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RAPPORTEUR
37th Ordinary Session: Commissioner EVO Dankwa
38th Ordinary Session: Commissioner Nyanduga/Malila
39th Ordinary Session: Commissioner Malila
SUMMARY OF FACTS
1. The communication is submitted by the Anuak Justice Council, through
Obang Metho the Director for International Advocacy, Anuak Justice Council
which was prepared by the International Human Rights Clinic, Washington
College of Law in Washington, D.C in the United States of America against
the Federal Democratic Republic of Ethiopia, the Respondent State, a party
to the African Charter on Human and Peoples' Rights since 1998
2. The complainant avers that the respondent through its agents, the
Ethiopian Defence Forces has been engaged in massive discrimination
resulting in serious human rights abuses and violations of the people of
Anuak ethnicity. They claim that the abuses by the Ethiopian Defence Forces
include the massacre of over four hundred and twenty-four civilians, the
wounding of over two hundred civilians and the disappearance of over
eighty-five civilians in the Gambella region in the three day period of
December 13 -15, 2003. The complainant states that the abuses have continued
against the Anuak since that period including extrajudicial killing,
torture, detention, rape and property destruction throughout the Gambella
region resulting in 1000 Anuak deaths and that, over 51,000 Anuak have been
displaced within the Gambella region.
3. The complainant adds, that the Republic of Ethiopia has violated its
legal obligations to uphold the rights and principles of all Ethiopian
citizens, and has violated its obligation to uphold the rights and
protections enshrined in the African Charter under Articles 4,5,6,12,14,18.
4. The Anuak Justice Council requests the African Commission on Human and
People's Rights to grant provisional measures and declare them binding on
the Ethiopian government.
5. The complainant states that the Anuak are an indigenous minority group
living in south-western Gambella region of Ethiopia and that despite their
dominance in the region, the Ethiopian government has a long history of
marginalizing, excluding and discriminating against them. The complainant
claims that due to Gambella's natural resources, the Ethiopian government
has resettled over sixty thousand Highlanders', who had almost completely
destroyed the Anuak way of life within Gambella.
6. The complainant avers that the Anuak believe that oil in the region
should belong to them, while the Federal Government argues that under the
federal constitution all mineral resources belong to the Ethiopian State.
The complainant adds that the Ethiopian Defence Forces are stationed
throughout the Gambella in order to identify and destroy disparate groups of
armed Anuak known collectively as 'shifta' that have attacked Highlander
civilians.
7. The complainant submits that the December 2003 massacre was sparked by
the killing of eight Highlander refugee camp officials and propelled the
Ethiopian Defence Forces into a broad-based assault on Gambella's Anuak
community. The complainant states that despite the fact that nobody was
immediately found responsible for the death of the eight people, there is no
indication that the Ethiopian government had undertaken an official
investigation into the ambush of the refugee camp officials thus blaming the
Anuak community for the attacks.
8. The complainant avers that the violence in the Gambella region has
continued since December 2003 and remains a serious threat to Anuak citizens
as well as other ethnic groups in the region. The complainant allege that
the Ethiopian Defence Forces search for 'shifta' has become the pretext for
bloody and destructive raids on numerous Anuak villages since the December
2003 massacre on the Gambella town. The complainant further allege that
unarmed Anuak within Gambella are currently being killed by Ethiopian
Defence Forces without due process or the use of judicial proceedings
without even making an effort to distinguish Anuak civilians from the 'shifta' they claim to be looking for.
9. The complainant further allege that many Anuak have been detained in
prison without charge both in Gambella and Addis Ababa which accounts to
about 1000 detained to this day. The complainant also adds that a
substantial group of Gambella's educated Anuak have been imprisoned or
forced into exile and that many have been charged with offences relating to
alleged collaboration with Anuak insurgents and put on trial but none of the
leaders are yet to be convicted.
10. The complainant further alleged that in rural areas the Ethiopian
military continues to burn homes, destroy crops, burn food stores, disrupt
planting cycles, and destroy agricultural equipment of the Anuak to prevent
them from sustaining themselves. The complainant asserts that as recently as
January 2005, the Ethiopian government threatened Anuak elders in Gambella
that anyone attempting to tarnish the reputation of the Ethiopian government
over the massacres would be dealt with.
11. The complainant claims that the Ethiopian government's response to the
December massacre has been grossly inadequate and disingenuous. The
complainant states that the government's initial position that no soldiers
had taken part in the massacre had become impossible to defend and adds that
the Commission's of Inquiry set up by the Government was biased and
ineffectual and did not investigate the behaviour of the Ethiopian Defence
Forces as an organization despite numerous reports.
THE COMPLAINT
12. The complainant states that crimes against humanity, such as
extrajudicial killing, torture, and rape, crimes that take place against the
Anuak civilians is in violation of international law as well as a violation
of Articles 4, 5, 6, 12, 14 and 18 of the African Charter. The Anuak Justice
Council urges the African Commission on Human and Peoples Rights to
intervene to prevent further human rights abuses of the Anuak by the
Ethiopian government.
13. The Compalaint further makes an urgent request for provisional measures
under Rule 111 of the Rules of Procedures of the African Charter that the
African Commission may intervene to "avoid irreparable damage being caused
to the victim of the alleged violation."
REQUEST FOR PROVISIONAL MEASURES - SUMMARY
14. The complainant, requests for provisional measures to the African
Commission on Human and Peoples' Rights pursuant to Rule 111 of the Rules of
Procedures of the Commission. The complaint relates to the alleged actions
of the Defence Forces of the Federal Democratic Republic of Ethiopia. These
actions according to the complainant reveal a pattern of serious and massive
human and peoples' rights violations by the Ethiopian Defence Forces. That,
bound by the African Charter on Human and Peoples' Rights, the Federal
Democratic Republic of Ethiopia, has and continues to violate Articles 4, 5,
6, 12, 14, and 18 of the African Charter.
15. The Anuak Justice Council therefore seeks the Commission's intervention
and issuance of Provisional Measures requesting that the Ethiopian
government stops the human rights abuses of the Anuak pending a decision of
the African Commission on the concurrent communication and is also seeking
an in-depth study of the treatment of the Anuak by the African Commission
pursuant to Article 58 of the Charter.
16. The Anuak Justice Council notes that it does not request the Commission
to evaluate the merits of this case rather, in this provisional measures
submission, the Anuak Justice Council merely asks that the Commission
request that the Ethiopian government immediately stops the series of
serious and massive violations of human and peoples' rights of the Anuak
people prior to the issuance of a decision by the African Commission on the
merits.
17. That the Commission has jurisdiction to issue provisional measures under
Article 111 of the rules of procedure of the African Charter of Human and
Peoples' Rights. See Registered Trustees of the Constitutional Rights
Project v. the President of the Federal Republic of Nigeria and Five Others.
Similar to the Nigeria case, many Anuak have also been and continue to be
sentenced to death. The Commission should therefore find the Anuak situation
as even more sever and compelling than the Nigeria case and grant
provisional measures.
18. The complainant notes further that while the African Commission on Human
and Peoples' Rights has not decided whether grants of Provisional Measures
should be binding on State Parties, other international and regional human
rights bodies have declared that Provisional Measures be binding on States
including the European Court of Human Rights, Inter-American Commission, the
International Court of Justice and the UN Human Rights Committee. Due to the
severity of the situation that the Anuak find themselves subject to in the
Gambella, in prisons throughout Ethiopia and as refugees in Sudan and Kenya,
petitioners plead that the African Commission grant provisional measures and
declare them binding on the Ethiopian government.
19. The complainant seeks the Commission's intervention and issuance of
Provisional Measures requesting that the Ethiopian government stop human
rights abuses of the Anuak, pending the decision of this Commission on the
Anuak Justice Council's concurrent communication to the African Commission
on Human and Peoples' Rights on the merits of this claim and further urges
the Commission to find that its order of Provisional Measures in this case
be binding upon the Ethiopian government.
PROCEDURE
20. The communication was received at the Secretariat of the African
Commission on 4 April 2005
21. By letter of 20 April 2005 the Secretariat acknowledged receipt thereof
informing the complainant that the communication has been registered as
communication 299/05 - Anuak Justice Council/Ethiopia and that the
communication will be considered on seizure at the 37th ordinary session of
the African Commission.
22. At its 37th ordinary session held in Banjul, The Gambia from 27 April to
11 May 2005, the African commission considered the communication and decided
to be seized thereof.
23. By note Verbale of 24 May 2005 the Secretariat of the African Commission
notified the State of the Commission's decision and forwarded the complaint
to the State with a request for the latter to make its submission on the
merits within three months of the notification. By letter of 24 May 2005,
the Secretariat of the African Commission informed the complainant of the
Commission's decision.
24. On 23 August 2005, the Secretariat received the Respondent State's
submissions on admissibility.
25. On 25 August 2005, the Secretariat transmitted the Respondent State's
submission on admissibility to the complainant, requesting the latter to
respond thereto before 25 September.
26. On 21 complainant wrote to the Secretariat informing the latter that the
legal representative of the Anuak Justice Council had changed adding that
they received the Secretariat's letter of 25 August only on 9 September and
would like the deadline for the submission of their arguments on
admissibility to be moved to 9 October 2005. The Complainant also requested
for provisional measures to be taken by the Commission.
27. On 10 October 2005, The Secretariat received the complainant's response
on the Respondent State submissions on admissibility.
28. On 19 October 2005, the Secretariat transmitted the complainant's
response to the Respondent State with a request to the latter to make its
comments, if any, before 31 October 2005.
29. At its 38th Ordinary Session, the African Commission deferred
consideration on the admissibility of the communication and to enable the
Secretariat get additional information from the parties.
30. By Note Verbale of 19th January 2006 and by letter of the same date, the
Secretariat of the African Commission notified the parties of the African
Commission's decision.
31. At its 39th ordinary session held in Banjul, The Gambia from 11 - 25 May
2006, the African Commission considered the communication and decided to
declare it inadmissible.
32. By Note Verbale of 29 May 2006 and by letter of the same date, both
parties were notified of the African Commission's decision.
COMPLAINANT'S SUBMISSION ON ADMISSIBILITY
33. The complainant submits that article 56 (5) of the African Charter
requires that complainants exhaust domestic remedies before a case is
considered by the African Commission. The complainant notes further that if
the potential domestic remedies are unavailable or unduly prolonged, the
commission may nevertheless consider a communication, adding that this is
especially true when the country against which the complaint is lodged has
committed vast and varied scope of violations and the general situation in
the country is such that domestic exhaustion would be futile.
34. The complainant argue that in the Anuak Justice Council Case, pursuing
domestic remedies would be futile due to the lack of an independent and
impartial judiciary, a lack of an efficient remedy, the significant
likelihood of an unduly prolonged domestic remedy, and most importantly, the
potential for violence against the Annuak or those supporting them within
the legal system.
35. Anuak Justice Council alleges that it cannot seek exhaustion of domestic
remedies because of its inability to receive an independent and fair
hearing, as a direct consequence of the fact that the aggressor is the
government of Ethiopia. The complainant notes that in spite the protection
in Article 78 of the Respondent State's Constitution guaranteeing the
independence of the Judiciary, it is perceived by individuals both at home
and abroad that the Executive has considerable and even undue influence on
the judiciary.
36. The complainant quoted a World Bank Report entitled "Ethiopia: Legal and
Judicial Sector Assessment" (2004) which concluded that "… of the three
branches of government, the judiciary has the least history and experience
of independence and therefore requires significant strengthening to obtain
true independence". According to the complainant, the Report notes that the
interference in the judiciary is more flagrant at State level where there
are reports of Administrative officers interfering with court decisions,
firing judges, dictating decisions to judges, reducing salaries of judges
and deliberately refusing to enforce certain decisions of the courts.
37. The complainant also alleges that bringing the case before Ethiopian
courts would unduly prolonging the process as the Ethiopian judiciary suffer
from a complex system of multiple courts that lack coordination and
resources, including "dismal conditions of service, staff shortages, lack of
adequate training, debilitating infrastructure and logistical problems". The
complainant claims court proceedings take years to yield results, and
concluded that the Respondent State's judicial system is so under resourced
that prosecutions would be nearly impossible, noting that to date, no action
had been taken to prosecute any of the Ethiopian Defence Forces or
government officials for the atrocities they committed against the Anuak.
38. The complainant also alleges that the Anuak fear for their safety in
bringing the case in Ethiopia adding that there are no Anuak trained as
lawyers who could bring the case before Ethiopian courts. The complainant
notes that the overwhelming sentiment in the Gambella Region and of the
Anuak who have fled the country is that non - Anuak lawyers within Ethiopia
would be unwilling to take the case due to the potential persecution they
would face, as well as the insurmountable odds of achieving a just remedy.
The complainant added that Anuak who remain in the Gambella Region continue
to suffer from extra-judicial executions, torture, rape and arbitrary
detention from the authorities of the Respondent State adding that several
of them have been threatened and warned specifically against pursuing a case
against the Respondent State. The complainant noted that as recently as
January 2005, the Respondent State threatened Anuak leaders, declaring that
anyone attempting to tarnish the reputation of the Respondent State would be
dealt with. The complainant concluded by stating that to bring the case
within the Respondent State would only further endanger the lives of the
remaining Anuak in the Ethiopia.
39. The complainant added that the Respondent State had been given notice
and adequate time to remedy the human rights violations against the Anuak
but has utterly failed to do so. That the Respondent State received notice
of the violations but chose not to take action to halt the atrocities or to
make its forces accountable. The complainant added that the Respondent
State's response to the massacres in December 2003 in the Gambella Region
was inadequate and disingenuous. That under international pressure, the
Respondent State established a Commission of Inquiry to investigate the
killings, however, according to the complainant, the inquiry was biased and
ineffectual and did not meet international standards of an independent
investigation.
RESPONDENT STATE'S SUBMISSIONS OF ADMISSIBILITY
40. The Respondent State claims that the cases of those involved in the
alleged violations that took place in the Gambella Region are currently
pending before the Federal Circuiting Court and the respondent, therefore,
argued that domestic remedies have not yet been exhausted. The State
provided a list of about 9 such cases including their file numbers and
previous and future dates of adjournments.
41. The respondent State argues that the rule that local remedies be
exhausted is not limited to individuals and also applies to organisations,
including those in no way subject to the jurisdiction of the respondent
State. According to the respondent, the complainant could have sought
redress from the domestic courts, the Judicial Administration Office, the
Commission of Inquiry or the Human Rights Commission but did not. The
complainant has not, argued the State, shown the existence of any impediment
to the use of these remedial processes or that such were unduly long.
42. Without indicating the status of the proceedings, the State argued that
all those alleged of human rights offences associated with the Gambella
incident of December 2003 were brought before the Federal Circuit Court. The
State indicated that three domestic remedies were available to the
complainants - the competent Courts, the Judicial Administration Officer and
the Human Rights Commission but the complainants failed to approach any of
them.
PROVISIONAL MEASURES
43. The Republic of Ethiopia argues that the complainant has sought only to
present what it claims is prima facie evidence of violations and has not
shown that if such alleged violations continue there will be "irreparable
injury", as required. Finally, the respondent submits that the Government
has presented sufficient evidence that it has taken adequate measures to
rectify the situation and that the situation in general has stabilised and
does not warrant any provisional measures from the Commission. The
Respondent State submits as follows:
In February 2004, the Office of the Prime Minister issued instructions to
Federal institutions to assist the Regional Administration in safeguarding
the security of the people and institutions and preventing further violence;
soliciting the support of elders, the youth and civil servants in the effort
towards sustainable peace, democracy and development; rehabilitating victims
of the violence and internally displaced people; and bringing to justice
those responsible for committing the violence and the destruction of
property.
The Defence Forces, once deployed, protected the civilian population and
allowed humanitarian assistance and rehabilitation.
The Federal Government, in cooperation with international agencies,
coordinated humanitarian assistance to alleviate the suffering of the
victims of violence and the displaced.
A Commission of Inquiry has been established to investigate the
circumstances surrounding the crisis, charges have been filed against
several individuals as a result.
The Government has organised various consultations and workshops with the
participation of the local population which have proposed concrete solutions
aimed at resolving the problems facing the region and have identified the
root causes of the crisis.
The Federal Police have recently graduated more than three hundred police
officers from the Gambella region to aid in maintaining law and order in the
region once the situation has stabilised.
THE LAW
ADMISSIBILITY
44. The current communication is submitted pursuant to Article 55 of the
African Charter which allows the African Commission to receive and consider
communications, other than from States Parties. Article 56 of the African
Charter provides that the admissibility of a communication submitted
pursuant to Article 55 is subject to seven conditions. The African
Commission has stressed that the conditions laid down in Article 56 are
conjunctive, meaning that if any one of them is absent, the communication
will be declared inadmissible.
45. The complainant in the present communication argued that it has
satisfied the admissibility conditions set out in Article 56 of the Charter
and as such, the communication should be declared admissible. The Respondent
State on the other hand submitted that the communication should be declared
inadmissible because, according to the State, the complainant has not
complied with Article 56 (5) of the African Charter. As there seems to be
agreement by both parties as to the fulfillment of the other requirements
under Article 56, this Commission will not make any pronouncements thereof.
46. Article 56 (5) of the African Charter provides that communications
relating to human and peoples' rights shall be considered if they: "[a]re sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged".
47. Human rights law regards it as supremely important for a person whose
rights have been violated to make use of domestic remedies to right the
wrong, rather than address the issue to an international tribunal. The rule
is founded on the premise that the full and effective implementation of
international obligations in the field of human rights is designed to
enhance the enjoyment of human rights and fundamental freedoms at the
national level. In Free Legal Assistance Group v. Zaire and Rencontre
Africaine pour la Défense de Droits de l'Homme [RADDHO] v. Zambia, this
Commission held that "a government should have notice of a human rights
violation in order to have the opportunity to remedy such violations before
being called before an international body." [FN1] Such an opportunity will
enable the accused state to save its reputation, which would be inevitably
tarnished if it were brought before an international jurisdiction.
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[FN1] Comm. Nos. 25/89, 47/90, 56/91, 100/93, para. 36, 1995 and Comm. No.
71/92, para. 11
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48. The rule also reinforces the subsidiary and complementary relationship
of the international system to systems of internal protection. To the extent
possible, an international tribunal, including this Commission, should be
prevented from playing the role of a court of first instance, a role that it
cannot under any circumstances arrogate to itself. Access to an
international organ should be available, but only as a last resort - after
the domestic remedies have been exhausted and have failed. Moreover, local
remedies are normally quicker, cheaper, and more effective than
international ones. They can be more effective in the sense that an
appellate court can reverse the decision of a lower court, whereas the
decision of an international organ does not have that effect, although it
will engage the international responsibility of the state concerned.
49. The African Charter states that this African Commission shall consider a
communication after the applicant has exhausted local remedies, "if any,
unless it is obvious that this procedure is unduly prolonged." The Charter
thus recognizes that, though the requirement of exhaustion of local remedies
is a conventional provision, it should not constitute an unjustifiable
impediment to access to international remedies. This Commission has also
held that Article 56(5) "must be applied concomitantly with article 7, which
establishes and protects the right to fair trial." [FN2] In interpreting the
rule, the Commission appears to take into consideration the circumstances of
each case, including the general context in which the formal remedies
operate and the personal circumstances of the applicant. Its interpretation
of the local remedies criteria can therefore not be understood without some
knowledge of that general context.
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[FN2] Amnesty International v. Sudan, para. 31.
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50. A local remedy has been defined as "any domestic legal action that may
lead to the resolution of the complaint at the local or national level."
[FN3] The Rules of Procedure of the African Commission provide that "[t]he
Commission shall determine questions of admissibility pursuant to Article 56
of the Charter." [FN4] Generally, the rules require applicants to set out in
their applications the steps taken to exhaust domestic remedies. [FN5] They
must provide some prima facie evidence of an attempt to exhaust local
remedies. According to the Commission's guidelines on the submission of
communications, applicants are expected to indicate, for instance, the
courts where they sought domestic remedies. Applicants must indicate that
they have had recourse to all domestic remedies to no avail and must supply
evidence to that effect. If they were unable to use such remedies, they must
explain why. They could do so by submitting evidence derived from analogous
situations or testifying to a state policy of denying such recourse.
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[FN3] See Constitutional Rights Project [CRP] v. Nigeria, Comm. No. 60/91.
[FN4] Rule 116 of the Commission's Rules of Procedures.
[FN5] Ceesay v. The Gambia
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51. In the jurisprudence of this Commission, three major criteria could be
deduced in determining the rule on the exhaustion of local remedies, namely:
that the remedy must be available, effective and sufficient." [FN6] According to this Commission, a remedy is considered to be available if the
petitioner can pursue it without impediments [FN7] or if he can make use of
it in the circumstances of his case. [FN8] The word "available" means "readily obtainable; accessible"; or
"attainable, reachable; on call, on
hand, ready, present; convenient, at one's service, at one's command, at
one's disposal, at one's beck and call." [FN9] In other words, "remedies,
the availability of which is not evident, cannot be invoked by the State to
the detriment of the complainant." [FN10]
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[FN6] Jawara v. The Gambia, Comm. Nos. 147/95, 149/96, para. 31,
[FN7] Id. para. 32
[FN8] Id para 33
[FN9] LONGMAN SYNONYM DICTIONARY 82 (1986)
[FN10] Jawara supra, para. 33.
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52. A remedy will be deemed to be effective if it offers a prospect of
success. [FN11] If its success is not sufficiently certain, it will not meet
the requirements of availability and effectiveness. The word "effective" has
been defined to mean "adequate to accomplish a purpose; producing the
intended or expected result," or "functioning, useful, serviceable,
operative, in order; practical, current, actual, real, valid." [FN12]
Lastly, a remedy will be found to be sufficient if it is capable of
redressing the complaint. [FN13] It will be deemed insufficient if, for
example, the applicant cannot turn to the judiciary of his country because
of a generalized fear for his life "or even those of his relatives." [FN14]
This Commission has also declared a remedy to be insufficient because its
pursuit depended on extrajudicial considerations, such as discretion or some
extraordinary power vested in an executive state official. The word "sufficient" literally means
"adequate for the purpose; enough"; or "ample,
abundant; satisfactory." [FN15]
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[FN11] Id para 32.
[FN12] Longman supra.
[FN13] Jawara supra para 32.
[FN14] Id para 35.
[FN15] Longman supra at 1183.
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53. In the present communication, the author of the communication is based
in Canada, alleging human rights violations in the respondent State
following an incident that occurred in the country. The complainant does not
hide the fact that local remedies were not attempted but argued that
pursuing domestic remedies in the respondent State would be futile "due to
the lack of an independent and impartial judiciary, a lack of an efficient
remedy, the significant likelihood of an unduly prolonged domestic remedy,
and most importantly, the potential for violence against the Anuak or those
supporting them within the legal system". The complainant argued that the
violations that took place in Gambella were massive and serious and involved
many people - it noted that "the government forces and its collaborators,
having previously drawn a list of targets, went from door to door,
slaughtering any educated Anuak men they could find, women and children were
raped, and homes and schools were burnt to the ground…".
54. The complainant noted further that the judiciary in the respondent state
is not independent due to interference at State level where there are
reports of Administrative officers interfering with court decisions, firing
of judges, dictating decisions to judges, reducing salaries of judges and
deliberately refusing to enforce certain decisions of the courts; and that
bringing the case before Ethiopian courts would be unduly prolonging the
process as the Ethiopian judiciary suffers from "a complex system of
multiple courts that lack coordination and resources", including "dismal
conditions of service, staff shortages, lack of adequate training,
debilitating infrastructure and logistical problems". The complainant claims
court proceedings "take years to yield results", and concluded that the
Respondent State's judicial system is "so under resourced that prosecutions
would be nearly impossible".
55. The complainant also alleges that the Anuak fear for their safety in
bringing the case in Ethiopia adding that there are no Anuak trained as
lawyers who could bring the case before Ethiopian courts. The complainant
concluded by stating that to bring the case within the Respondent State
would only further endanger the lives of the remaining Anuak in the
Ethiopia. The complainant added that the Respondent State had been given
notice and adequate time to remedy the human rights violations against the
Anuak but has utterly failed to do so.
56. Can this Commission conclude, based on the above allegations by the
complainant that local remedies in the respondent State are not available,
ineffective or insufficient?
57. It must be observed here that the complainant's submissions seems to
suggest that local remedies may in fact be available but it is apprehensive
about their effectiveness as far as the present case is concerned. From the
complainant's submissions, it is clear that the complainant has relied on
reports, including a World Bank report which concluded that "of the three
branches of government, the judiciary has the least history and experience
of independence and therefore requires significant strengthening to obtain
true independence".
58. The complainant's submissions also demonstrate that it is apprehensive
about the success of local remedies either because of fear for the safety of
lawyers, the lack of independence of the judiciary or the meagre resources
available to the judiciary. Apart from casting aspersions on the
effectiveness of local remedies, the complainant has not provided concrete
evidence or demonstrated sufficiently that these apprehensions are founded
and may constituted a barrier to it attempting local remedies. In the view
of this Commission, the complainant is simply casting doubts about the
effectiveness of the domestic remedies. This Commission is of the view that
it is incumbent on every complainant to take all necessary steps to exhaust,
or at least attempt the exhaustion of, local remedies. It is not enough for
the complainant to cast aspersion on the ability of the domestic remedies of
the State due to isolated or past incidences. In this regard, the African
Commission would like to refer to the decision of the Human Rights Committee
in A v Australia [FN16] in which the Committee held that "mere doubts about
the effectiveness of local remedies … did not absolve the author from
pursuing such remedies". [FN17] The African Commission can therefore not
declare the communication admissible based on this argument. If a remedy has
the slightest likelihood to be effective, the applicant must pursue it.
Arguing that local remedies are not likely to be successful, without trying
to avail oneself of them, will simply not sway this Commission.
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[FN16] Communication 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
[FN17] See also L Emil Kaaber v Iceland, communication 674/1995. UN Doc
CCPR/C/58/ D/674/1995 (1996). See also Ati Antoine Randolph v Togo,
communication 910/ 2000, UN Doc CCPR/C/79/D/910/2000 (2003).
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59. The complainant also argue that the violations alleged are serious and
involve a large number of people and should be declare admissible as the
Commission can not hold the requirements of local remedies to apply
literally in cases where it is impracticable or undesirable for the
complainant to seize the domestic courts in the case of each violation. In
the Malawi African Association and Others v Mauritania case [FN18], for
example, this Commission observed that [t]he gravity of the human rights
situation in Mauritania and the great number of victims involved render[ed]
the channels of remedy unavailable in practical terms, and, according to the
terms of the Charter, their process [was] "unduly prolonged". In like
manner, the Amnesty International and Others v. Sudan case [FN 19] involved
the arbitrary arrest, detention, and torture of many Sudanese citizens after
the coup of July 30, 1989. The alleged acts of torture included forcing
detainees into cells measuring 1.8 meters wide and 1 meter deep,
deliberately flooding the cells, frequently banging on the doors to prevent
detainees from lying down, forcing them to face mock executions, and
prohibiting them from bathing or washing. Other acts of torture included
burning detainees with cigarettes, binding them with ropes to cut off
circulation, and beating them with sticks until their bodies were severely
lacerated and then treating the resulting wounds with acid. After the coup,
the Sudanese government promulgated a decree that suspended the jurisdiction
of the regular courts in favor of special tribunals with respect to any
action taken in applying the decree. It also outlawed the taking of any
legal action against the decree. These measures, plus the "seriousness of
the human rights situation in Sudan and the great numbers of people
involved, the Commission concluded, "render[ed] such remedies unavailable in
fact." [FN20]
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[FN18] See combined communications 54/91, 61/91, 98/93, 164/97, 210/98
[(2000) AHRLR 149 (ACHPR 2000)] para 80.
[FN 19] Communications 48/90, 50/91, 52/91, 89/93 [(2000) AHRLR 297 (ACHPR
1999)] para 3
[FN20] As above.
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60. Thus, in cases of massive violations, the state will be presumed to have
notice of the violations within its territory and the State is expected to
act accordingly to deal with whatever human rights violations. The
pervasiveness of these violations dispenses with the requirement of
exhaustion of local remedies, especially where the state took no steps to
prevent or stop them. [FN21]
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[FN21] Organisation Mondiale Contre la Torture and Others v Rwanda 27/89,
49/91, 99/93 [(2000) AHRLR 282 (ACHPR 1996)]
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61. The above cases must however be distinguished from the present case
which involves one single incident that took place for a short period of
time. The respondent State has indicated the measures it took to deal with
the situation and the legal proceedings being undertaken by those alleged to
have committed human rights violations during the incident. By establishing
the Gambella Commission of Inquiry and indicting alleged human rights
perpetrators, the state, albeit under international pressure, demonstrated
that it was not indifferent to the alleged human rights violations that took
place in the area and in the view of this Commission could be said to have
exercised due diligence.
62. This Commission has also held in many instances that domestic remedies
have not been exhausted if a case that includes the subject matter of the
petition before it is still pending before the national courts. In Civil
Liberties Organization v. Nigeria [FN22], the African Commission declined to
consider a Communication with respect to which a claim had been filed but
not yet settled by the courts of the respondent state. In the present
communication, the respondent State indicates that the matter is still
pending before its courts and attached a list of cases still pending before
the Federal Circuit Court in relation with the Gambella incident. The list
provided the names of the suspects, file number of their cases, previous and
future dates of adjournments. The complainant does not deny this process is
going on. In the view of this Commission, it does not matter whether the
cases still pending before the courts have been brought by the complainant
or the state. The underlying question is whether the case is a subject
matter of the proceedings before the Commission and whether it is aimed at
granting the same relief the complainant is seeking before this commission.
As long as a case still pending before a domestic court is a subject matter
of the petition before this Commission, and as long as this Commission
believes the relief sought can be obtained locally, it will decline to
entertain the case. It is the view of this Commission that the present
communication is still pending before the courts of the respondent State and
therefore does not meet the requirements under Article 56 (5).
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[FN22] Communication 45/90 [(2000) AHRLR 178 (ACHPR 1994)].
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For the above reasons, the African Commission declares communication
299/2005 - Anuak Justice Council/Ethiopia inadmissible for non-exhaustion of
local remedies in conformity with Article 56 (5) of the African Charter on
Human and Peoples' Rights. |
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