BEFORE THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

Summary of Facts:

Representing Woineshet Zebene Negash, Equality Now and Ethiopian Women Lawyers Association (EWLA) brought an action against Federal Republic of Ethiopia, alleging that the defendant state did not fullfil its responsibility in protecting the rights of a 13 year old victim who was raped and abducted, from Aberew Jemma Negussie (“Aberew”) and four other accomplices. Aberwe was later freed from custody of the police on bail and subsequently repeated his criminal act of abducting the victim, hiding her in his brother’s house for a month, and forcing her to sign a marriage contract. She later escaped and reported to a police station, resulting in the arrest, conviction, and sentence of Aberew and the four accomplices to 10 years and 8 years in prison respectively, by the Guna Woreda Court.

The decision of the court upon appeal was quashed by the Court of the Arsi Zone, leading to the release of the five men, on the basis that “the act was consensual.” Moreover, contrary to supporting the victim’s case, the Zonal prosecutor recommended that the verdict of the lower court be reversed and stated he had no objection if the men were released. The victim appealed against the ruling of the High Court but the Oromia Supreme Court dismissed the appeal on the ground that there was no sufficient reason to reconsider the case. The victim’s further appeal suffered another dismissal by the Federal Supreme Court, on account of lack of jurisdiction to hear the case because no error of law had been committed. Thus, having exhausted local remedies, the African Commission on Human and Peoples’ Rights (the Commission) was seized, ruling in favour of the complainant, and requesting the respondent state to reform its laws to meet international standards and 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 spite of the fact that the Respondent state desired to resolve the matter with the Complainant amicably. The respondent state subsequently sought for a review of the Commission’s decision.

Legal Issue(s):

• Whether the case is admissible before the African Commission?
• Whether the amicable settlement was valid?
• Whether the respondent state honoured its undertaking under the agreement for amicable settlement?
• Whether Ethiopian Women Lawyers Association (EWLA) has standing before the African Commission?
• Whether there is ground for the Commission to revise its decision?​​​​​​
  

Legal Rules:

• Rule 109 (4) of the Rules of Procedure of the Commission. 
• Rule 109 of the Rules of Procedure of the Commission.
• Rule 109 (2) of the Rules of Procedure of the Commission.
• Rule 109 (5) of the Rules of Procedure of the Commission.
• Rule 111 (2)(c) of the Rules of Procedure of the Commission.
• Rule 111 of the Rules of Procedure of the Commission.
• Rule 111 (2)(a) of the Rules of Procedure of the Commission.
• Rule 111 (2)(b) of the Rules of Procedure of the Commission 
• Rule 111 (1) of the Rules of Procedure of the Commission 
• Rule 109 (5) of the Rules of Procedure of the Commission 

Legal Reasoning/Analysis:

In addressing the admissibility of the case, the African Commission on Human And People’s Rights considered the Admissibility of the Communication and declared the same admissible on the basis that the State did not honour its undertakings on amicable settlement, as the Complainants informed the Commission that they had failed to reach an amicable settlement with the Respondent State, which the Commission found veracious due to the inordinate delay of 2 years in settling the matter amicably, as opposed to the 6 months, renewable once period stipulated by Rule 109 (4) of the Rules of Procedure of the Commission.

With regards to the second issue, the Respondent state apparently sought an amicable settlement of the matter which the Complainant had agreed to and communicated to the Commission. Both parties subsequently met to discuss the terms of the amicable settlement, in the presence of the secretariat, who requested for an update on the amicable settlement process, to which both parties complied, although with contradictory updates. Rule 109 of the Rules of Procedure of the Commission provides for the possibility of the Parties settling their dispute amicably, and pursuant to Rule 109 (2), “The amicable settlement procedure shall be initiated, and may only continue, with the consent of the parties”. Thus, the agreement to reach an amicable settlement was indeed valid, but not until the Complainant expressed dissatisfaction on the steps taken by the Respondent State to fulfil the terms of the agreement. By virtue of Rule 109 (4), “The Commission may terminate its intervention in the amicable settlement procedure at the request of one or both parties, within a period of six months, renewable once, when an amicable settlement is not reached”. Hence, after a lengthy process in negotiating an amicable settlement did not yield satisfactory outcome, the Complainant opted out of the amicable settlement, thus, no longer consented to any measures taken thereafter as stipulated by Rule 109 (2) of the Rules.

In light of the third issue of whether the respondent state honoured its undertaking under the agreement for amicable settlement, the feedback of the Complainant serves as the most reliable proof. This is because the adherence or non adherence to the terms of the amicable settlement directly affects the victim. Rule 109 (5) of the Rules of Procedure requires inter alia that when the Commission receives information from Parties that an amicable settlement has been reached, it shall ensure that that the Victim of the alleged human rights violation or, his/her successors, as the case may be, have consented to the terms of the settlement and are satisfied with the conditions. However, in the instant case, although the Respondent State averred that it attached the letter from EWLA relating to the amicable settlement reached with the Victim and her legal representative (EWLA). Furthermore, that the State indicated that the Government of Ethiopia also took disciplinary measures against the zonal prosecutor and removed the judge at the Arsi High Court that abdicated its duty and caused the undue acquittal of the perpetrators of the crime against the victim, and that the Respondent State through the Oromiya Regional State had provided a Title Deed in the Victim’s name for ownership of the house which had been constructed as promised to the Victim, but the house could not be handed to the Victim in absentia, and that her Father refused to take the house on her behalf on account that he did not have Power of Attorney to do so.

In response, the Complainant communicated that there was a lack of progress in reaching an amicable settlement despite their frequent written communications to, and meetings with the Respondent State. 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. The Complainant also indicated in one of its updates to the secretariat that the efforts of the respondents did not sufficiently meet their request. Additionally, the Respondent State did not produce any evidence of the measures it purportedly took in compliance with the terms of the alleged settlement agreement despite that the alleged measures were of the nature that would ordinarily be documented. It therefore appears that the Respondent State did not uphold the terms of the amicable settlement agreement.

In relation to the fourth issue, whether Ethiopian Women Lawyers Association (EWLA) has standing before the African Commission, it is clear from the facts of the case that the victim was initially represented before the commission by Equality Now, in collaboration with Ethiopian Women Lawyers Association (EWLA) which made them entitled to have standing before the Commission. However, the legal representation by EWLA apparently ceased as the victim communicated to the Commission that she no longer wished to be represented by the association. To substantiate the fact that Equality Now was the only legal representative of the victim, the Commission had acted on its request to proceed with the admissibility of the Communication. Moreover, the Commission had on record the Victim’s own correspondence terminating legal representation by EWLA. Notwithstanding, EWLA sent a correspondence to the Secretariat informing the Commission that the Respondent State and EWLA settled the matter amicably, that they were satisfied with the measures taken by the Government under the circumstances, and requested that the case be closed on that basis. The issue of representation was resolved as the victim reiterated to the Secretariat that EWLA was relieved from their duty to represent her and retained Equality Now as her only representative in this Communication. The implication is that EWLA’s capacity to represent the victim seized, and by extension, had no standing before the commission. From the date of the termination, EWLA had no basis for purporting to represent the Victim in negotiations with the Respondent State. In this regard, any actions taken by EWLA on behalf of the Victim is a nullity, including the purported amicable negotiations with the Respondent State.

Pertaining to the the final issue on the ground/s for revision of the Commission’s verdict, a holistic analysis of the Commission’s Rules of Procedure in order to determine the eligibility of the motion for review of the Respondent State. The Respondent State expressed dissatisfaction towards the merit decision of the African Commission. Thus, requesting revision of the Commission’s decision on the Merits as per Rule 111 (2)(c) of the Rules of Procedure of the Commission which allows the Commission to revise its decision in order to ensure justice and fairness and promote respect of human rights. The Complainant avers that by virtue of Rule 111 (2)(c) Commission may review its decision if it is satisfied that there is a “compelling reason or situation that the Commission may deem appropriate or relevant to justify review of a Communication, with a view to ensure fairness, justice and respect for human and peoples’ rights.” The Complainant submits that the Respondent State has not provided any further or compelling reason or situation to warrant a review of the Communication, and therefore, the Respondent State’s motion to review does not meet the criteria required for the Commission to review its decision.

Rule 111 of the Rules of Procedure of the Commission, upon which the motion for review from the Respondent State is premised, sets out the criteria for determining review of merits decisions. It states thus:

(1) once the Commission has taken a decision on the merits, it may, on its own initiative or upon the written request of one of the Parties, review the decision.

(2) In determining whether to review its decision on the merits, the Commission shall satisfy itself of the following:

a) That the request is based upon the discovery of some facts of such a nature as to be a decisive factor, which fact was not known to the Commission and the party requesting the review, provided that such ignorance was not due to negligence;

b) That the application for review is made within six months of the discovery of the new facts;

c) Any compelling reason or situation it may deem appropriate or relevant to justify review, with a view to ensure fairness, justice and respect for human and peoples’ rights.

(3) No application for review may be made after 3 years from the date of the decision.”

Thus, on the basis of the established criteria for determining Review:

1. The motion for review was initiated by the Respondent State in line with Rule 111 (1);
2. Regarding Rule 111(2), the Respondent State contends that the matter was settled amicably through EWLA and therefore the Commission erred by still adopting a decision on Merits and requesting the Respondent State to pay compensation to the Victim which was already done within the framework of the amicable settlement. In fact, this does not amount to a new fact as underlined by the Complainant in terms of Rule 111(2) (a), as it was extensively dealt with by the Commission in the Communication and ruled upon, which eliminates the relevance of Rule 111 (2) (a);iii Linked to the above, the motion for review was sent within six months, even though as already established, the facts cannot be classified as new, in line with Rule 111 (2) (b);
3. Finally, regarding Rule 111 (2) (c), the question that begs for an answer is whether the Commission finds any compelling reason or situation that would warrant a revision of the case and that would subsequently impact on the merits of the same.

Therefore, having addressed the previous issues above coupled with the fact that the Commission was not persuaded that the Victim was satisfied with the conditions of the settlement in terms of Rule 109 (5), and as the commission opined, that even if it had regard to the purported settlement agreement, the Respondent State did not produce any evidence of the measures it purportedly upheld in accordance with the terms of the alleged settlement agreement, which was of the nature that would ordinarily be documented, the Commission did not find any compelling reason to revise the matter in question.

Judgement:

The African Commission on Human and Peoples Rights ruled in favour of the applicant and dismissed the motion for review on the basis that the requirements for the Commission to proceed with review as per Rule 111 (2) (c) have not been met, due to the lack of compelling reason/s to review the Communication.

Conclusion:

I hold the view that in its duty to uphold, respect, and protect human rights as outlined in the African Charter On Human And People’s Rights and other relevant human rights instruments, the African Commission commendably complied with the law to the letter. Additionally, ensuring to promote human rights by requesting the state to reform its laws and implement measures to protect the rights of women, in accordance with the international human rights standards. Thus, holding the states accountable for human rights violations. The commission’s reasoning demonstrated that justice was not just done, but manifestly seen done.