of the Convention on the Rights
of a Child.
12.
The Complainants argue that under Article 589 of the Ethiopian Penal Code, the
rape of a child under fifteen year of age was punishable by imprisonment of up to
fifteen years, and yet courts in Ethiopia denied justice to the Victim and failed
under international law to provide equal protection of the law.
13.
The Complainants aver that by failing to impose any sanction on those responsible
for the abduction and rape of a 13 year old girl, the Respondent Sfafe \
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Communication 341/07 - Equality Now v Ethiopia
violation of its obligations to provide equal protection of the law, protection from
discrimination against women, as well as the right to the integrity and security of
the person as guaranteed by the African Charter.
ARTICLES ALLEGED TO HAVE BEEN VIOLATED
14.
The Complainants allege violations of Articles 3, 4, 5, 6 and 18(3) of the African
Charter by the Respondent State.
PRAYERS OF THE COMPLAINANT
15.
The Complainants request the African Commission on Human and Peoples' Rights
(the Commission) to:
(i)
Give recourse to Woineshet under the Charter for the violation of her rights,
and to ensure equal protection of the law, and end discrimination for girls
subjected to abduction and rape in the Respondent State;
(ii)
Request the Respondent State to mandate comprehensive training in human
rights for all law enforcement officials, including all levels of the judiciary,
on the law against rape in Ethiopia and to take appropriate remedial action
in this case;
(iii)
Award compensation to Woineshet for the violations she has endured
because of the Respondent State's failure to provide equal protection of the
law, protection from cruel, inhuman or degrading treatment, and protection
from discrimination against women, as well as the right to the integrity and
security of the person guaranteed by the African Charter; and
(iv)
Request the Respondent State to file charges against Aberew, as indicated in
its submissions to the Commission.
THE PROCEDURE
16.
The present Complaint was received by the Secretariat of the African Commission
on 16th May 2007, and the Commission became seized of the same at its 41st
Ordinary Session, held from 16th - 30th May 2007, in Accra, Ghana.
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Communication 341/07 - Equality Now v Ethiopia
17.
On 18 July 2007, the Secretariat of the Commission informed the Respondent State
of the Seizure decision, and requested it to forward its written submissions on
Admissibility within two months from the date of notification.
18.
On 20 July 2007, the Secretariat of the Commission also informed the Complainants
of the Seizure decision, and requested them to forward their written submissions on
Admissibility within two months from the date of notification.
19.
On 10 October 2007 and 29 October 2007 respectively, the Secretariat received the
Complainants' and Respondent State's submissions on Admissibility.
20.
At the 42nd Ordinary Session of the Commission, held from 15-28 November 2007,
in Brazzaville, Congo, the Secretariat gave each party's Admissibility brief to the
other party.
21.
On 5 December 2007, the Complainants acknowledged receipt of the Admissibility
brief submitted by the Respondent State, and on 8 February 2008, they submitted
additional comments in response to the Admissibility brief by the State.
22.
On 10 May 2008, during the 43rd Ordinary Session of the Commission, the
Complainants informed the Secretariat of the Commission that the Respondent
State wanted an amicable settlement of the matter; and on 13 May 2008, during the
said Session, both the Complainant and the Respondent met in the presence of the
Secretariat to discuss the terms of the amicable settlement.
23.
Further to a request from the Complainants, the Secretariat and Commissioner
Rapporteur for the Communication convened meetings of the Parties and the
Victim, on 17 and 18 November 2008, during the 44th Ordinary Session of the
Commission, and requested the Parties to provide an update regarding the
amicable settlement. Following this meeting, it was agreed that the Respondent
State would provide an update about the situation of the case.
24.
On 26 November 2008, the Complainants informed the Secretariat of the
Commission that no progress had been made in reaching an amicable settlement,
despite efforts to dialogue with the Respondent State.
25.
On 23 January 2009, the Secretariat of the Commission requested for an update on
the amicable settlement process.
26.
On 28 January 2009, the Secretariat of the Commission received a correspondence
from the Complainants, addressed to the Respondent State, stating that contrary to
the submission by the Respondent State to the Commission that the '/'amicable
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Communication 341 /07 - Equality Now v Ethiopia
settlement [was] progressing in a satisfactory manner", there was a lack of progress
in reaching an amicable settlement. The Complainants also indicated that they had
never received any formal written response from the Government addressing the
conditions that were expected to be met in an amicable settlement, and called upon
the Respondent State to complete addressing the terms of settlement and provide
written confirmation of this, backed by documentary evidence, by 1 April 2009.
27.
Between 01 April 2009 and 21 April 2009, the Secretariat received correspondences
that were exchanged by both Parties, indicating that the Parties held a meeting
regarding the amicable settlement on 09 April 2009, and that the Complainants
were not satisfied that the Respondent State had taken any concrete steps towards
meeting the terms of the amicable settlement.
28.
On 13 November 2009, the Complainants provided an update to the Secretariat of
the Commission regarding the steps taken by the Respondent State in meeting the
terms of the amicable settlement, indicating that these efforts did not sufficiently
meet their requests and that a settlement had not been finalized despite their
frequent writings to and meetings with the Respondent State. The Complainants
therefore requested the Commission to use its good offices to facilitate and finalize
an amicable settlement during the 46th Ordinary Session of the Commission.
29.
On 17 November 2009, a meeting of the Parties was facilitated by the Commissioner
Rapporteur for the Communication, following which: (i) on 18 November 2009, the
Complainants elaborated the key issues for consideration by the Commissioner
Rapporteur, to charter an amicable settlement in the matter; and (ii) the Respondent
State agreed to respond to the terms of settlement by May 2010.
30.
Between 22 April 2010 and 24 August 2010, the Complaints informed the
Commission that they had failed to reach an amicable settlement with the
Respondent State, and therefore requested the Commission to advise them on the
next course-of-action, as well as to re-open the matter on Admissibility.
31.
On 7 September, 2011, the Victim informed the Secretariat of the Commission that
she no longer wished to be represented by EWLA.
32.
During the 50th Ordinary Session of the Commission which held from 24 October
to 7 November 2011, the Respondent State gave a copy of a correspondence to each
of the Secretariat and the Complainants indicating that: (i) the Respondent State
was constructing a house for the Victim which would be handed over to her by 27
October, 2010; the Victim had left the job which the Respondent State had ol
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Communication 341/07 - Equality Now v Ethiopia
her; and the Respondent State had initiated a case to take disciplinary measures
against the prosecutors who committed fault in the trial process of the case.
33.
On 5 October, 2012, the Complainants requested the Commission to proceed to
determine the Admissibility of the Communication. On 15 November 2012, the
Secretariat informed the Respondent State of the request from the Complainants
that the matter should proceed to Admissibility, and on the same date, it
acknowledged receipt of the Complainants' request, and also informed the latter
that the Respondent State had been duly informed.
34.
The Secretariat received further Admissibility submissions from the Complainants
dated 15 January 2013, receipt of which was acknowledged on 5 April 2013. On the
same date, the Secretariat transmitted the Complainants' Admissibility submissions
to the Respondent State, requesting the latter to submit on the Admissibility of the
matter within two months of the notification, in accordance with Rule 105(2) of the
Rules of Procedure of the Commission (2010).
35.
On 26 April 2013, the Complainants requested the Secretariat to provide an update
on the matter, and on 31 May 2013, the Secretariat informed the Complainants that
their Admissibility submissions had been sent to the Respondent State, and once
again requested the Respondent State to submit on the Admissibility of the
Communication.
36.
On 13 September 2013, the Complainants requested the Commission to provide
information as to whether the Respondent State had sent in its Admissibility
submission, and that if not, the Commission should apply Rule 105(2) of its Rules of
Procedure, and proceed to make a determination on Admissibility.
37.
At its 15th Extra-Ordinary Session, held from 7 to 14 March 2014, in Banjul, The
Gambia, the Commission considered the Admissibility of the Communication and
declared the same admissible.
38.
On 17 March, 2014, the Secretariat informed the Complainant and the Respondent
State, respectively, of the decision on Admissibility, and the Complainant was
requested to forward its arguments on the Merits within sixty (60) days of
notification, in accordance with Rule 108 (1) of the Commission's Rules of
Procedure.
39.
On 15 May 2014, the Secretariat received the Complainant's submissions onjhe
Merits of the Communication, which was duly acknowledged and transmit
the Respondent State on 26 May 2014. The State was also requested to forward
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Communication 341/07 - Equality Now v Ethiopia
written submissions on the Merits and/or observations on the Complainant's
submission within sixty (60) days of notification, in accordance with Rule 108 (1) of
the Commission's Rules of Procedure.
40.
On 06 August 2014, the Secretariat received the submissions on the Merits of the
Communication by the Respondent State, dated 27 July, 2014, which was duly
acknowledged and transmitted to the Complainant on 18 September 2014. On 14
October 2014, the Complainant forwarded its additional submissions on the Merits
of the case in response to the submissions of the Respondent State.
41.
On 10 October 2014, the Secretariat received a letter from the Victim - Woineshet,
regarding the Communication and her representation before the Commission by
Equalitv Now, receipt of which was dulv acknowledged.
42.
On 10 March 2015, the Secretariat informed the Complainant and the Respondent
State, respectively that at its 17th Extra-Ordinary Session held from 19 to 28
February 2015, the Commission decided to defer the consideration of the
Communication to a later Session due to time constraints.
Amicable Settlement of the Matter
43.
As set out above, at the 43rd Ordinary Session of the Commission, the Parties
expressed the desire to resolve the issues amicably. Consequently, the Commission
lent its good offices through one of its members to facilitate the amicable settlement
process, which was indicated to have finally broken down, on 05 October 2012.
Following repeated requests from the Complainants to have the matter re-opened
for Admissibility on the ground that the Respondent State had reneged on all its
promises, to which the Respondent State has not provided any response, the
Commission concludes that the amicable settlement of the Communication has
failed for reasons that the State has failed to honour its undertakings, and would
thus now proceed to examine the Communication on Admissibility.
ADMISIBILITY
Initial Submissions of the Complainants on Admissibility
44.
The Complainants submit that the Respondent State has failed in its obligation
under the Charter to provide the Victim equal protection of the law and respect for
her rights to security of person, dignity and freedom from cruel, inhuman t
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Communication 341/07 - Equality Now v Ethiopia
degrading treatment, as evidenced by the conduct of the zonal prosecutor and by
the judicial responses to her allegations of abduction and arranged marriage allegations substantiated by the trial court of first instance.
45.
They argue that the High Court of the Arsi Zone overturned the trial court's
findings of rape on the basis of consents, suggesting that a thirteen year-old girl can
legally consent to sexual intercourse and marriage. They state that in finding that
there was no error of law in overturning a rape conviction on this basis, the Federal
Supreme Court has sanctioned statutory rape and child marriage in Ethiopia at the
highest level, in violation of the State Party's obligations under international law,
including Articles 3, 4, 5, 6 and 18(3) of the Charter.
46.
The Complainants argue that domestic remedies were exhausted as there were no
further domestic legal proceedings that could have been undertaken by the Victim
once her case was denied a hearing by the highest court of appeal, which is the
Cassation Bench of the Federal Supreme Court. Moreover, they argue that the
Complainants were in frequent communication with officials from the Ministry of
Justice and the Justice Bureau of Oromiya throughout the appeal of the case,
including the Cassation Bench of the Federal Supreme Court, which specifically
informed them that no further avenues of appeal were available in the case.
Admissibility Submissions by the Respondent State
47.
The Respondent State argues that the case was originally instituted against six
defendants including the principal defendant, Aberew, whom the Guna Wereda
Court found guilty of the alleged crimes and for violating Articles 32(1) (a) and 571
of the 1957 Penal Code for violation of privacy of domicile, and Articles 32(1) (a)
and 558 of the Penal Code for committing the crime of abduction. A third count was
separately instituted against Aberew for committing rape against Woineshet in
violation of Article 589 of the Penal Code. Aberew was sentenced to ten years of
hard labor, and the remaining defendants were also found guilty of violating
provisions of Articles 571, 558 and 589 as accomplices, and each sentenced to eight
years in prison, by the Guna Woreda Court.
48.
The Respondent State avers that Aberew and his accomplices lodged an appeal,
and that on 4 December 2003, the High Court of the Arsi Zone, sitting on appeal
quashed the decision of the lower court and released the six men from prison on the
grounds, inter alia, that the prosecution did not prove the case beyond reasonable
doubt and that the victim had consented to sexual solicitations from one of the
defendants, being Aberew.
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Communication 341/07 - Equality Now v Ethiopia
49.
The Respondent State submits that the Public Prosecutor appealed to the Oromiya
Supreme Court, which is the highest Court at the regional level, which rejected the
appeal on the ground that there were no legal and factual reasons for entertaining
the same; and subsequently, to the Cassation Bench of the Oromiya Supreme Court,
alleging that there was an error in law in the decisions of the lower Court, but that
the Cassation Bench of the Oromiya Supreme Court also rejected this appeal.
50.
The Respondent State also submits that the Public Prosecutor made a final appeal
based on an error of law to the Cassation Bench of the Federal Supreme Court,
which is the highest judicial organ in the country but unfortunately, the latter also
upheld the 4th December 1998 decision, and acquitted the defendants.
51.
The Respondent State avers that still dissatisfied with the judgments of the
judiciary, the Oromiya Justice Bureau decided to institute a different criminal
charge against the principal offender, for violation of Article 595 (1) of the Penal
Code. The Respondent State argues that the Arsi Zonal Justice Bureau of the
Oromiya Regional State, although it failed to prove the case on the rape count, is
pressing criminal charges against the offender as per Article 595 (1) of the Penal
Code, for commission of sexual outrage on infants between 15 and 18 years of age,
who are assumed to be incapable of giving free and full consent to sexual
intercourse. It says that the case is still pending before the Criminal Bench of the
Arsi Zonal Court, and argues that the prosecution has been relentless in trying to
affirm justice.
52.
The Respondent State, thus, wants the matter dismissed by the Commission for
non-exhaustion of local remedies. It argues that the appropriate judicial organs in
Ethiopia are still entertaining the case and that it is clear that local remedies have
not been exhausted. It states that the Complainants do not have locus standi to
bring the Communication to the Commission, and that entertaining it might
interfere with the jurisdictional sovereignty of Ethiopia and result in contradictory
decisions, which would have undesirable effects.
53.
The Respondent State further avers that the Complainants have failed to comply
with the requirement of the Commission's 'Guidelines on the Submission of
Communications', wherein Applicants are expected to attach copies of Court
judgments and other relevant documents.
54.
It further avers that the Government is doing its utmost, within available resources,
to raise awareness of the general public, the judicial organs, as well as the law
enforcement bodies, regarding the rights of women and girls in Ethiopia; and that
c e
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Communication 341/07 - Equality Now v Ethiopia
tireless efforts are being made to ensure equal protection of women with men as per
the African Charter. It therefore requests the Commission to dismiss the matter.
Additional Submissions of the Complainants on Admissibility
55.
In response to the arguments of the State, the Complainants submit that domestic
remedies were exhausted once the Victim's case was denied by the highest Court of
Appeal, which is the Cassation Bench of the Federal Supreme Court. They state that
the initiation of new legal proceedings against the principal suspects as an
alternative means of punitive measures against Aberew - has no bearing on the
issue of exhaustion of domestic remedies by Woineshet, as she had exhausted all
domestic remedies available to her prior to filing the Communication with the
Commission. They state that any new proceedings by the Government, which to
date have not commenced, do not negate this fact and should be considered in the
context of a review on the merits.
56.
The Complainants further submit that the fact that the case of Woineshet on the
charges of her abduction and rape by Aberew went up to the highest court, the
Federal Supreme Court's Cassation bench, which declined to hear the matter, was
not disputed by the Respondent State. They also state that there are no further
remedies under Ethiopian law that can be exercised by the Victim, and that she has
no legal right to seek further action by the Government against Aberew.
57.
Whilst the Complainants appreciate and applaud the efforts that have since been
made by the Respondent State to protect and promote the human rights of women
in Ethiopia, including through the amendment of the Ethiopian Constitution and
the ratification of international and regional human rights instruments, they
maintain that the protection offered by the laws and standards to which the
Respondent State is bound was not extended to Woineshet, that the Courts did not
correctly implement the law and that the legal system therefore failed to provide to
Woineshet the legal protection to which she was entitled.
58.
They further aver that the Government's submission itself implicitly recognizes this
failure in highlighting the dissatisfaction of the Justice Bureau of Oromiya with the
judgments, and by indicating its intention to bring a charge of statutory rape
against Aberew.
59.
In response to the Respondent State's contention in its submission of October 2007,
that it had initiated a new case against Aberew, which was allegedly pending as at
the time of the State's submission in 2007, the Complainants, in rebuttal,
follows:
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Communication 341/07 - Equality Now v Ethiopia
(i)
In an interview with the Africa Regional Director of Equality Now on 9
January 2008, the Head of the Justice Bureau of Oromiya stated that no new
charges had been filed by the Arsi Zone Prosecutors office against Aberew,
and to date no one has been charged and no case pending;
(ii)
The Respondent State's own submission states that the Justice Bureau of
Oromiya wrote to the Arsi Zonal Justice Department on 10 October 2007,
regarding the institution of a further charge against Aberew - nearly two
years after the Cassation Bench of the Federal Supreme Court gave its final
decision, and almost three months after the Respondent State received notice
of the Communication before the Commission;
(iii)
This is not a procedure within the powers of the Victim - Woineshet to
pursue or not to pursue and it is not an effective remedy within the meaning
of Article 56 (5) of the African Charter; and
(iv)
There has been undue delay in bringing the perpetrators to justice since
Woineshet was raped nearly "seven " years ago when she was only 13 years
old.
60.
The Complainants further argue that they were in frequent communication with
officials from the Ministry of Justice and the Justice Bureau of Oromiya throughout
the appeal of the case, including the Cassation Bench of the Federal Supreme Court,
who specifically informed them that no further avenues of appeal were available in
the case.
61.
They therefore contend that the initiation of new legal proceedings might be
considered by the Respondent State as an alternative means of applying punitive
measures to the perpetrator for the violation suffered by Woineshet, so as to correct
the miscarriage of justice acknowledged in its submissions; but however, that, such
proceedings have no bearing on the issue of whether Woineshet exhausted
domestic remedies prior to filing a communication with the Commission.
62.
Furthermore, the Complainants note that the Respondent State's submission
indicates that the criminal charge against Aberew would be for violation of the
provisions of Article 595 (1) of the Penal Code [of 1957], which stipulates that:
"Whosoever has sexual intercourse or performs an analogous act with a minor of
the opposite sex of more than fifteen and of less than eighteen years of age is
punishable with simple imprisonment".
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Communication 341/07 - Equality Now v Ethiopia
63.
They argue that the Victim was 13 years old at the time of the rape, as indicated: in
the decision of the Guna Court of 15 July 2003 (Ethiopian Calendar, 9 July 1995),
which stated her age as 15 years old when she gave testimony two years after the
offence was committed; and her school record, which states she was 14 years old at
the end of the academic year 2002 (Ethiopian Calendar, 1994).
64.
Therefore, they aver that, if the Respondent State were to charge Aberew, he should
be charged under Article 594(1) of the Ethiopian Penal Code which deals with
sexual outrage on infants or young persons, which provides that: "Whosoever
causes an infant or young person under fifteen years of age, other than his own
child, to have sexual intercourse, or to perform an act corresponding to the sexual
act, with him, is punishable with rigorous imprisonment not exceeding five years";
as the offence relevant to her case. The Complainants state that they are puzzled as
to why the Justice Bureau of Oromiya is considering a charge against Aberew that
does not fit the facts and which carries a lesser penalty.
65.
The Complainants, on 15 January 2013 made further submissions on Admissibility.
In the same, they argue that the Communication fulfills all seven requirements
stipulated in Article 56 of the African Charter, and also attached Exhibits A and B ,
which they argue, satisfy all the requirements for Admissibility.
66.
In terms of Articles 56(2) and 56(3), the Complainants submit respectively, that, the
Communication raises prima facie violation of the Charter, and that the
Communication is not written in disparaging or insulting language directed at the
Respondent State.
67.
In terms of Article 56(5), the Complainants submit that the Communication was
sent after exhausting local remedies. They state that copies of all referenced Court
proceedings and judgments were attached to the original Communication, and
consequently argue that they have no further avenue of domestic appeal to pursue.
They also state that this fact was not disputed by the Respondent State in its
submission on Admissibility.
68.
On Article 56(6), the Complainants submit that the Communication was submitted
within a reasonable period from the time local remedies were exhausted. They aver
that the Complainant's appeal was rejected by the Cassation Bench of the Federal
Supreme Court on 12 January 2006 and that they submitted to the Commission in
May 2007. In explaining the timeline between the exhaustion of domestic remedies
and the filing of the Communication, they state that upon receiving the decision of
the Cassation Bench of the Federal Supreme Court, they applied for an official copy
of the decision in preparation for submission to the Commission, and that it.took
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Communication 341/07 - Equality Now v Ethiopia
over six months to get the same. They also stated that while awaiting the official
copy of the said decision, they hired a local lawyer to collect all official Court
decisions from all the relevant Courts that heard this matter, including the Guna
Woreda Court, the Arsi Zone High Court, and the Oromiya Supreme Court whose
language of instruction is Oromiya. They state that getting all the official records in
all these Courts took time due to Government bureaucracy.
69.
Furthermore, the Complainants submit that once these documents were received
towards the end of 2006, they had to be officially translated from Oromiya and
Amharic into English, for purposes of analysis and presentation to the Commission.
They argue that given the circumstances mentioned above, the Communication was
filed before the Commission within reasonable time, and also that they have
subsequently met all deadlines for submissions since the filing of the
Communication.
70.
In terms of Article 56(7), the Complainants submit that the Communication does
not deal with a case involving the Respondent State that has already been settled in
accordance with the principles of the United Nations or the Charter of the OAU or
the African Charter, and also that the Communication has not been brought before
another international or regional mechanism for consideration.
71.
The Complainants submit that in 2008, at the request of the Respondent State, the
Commission facilitated an amicable settlement between the Parties, whereupon the
Complainants, on behalf of the Victim, raised concerns and conditions for
settlement.
They state however that despite several discussions and
communications on behalf of the Victim over a period of five years, the Respondent
State failed to meet the conditions laid out for settlement, and in fact failed to
respond in writing to the Complainants' concerns. They therefore requested the
African Commission to make a determination on the Admissibility of the matter.
THE AFRICAN COMMISSION'S ANALYSIS ON ADMISSIBILITY
72.
The Admissibility of Communications submitted before the African Commission in
accordance with Article 55 of the Charter, is governed by the requirements of
Article 56 of the same Charter, which sets out seven conditions which must be
cumulatively complied with, for any Communication to be Admissible. Failure to
satisfy any one or more of the above requirements renders the Communication
inadmissible, unless the Complainant provides sufficient justifications as to why
any of the requirements could not be met.
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Communication 341 /07 - Equality Now v Ethiopia
73.
The Complainants submit that all of the requirements of Article 56 have been met,
while the Respondent State on the other hand, contests the Admissibility of the
Communication on the basis that it does not meet the requirement of Articles 56 (5).
74.
Upon careful examination of the facts and submissions by the Parties, the
Commission considers that other than the contested Article 56 (5), the other
requirements for Admissibility set out in Article 56 of the African Charter have
been adequately substantiated, raise no potentially contentious issues and require
no further examination. Accordingly, the Commission's analysis will focus on the
examination of only that contentious provision.
75.
Articles 56 (5) provides that Communications should be 'sent after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly prolonged'.
76.
This requirement is premised on the principle that "the respondent state must first
have an opportunity to redress by its own means within the framework of its own
domestic legal system, the wrong alleged to have been done to the individual" ,
before the matter is brought before an international treaty body. This provision also
enables the Commission to avoid playing the role of a court of first instance, a role
that it cannot under any circumstances arrogate to itself.
77.
In its jurisprudence, the African Commission has articulated a framework for
allocating the burden of proof between Complainants and Respondent States, by
holding that, the initial burden to prove the availability of effective and sufficient
remedies within its legal system rests on the Respondent State. Only once this
burden of proof has been met does the petitioner have to establish that the local
remedy "was in fact exhausted or for some reason inadequate or ineffective in the
particular circumstances."
78.
Furthermore, in its jurisprudence, the Commission has held that where a State
Party fails to submit its observations in accordance with the Rules of Procedure, the
Commission has no option but to proceed to consider Communications on the basis
of the submission of the complainant(s) and the information at its disposal. In this
regard, the Commission notes that the Respondent State has not reacted to the new
Admissibility submission of the Complainants , and would therefore, with respect
to the Respondent State, rely only on its October 2007 Admissibility brief and its
oral submission to the 43rd Ordinary Session of the Commission.
79.
The Commission recalls that it has expounded on the principle of exhaustion of
domestic remedies in its jurisprudence and has held that "the generally accepted
meaning of local remedies, which must be exhausted prior U
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Communication 341/07 - Equality Now v Ethiopia
communication/complaint procedure before the African Commission, are the
ordinary remedies of common law that exist in jurisdictions and normally
accessible to people seeking justice" , and that "the internal remedy [to] which
article 56(5) refers entails remedy sought from courts of a judicial nature..."
Furthermore, the Commission's Information Sheet No. 3 , also states that "[t]he
author [of a Communication] must have taken the matter to all the available
domestic legal remedies. That is, he or she must have taken the case to the highest
court of the land."
80.
The Commission further recalls its jurisprudence that in order for the rule of
exhaustion of local remedies to apply, remedies in the Respondent State must be
available, effective and sufficient. A "remedy is considered available if the
petitioner can pursue it without impediment; it is deemed effective if it offers a
prospect of success, and it is found sufficient if it is capable of redressing the
complaint".
81.
On their part, the Complainants argue and the Commission agrees, that the case of
Woineshet went up to the highest court in the Respondent State - the Federal
Supreme Court's Cassation bench, which declined to hear the matter. This fact has
not been disputed by the Respondent State. Indeed, the Commission notes that the
Respondent State, in its own submission, avers that the Federal Supreme Court's
Cassation bench is "the final judicial body in the hierarchy of the Ethiopian judicial
system".
82.
The Commission also agrees with the contention of the Complainants that the
initiation of new legal proceedings against against Aberew, has no bearing on the
issue of exhaustion of domestic remedies by Woineshet, prior to filing the
Communication with the Commission, on the basis that the Respondent State's own
submission states that the Justice Bureau of Oromiya wrote to the Arsi Zonal Justice
Department on 10 October 2007 regarding the institution of the further charge
against Aberew - almost three months after the Respondent State received
notification of the Communication before the Commission.
83.
Furthermore, the Commission observes that the Respondent State has also not
denied the contention by the Complainants that there are no further remedies
under Ethiopian law that can be exercised by Woineshet, and that she has no legal
right to seek further action by the Government of the Respondent State against
Aberew. To this end, the Commission holds the view that the steps taken by the
Complainants constitute exhaustion of domestic remedies, as the alleged
discretionary procedure of initiating a new charge of statutory rape against Abefoew
by the Arsi Zone Prosecutor's office is not within the power of the Victim to pursi
^'CA!N?.^'
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Communication 341/07 - Equality Now v Ethiopia
or not to pursue, and thus could not be termed as an effective remedy for her
within the meaning of Article 56 (5) of the Charter. In this regard, the Commission
refers to its position in Laiv Offices of Ghazi Suleiman vs. Sudan where it held that the
domestic remedies, contemplated by Article 56(5) are of a judicial nature, effective
and are not subordinate to the discretionary power of the public authorities.
84.
The Commission has also held that a "remedy is considered available if the
petitioner can pursue it without impediment" , and can make use of it in the
circumstances of his case. It has also stressed that, remedies, the availability of
which is not evident, cannot be invoked by the State to the detriment of the
complainant ..." ; and that the existence of a remedy must be sufficiently certain,
not in theory but also in practice, failing which, it will lack the requisite accessibility
and effectiveness.
85.
The alleged discretionary procedure of initiating a new charge of statutory rape
against Aberew by the Arsi Zone Prosecutor's office, would therefore in view of the
Commission, not satisfy the requirements of "availability", as contemplated under
Article 56(5) of the Charter.
86.
On the basis of the foregoing, the Commission is persuaded to conclude that the
Respondent State has not discharged the burden of proof that the Complainants
have adequate and effective remedies that have not been exhausted. Rather, the
Commission finds that: there are no such available and effective remedies, as the
Complainants' appeals, even to the highest courts of Ethiopia, have been denied;
and the remedy which the Respondent State contends to exist, is a discretionary
one, which is outside of the nature of remedies contemplated by Article 56(5).
87.
In view of the foregoing, the Commission declares this Communication admissible
in accordance with Article 56 of the Charter.
MERIT
Summary of Parties' Submissions on the Merits
Complainant's submissions
88.
The Complainant states that the judge of Arsi High Court which discharged the
convicts was influenced by his personal belief that rape could only be committed on
a virgin. Further, the judge drew the wrong conclusion that the medical evidence
was inconclusive on whether the victim was a virgin. By failing to recognise that
virginity is not a prerequisite of the offence of rape, and that the law should protec^
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Communication 341/07 - Equality Now v Ethiopia
every woman from rape, the Court acted arbitrarily in violation of Ms Negash's
rights to: equal protection of law (Article 3); protection from cruel, inhuman or
degrading treatment (Art. 5, Art. 4); protection from discrimination (Art. 2); and
integrity and security of person (Art. 6, Art. 4).
89.
Similarly, the judge drew the wrong inference that Ms Negash had consent to the
principal offender's sexual solicitations. Ms Negash or her legal representative were
not notified of the appeal hearing and thus had no opportunity to provide
information that she had been abducted, raped and forced to sign a purported
marriage certificate, which demonstrate that she had not consented. In addition, the
zonal prosecutor failed to raise relevant points of law which could have sustained
the convictions and sentences against the perpetrators if they had been raised on
appeal. For example, virginity is not a legal prerequisite for the offence of rape.
Rape of a child under 15 years of age was punishable by imprisonment of up to 15
years. Sexual intercourse with a minor was punishable with up to 5 years
imprisonment. The purported subsequent marriage between the principal offender
and the victim from which the judge probably inferred consent was invalid under
domestic law on two grounds: (a) the victim signed the purported marriage
contract under duress; and (b) in any event the victim, being a minor, had no
capacity to enter a valid legal contract under domestic law. The legal age of
marriage was 15 years, and the victim was only 13 years old at the time.
90.
By failing to raise relevant points of law and present relevant evidence, and by
abdicating his duty to support the convictions and sentences, the prosecutor denied
Ms Negash equality before the law and equal protection of the law. Similarly, by
drawing the wrong inference that the victim had consented to sexual solicitations,
the court acted arbitrarily and failed in its duty to diligently examine the case. By
these failures the Respondent State also violated Ms Negash's right to inherent
dignity guaranteed under Article 5 of the Charter.
91.
Further, the abduction and rape of Ms Negash, coupled with being forced to sign a
marriage certificate, caused her physical and psychological suffering and
humiliated her. These acts were in violation of her rights to integrity of her person,
to respect for her inherent dignity, to be free from all forms of cruel, inhuman and
degrading treatment, to liberty and security of the person and to be protected from
discrimination as guaranteed under Articles 4, 5, 6, and 18(3) of the Charter. By
failing to diligently investigate these acts, examine all aspects of the case, and to
punish the perpetrators the Respondent State violated Ms Negash's rights under
the Charter.
92.
Further, the Respondent State's superior courts failed to correct tl^d^cM^nf6|Hhe
Arsi High Court on further appeals which culminated in the decision of the
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Communication 341/07 - Equality Now v Ethiopia
Cassation Bench of the Federal Supreme Court in January 2006. The complainant
contends that this amounts to violation of the victim's rights guaranteed under
Articles 3, 4, 5, 6, 7(l)(a) and 18(3) of the Charter. By the same acts and omissions,
the Respondent State also sanctioned a climate that is conducive to violence and
discrimination against girls and women which also amounts to violation of the
stated rights including Article 2 of the Charter.
93.
Furthermore, at the time of the impugned events, the law absolved the perpetrator
from prosecution for rape if he subsequently married his victim. The Complainant
contends that this regularised the traditional practices of abduction, rape and forced
marriage. The law also amounted to violation of the right of rape victims to equal
protection of the law. Despite repeal of this law in 2005 and campaigns by non
governmental organisations, the practice of abduction, rape and forced marriage
thrives to date.
94.
The Complainants also maintains that by failing to protect the victim from
violations of her rights guaranteed under the Charter, the Respondent State failed
to eliminate discrimination against women which include violence against women.
The Respondent State also propagated the message to the general public that girls
and women can be abducted, raped, and forced into marriage with impunity. They
contend that this is contrary to State's obligations and amounts to violation of
several other rights guaranteed under other international human rights
instruments1, including Articles 4, 5 and 6 of the Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Women (Women's Protocol) in Africa,
which the Respondent State has signed.
95.
In terms of remedies, the Complainant reiterates the prayers at paragraph 15 above.
Regarding compensation, the Complainant submits that the sum of between
$250,000 -S500,000 should be awarded for economically assessable damage, and for
the moral, material, and other forms of harm suffered as a result of the violations.
The Complainant also requests the Charities and Societies Proclamation should be
repealed so that charities are allowed to work without State interference except as it
may concern public benefit. Additionally/ the Respondent State should be required
to periodically account to the Commission on implementation of the
recommendations. Lastly, the Complainant prays that the Respondent State should
be requested to ratify, domesticate and implement the Women's Protocol.
11 In this regard the Complainants cites: Articles 3, 21(1) and (2) of the African Charter on the Rights and
Welfare of the Child (Children's Charter); Articles 5,15(1) and 16(b) of the Convention on the Elimination of
Discrimination Against Women (CEDAW); CEDAW General Recommendation No. 19 on Violence against
women; International Covenant on Civil and Political Rights (ICCPR), Arts. 26 and 23(3); United Nations
Human Rights Committee (HRC) General Comment No 28on equality of rights between men and women;
Convention on the Rights of the Child (CRC), Art. 24(3); Committee on the Rights of the Child (CRC)
General Comment No. 4 on adolescent health and development
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Communication 341/07 - Equality Now v Ethiopia
Respondent State's submissions
96.
The Respondent State avers that it has a legal framework for the promotion and
protection of fundamental human rights and freedoms, and women's and
children's rights in particular. The FDRE Constitution is the basic and supreme law.
By Article 25 of the FDRE Constitution, all persons are equal before the law and are
entitled to equal and effective protection of the law without discrimination. The
right to have one's cause heard under Article 7 of the Charter is guaranteed as the
right to bring a justiciable matter to a court of law or any other competent body
with judicial power.2 Article 78 of the FDRE Constitution guarantees the
independence of the judiciary. Due process is also safeguarded.3 The right to life,
security of the person and liberty are guaranteed under Article 14 of the FDRE
Constitution. Every person has the right to protection against cruel, inhuman or
degrading treatment or punishment. Slavery and servitude are prohibited.4 By
Article 35(4) of the FDRE Constitution, the State is obligated to enforce the rights of
women to eliminate the influences of harmful customs. In this regard, laws,
customs and practices that oppress or cause bodily or mental harm to women are
prohibited. In addition to the fundamental rights under the FDRE Constitution,
there are several international human rights instruments which have been ratified
and form part and parcel of the domestic laws in terms of Articles 9(4) and 13(2) of
the FDRE Constitution.
97.
Subsidiary laws have also been enacted to augment and implement the protections
under the FDRE Constitution. Rape is a criminal offence, and if committed on a
young woman between the ages of 13 - 18 or committed with aggravating
circumstances, the punishment is escalated.5
98.
In addition to enactment of the above legal framework, various efforts are also
being made to implement the laws, sensitise the general public about human rights
generally and the rights of women and children in particular. Among others, it has
mainstreamed women's and children's rights by mandating government ministries
and department at all levels to attend to women's concerns, oversee the respect,
protection and implementation of women's rights, and provide material and
technical support for women generally, and victims of abuse specifically. It has also
ensured the equality of women with men by improving access to higher education
for girls using affirmative action interventions. Harmful traditional practices such
: FDRE Constitution, Art. 37
(Id, Arts. 20(3), 20(5), 20(1), and 20(6).
4 Id, Art. 18(2)
5FDRE Criminal Code, Art. 620(1), (2)and (3)
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Communication 341107 - Equality Now v Ethiopia
as female circumcision, child marriage and abduction have been reduced through
criminalisation and awareness creation measures. A national steering committee;
legal care and protection centres; children's violence investigation and prosecution
centres; and victim support units have been established at various levels of
government to provide multi-sectoral solutions to violence against women and
children, child labour and exploitation. There is for these purposes also a Children's
Rights Action Plan (2010/11-2017/18) which is currently being implemented. There
is also a special prosecution group that deals with violence and exploitation of
children.
99.
In order to create awareness on gender equality, rape and other human rights
issues, the government trains law enforcement and security officials, members of
the judiciary, and officials in departments and institution that have a role in the
promotion and protection of human rights. Awareness about the social,
psychological, economic, and physical effects of abduction, sexual and domestic
violence against children is also achieved through annual commemoration of the
anti-violence day.
100.
Regarding the case of Woineshet Zebene Negash, the Respondent State maintains
that it provided adequate and effective remedies based on the amicable settlement
reached with EWLA acting on behalf of the victim. It states that it provided
compensation, employed the victim in one of its institutions, and built a house for
her and delivered the tittle deeds for the same in her name to EWLA. It states that
the victim has since taken leave of absence from her employment. It also took
disciplinary measures against the judge who overturned the convictions by
dismissing him because of his failure to properly apply the applicable law.
101.
As far as it is concerned, the victim through EWLA is satisfied with the remedies
provided. Accordingly, the Respondent State prays that this Communication must
be dismissed. In support of these assertions, the Respondent State refers to and
produces a copy of a letter written by Ethiopian Women Lawyers Association
(EWLA) to the Commission indicating that the State has provided satisfactory
remedies in terms of the amicable settlement, and requesting that the file should be
closed.
Complainant's Reply
102.
The Complainant maintains that the victim discharged EWLA from representing
her in the present Communication and accordingly, Equality Now is the only legal
representative for the victim.
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Communication 341/07 - Equality Now vEthiopia
103.
More importantly, the amicable settlement negotiations were terminated effectively
in 2012 on the ground that the Respondent State had failed to respond to proposals
which could have formed a written settlement agreement. There had been no
further negotiations between the victim, or Equality Now as her only legal
representation, and the Respondent State. As a result, no settlement agreement was
reached.
104.
Further, the Respondent State does not produce any proof of the measures it
purportedly took to remedy the violations. In particular, the Respondent State does
not produce evidence of the title deed for the house and evidence of its delivery.
Similarly there is no documentary proof of the removal of the judge who
overturned the convictions and sentences. There is also no proof of adequate and
additional compensation that would adequately fund the victim's education and
training to enable her live a dignified life. Moreover the employment of the victim
as a financial ledger keeper was inapt for her career preference which is in law. The
Respondent State does not also produce any evidence of measures taken to bring
the prosecutor and the actual perpetrators to account. Additionally, the
Complainant states that the victim has actually had to leave the country and seek
asylum somewhere owing to threats she received from an official of the Respondent
State's Ministry of Foreign Affairs.
105.
Furthermore, the Complainant observes that the Respondent State neither denies
that the victim was abducted and raped when she was 13 years old, nor negates the
assertion that it failed to provide remedies. The Complainant submits that both of
these constitute violations of the victim's rights under Articles 2, 3, 4, 5, 6, 7(1) and
18(3) of the Charter.
106.
Lastly, the Complainant states that the Charities and Societies Proclamation is still
in force and being used to interfere with activities of civil society. For example, on 3
September 2014 the police abruptly halted the showing of a film documentary
about another girl who had also been a victim of abduction and rape. Similarly, the
director of EWLA who participated in the aborted amicable settlement negotiations
in the present Communication was intimidated and has had to seek asylum in
another country. In light of the foregoing, the Complainant reiterates the prayers
advanced in its initial merit submissions.
The Commission's Analysis on the Merits
107.
This Communication concern's one of the most repugnant traditional practices:
forced marriage by abduction coupled with rape. It is a practice that draws stark
parallels with a proverbial ancient past when a man would hunt down the female
of his choice, slug her over the head with a club, drag her bv the hair td-his
4s
'5?%»IN6^5
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Communication 341/07 - Equality Now v Ethiopia
dwelling, rape her and emerge triumphantly beating his chest and announcing to
the applause of fellow men.6
108.
Here, a young man, aided by his accomplices, went into Woineshet Zebene
Negash's dormitory almost at mid-night, abducted her, took her to the house of his
acquaintance who welcomed him and the victim. The young abductor then raped
her. This happened twice. On her first abduction she was rescued by the police. Her
abductor was arrested and subsequently released on bail. Only for him to abduct
her for the second time. Unlike on the first occasion, on this second occasion close to
one whole month elapsed without being rescued. She fled from her abductor by
herself when opportunity presented. On the two occasions, she was raped for whoknows-how-many times. Ms Woineshet Zebene Negash was only 13 years old and
attending school when she was subjected to these abhorrent acts which have not
been controverted by the Respondent State.
109.
At the material time, abduction and rape were already criminal offences under the
Respondent State's Penal Code of 1957. Regardless, the practice of abduction and
rape was widespread and considered a normal way of procuring a bride among the
victim's society.
110.
As it occurred, the abductor and his accomplices were eventually tried, found
guilty, and sentenced to terms of between 8 to 10 years in prison. However, on
appeal by the convicts, the Arsi Zonal High Court quashed the convictions and
discharged the convicts. The court stated that "the evidence suggests that the act
was consensual." The judge did not pinpoint the evidence which suggested
consent. He simply relied on the statements of the prosecutor who in making his
submissions on the appeal stated that the first instance court did not investigate the
evidence properly and decided the matter out of emotional overtones. Surprisingly,
whereas the same prosecutor submitted that the principal offender and one of his
accomplices should be retried , the judge disregarded this submission and
discharged all the convicts including these two. What is more, two further appeals
by the prosecutor against the decision of the Arsi Zonal High Court did not yield
any reversal of the discharge of the convicts. The perpetrators remain at liberty with
impunity to this day.
111.
These facts and the neat details thereof as alleged by the Complainant are not
disputed by the Respondent State. To the contrary, the Respondent State confirms
these facts. The Respondent State does not also dispute that the treatment which Ms
(1 Alemayehu G. Mariam, 'Crimes Against Womanity: Marriage by Abduction in Ethiopia', Al Mariam >
Commentaries available at < http://almariam.com/2014/09/21/crimes-against-womanity-mariiage-byabduction-in-ethiopia/> (accessed 18 June 2015)
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Communication 341/07 - Equality Now vEthiopia
Woineshet Zebene Negash suffered at the hand of private individuals constitutes
violations of her rights guaranteed under its Constitution and international human
rights instruments including the Charter to which it is a party.
112. The Respondent State does not also deny that the investigating police officers and
the zonal prosecutor failed to diligently investigate the acts, properly identify the
perpetrators, prosecute them, and secure their punishment as part of the remedies
for the criminal violations Ms Negash suffered. Indeed the Respondent State
confirms the failure of its agents by stating that it disciplined the prosecutor and
removed the judge who discharged the convicts for their respective misconduct. It
also provided personal remedies to the victim in the form of a job and a house in
accordance with a settlement agreement reached with Ethiopian Women Lawyers
Association. It would appear that by highlighting these measures, the Respondent
State seeks to be absolved from international responsibility on the ground that it
has remedied the violations.
113.
In the circumstances, it is necessary to establish the nature and extent of the
Respondent State's responsibility and whether the measures it has taken absolve it
from responsibility.
114. In that regard, aconvenient starting point is Article 1of the Charter which obligates
State Parties to recognise and give effect to the rights, freedoms and duties
guaranteed under the Charter. The twin obligations to recognise and give effect to the
rights and freedoms under the Charter generate at least four duties on the part of
the State: the duties to respect, protect, promote and fulfil the rights and freedoms
under the Charter.7 These duties are concomitant to all the rights and freedoms
under the Charter. In other words, the State is obligated to recognise and give effect
to the rights and freedoms by respecting, protecting, promoting, and fulfilling them
at the domestic level. Accordingly, a State incurs international responsibility if it
fails to meet the demands of these duties.
115. In the present Communication, the primary violations were committed by private
citizens who twice abducted the victim and one of them raped her and forced her to
sign a purported marriage contract while she was kept captive. These acts
constitute violations of a range of rights guaranteed under the Charter. Article 6 of
the Charter provides for two separate but inextricably linked rights: the right to
liberty, and the right to security of the person. At the core of the right to liberty is
the guarantee that no one should be deprived of their freedom to go or not to go
anywhere as they will, so long as it lies in their power and means to do so.
Although the freedom reserved to the person is open, it is not absolute. It can be
Communication 155/96. Social and Economic Rights Action Centre and the Centrefor Economic and Social Ri
v Nigeria (SERAC Case) (2000) ACHPR para. 44
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Communication 341/07 - Equality Now v Ethiopia
legitimately limited through the formal processes of law: arrest and detention
according to law. Conditioned by such formal processes of law, the right to liberty
becomes a substantive guarantee that arrest and detention shall not be arbitrary or
unlawful.8
116.
Outside of the formal processes of law, the arrest and detention of a person by State
or non-state actors alike becomes, kidnapping or abduction which is outright
arbitrary, unlawful and amount to violation of the liberty of the individual.
Ordinarily kidnapping or abduction must be proscribed in domestic law as part of
giving effect to the right to liberty. Thus, except as may be prescribed by law, the
right to personal liberty means that no one should be restricted at all by the State or
non-state actors, which includes private individuals. In this regard, the right to
liberty is inextricably linked to the right to security of the person. The latter
augments the right to liberty by guaranteeing that outside of the law, no one's
person or body should be invaded or exposed to risk of invasion by State or nonstate actors.
117.
When Ms Negash was abducted and kept captive on both occasions, her liberty was
manifestly violated, and her person grossly invaded. Accordingly, the abduction of
Ms. Woineshet Zebene Negash by the private individuals was a clear infringement
of both the liberty and the security of her person guaranteed under Article 6 of the
Charter. However, this does not per se entail the international responsibility of the
Respondent State, which is considered below.
118.
Secondly, Article 5 of the Charter guarantees that every individual shall have the
right to respect of the dignity inherent in a human being. Human dignity is the
fountain of all other rights. At the core of human dignity is the idea and recognition
that a human being has unique worth, value and significance that is innate, and not
acquired. It also entails that a human being is a moral agent possessed with the
conscience and personal volition to decide what happens to his or her body. The
right to respect of dignity is a guarantee that a human being should not be
subjected to acts or omissions that degrade or humiliate him or her. The worth,
value and significance of a human being may not and need not be conceptualised
with scientific precision. As such, the point at which the intensity of a given act or
omission amounts to degradation of a human being cannot and need not be
delineated and fixed with mathematical precision. The preoccupation of human
rights law which recognises human dignity is the pragmatic protection of rights as
opposed to vexing over theoretical conceptions of dignity.
The Charter. Art. 6
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Communication 341/07 - Equality Now v Ethiopia
119.
Thus in addition to guaranteeing the dignity of a human being, Article 5 of the
Charter also enunciates the clear principle that all forms of degradation and
exploitation of human beings shall be prohibited. It further provides for a sample of
acts and omissions which in and of themselves amount to exploitation and
degradation of a human being. These listed acts outright constitute violations of the
dignity of a human being and are prohibited without reserve. Specifically: slavery,
slave trade, torture, cruel, inhuman or degrading punishment and treatment are
absolutely prohibited. Beyond the listed acts, there is a spectrum of acts or
omissions that would constitute exploitation and debasement of a human being
depending on the circumstances. In this regard the list of prohibited acts and
omissions that amount to exploitation and degradation of a human being is not
closed under Article 5 of the Charter.
120.
In the Commission's view, by rape, the victim is treated as a mere object of sexual
gratification against his or her will and conscience. The victim is treated without
regard for the personal autonomy and control over what happens to his or her
body. By rape, the personal volition of the victim is gravely subverted and
disregarded, and the victim is reduced from being a human being who has innate
worth, value, significance and personal volition, to a mere object by which the
perpetrator can meet his or her sadistic sexual urges. Inevitably, rape may, and
often does, inflict physical pain and invokes in the victim a sense of helplessness,
worthlessness, and gross debasement, which cause unimaginable mental anguish
beyond the physical suffering. Clearly, rape degrades and humiliates the victim.
Thus, even though not expressly listed under Article 5 of the Charter, rape is one of
the most repugnant affronts to human dignity and the range of dignity-related
rights, such as security of the person and integrity of the person, respectively
guaranteed under Articles 6 and 4 of the Charter.
121.
Consequently, the rape of Ms. Negash constituted a serious violation of her dignity,
integrity, and personal security as guaranteed under Article 5, 4 and 6 of the
Charter, respectively. Further, mutatis mutandis, by keeping Ms Negash captive
against her will, by compelling her to sign a purported marriage certificate under
pain of physical assault and threats, her autonomy, control and volition over her
body and life were seriously infringed, and thus her dignity was also violated. This
too does not per se render the Respondent State internationally responsible as these
acts were perpetrated by private individuals.
122.
However, it is to be recalled that a State incurs international responsibility for
violation of rights and freedoms when it breaches its international law obligations
with respect to the rights and freedoms in question. A state breaches its obligations
when its conduct does not meet the demands of international law obligations it has
m
if
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Communication 341/07 - Equality Now v Ethiopia
voluntarily undertaken. With respect to violations primarily committed by nonstate actors, the principle is well settled that:
an illegal act which violates human rights and which is initially not directly
imputable to a State (for example, because it is the act of a private person or
because the person responsible has not been identified) can lead to
international responsibility of the State, not because of the act itself, but
because of the lack of due diligence (1) to prevent the violation or (2) to
respond to it as required by the Convention [in the present case, the
African Charter]. What is decisive is... whether the State has allowed the act
to take place without taking measures to prevent it or to punish those
responsible.9
123.
It is therefore instructive to pinpoint the relevant obligations of the Respondent
State with respect to the rights guaranteed under Article 4, 5, and 6 of the Charter
which were violated by private individuals with respect to Ms Negash.
124.
By Article 1 of the Charter, the Respondent State has the obligation to adopt
legislative and other measures to give effect to the rights and freedoms under the
Charter. This obligation gives rise to, among others, the duty to protect the rights
and freedoms under the Charter.10 The duty to protect rights and freedom in turn
requires the State to adopt and implement laws and other measures to prevent
violations including by non-state actors, or to provide for redress when the rights and
freedoms have been violated.11
125.
Regarding prevention of violations, the state fails in its duty when it tolerates a
situation where private persons or groups act freely and with impunity in violation
of the rights guaranteed under the Charter.12 The duty to prevent violations is
escalated when the State becomes aware of a situation where a specific individual
or category of individuals face a real risk of their rights and freedoms being
seriously violated by non-state actors. In such a case, the duty to prevent violations
requires the state to adopt and diligently implement customised measures of
protection that would avert the impending violations or indeed curb or eliminate
altogether the prevailing violations.
126.
In the present case, the Respondent State was aware or must be deemed to have
been aware of the prevalence of marriage by abduction and rape, which meant that
9Velasquez-Rodriguez v. Honduras (Merits) (1988) IACtHR (Ser.C No.4) para. 172. 173; Communication 272/03 Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon (2009) ACHPR para. 89
10 Seeabove, para. 109, n7
11 SERAC Case, above. n7, para. 57; Communication 245/02 - Zimbabwe Human Rights NGO Forum v Zimbabwe
(2006) ACHPR para. 143, 146, 147
12 Communication 245/02 - Zimbabwe Human Rights NGO Forum v Zimbabwe (2006) ACHPR paras. 143, 14-1
K(2*#RKH*%%
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Communication 341/07 - Equality Now v Ethiopia
girls were under the continuing threat of being abducted, raped and forcibly
married in the area where the practice was rampant, and where Ms Negash lived.
This required escalated measures beyond the criminalisation of abduction and rape
under the criminal law that existed at the time.
127.
More specifically with respect to the case at hand, Ms Woineshet Zebene Negash
was abducted twice. The State quickly became aware of her first abduction and
rescued her, albeit after she had already been raped. The rescue was commendable.
However, inexplicably, the perpetrator was released from custody, and neither
party has explained what conditions, if any, were attached to his release for the
purpose of preventing him from offending again. Further, after the first abduction,
the Respondent State ought to have reckoned the reality of the risk Ms. Negash and
other girls at her residence faced. The duty to prevent a repetition of the abduction,
rape and forced purported marriage of Ms Negash, and no less other girls in like
situations, required the Respondent State to adopt and implement heightened
measures as a matter of urgency.
128.
It is not for the Commission to pinpoint the actual measures that could or should
have been adopted and implemented in the situation of Ms Negash and other girls
in similar situations. Given its unique knowledge of the local realities, the
Respondent State has a margin of appreciation in adopting the most appropriate
and effective measures to prevent imminent violations that it is aware of. Without
prejudice to that margin of appreciation, such measures could have included
immediately launching sensitisation campaigns in the area about the illegality of
the practice of forced marriage by abduction and rape and the attendant penal
consequences; providing direct security at the residences of girls attending school;
conducting random patrols of the areas where the practice was rampant; or indeed
requiring the owners of properties accommodating school-attending girls, such as
Ms Negash's dormitory, to adequately secure the premises.
129.
From the facts presented, beyond the criminalisation of abduction and rape at the
time, the Respondent State did not adopt any specific measures prior to Ms
Negash's first abduction. Indeed the Complainant states that when the perpetrator
was arrested for Ms Negash's first abduction, the practice ebbed. But it immediately
resumed when it was learnt that the principal offender has been released on bail.
This suggests that the Respondent State had not been prosecuting perpetrators of
abduction and rape. Had it been doing so, the ripple effect of arrests and
prosecution of perpetrators could have long operated as an effective deterrent as it
did when Ms Negash's abductor was arrested the first instance.
130.
More so, even after her first abduction the Respondent State doesj
have adopted escalated measures of protection. In fact, its court set the perpetrator
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Communication 341/07 - Equality Now v Ethiopia
at liberty, and as it appears, without any conditions that would deter the abductor
for repeating his acts. Unsurprisingly, the same perpetrator freely went on to
abduct Ms. Negash again, kept her captive for close to a whole month, and raped
her. For that longer period, the Respondent State did not come to her rescue, and
she had to flee by herself when opportunity presented.
131.
These events depict failure on the part of the Respondent State to prevent the
abduction and rape of Ms Negash, especially when the Respondent State was at all
times aware of the prevalence of the practice, and more so when it was aware of the
specific insecurity of Ms Negash and her friends following her first abduction. The
Respondent State failed to meet its duty to prevent the violations, and thus failed in
its 'duty to protect' which arises from the obligation to adopt measures to give
effect to the rights and freedoms under the Charter.
132.
In this regard, the Respondent State breached its obligation under Article 1 of the
Charter. As a result of that breach, Ms Negash suffered the violations established
above. The Respondent State is accordingly internationally liable for failing to
prevent the violations. The commendable matrix of initiatives aimed at curbing or
eliminating marriage by abduction and rape do not absolve the Respondent State
from responsibility because they came after Ms Negash had already fallen victim to
the vice. Even if such measures may have been adopted prior to Ms Negash's
abduction, they certainly did not yield the protection of Ms Negash from the
abduction and rape.
133.
In addition to the duty to prevent violations, the duty to protect also entails the
duty to provide for a mechanism or take measures for redressing violations when
they occur. This is part of the prerequisites for the effective protection of rights and
freedoms under the Charter. The actual steps for meeting this duty depend on the
circumstances of the case, including the nature of the violations. Among others, the
State has the duty to investigate human rights violations that occur within its
jurisdiction. Specifically, where the violations are of a criminal nature, the State has
the duty to establish criminal responsibility by diligently investigating the
violations with a view to ascertaining the facts; identifying the perpetrators;
diligently prosecuting the perpetrators, and when convicted to adequately punish
them. This is in addition to civil remedies that may be availed to the victim against
the perpetrators.
134.
In the case at hand, the Respondent State clearly failed in its duty to diligently
investigate the acts, identify all those who participated in or facilitated the
abduction and rape of Ms Negash, and sanction their acts. Further, whereas
Arsi high court adopted the zonal prosecutor's comments that the court a quo had
convicted out of emotion, the Arsi high court wilfully disregarded the
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Communication 341/07 - Equality Now v Ethiopia
the same zonal prosecutor to the effect that the principal offender and one of his
accomplices could be judged again after hearing them in defence. No reason was
offered for disregarding this latter suggestion. Instead of remitting the case to the
court a quo for retrial, the Arsi high court outright acquitted the perpetrators and
suffered no concern about rendering any form of justice to Ms Negash.
135.
This was repeated on appeal to the Oromo Supreme Court and the Cassation Bench
of the Federal Supreme Court, both of which held that there was no error or law to
warrant consideration of the appeals as they did not find anything wrong with the
decision of the court a quo.
136.
It is not for the Commission to second-guess domestic courts as to the guilt of the
perpetrators of Ms Negash's abduction and rape. Rather, the manner in which
domestic courts discharge their functions is a factor to be considered in assessing
whether the domestic authorities diligently discharged the State's duty to
investigate, prosecute, adjudicate and punish perpetrators of violations of a
criminal nature.
137.
In the present case, the Commission considers that the decisions of the Arsi high
court, the Oromo Supreme Court and the Federal Supreme Court (Cassation Bench)
are manifestly arbitrary and affront the most elementary conception of the judicial
function. The rulings are barely reasoned. In the relevant parts, both ruling merely
state that there was no error of law to warrant a review on appeal. The judgments
embody the Respondent State's breach of its duty to offer a decent system of justice
for each victim of crime such as Ms Negash. In this regard, the courts' refusal to re
examine the matter in respect of the two key offenders constitutes a denial of justice
to Ms Negash and amounts to violation of the right to have one's cause heard as
guaranteed under Article 7(1) (a) of the Charter.
The courts' decisions also
constitute breach of the obligation to give effect to the rights by responding to
violations with criminal sanctions as was clearly necessary for the abduction and
rape of Ms Negash.
138.
Notably, the Respondent State acknowledges the failures of its zonal prosecutor
and the Arsi high court. It states that it took disciplinary measures against the
prosecutor who abdicated his duty and wrongly supported the acquittal of the
perpetrators. It has also removed the judge who arbitrarily acquitted the convicts.
These measures indicate admission that the mechanism of criminal justice failed to
render justice to Ms Negash. For the avoidance of doubt, these disciplinary
measures do not amount to remedies to Ms Negash for the two-tiered violations she
suffered. She was abducted and raped by private individuals and the Respondent
State failed to provide her the necessary protection. This was the first tierxof
violations. When she sought justice, which the Respondent State is obligated to
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Communication 341/07 - Equality Now v Ethiopia
render to her, she was denied justice by the failures of the prosecution and judicial
authorities to establish criminal responsibility and punish the perpetrators. This
was the second tier of the violations. The disciplinary measures against the
prosecutor and the judge of the Arsi high court did not remediate the violations she
suffered. To be clear, whereas these measures demonstrate disapproval of the
conduct of the prosecutor and the judge, they did not yield the re-trial of the
perpetrators and sanctioning of their criminal acts. Permitting perpetrators to
escape criminal sanctions discloses some kind of subtle approval or tolerance of the
acts they committed.
139.
Thus whereas the Respondent State was not directly responsible for the violations
primarily committed by private individuals, these failures to respond to the
violations attract the international responsibility of the Respondent State in respect
of the rights that were violated. It is in this regard that the Respondent State is
internationally responsible for violations of Ms Negash's rights to: integrity of her
person (Art. 4), dignity (Art. 5), liberty and security of her person (Art. 6), and
protection from inhuman and degrading treatment (Art. 5).13 The failures also
amount to the State's direct violations of Ms Negash's rights to have her cause
heard (Art. 7(l)(a)), and the right to protection of the law (Art. 3).
140.
The Complainant also contends that the Respondent State violated Articles 3 and 2
of the Charter. The former provides for the guarantees that every individual: (a)
shall be equal before the law; (b) shall have protection of the law; and (c) the
protection of the law shall be provided equally to persons in relevantly analogous
situations. The right to protection of the law has been considered above and found
to have been violated. The Commission will thus focus on discrimination which
infringes on the right to equality and equal protection of the law.
141.
In Communication 294/04 - Zimbabwe Lawyers for Human Rights and Institute for
Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum)
v Zimbabwe, the Commission expounded that
the most fundamental meaning of equality before the law under Article
3(1) of the Charter is the right by all to equal treatment under similar
conditions. The right to equality before the law means that individuals
legally within the jurisdiction of a State should expect to be treated fairly
and justly within the legal system and be assured of equal treatment before
the law and equal enjoyment of the rights available to all other citizens. Its
meaning is the right to have the same procedures and principles applied
under the same conditions. The principle that all persons are equal before
Velasquez-Rodriguez v. Honduras (Merits), n 9 above
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Communication 341/07 - Equality Now v Ethiopia
the law means that existing laws must be applied in the same manner to
those subject to them. u
142.
Thus every human being must be recognised as such under and by the law. A
human being must also have protection by the law. Legal protection entails the
existence of laws guaranteeing rights and freedoms; proscribing acts and omissions
that constitute infringement the rights and freedoms. In addition to existence of
such laws, protection of the law includes the guarantee that individuals will have
access to mechanisms, institutions and processes for vindication of their rights and
obtaining remedies when they suffer violations. Further, Article 3 of the Charter
guarantees that such protection must be accorded to all persons in analogous
situations in an equal manner and measure. These elements constitute the essence
of Article 3 of the Charter.
143.
In that regard, Article 3 of the Charter must be read together with Article 2 of the
Charter. The latter embodies two basic entitlements: to enjoy the rights under the
Charter, and not to be discriminated against in the enjoyment of the rights and
freedoms under the Charter. This includes the right to protection of the law. In this
regard, individuals should not be subjected to unjustifiable distinctions of any kind
such as those listed under Article 2 of the Charter. Article 2 embodies the principle
of non-discrimination which reinforces the equality rights under Article 3 by
prohibiting unjustifiable discrimination.
144.
Notably, the gravamen of discrimination is the unjustifiable distinction or
differential treatment of persons in relevantly analogous situations. This is clear
from the definitions of discrimination in international human rights law. For
example, Article 1(f) of the Protocol to the African Charter on the Rights of Women
in Africa (the Women's Protocol) defines discrimination as "any distinction,
exclusion or restriction or any differential treatment based on sex and whose
objectives or effects compromise or destroy the recognition, enjoyment or the
exercise by women [...] of human rights and fundamental freedoms in all spheres of
life.15 Article 1 of the Convention of the Elimination of All Forms of Discrimination
Against Women (CEDAVV) uses the same terms as the Women's Protocol. In
General Recommendation (GR) No. 19, the Committee on CEDAW interprets
discrimination to include "gender-based violence, that is, violence that is directed
14 Communication 294/04 - Zimbabwe Lawyers for Human Rights and Institute for Human Rights anc
Africa (on behalfof Andrew Barclay Meldrum) v Zimbabwe (2009) ACHPR para. 96
1 Protocol to the African Charter on the Rights ofWomen in Africa, adopted on 13 September 2000, Art. 1(0
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Communication 341/07 - Equality Now v Ethiopia
against
a
woman
because
she
is
a
woman
or
that
affects
women
disproportionately."16
145.
Thus distinctively exacting violence on someone simply because she is a woman, as
opposed to being a man (the comparator) or indeed exacting more violence on
women as compared to men in the same circumstances amounts to discrimination.
In Communication 323/06: Egyptian Initiative for Personal Rights and INTERIGHTS v
Egypt (2011) ACHPR the Commission posed the following questions to determine
whether there had been discrimination:
"Whether the women and male protesters had similar treatment; and
whether the treatment was 'fair and just', given that all women and men in
the scene were under the same circumstances, that is, exercising their
political rights." 17
146.
The Commission concluded that the victims were exclusively women and there was
no evidence showing that male protesters at the scene of the demonstrations were
also stripped naked and sexually harassed as the women were. On that basis the
Commission found a violation of Article 2 on prohibition of discrimination.
147.
To make out a claim of violation of Article 3 as read together with Article 2 of the
Charter, the complainant must make out a prima facie case that the respondent state
had not given the [victim] the same treatment it accorded to the others in analogous
situations or that, the respondent state had accorded less favourable treatment to
the victim than that accorded to others in relevantly analogous situation, or indeed
that the State imposed a disproportionate burden or restriction on the victim
relative to that imposed on others in relevantly analogous situations.18 The
complainant must identify the comparator and show how the treatment
complained of and that of the comparator are comparable.19
148.
When such a case is made out, the Respondent State has two options. It may
demonstrate with cogent evidence that the prima facie case is factually misconceived
in that the treatment exacted on the victims was also exacted on others in the same
situation as the victim or that the circumstances of the victims are relevantly
different from those of the comparator. Secondly, the Respondent State may admit
16
GR No. 19 "'Violence Against Women" Committee on the Elimination of Discrimination Aizainst Women (1992)
para. 6
17 Communication 323/06 - Egyptian Initiativefor Personal Rights and 1NTER/GHTS vEgypt (2011) ACHPR panu18 Communication 293/2004, Zimbabwe Lawyersfor Human Rights and the Institutefor Human Rights and.
Development v Zimbabwe (2008) ACHPR para. 127; Communication 294/2004, Zimbabwe Lawyersfor Hi
ft Institutefor Human Rights and Development in Africa v Zimbabwe, n 14 above, para. 101
19 Lithgow and others vthe United Kingdom, App. No. 28627/95, Eur. Comm'n H.R. (1986) 8 EHRR 32?
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Communication 341/07 - Equality Now v Ethiopia
the differential treatment but demonstrate that the differential treatment was
objectively and reasonably justifiable.20
149.
In the present Communication, the Complainant contends that the abduction and
rape by the private individual, and the failures of the Respondent State to protect
Ms Negash's rights by preventing the abduction and rape and by sanctioning the
acts as a remedy amount to discrimination contrary to Article 2 of the Charter. In
contending so, the Complainant does not identify the comparator. In other words,
the Complainant does not identify a similarly situated person who was accorded
the necessary protection by the Respondent State or accorded justice for violations
similar to those suffered by Ms Negash. It is not possible in the circumstances to
identify the differentiation or distinction which is the gravamen of discrimination.
Not all violence against women necessarily amounts to or ought to be termed
"discrimination" to be condemned as violations of women's rights. In this respect
this Communication can be distinguished from Communication 323/06 - Egyptian
Initiative for Personal Rights and INTER1GHTS v Egypt in which the Commission
found that there was no evidence to show that male demonstrators received the
same treatment as the female demonstrators at whom violent sexual abuse was
directed.
150.
In the circumstances, it is difficult to find that the Respondent State distinctively
failed to protect Ms Negash's rights by preventing the abduction and rape as
compared to others similarly situated. Similarly, the Respondent State's failure to
act diligently and render justice to Ms Negash for the violations she suffered cannot
be considered as differential in the absence of a comparator. The Commission is
accordingly indisposed to affirm that there was discrimination. For purposes of the
present case, it is sufficient that the failures of the Respondent State amount to
violations of a name other than "discrimination" as established above with respect
to the rights under Article 3, 4, 5, 6, 7(1 )(a) of the Charter. The Commission does not
also find it necessary to separately examine the alleged violation of Article 18(3) of
the Charter as it was invoked in respect of discrimination and other rights which
have already been confirmed to have been violated.
151.
As to the appropriate remedial measures, the Commission notes the Complainant's
prayer as stated at paragraph 15 above. The Commission considers that the acts
committed against Ms Negash were instantaneous. The impugned acts did not
engage a continuing failure on the part of the State to give effect to the rights of Ms
Negash. Had they been of such a nature, it would have been necessary to require
the Respondent State to ensure the cessation of the acts with respect to Ms Negash.
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Communication 341/07 - Equality Now v Ethiopia
152.
However, the Complainant alleges, and the Respondent State does so refute, that
the practice of marriage by abduction and rape still exists despite the commendable
on-going legal and institutional reforms reported by the Respondent State. This
entails that beyond Ms Negash, other girls and women are under a continuing risk
of being abducted, raped and forcibly married. As noted above, the Respondent
State is under the obligation to adopted escalated and targeted measures to ensure
that this practice ceases completely, and in that regard it has a margin of
appreciation bearing in mind its knowledge of the peculiar national realities.
153.
In addition to general measures it is already implementing, such measures must as
of necessity include diligent prosecution of those still engaging in the practice and
wide publication of convictions to put prospective offenders on notice of the
consequences of engaging in the practice with a view to deter them. In such
matters, statistics are instructive. Accordingly, the Respondent State would be
requested to provide statistics on instances of marriage by abduction and rape, as
well as on successful prosecution of perpetrators.
154.
Concerning the perpetrators of the abduction and rape of Ms Negash in particular,
the Commission takes into account that the acts were committed in 2001, about 14
year ago. The perpetrators were prosecuted, found guilty, but acquitted and
discharged on appeal, without possibility of being retried. The Commission does
not consider it necessary to insist, in the circumstances, that the Respondent State
should commence criminal proceedings afresh. Having failed to prevent the
violations and render appropriate remedies through the criminal justice system, the
Respondent State now bears responsibility for the violations and is liable to provide
reparations to Ms Negash.
155.
In that regard the Commission notes the Respondent State's averments that it
already compensated Ms Negash in accordance with the settlement agreement
reached through Ethiopian Women Lawyers Association acting on behalf of Ms
Negash. However, as noted at paragraph 43 above, the Commission terminated the
settlement negotiations in 2012 following lack of commitment from the Respondent
State. Indeed it was on the basis that settlement negotiations had been terminated
that
the
Commission
resumed
consideration
of
the
Communication
on
admissibility. The Commission cannot have regard to the purported settlement
agreement.
156.
Even if it had regard to the purported settlement agreement, the Respondent State
does not produce any evidence of the measures it purportedly took in compliance
with the terms of the alleged settlement agreement. The alleged measures aj^^to^
nature that would ordinarily be documented. The Respondent State has^m^,
produced any copy of the record of disciplinary measures taken. Nej
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Communication 341/07 - Equality Now v Ethiopia
produced title deeds for the house to the Commission. Moreover, the Commission
has on record Ms Negash's own correspondence terminating legal representation
by Ethiopian Women Lawyers Association. From the date of such termination,
EWLA had no basis for purporting to represent Ms Negash in negotiations with the
Respondent State.
157.
Notably, Ms Negash, who proceeded on the understanding that the settlement
negotiations had been terminated, states that she no longer has interest in the
house. In any event, she has since left the country and the house may not be of
much immediate benefit to her. It is immaterial if she is away from her country on
leave of absence or having sought asylum there.
In the circumstances, the
Commission considers that the house can be processed to form part of reparations
that have practical utility to Ms Negash.
158.
Regarding compensation as a form of reparations or remedies, the Commission
notes that monetary compensation for non-material damage is at large and is
determined as a matter of impression, taking into account all the relevant
circumstances of the case as opposed to a mathematical formula. The relevant
circumstances include the physical, psychological, and emotional trauma that Ms
Negash suffered as a result of the primary violations by the private individuals, as
well as the denial of justice by the Respondent State's failures. The Complainant
suggests a monetary award in the range of US$250,000.00 to US$500,000.00.
Nothing has been offered to justify this range. The Commission does not have any
comparable awards in its jurisprudence. This makes the relevant award even the
more at large. Having considered the matter, the Commission deems that a lump
sum award of US$150,000.00 suffices as equitable and fair compensation to Ms
Negash. If indeed the Respondent State built the house as indicated, it is at liberty
to sell the same to defray part of this lump sum award.
159.
The Complainant also requests that the Respondent State should repeal the
Charities and Societies Proclamation which is being used to stifle the work of civil
society organisations working on human rights. The Commission notes that the
Complainant only included this issue in the reply. It was not part of the case
advanced at the admissibility stage. As result, the admissibility of this issue was not
considered on admissibility, and the Respondent State has had no chance to present
its observations on the same. The Commission declines to consider the attendant
praver.
Decision of the Commission on the merits
160. In light of the foregoing, the African Commission on Human and Peoples^
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Communication 341/07 - Equality Now v Ethiopia
(a) Declares that the Respondent State violated Article 3, 4, 5, 6, and 7(1 )(a) of the
Charter;
(b) Declares that there was no violation of Article 2 of the Charter;
(c) Requests the Respondent State to pay Ms Woineshet Zebene Negash the sum of
US$150,000.00 as compensation for the non-material damage she suffered as a
result for the affirmed violations.
(d) Requests the Respondent State to adopt and implement escalated measures to
specifically deal with marriage by abduction and rape; monitor instances of
marriage by abduction and rape; and diligently prosecute and sanction
offenders. In this regard, the Respondent State should also continue training
judicial officers on specific human rights themes including on handling cases of
violence against women.
(e) Requests the Respondent State to report to the Commission within 180 days on
the measures adopted to implement the above recommendations; and also
include in its next periodic report yearly statistics on the prevalence of
marriages by abduction and rape, cases of successful prosecutions, and
challenges faced if any.
Adopted this 16th day of November 2015 during the 57th Ordinary Session of the African
Commission on Human and Peoples' Rights held from 4-18 November 2015 in Banjul,
The Gambia
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