Fenta and Another v Federal Democratic Republic of Ethiopia (Communication 461/13) [2022] ACHPR 25 (2 August 2022)

~w .... c"'.'"".'j~~~'~"AcRpr~ i\\ African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility COMMUNICATI,ON 461/13 , I Eskinder Nega Fenta (represented by Me ia I t Alemu Initiative, Freedom N Inn) Republic of Adopted by the: African Commission During the trd 01i •Rights I Wrlum/Y.jh:Jm 19Jtttfy Ito 2 AUgPl:!1t 2022 , I nO"g.71atre ~fricanlr"''''"" l lnion the African Commission on Human and Peoples' Rights 31 Biji'lo Annex Layout, Kombo North District, West Coast Region i Fax: (220) 441 0504 , Email: au-banjul@africa-union.org (220) 2304361 Phone: https:/achpr.au.int/OOIl:B ACHPR African Commission on Human and Peoples' Rights Q Human Rights our Collective Responsibility Decision of the African Commission on Human and Peoples' Rights on the MeritS! . Communication 461/13 Nega Fenta and Reeyot Alemu (represented Initiative, Freedom Now and L Democratic Republic of Ethio Summary of the Complaint: gal Defence the Federal Nega Fenta ), represented by Secretariat), received a and Reeyot Alemu (the Media Legal Defence, 2. 3. of ternbiismKti;ve (5) days -~i;_, , I~·t~;E:;~~'t.' ~t's:+'," emocranc Republic of Ethiopia (the on Human and Peoples' Rights ..was arrested on 14 September 2011 on suspicion publishing an online column criticising the 2009 I Proclam:·~~ion(,~;:on·'·:t:~~:~TerrorismNo :652/2009 (The 2009 Anti-Terrorism , ~ '_;, .'. ~"" "'-,,: .. =: ;-~ .. , Proclamat19P), suggesting that it was being fsed to target journalists and critics of the Government:.:;,~:, was initially detained in, Maekelawi, the Federal Police Criminal Investigation ~~I~on,and was denied accesJ to legal counsel and not allowed contact with family members. The First Complainant avers that he was kept in detention until i i 10 November 2011 when he was formally charged with ~(~!a~J(l.geTR~Uf~s ~. ! ~ gp~ ~rf IU :if ~ n '?- -« ct. \,~ ~" '" 'I1l <:O"r"l.""'R. IC~~~'\)~<tv<c,,&:> ~ !if c;., CII. () 1The Federal Democratic Republic of Ethiopia ratified the African Charter on 15 June 1998., I I I IIPage ... ! The African Commission ort~mll!:!. 11'aw"v~,;;=. R~~~pls' ~Rights Phone: 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia (220) 230 4361 Fax; (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.intiO'O.1I I'· T ACHPR African Commission on Human and Peoples' Rights , Human Rights our Collective Responsibility provisions of the 2009 Anti-Terrorism Proclamation and the 2004 Ethiopian Criminal Code. 4. The Complainant I further avers that he was ,ent~nced to 18 years imprisonment I on 13 July 2012 after a judgment of the Federal High Court on the 27 June 2012. On 2 May . I 2013, he appealed to the Federal Supreme (Court. His sentence was upheld although I the court dismissed the charge of leading a terrorist organisation under Article 7(2) of the 2009 Anti-Terrorism Proclamation. S. The First Complainant filed an appeal in the <p"'-qg;l-:< of the Federal Supreme Court on 9 May 2013 but a hearing of the appeal. The deadline July 2013. 6. The Second Complainant avers was arr~~~e1 on 21 June ""~;'";:.'\"'J-r\ .... for published an article in the. Government's plan to «. She was detained in M~~l<ela a~~rjjtf,.~teh,criticising the Ethiopian , ., .",,- and i;~(~~~p~iatedfund-raising plans. , .',J t and without access to visitors. She was charged' with ) (a), 38(1) and 684 (1) and (2) of the Ethiopiah;,'f=riminal Code and L!~:'~r-, Proclamation. :,:<"~'~, ·~,?~~,,:,t;~:t>h \'~ c'" 7 and 9 of the 2009 Anti-Terrorism 7. One-the 26 JanuarY6'~2,Ql~'the Ses~nd Complainant was sentenced to 14 years ....;,:-.- ., ,- :~ '\,>' impr'(, t and a fine,~t,;qi}~,Q90>EthiopiahBirr, the equivalent of 1,870 USD. On 31 July 2a~~,she' a:; ,'(t, ep:before t~e Federal S~preme Court which reduced her sentence \':~" d:'~J;'.>····:"<..~" to 5 yearS';i:)!r~J:LeSecon ~=. ·V:-~-·-. "",~t~iJ~ /;'omplainant was acquitted of 2 out of the 3 charges brought . against her:~~n 8 January 2013, the Cassation Division of the Federal Supreme Court -..; :-.•s-, upheld the dJ~~?j6n on appeal and maintained the charge of participating in a terrorist organisation. ,1'F' I 8. The Second Complainant further claims th~t in early 2012, she was diagnosed with tumours (fibroadenoma) in both breasts. She underwent an operation~~~ A/2'1" :-. U· IlP;''? I, I f(,~... 0:; "I, " "'(C': to return to pnson WIt out . h . bci emg a owe . . d ti time to recover. I I A 21Pagc I The African Commission ~\ con ~ VISItW~§"2'l ~UT'! U '6 \ • a ~ ""1.~..... "0'bHun1'<1.1i!and'P~pl~S')v~ 1/ .,.f ..·" AU-UA. ~ 0 i Ul ~, ~ J .!:: & (/)j Q' ~., •• ~ . j '~;." .4""RJCI>oRfgm~/·:;r 31 Bijilo Annex Layout, Rom~~~brth[IDrst'rict( West CoaS'tRegief.i!Gambia Fax: (220) 441 0504 (220) 2304361 Phone: Email: au-banjul@africa-union.org htlps:!achpr.au.intlO 0 &:II .... : -- ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility scheduled for October 2013 but it had not taken place. 9. The Second Complainant submits that IS: months after her surgery, the surgical I i stitches had not been removed. She bled regularly from her left breast and suffered severe pains. She claimed she suffered grlat ~iscomfort and displayed symptoms indicating that her health was in jeopardy. 10. The second Complainant made a request for Provisional Measures to the end that the Ethiopian Government should have her exab'1ed ~l,!;~";';cl~~dent medical expert in order to determine the best medical treatbeJt t6~(~~~~!urt~~t~ore, she requested I \,"" •. ~\ ?';</ that the Government of Ethiopia be urged to re th:a.1fi~J;~szy.,~,iij~~!~,~! t;'~~!~ent is .,<,.:,:,;",,- :. ---......"'~,:;":; :":~<." "~' . provided to her without delay. ..(. \;F~'~; 11. The Complainants assert that th~'<268;:\f" ',brism Pro,~l9,n:,fltionand its .: ~':.;t_ .,,:;~~~~r ..'. I subsequent application and impJ<ira@n,~atioli.hi:i:" ", lted in a si~i~ant number of '. Y "'1;"';:>,, ' prosecutions of dissenting ..goices i~"]E,tRi,qpia. T constitutes a serious or JIia~~lM~violati9~~'Q~:'h?mana -'.,-';·',;·1:.b -,_ .~ /--~.~.~ .mplainants submit that this .eoples' rights both dejure and defacto. Prayers ,'.:.., ,;;. 13. The\:~¥mph;ti!;lantsreqJ~~,' (the cc)ihris~i~ri.)'to: .-: a. Refer the tnatter to ~~(#,AfricanCourt on Human and Peoples' Rights in accordance Commission on Human and Peoples' Rights ,..::--,rf'~;"~'" j.<:·',~:,;~)"x':~,;,:..,~:.~,--> \~.\_ "'0 • ; :~.' '" with Article 58 of the African Charter and Rules 84 (2) and 118 of its Rules of \" ....'\ Procedure:P9alternatively. b. Draw the ~~ttention of the Assembly of Heads of State and Government of the i African Union (AU) to the situation in accordance with Article 58 of the African , Charter and Rules 84 (2) and 118 of its Rules of Procedure. • I c. Consider the Complainants' Complaintlas an individual C0mBla~t ce " • WIth Article 55 of the Afncan Charter and Rule 93 of Its R;Jblesof ~;r.~~ure~ I I I ... A~' ~~ .... \,\\}MAIIl4NO AR 0"" P l~t. CC~' 1" ,f/.~,:? ~. ~ ,fJ~~/ f'~.~. • ~. 11'. ~ \ ~ .x 1 (5 at \, l~lJ, i ~ ~. ~) ~ vJ,.* ".,,,M' r-,u·of" i ~ " Human ani::l~eople ' &R'Th(tfts The African Com issiohon ~:'" ''3'& ...~#-~ 31 Bijilo Anne~la~p~~k'd'mlfo~or.!Jir~b~ict, Phone: . V:V$,spe0p_stR~~~1Gambia (220) 230 4300F,;·ax:i(:z;.20j'441 0504 Email: au-banjul@africa-union.org https:/achpr.au.intiO C'Ira 31Page AJA~g~) I I ,,' " : I , ACHPR African Commission on Human and Peoples' Hiqhts i I Human Rights our Collective Responsibility d. Authorise a hearing before the Commission concerning the request for referral to I the African Court under Rule 99 (1) of its Rules of Procedure; , I e. Order that Provisional Measures be taken! by the Government of Ethiopia in relation to the situation of the S'econd cdmpiainant; f. Find that the Respondent State has violated Articles 7,9 and 16 of the African Charter; g. Order Ethiopia to make reparations others, lost income, lost profits and compensationifor. emoti0!hal suffering; to the Comptai~g~~~~;~i;mnsistingof, among I" ,,<~i~i,~o~~~:<'~ "\~~it'?;~\ "'.' , ' . h. Declare that the 2009 Anti-Terrorism Pr?c 'ation'\ti~t~~~~:J3~~f~J?i~~s~,~li~ations under international ,:i,ar its", " atio~$'fQ'leSp~cf 'the:';ight to freedom of expression, law anfl in parti . the rig~~;',0 a I ~;-"!.:.;, '/ respect human rights in the c,~ftt~xtof anti- i. Order Ethiopia -, <'-\'!,,>:;~:'if:> I '\-; to brings the 2009::;1)Arlti-Ter;$, /' ,'- ~'.~' , " :. .1: -'_ trial '.,,,:'-'.-'~':'" the obli' . QIl? to generally ;)" sm mcasurcs.z-" "Proclamation ·-·-.i?j":;·~~-·,o/, in line with Ethiopia' s obligations 'U1i4~~interna}~pfi1f!'i~iilw.and \ib>p~rticular its obligations to '\, I ")',',;':~ ,",,'}- ,.:1:';' respect the . ~I:;. E~:£~J~l~~aolm"G>:!~:~~Nression, tfi~j_;igh~;fba fair trial and the obligation i: Procedure ,14. On 12 N 1ii:i"no/~t- human ri~J~~~,:the'cont~~t'::t~ anti-terrorism measures. -, ,«iJ!~~~::~1~~'P r~'2~ived the Complaint and acknowledged of it. It also\s('ued Pro~isional Measures to the effect that the Government of Ethiopia should have ~RE;l';SecondComplainant examined by an independent medical expert ~~ ,,, • , .-.,~" I I : without delay in order to determine the best medical treatment and have it I administered to her. However, the Commission refused to grant the request to refer the matter to the African Court on Human and Peoples' Rights and to hold an oral hearing for this purpose because Ethiopia has not ratified the Pre. "'" ~~~tl1~tG..a. ter : !t on the Establishment of the Court. The Coriunission also refusr.~€J:to gr~e\eq~ ( 0- _)c~ 1~ to draw the attention of the Assembly oi f/J>-o ~((p ~~. 1"1 . 0,0 . I ' 4 I P age ''',,<.,,'~, African(,~~ Unio:)~~ The African coml\s.§lo!}.lon HUllJan@nd~e~Ples~ 31 BiJ'iloAnn~ Phone: /._,I~ights \\~""'\\... t~'" Eaydhlt,'"K, bmbo·Nor-tn§bistr[cft, ~\, _~ert CciastraEtgio~G~ola /,/;' Email: au~aAi(Jl@afriGa·O'nion,org (220) 230'~B~f;l.l,<t(?~O~).&5 NV A ~ https:/achpr,au,inVO{jEli ,- ACHPRl African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Heads of State and Government of the AU in accordance with Article 58 of the African Charter because the Complaint did not reveal ~he existence of a series of serious or massive violations of human and peoples' r~ghtf' I 16. By a letter Ref: ACHPR/COMM/461/13tETH/360/14 dated 18 March 2014 the Secretariat notified the Complainants about 1he Commission's decision on seizure and I . provisional measures and invited the1 to present written submissions on admissibility within two months of notification, 17. By a Note Verbale Ref: ACHPR/COMM/ . AHl"'i. . 46l/13j,P:GJl1IiX::q61/14(~'ffted18 March 2014, ,.-;, '·'·;·:ii:,:::O.i·. . . the Respondent State was informed about the...<;;p:ll.}ffiis~F;v':"<:l. I i ~_:~',-.,~.~t:r:/:~,_:-.» ·Ql:il:1iQ,1.1~eizg:r.e ;~'~~fL~~t;~;~::;! to pre~~ftt" written ::~:}~~:-?s~J'/ and Provisional Measures and the request,&;Jdl the'~t;Wi!m.plai 1 ,~\"f:-~;?~Ei<:~i, ~\ "'~:.'.~\ . submissions on admissibility within . ~0 mQnths of rtp,tification.' 18. On 28 May 2014, the Secretari,!tif Admissibility of the C0ffill}R'hication, ACHPR/COMM/461/1pY; . '-~~:- ~ ~ '-\ _ ~h~'Y eeived tfi: :;:~,~~plainants' S~ • <·~:~:;,~~r'·( I .ch was c[~ly"acknowledged o May 2Q.l+~' -~<,.~,;::~..:\~~~-._/~? on the by letter Ref: 19. By a Note Verbale R~f::1:(:;::tIPR Complainants' "'-. ""'~'>':-J\~.,., " i,~:;;;>-:.;J-·'· eo/rit~en submissidf ;>9~'~/13dated 30 May 2014, the ility were transmitted to the , '~I Respondent Sta:t.~;.with a request .;'! ij~ for tR ',teJjito submit ;2:7 its written observations on admissibility witl1.in,two months of ~otifi~ tion. ~~;;.::- ~:\ ',< ,.,,' ' ..._ " '.'> ~/' , 20. On\,i.~ and 23 Septemker 2014, tlJe Secretariat received the Observations of the "'-;,'.,;c'"" :~'>....' \;;·t~:it;;i!iFi:\.: , Resp·Qu:a~~~f;~.t~teon the::,f\'<i1[lis,sji15ilitySubmissions of the Complainants, which was duly ~~~~~~i~~:a Not~' ~erbale Ref: A~HPR/COMM/ 30 Septem] ~";2014. "" 461/ETH/1673/14 dated .< .;f;r ~.:,,(~':/ '\1'\. ""'<:' '~ 21. By a letter R~f: ACHPR/COMM/461/13/ETH/1672/14 dated 30 September 2014 the written Obse~~f:!.ff(:msof the Respondent State on the Admissibility Submissions was ;."," I transmitted tothe Complainants for their reply within one month of notification. 22. By a Note Verbale Ref: ACHPR/COMM/4<,1/13/ETH/1673/14 dated 30... B.@.¥!tember 2014, the Respondent State was .i Informed that .. Its written ,,~~ (1)s~t'-v:'arrons1§, ~ L#4:~ "'~ admissibility had been transmitted to the Complainants . one month of notification. re,p.l:~2~·W:Wi1;hin~' .~ \' ~t/~)Ig~ to prese ~hei'r 5 0 %., % .~I\U-UA .",';'. JJ p' t (/) ~.:; , : : I 51 P age Afri~nt"'i~ Union~~~~ I , The African Commission ..... "?\ \S'~ ,. ":> <;>¥; . <t' ~w~.;nlali1d:pe~.-~Le§l- . ~~EET~iQ.!1t 31 Bijilo Annex Layout, KOniBo:'~Q;Distfict, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org https:/achpr.au.intlO 0 II'l'I AC PR African Commission on 'J Human and Peoples' Rights " . i Human Rights our Collective Responsibility 23. The Secretariat did not receive any reply from the Complainants within the one month , deadline granted to them and no request for:extension of time to submit the same was also received. , , , I I , : 24. Consideration of the admissibility of the Communication was deferred during the 17th Extraordinary Session of the Commission hild from 17 to 28 February 2015. 25. By letter dated 26 April 2015, the cdmplainants I correspondences inquired about the non-imr' leme.n~~t.•.;.l.iQ./.l:l..:.'.6f..,th:'.,.~~•..,:.••.r.. isional Measures by the Respondent State. having referred to earlier {;r;"<'J :~, . ,'<f" :,', . '.,~~.;-:'~,.4t:'i!:" :.'.j ;,).:: 26. In to response ' ACHPR/COMM/ 461/13/ETH/777 /15 .g~~e the Complainants that the Commissioriat i( Complainant the ~,;IJ1~~;' ,.<~:~ltt~ci~;~!~.'~f~:·~\ 7 May 2015, in Banjul, The,GaI~JJI~~J:l~cided ..~}S.~'-;-~. . . -.:"".,::, " .. <, ;~"~,:;j::'>:: -" I inqlli~~~~!,/;f,'ij;/by:::~·".",_t~~er._".> Ref: ..:J< \_~._"':' \., ~ '--</~~,,~~,',~~ ,', ,: ~,;_:-,:.// 2015>tp~:)$ecretaiiatciruormed ·1 . Session h~ld'ff:0m 21 April to .' \. \".'~,:", a reminder "to the Respondent State to implement the sCl.~ClProvisiQ1,ll,Cl~:Meas , ),/:'\ implementation within tne}fi?,i¢]inereq1Jiwe~~.do so. 't, ',< :,», , "and to report back on the ~<~". ':;~>.n "--:~'~~)~". <,:>Y,:~_J , ,', "\ <f/~" 27. The Commission hg~,:·:.n:Qtreceiv~f "'PllY report~t~~:Siq!@)6nthe implementation of the .,-/:;t!ii;f: ;)l. i, .•~>.';"Jtt';v~;;;;;l:;", Provisional Me~$Uresby the Respo g.ent State. \i:~1_~:_~~~\, ~\.':' >~>' of the Complairi.iil~,t~,that the Secon~ Complainant was unexpectedly released from 28. By a letter date4;~,2July 2015 the Secretatt~f:wgSinformed by the legal Representatives ~«>~.>;..;:'; / ~~i~:; \~Tr:;j:. "":::~"'; ~.: ;f~ I s Prison on the 9 Ju{~,:~6) g_ ->.~,;' ". ~ 29. At if~"-~Q~l\';Ex,traordin <:, "', \', 1~'rstComplainant is still serving his prison term. I eld from 9 to 18 April 2016, the Commission considered a:ri.ti[,;~~clpr,edthe Communication partially admissible. ~ , /' ~ '~. ~ -, "'J, '.}'.'t 30. By a letterRef ACHPRi;eOMM/ 461/13/ETH/1789 /16 dated 17 November 2016 the <.:', t(,r... I Secretariat":S::p:otified;he Complainants about the Commission's decision on Admissibility\~IJ.d.invited them to present :written submissions on the Merits within sixty (60) of the notification. 31. By a Note Verbale Ref: ACHPR/COMM/4~1/13/ETH/1788/14 dated 17 November I 2016, the Respondent State was informed about the Commiss:Lo~-decision on Ad . rrussi ibili d 1 ility an t te request or t e omplainants to present w:;f.tt'f~~. f h C ~U;~AA_N~ ~. , the Merits within two months of the notification. , I , -, 61IJage ".",e" Afric;an(;~~ Unlon'\;;i!' - -', I I : rrusss; ~n <'~ II' \\) -e ' I .~ /J_~'" ~"'" . fJ ' 0 'u :2 ~..::::' ,~ II. ',".~ -c, ( 0 G'l ~:c 0 iri The African Com" ~Si'&, on Humah\~ndfP. ThDle "" ''J; '~'. "'h. ....~ ~ 31 Bijilo /\nn~~ayo-ot;Oil,<iI~q'C?1~8rth,pist~ct, ..,\)'<t ~Iglits -- ••\...:~ '%;"1)1 I>J ,/ '~We\3J'9oast l3~gi9n"'G'fubia Phone: (220) 230~3Q~1~i!aPt.2tg)~ 05 04 Email: au-bm@africa-union,org httpszachpr.au.lnt/O 0 Ci ACHPR African Commission on Human and Peoples' Rights o I Human Rights our Collective Responsibility 32. On 02 June 2017, the Secretariat received the Complainants' Submissions on the Merits of the Communication, which was acknowledged by letter Ref: , ! duly ACHPR/COMIvI/461/13/ETH/403/17 dated 05 June 2017. 33. By a Note Verbale Ref: ACHPR/COMM/ 461/13/ETH/ 402/17 dated 05 June 2017, the Complainants' written submissions on the ~erits were transmitted to the Respondent State with a request for the latter to subJit its written o?servations on the Merits within 60 (sixty) days of the notification. , . ,~. ,../~___::,.:/. I "'<'i:~"'>~". • ,":;:., \ i}$f.l , 34. The Secretariat did not receive the Observations otf,tn~\R~spond~D:tState on the Merits Submissions of the Complainants within the .' 35. On 01 November 2016, the Secretariat of the Communication from the ACHPR/ COMM/ 461/13/ acknowledged receipt of the ,Notice ot'jlWl,~iti~a'n 36. By a letter Ref. ACHPR/CO~~41461/13.£iEWiMi1952/ '\:\. <~.';~)"~l\f ~ "'$;\':;:,?\J:. /,:):,/t' '. . Ati{~~_, ' ". '."_., ted p~iic;>4."..,"~"",': '."., ." . oti~e :ci£1M~ti~~"tor:~i~missal .', " ",- ".' .' , • ~~;,,,,,_~r""''. "';1(,.,- by ~<N"ote-:Verbale Ref: \,.,)<_. :}'" 29 November 2016, the .' transmlr~~~1~6\~e tci,tf~e':"Complaiha"e;t~'0Jor their written Observations .. -, ,- • ~-:_:'.l ;:;1 the n '#{is,ation and: Informed the Respondent State Secretariat within thirty @'~) days of accordingly by ~ ~~-4. .~:;:_\ ote Verbal Ref. ACH~~i~J£)MM/ 461/13/ETH/1951/16 dated 29 November 2016.'\ The Law on Admissibili . '~;h,' 'r.l·'·' :!i'/' , Submissioris \ ci: ::~l1,~"Complai '};~~~""",,~"':;(::f:~~r:;:::,:';·c:., missibility , 37. The Co~plai \.'1\, ,,,'.;-," t;gue that they have fulfilled all the requirements of Admissibility .' '..,,." -;",,~~:::;,::-::;jrr'~';t.'''1,cfr I provided{"lQd~~ Artfcle~~ij;of the African Charter and submit as follows in support of i ' ~;~i~t_;/ their claim.'%~;\ ,dfY 38. Regarding Ai~~~le56 (1), the Complainants '\'h submit that they are legally represented by Yakare-Oui~ (Nani) Jansen, Patrick Griffith and Korieh Duodu, who are the authors I of the Complaint and this submission on admissibility, That they have been' de tified I as Eskinder Nega, born on 7 November 1~69 in Addis Ababa, EthiQI2~a-~mjM~~~" ' '..:[,~~ I ~ fi,#"'c Alemu, born on 21 January 1980 in Ad~ Ethiopian nationality and an address fir representatives has been provided. 71 P age Afri;nr,i.~~ Unlon\o.1fi (Nazareth), Ethiopia. \ correspondence W~~1t~~t~1~ ifJ"fhl~l I ........: ! The African Commission ' ~ ~<so~JJ 0 t!u",!~!J,~tR§ppie~ '§!ghts ~~%Nrr; ~ ' 31 Bijilo Annex Layout, K'o Q~~tr(c'(, Phone: West Coast RegiorH3ambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org https:/achpLau.inUO (j.illII ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility 39. On Article 56 (2), the Complainants submit that it has been complied with, in accordance with the Commission's compatibility requirements. First, the I Complainants are Ethiopian nationals who personally suffered violations of their rights as protected under the African ChaJter.'Second, Ethiopia ratified the African I Charter on 15 June 1998 and the alleged violations took place in the second half of 2011. . '. I . 40. On Article 56 (3) the Complainants submit that no ir ("15' ';1>., , language has been used in communicating the violations of their righ '''~F"erthe ~ttican Charter. also submit on Article 5~ (:!)Jh~t ;~~:i:'.rJ~f;i,I~f!~i8!l)Sbased on 41. The Complainants ,tV/'lf:\ their personal experience and not foundedfexchisi~ely they have sought " to provide the C mis~i~h. with' evidence including all court ang,t' , reports from various humanzights or 42. The Complainants. sub& -: -, requirement of the, ~~b:~t~~ti9n the J;gYb'''':''' J;!1~1~Y :, i ~a'yreniedle~tf .,' ",,:, :'"":'. on "'< ;"\ much ;~r' ical documents which they;tad ,. "'~.. I ,,:!j/':\;:~', ';, )<..,~ ',' ~' " .... i'isations.· __t.. .\!~;~)~}~; • ~~ . J" ". __ /'~~ ,. '''<t).') ..~·,<;;};:;ii:,;? '. :~, e.w~,.reports~··'I:ri:o;addition sdocumentary access to and ....unicatiori )a:lso complies with the c~~dance with Article 56 (5) of he First Complainant appealed the African Chatter. The C6mplaiti'~!\ I' ,> instang.&judgment . -\ " the first .. (Lideta Criminal Bench) against hi~~8~ 13 July 2012. q~2 M, Y 2013, the Federal Supreme Court upheld ;;:>FederalHigh Court delivered ~\ .:~~. ~, , the;~'l1~pmentin f~i~~ilistance. The F~~t Corhplainant decided not to request a hearing in tl~~~~~,§s .on Divi~io:n'g>f0tJ;j~;:Fecleral Supreme Court as he was convinced that it 'il(i~~'E"''''ii,'~, . '~~~'::~ .. • ' -. ""'! ,..' " " I would ~2t co ,.•,~Wte,aneffective remedy of his criminal conviction. The Complainants 1:~:~'}~;";i: ~tl~;;';, tn%t(,~6rnestic , .'<~> "'~dies pursuant I submit to~Article 56(5) should be exhausted, only if . ~ they are avap,able, effective and sufficient. Where domestic remedies do not meet the '~""':7 \~> ; aforementio~~(r1;ici'iteria, a victim does nof have to exhaust them before bringing a complaint. ~ I I I I 43. Regarding the Second C;:omplainant, the :Complainants also submit that she has exhausted all available and effective domestic remedies when she. a~d her crnruna . . I convic IOn to t ae . ti • F dIS .e era i upreme , C ourt, w C hi h '~11~\-\~ paI\f~~'·~~~tllp.. I4~ra(>~· //, 5-JC)..... ~<t) er ... 0.0() conviction on 21 July 2012. In addition, the Cassation Division Q~1:fieFetl'~p're:rh.' 81Page , ! .......,_ The African Commis r ® )~.~\ ~ ~ ~ ; ~ '~n ~~ ~umagi.§lQ_d~Pe~:jp@s'enj ~,,,,' \ _/R[gnts' 31 Bijilo Annex ~~yout~f\9mbo'Nort!kl1ffstrie'i' :-.... "".i. ~ VV.est-Co£'sf,Regidlt Gambi (220) 230 43€)~dX'H(2gQ):;4~~\,:p 4 Email: au-barffin@africa:l:mlon,org '''1-.'). y~ ,,- Phone: https:/achpr.au.inUO 0 II'.lI ACHPR African Commission on ~ Human and Peoples' Rights Human Rights our Collective Responsibility Court decided negatively for her on 8 January 2013 and upheld the judgment of the Federal Supreme Court. 44. On Article 56(6), the Complainants aver: that the complaint was filed within a reasonable time. The decision in the First cdmplainant's Appeal was delivered on the 2 May 2013 and the Second complainant'sl conviction was upheld by the Cassation Division of the Federal Supreme Court on tle 8 January 2013. The last court decision I was handed down only 5 months prior to tre filin~;~t?he'~co!(J-f~;\inton behalf of the .!<"::""'>'" First Complainant and 4 months prior to filing onJ:)e~al(of the ~~~ond Complainant. 45. The Complainants submit that, the presentl C u~a:fl~r:t:J~·tt~;\.\7itbinthe sS9pe of -. .' '_ • . '>, ",' " f.' ~.. , . Article 56(7) because it has not been settle atio~af,~);;t:egio;'_a11~l.echanism. The Complainants submit Arbitrary Detention regarding ttt~;f~~i~,~~ regarding both Complainants that a cQ~~lai., Com ,/_,* I Article 56(7) of the Africah'~~C1;tter; '~,._ !.:'~:...'~::-,\ do not ~~Q;J.nt to a #:5~::'f,~~;.::+ ..'~''y'',t~,'-~. " " . , the UN;_~o. J;~ing Group on ' .. " 't and the UN~$CO Committee t~ment within the meaning of :,:::;:> it;~·· 46. In light of the for;r~g.~~~?1~~t~eCoW lcdriant~ stibiriitJ~at their Communication meets admissibility a . Cl:)~~spectfully/requests the Commission make a >,~ ,,1 I, ,:{W)"'" all requirementsjfor declaration of ci'f~\. issibility and proce~'Ci~iQl~h~'}meritsstage. .. 'l<~<~: ~,,~._~-'''~ _': (7 hAl " -, I Submissions \~::~"i·}7 of the Res >. QpdentState on 1\dm~ssibility \1 . \·{~!~i;~!l!f:;\~. 47. The Respondent Sf~\@\;~~bmitsgen '<ally that I ~t: the Communication does not comply • .'~---._. " .:., . ~. - I with:;~~~"".i:eqp.i"rements der Article 56 of the African Charter. \:, '\ ' -, -; "'~.'." .: '<. ,~. ". : 48. The ResjZ!ondeR,t;·§ta,t~,~ubmitsthat the Communication is improperly brought before '""'\"'.",;._'~.'".,~~,~"", ..,.«tj the African ..~oinmissio,i:.f6r /<;-,: ~\',\ ~~~. Charter and.secondly, two reasons - first, that it is incompatible with the African I that the Complainants have not exhausted local remedies. With , regards to the-first assertion, the Complainants were charged with and sentenced for , , I the crime of terrorism which is not covered under the African Charter. With respect I I to the exhaustion of local remedies, the Respondent State observes that the First Complainant failed to present the case before the Cassation Division of the Federal I Supreme Court, claiming it would not cohstitute an effective reme~o/.~~~tN claim is unfounded. The Respondent State' submits that I : 9 I P a g e AUfriG<ln{~n nlon\:'\.. J~' '< •• ,... . . I I I : , ' a o~ ;/);o~!<,,,~ local re~'~dfes~anabf~ (r~'-:""'"~ l~~ ~'""" " i.~1 0 CI ~ ~ i5 en o- ".f ~~ U \ Z The African COmmiS$l~'.!J 0'l,Human M~jPeoplC(.~' ~ ~ Rigbts,,> 31 Bijilo Annex L5- Qu..t,"i<:ombo. Northi). iSlrict~ . ~ \. t-. ' t Co~st\Regi6n"'GambYa c , co ... • (220) 230 40 ..~faX)~~~0b14~5' Email: au-bati)W@afriGCl::unlon.org ;,. ~ ~ Phone: httpst/achpr.au.int/O 0 a ',' ':.' ACHPR African Commission on Human and Peoples' Ri9hts , Human Rights our Collective Responsibility and effective but were not exhausted by thi Complainants. 49. The Respondent State further submits that tre Communication is not compatible with , Articles 56(2), (5) and (6) of the Charter. Wi;th regard to Article 56(2), the Respondent State submits that compatibility with the Charter or the Constitutive Act of the African I Union entails that any Communication filed in such a matter should prove a prima facie case of violation of a specified Article, failing to do so would entail that there can be no communication before the African clmmissiol1~;Jr;ihis:c~s,e, the Complainants were prosecuted for violating the Anti- Tertorism:'l~~ of the ~~~ibn under a free and I ) . _/ .: ,,,""-.... ',' '.". . ence. 't]i!t;.~I~~~.!R-~!~;~~re~ol1yicted ,~opi~~iV'\~~h~;his.~~~~sult of fair court of law and were found guilty of the for has nothing to do with the freedom ~t ' ' terrorism charges. ".\. 50. The Respondent State also suqp1it&i"that the ";~o' A'~ $;; v" <{',,,;; -',,- i.; • '\:~1~P nication dql€s not satisfy the requirement of Article 56 ;(7) of the:::::Airican er. In this regard, both the complainants', Mr. Eskinde~'~f>r'egaFenta/,~n~@rf<::omm~rJ~1ifi~nno. 1116/2012 and the "'f>" "":'", ':'~~:'. _,:~«,:;.}: '~l;~~:"'i~'l~:,:::~!i Second Complai~c;tnt:'~:rxt;~. R / ..'ot1tirAle~u iii(i~~x.,'/,cmmunication no.1124/2012 .: '~..-:: . ""-',,'~:;-, \i~~f:'~;-:~,.~, -,~~~-,'-i.;;-_J:;/ represented by tyIedia Legal DefeAs~:,"t\!=lV~brought the case to the United Nations , ' , ',,~,:,,{:":i :~:. , Educational, S~i~nti£ic and Cultural';~O¥~aIlization (UNESCO). As a result the •.-- , . "',-,~? '1 ' . UNESCO has be~r' pealing with th~\ case of the two complainants for the past two yeart?"Hence, this:is',~:cl~ar violatiol)l~6fArdcle 56(7) of the African Charter. ';i\::·h~~,:f·~::.··';;~>.. '~<..~,:;,':',:'"'' ,. >" .. <,;.)/ 51. The ~~sliQ:nd;~ntState tlll:,~I:\~ri~1!prrutsthat . \q~jh\ "~~~~f(~'~iWitI~):1~';:':'\'~'. """",,'..~"",,~ the first Complainant was charged with I crimes '~qmmit:tqg;in violation of domestic laws after a thorough investigation of his "if> participa't(on ..... ~ :-,~, .. ' r 'terron, 1:.:/ " ,;,.~~,;~:.,:~. : .jgttivities and backed by evidence. That his trial took place in public and\~t was given the opportunity to defend himself and represented by a ~,A I lawyer. Due pl~p~sS was followed throughout , ~ the process of the trial. The Respondent State also submits that the second Complainant was charged with crimes under the Ethiopian Criminal Codeand Anti- Terrorism Proclamation. Her trial was also held in I 10 I P age --.. --. .._ .. I I I I1ttps:/achpr.au.inVO 0 CIlI OJ '. l ACHPR African Commission on Human and Peoples' Rights I The Respondent State also avers that freed~)1nof expression is guaranteed under the Human Rights our Collective Responsibility . 52. FDRE Constitution and the Government ~trongly believes that , the media plays a significant role in furthering democratic: culture in the society and promoting development activities. However, those abuse it for the purpose of advancing instability and terrorism in the country cannot be serving the noble cause of journalism. The Respondent State avers national security and public safety and 53. Regarding the second Complainant's ._.....-r- Respondent State submits that the right rC,:dl'\,,<> rights in Ethiopia which is allegation that second unfounded. The Ethiopian prisoner medical care tl"I'lI,;;l;!'r::\t, capacity of the meqi~5ltc;:.~re .» .... -~~- the . LJ,'.l'O\,U\... CU care that's beyond the will be addressed by the country's best medical care"...u.._. L. LJ. L. L ... .:> (4) of the Directive no. 138/99. As a result, M?);. Reyote's was first ~" '\ medical care facil~~)\. However, since-her <"_,::_, .,.,:' -, , 1'·; was" eferred to Tiktp.·.k\J)besa Specialized of th "~"~:-~-~kS,/' .'i\l.i~"AbabaUru. V~r§ity;·:t&>get . ~,,'\ "<~\;:-1;i~i~::i~;:?"'h.;. ,~:<-j:/ -,".." t '>. ~. ,~,., from M'~\Reeyd!:'~\fMegicalrecords, 2 .: ;;",~~;r "',.,::.;.;:;, ,.": i..;;~,..,..<; 54. The Resp'9~~eht Stat~·',;gties that the facts I :<~:. ~::\ ".," to the Kality prisons administration which hosts the Medical Faculty treatment. This fact could be verified in the Communication do not show prima facie vis>lations of the provisions of Charter. Thus they are not compatible with Article\§~D~2), and do not fall Commission. • /V.' ';;~7 .................... "I" The African Commission on Human.and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org https:/achpr.au.intiOOD ,':: "'.' ACHPR African Commission on Human and Peoples' Ri9hts 55. The Respondent State further argues that rights instruments "Collective it has ratified many international i including the African Charter and has undertaken human its obligations Human Rights our Responsibility to promote and protect human rights. It has actively and regularly engaged with the Commission and submitted its periodic reports under Article 62. All the above are a clear manifestation of the country's commitment to both the regional mechanism and the protection of ,hu;~a~ rights in general iJ the country. 56. For the foregoing reasons, the Respondent !state requ,~~t$'th;::~(')~ission to dismiss the Communication. The African Commission's Analysis on Adrnissibil' 57. Article 56 of the African Charter sets-out / /i"',, " ~ . I;",:'_ ,:\ "\.!.' \'. '\ :(':1:;ii1s';;:/';}::' '~<~~i;;~<~~~\ <:\:~, '~~~ ,,', -,' , . requ?\;}ments ti1~~~:. Communication '-'\~~;..;;.',.... ..- brought under Article 55 of the,1£fi~~,Ch~rtetl' ,'~" satisfy in order-to be Admissible "<;;:.':J~,:::\ I " for consideration by the (,ommissio1t?i\i..)!:,Jlosere ~.'X~~,,;, ~;<.". J::_'>- Failure to satisfy any on~{o:r~'-€lg~'~of th~.~~fif~~'tlremeri''t\,(flriders the Communication I inadmissible, un1es,s,Jl~~",~ompTa!ii~}-'l,t.'prov[des'stlfftcientjustifications as to why any of the requirem~~:f~ '~o~l'd~ot be ~~~~;~> " ';;T",:f}". ''"tv'" ,,/:;'" "', ' . ' " '!1f., '. i apply cumulatively.s " ments .,-~ 58. The complain~\s submit that all ~~~t~q~irements under Article 56 have been complied with. t/~.,,::\ 'F:;lj1,' Respondent Stat,~ ho;o/~ver argues that the Communication .,;~, \',,11:/ does not-meet " ~"" '"'r::r::;:~'i·.'\"., .' particular.rthe Responden.~t:~: the reqJ'i.·:.::~L~ntsstipulat'd .. !:jp! 'ubmits that I -:, " ;: i' r ,. : ' un~er Article 56 of the African Charter. In the Communication does not comply with Articles '56,\2), (5) and (7); namely, .' ,,',:{.'~'~'-<',< <; :,;,,?<'~;:.'t,~·,·;,::".;) that : Charter or:theConstifl:i¥Hre Act of the African Union; that local remedies have not been it is not compatible with the African ~-:_\',: :,.i<;'f :3>F exhausted and that th~' Complainants' case was being adjudicated before the United Nations, Ed~~t?ti0nal, Scientific and Cultur~l Organisation (UNESCO). ?' I 59. The Respondent State did not raise objections with regards to the other requirements under Article 56, apart from raising a ~eneral objection at th~~$ I . of its 3Rule 106, Rules of Procedure of the Commission, 2010; Communication 304/05 - FIDH para 38, 4 Communication 275/2003 - Article 19 v, Eritrea (2007) ACHPR. I I " . ,1S't.' 14~"~ 'lher,s. 'O~senegal (2006) ~€HP GC. v. "'~.. p.,u·ur" ~t. Q , , 121 P age . ~ c.'it'C.iARJ4,. otO~ g I ~! ~~ " The African Cornmissld ~~I,!!E<!'1 g~Ee c 0", 4""RIC"\~ pies' «e= ~~'" 9:,(j 0 (;,_0~" "<;~FRights 31 Bijilo Annex Layout, KombONorth District. West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union,org https:/achpr.au,inUOO.1I.lI I I I ACHPR African Commission on Human and Peoples' Ri9hts Q Human Rights our Collective Responsibility the Commission is satisfied that the Corn]?lainants have fulfilled the requirements , under Articles 56(1), (3), (4) and (6). In this regard, the Commission will proceed to analyse the arguments of both parties with Jegards to the requirements under Articles 56(2), (5) and (7) of the African Charter. 60. Article 56(2) provides that "Communications ... received by the African Commission shall be considered if they: are compatible with the Chdrter of the Organisation of African Unity or I with the present Charter." In proving that the abov~ ]~qiiirem.'e~t has been met, the '---~ -r- Complainants submit that the CommissioA has i,n/it~}'Pf,evio~;·,:,d.:ecisionsstated that the condition of compatibility requires tha~: ~H:~~mriGi~iF~ti,~ri~~~Q'1!g. be brought against a State Party to the African Char,tef y:~'gI:ti~one~ho is competent-to do so; _ the Communication should be brou hfinr" ""n. :/:(~..~1:}';\~~f~~~:: :') 'lations thatoccurred after the ~,~, ~, '{ "/.- . ':, State's ratification of the Chart" r continued thereafter; and the Comm .4:,,? rights protected by the ~f~l'¥~'\nCharte~,.:.'!:F, before suclrS';atification and ~ ege prima facie violations of _.,~J' ~~;~r;~::>-~}.,.. cited KeV:j~:"MwangaGunme et al v. r . "\ '~J? Cameroons in suppor(()fJheira~g~,m~~~.· ! ,;;§9' 61. The Complaina!l:f~ furth~r" arg~~i~ti; Complainants at~Ethiopian nationals rights as prote~;~d.under " .: ,~"", i ' all thre~.:l!;ir~~Uirementsare met. First, the I I personally suffered violations of their the Afr~~an ~~~rter. They have authorised their legal representatives to fiie:q complaintrwith the Commission on their behalf. Second, Ethi(}~i~;:'f~"ied the ·~h~~t~r,38p.,,~5J~ne1998 and the violation of the Complainants' rights '@~~~:n'~.··:l:f'e we~~';~~secuted f~r terrorism in the second h~lf of 2011. The up to the time ;offiling this Communication. Mr Nega is alleged ~1~1,~:616nsco ~,!y ,,,;OJ'' ''''!\ , \;:;( ,~;;;i') I still in priso,I}whilst Ms Alemu was unexpectedly released in July 2015. The said violation of ~~~'i~bmplainants' rights occutred within Ethiopian territory. Third, the :"-:;. I Complainant~;~ubmit that the following rights of the Complainants protected by the Charter have been violated: Right to Freeddm of Expression (Arti~!a Trial (Article 7) and Right to health (Article 16). I ' ~ -F~" ~<i,. Rt: '·?/,q,. 5 ACHPR, Comm. No. 266/03 (2009),para.71 131 P age I I ... [--.. ~ Fair ~ ~ • l' ~' (.) \l R 9. "7. ~ AU·IJA / Q' ;;; ~ 0'& r' t;;)QC -_/ . <),-~." .q':RICA. I'><"- c \§!"~'" flI"'", FiT ""c, ~. "'... The African Commission'<o_..::.. Ii!4,rnruJ-·~· '0 ~':> -~ eoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org Phone: https:fachpr.au.inVO O!!D . , , . '~ ACHPR African Commission on Human and Peoples' Ri~Jhts 62. The Commission observes that the requirements " .... .... ,. ,_ , . Human Rights our Collective Responsibility of Article 56(2) have been well , articulated in its decision in Kevin Mwanga Gunme et al v. Cameroon" as cited by , , the Complainants. Based on this decision and the submissions of the Complainants, the Commission notes that the present Combunication the Federal Democratic Republic of Ethiopia (FDRE), a State Party to the African Charter by the is brought against Complainants who are nationals . I I of Ethiopia; , ' the Communication before the Commission is brought in respect of alle;bd in 2011, after Ethiopia had ratified the African Charter; and. violations of rights protected by the Africaj C,b,i;l~te,!. . I. (',:l,",' ,.,'i·'" that the Complainants have satisfied Art,ic1~"56(2)'Q_#tl~e 63. Regarding Article 56(5), a Complai obvious that the procedure is;f:U'. ~:~:<?;'>.::i ,,'<..., :'.;r~;)~" nt s~~~:~~.ex~~yst local Y prolong~,(r Therefore " " I " .,". Complainants herein to prq~ide sufHe .,'fitt: reason"(s)\:tP,support their allegation that ~(:';;:J>- they have complied witI-pfh~(§~;,dtequir,~:tl ..,:~}9'. ... .-\, ,'.' . -. . 64. The Complainants sub~it 'v / Article 56(5) should be interpreted ~~ th~~ 1 .;f~ en-dsta ,finciple that the provisions of ',,"\1 peoples' rights \~~ stipulated in the Ch w;~,~;:,;;>andthat for domestic remedies ":j'J'lv ,', '" . to be exhausted, they hase to be "available, ef£~efive and sufficient."8 That the Commission ~r~" ,.' > .~ ...... 'c." I .\ '" ;~/:! ~ I i"~ \)1r",/.,r, in 1984, was and RADDHO, that local remedies 6/03 (2009):~ar~.;~r:;:<)i>':':: Qml1z.~,v. Mauritania, par. 85. The ';'egovernment, after it took power in a coup d'etat ups. The Commission ~ddressed the requirement &.r 61/91 & 96/'93;'&;98193 & 164/97:& 196/97 & 210/98, Malawi African Association, Amnesty CollectiJ des veuves et ayants-Droit, ,:. Xpl{,,interafricaine des droits de l'Homme 6 ACHPR, Co~" ,. " 7 Communicatio International, Ms Sqrr D Association maurita~i~lJne des4,foits((i communication conc~:~e9;~ilegatio', marginalising Black Ma.'qrifanian ethni must be exhausted and '~eld that the requirement should not be applied literally as it is sometimes "neither practicable nor desirable" for the complainants or the victims to pursue such internal channels of remedy in every case of a violation of human rights. 8 Communication no. 284/o,~;7Zi;nbab'We Lawyers for Human Rights 4- Associated Newspapers oJZimbabwe the implementation - 102. The communication'iconcerned (AIPPA). The Commission, 'exhaustion of local remedies': because it is unavailable, not have to be exhausted because it is ineffective (or unavailable or insufficient) show that the remedy is availa,ble, effective and sufficien.t; and if tfte Respondent State is ablp4t'~tablish.thiSL\ then the Complainant must either demonstrate been effective in the specific case, even if it rnav be effective in general.'; Communication Mussie Ephrem v. Eritrea, par. 36 - 37. The communication concerned the alleged illegal v. Zimbabwe, par. 101 of the Access to Information and Protection of Privacy Act in showing remedy does not have to be exhausted states that-the remedy did O.,.~250'(0.2'. IfJesb~t~n. Ze07Jeld a'f1 \\.. \{Y:~6~ n 2 2 . W 7J Ci arrest of 11 former Eritrean government officials in Asmara, Eritr+ on 18 and 19 September.' ~l>I~~v~li:}tiSJ. Qf~f ,f J ;; 14 i P age , "'w"" Afric;an(;ci\}lj UnJon\;.~&.- in paragraph 101 outlined the respective burdens on the claimant arid respondent 'If a Complainant wishes to argue ithat a particular the Respondent:S(ctt'e$.llstEtRe'O'''I;<\Ia .0 the procedure is as follows: the Complainant The African commis~.~~~~~~~~~f!:;i~e,:~ the remedy, or th~~COU~d no)~a-~~ - this does not yet have to be proven; 31 Bijilo Annex L~I!l..k~6Jt!~0.)~P~.fti~ct, that he or she did exhaust ineffective or insufficient, o~ HlJ. M4N ~o ~ e': '. '.. -... 1'1 ~ -- .. ">,,,",' : . . . ,.... ., I 0() . I J , , . . Phone: West bbl:rst:R.... egiei"("Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org https.rachpr.au.lnt/O 0 fill AC PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility has held that, if domestic remedies do not meet the aforementioned criteria, a victim • I does not have to exhaust them before bringing a complaint. The Commission has I further held that a remedy can only be considered effective "if it offers a prospect of success." 9 65. The Complainants submit that in August ?012, the First Complainant, appealed the I first instance judgment by the Federal High Court (Lideta Criminal Bench) delivered -;"; ..... against him on 13 July 2012. On 2 May , t~e Federal Sup'~eme Court upheld the judgment in first instance. Thereafter, the deq!ded not to request a ~<>-', hearing in the Cassation Division of the that it would not constitute an Qt-t-Qrt-n: deadline for filing an application fo~>? 66. The Complainants tb:~;::rir~,t . the cassation procedu~~lhad argued that " ;': ;~-,::. . that Cassation Division of the;F:~~era:1 ~ "'~t~~~---;.f.t-.~ . can only reconside Complainants s, ,mit r\'~ ecisi~rl~iiti:\ther'e;:hasI",Q<~n::'<>, 't, :j~;'~T>". '. ';'~''~'~"~:'":\<. .' that a hearing,~t ' i t~e Cassa ' <-~':-;J::..".)\ . appeal instance and error of law". The Division of the Federal Supreme Court would in,' eed have been a mere f0t~a.yty with no actual prospect for relief for the First Com pi'; nt since the hu~an ~i~hts violations contended for by the First Complainant do :.,);;~:~,g~e Cas~~ti.d.~.pro<:edure."'W';'. -...:\ " ,- ,..... , <:1". '" 67. The Cd~Ilplaihant~',,:Cllsosubmit ,;",'~:,,:< '::. '~Y~;. ..''/:, '" -co'''<,.{ ~:\ :.~',:~.~.x:,,:.:~~· :,::: Yi( • • within.sthe p':.~'?/ ""jj;? I narrow scope of review afforded by the that, under Article 80(3) (a) of the Constitution I. of : Ethiopia, 'tJ1~;Federal S1:!preme Court has the power of Cassation review over any and , ." » i every final :~<?urtdeci~ion containing a fundamental error of law. This is further .~~ specified in 'A:~tiCle10 of Proclamation ;. iNo. 25/1996, which states that such a fundamental e~ror of law is the sole ground for approving a Cassation review. Thus, I . . , Entrean law and the Af~ICanChar.ter. The Co~mlsslo~ refers to Inter-Amen~an Cour~~1"fum~lgh~ on the burden.of proof in exhausting ~om~~tic remedies: 'The. Co~rt also opmed thatf1J5ere a..:fp~~~~~non- of .localf~emedles bec~u~e of the unavad.abIlIty 0: due proces.s m.th: State, the burden/p~rool WIIJ\<". J)).. shift to the State claiming non-exhaustion exhausted and that they are effective."; Communication 147/95,149/96 9 Communication 147/95,149/96 \ ~ ~ and It has an obhgatioI'} to prove that dO~1$lC remedles}remam to l!:!e=i - Sir Dauida K. [auiara v The Gambia, para. 31 & 32 Sir Dauida K . aba yd;ara . v.",1]zeJ(i;ambit)? pdt. 31 . e.~ ,ustion o~~UMAN4No .(toy:' c.~~:AR/.qr ,o~o case I ~. • ~j(_ '%<I'~ '. The African com~~~~~~~ ,s'CI\ -- /<r_-c-,Q '" .f(.(;i S e~i~~~ 'is Ip' ag e .~.. .... . m : I.. , •• - •• _ ••• _... •••••••••••••• ••• •• •••••••••• • ••••••••••••••• •• t '«<'''''' A~~~~~~~ 31 Bijilo Annext-ayel:lti~ North District, West Coast Region Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org Phone: https:/achpr.au.intiO 0 a ACHPR African Commission on Human and Peoples' Rights , ~ i, I : for a case to be deemed suitable for cassation review, , Human Rights our Collective Responsibility it must concern not merely an error in law, but a fundamental one, which is a narrowly , , constructed concept interpreted to refer to situations. worthy 'of Judicial review and in need of legal interpretation. 68. The Complainants submit that in brief, it is taken to refer to situations which involve the application of incorrect laws, issues related with the jurisdiction of the courts and issues related to legal interpretation as seJ out in th,~:~@i6~~:laln.ant's Expert Report .... :;," :' provided. 69. The Complainants scope of the fundamental also submit . .",/~\{:~~;~-, the that, due to Jl}e,narro~'i~t~p,Pr~t~tion.,given}o error of law tes~'l;1:rlIyver.:x,fe~ cases-are accepted as having '~>"<,:..;"," ~"':F:)/ ·I~(·;::i,.·.•,:"" >,( •., /~ > ./. ",,'.' ;1,~:iV::j!.:, \:,",',. ~ ,~ t .; ;--_'Z. a fundamental error of law by the ~essatlb~::Division.:9f the Federal Supreme Court. /;~:~' : ',',,:,'_ ~:i:'_:_--/ In support of this submission, tq~{~:dmplai~ant$ ~Efgedon the Commission's decision ~ "'; K:i<;'~" in Interights, Asadho et ~~,tre 0 D1 , :RepuBli~~~ Democratique du Congo.t? where the Commission , . "{~,5_~;;)~~.-~.<- ..> • ",reVIew'\;:~~d'not constitute • an effeciioe remedy because it could-reoieio on .¢,~p~ctlor of procedure and not the substance I , •. of the claim. C011:seq~en~lYl"[anappedl'(~l~,£as~ationJ,;;tas not capable of curing the alleged ·<~~~,:-:f:~):~. '': violations. " 70. The Complainait~~ J~rther submit t\\at tl.1~iprimary basis of the First Complainant's app al to the Fede'rai tS:upreme Court\Was tHe insufficiency of the evidence brought by \;.. the < 2> ~ \' <,gi?i(;l,rtgovernmeti,~~<~l,)g';~liallenging the factual events which the Ethiopian ..",.,. !~<{, "q. :~,::.:i?\~~~.: '~~',.~~;::~> > ...;::~~.... 'L, ' -. governrnenfaII~g~;~,quali£ied as "terrorism". That the main thrust of his appeal was '{9:~~ __,,{,~/' <~ }~~:;'(>~\~i{'~"f~·- . based on:'~:!];~;factthab:,t~!!J~{governmentconvicted him without proving his guilt. As . \.:ii' i'," such, the c~t~ of the Fi~st Complainant's challenge to his conviction was factual and therefore wo'J!9l!~hevitably fall outside the j~risdiction of the Cassation Division of the : .er Federal Supreme Court. : -r. UIJ\ANAND ~ o~ ~"ARI4T p~o 10 Communications nos. 274/03 and 282/03, Interights, Asadho et :Maitre 0 Disu v. ~fp#ij'q;o.em~ratiq'~ Congo,The communication concerned alleged human rights abuses of individuals, boi~fuilitCJ!Y~pd~iviliap, wlfp ere accused of involvement Commission again reaffirmed its findings in the Sir Dawda K. Jaw~a conununicati0f~n remedies and discussed what constitutes an effective remedy, finding that a court tha~tnly:,reviewe<bRrbcedlge rather than substance could not provide an effective remedy and therefore if that option;wcf~~j0Juted it di(itbW ...."s......__ ......... ~,v ,.v . (~/ON A>'R\()'~¥-:~-s ~ mean that domestic remedies had not een exhausted. in the assassination of the President of the Democratic RepubliG'of c_fng~O~l,Tne.g. ~ J § (;l ex~aus'~l<2~.df . u )"~ b . , 161 P age ''''''''.'' ATric;an(r~i) Union"",!? .......... I I ! The African commiss,i~ id Peop'es' <~. Rights 31 Bijilo Annex Layout. Kombo North District. West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au·banjul@africa-union,orq https:/achpr.au.inUO (; III P'~~~~~'~ACH PR J) African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 71. The Complainants submit that in accordanfe with the Commission's case law, there , was therefore no requirement for the First Complainant to seize the Cassation Division of the Federal Supreme Court in order I I to :rpeet the Commission's admissibility requirements on exhaustion of domestic 72. In addition, the Complainants submit I considered an effective remedy as practice I I I L'-'_L. L'-,.>. I receive a fair trial in E~hiopia. In this history of persecution he has suffered in I I review could never be shown that it is impossible for him to t referred to the in a tic remedies of law for the violations he suffered in the proceedings ~)~!itghis 73. The Complainants further submit that/~h~>2~~ihi$~sJon " Communication filed against Ethiopia·fhat~~k(.:~xcep~~1 to the . .... _' ,~.. ~- . [applies] where the domestic situatig: , protection of the right or rights phat have e State::,J~~~~H~';afford due : ··!Z:;t~1~Y'3;;-\ "g~~ly beer?v~~~fl;ted"ll. \t.~~::i~:.!::~~.;",\: ,<~,/,_,;;...::f ":", 74. The Complainants argued . ,_ ',< ,~'eCOrnn;!~~'s~~h"as wen-~s.;;Various other international \ . human rights bodies have state' , t;jfK; exha I le serves the purpose of giving the Respondent, Sf~t~ t~e ;'~~'porru:'rii:i are of the human rights violation an reme y 1 . ~':(" dv it 12;' d '-:;~:1~"~-F:~~ . >,,", , '~':-, .~':'~:.-',.-'-'t"''-'- ;,:'.~ d .f" :.6j? I In Haregewoin there to be an exception to the rule on the exhaustion if a':l,t,;tatedid not afford due process of law for the protection of the right ~fHff.,~~;(9n1:i5ehalf of former Dergue officials) v. Ethiopia, Comm. N0301j05 11 ACHPR, Har~g~~9iQ0c;abre-Selassi~ (2011), par. 111. T;iie:26mifillJ:V,cationconceiried:&:grorlp of officials from Ethiopia's former Dergue regime who had been det~wed'cihd;sJ:{4~gy~ collectively for human rights abuses that occurred during the regime. The Commission endorsed the lin~',o'OJase;la.wthat found that domestic remedies have to be available, effective and sufficient to be effectiY~,rYmJdies. 'l'i\~:~,~~ftiission also stated thatfor of domestic remedies/"tJ\~fE!must be a i?:r¢achof a right enshrined if' the Charter. Gabre-Selassie the Com:IW~sion explicitly referred to the right to a fair trial enshrined under Article 7 of the Charter and held that exception to the exhaustioni~;gqJlirement 12 ACHPR, Darfur Relief artcCOocumentation Centre v. Sudan, Comm. No. 310/05 (2009), par. 71. The communication government's justification for this requirement to remedy such violation, international body. This requirement function which it cannot fulfil practically or legally.'; ACHPR, Amnesty International v. Suda~eo~~'ji~Ni~L90 par. 32. The communications judicial executions, arbitrary arrests and detentions members since June 1990 and the suppression of Sudanese Christi~ns. The Commission r~{tifed that C!ne_pfthe reaS\! c~ the exhaustion requirement C\ to remedy it. ?J concelih~d Sudanese men who had been unlawfully detained in military prison and the Sudanese the should be aware of a human rights violation in order to have a chance thus protecting its reputation which may be tarnished by being called to plead its case before an the African Cbmmission from becoming a tribunal of first instance, a (1999), ~ extra- oup for ce is aware of a human rights Vi~1~'tionJ;or~~w.a'~)thu1 the goverIUl)ent was responsible for human l'igllt§?§(ol~~11j1~~~I~ since July 1989, the arrest, detention ,:,~;fordi't:t~Siti~ 'The Commission has stated that is to ensure that the government renegation on its agreement then there would be an is that a government the Court stated: to compensate also precludes alleged that them. ~ I ! \ ,f The African Corn Jssigrt~n Hliman'and !t7lo~fg . ~igff 5 "j>J',_"--~':><:) ~~:.~ ~ t:: d ~ '6' ,,,,,, : I ' 17 I P age ~""."" Afri<;an~~ Union ,,', 31 Bijilo Anne{ Lt!6Ut.. KombP.¢fo<;;;~·gifrict, n"lt!fJst C6<£tRegloh "6fimbia Phone: (220) 230 ~3'ENfpax~:'(g2..9J~105 04 Email: au:1r~Trjca-unjon.org https:/achpr.au.intJO (~a ACHPR African Commission on Human and Peoples' Ri~Jhts Complainants submit 75. The Human Rights our Collective Hesponsibilrtv this interest was fully protected when the , that First Complainant pursued the single substantive appeal available against his criminal conviction, namely an appeal to the Federallsupreme Court. This appeal was rejected. Moreover, the First Complainant's trial 'criminal appeal received widespread attention from the media, non-zovernmenta organisations, international institutions, and other govcrnments. P As such, there government was unaware of the situation the situation. 76. The Commission notes that the proced this case is as follows: the Federal High . then the Cassation Division of the this case contends that the First 9()Q}R:~~inart which were available and effective bet~~l$e ~he la "'~<~{<~1~":, . <~P); present an appeal to the :C~~~n~i?nDivis. J~i~t~tt:tJ1e no realistic possibility that the Ethiopian did not h~~~f~~.,~pportunity to remedy ".'".':',,{ . "', , , I.. ' ."Iocaljtrdieial .remedies in Fea~~~c?~p~em~:'~6~~t and " The'~~~f,'~Ildent State in not contesting that an 77. The Commission als~:D;notes:ili~t"the;Firs~ ·'-::"·,,"""J. LLI-'J. LlJ.. LPUJ. /.t.1::;-:,. J;;j~-::c:,,:"'t:.:~:~;_:.',~ opportunity to fl;rpeal to the Cassati~~,pivision '':_:~!.._.;"':-'" ~£' Federal Supreme Court is not available but r~N~er, that it is not an e£f~,c;~ve,;recoursebecause it is only a formality with no prospe~~j"\ success due to t\e li~it~~nature of its jurisdiction and therefore i ilp;i 1 ~~~ ,.\ :, • decided not to prot ~\~.-;::.--,~~/", , of the!:t~8-eral,Supreme' '"c:'8'Withthe hecWng of the Appeal filed at the Cassation Division -·:~tf,':)~~.· , ",:,<.:/~:1ls;~F_- : ";{9JMay 2013. \~::~.,. ," -, - ,'~-:"'; 78. The C6~ssi?n " success an;d(that -' ', .~u.~th~rreiterates that a remedy is effective if it offers prospects of .~ ~,,;, ( '~,,, J;:/ is, th~;;appropriate is capable of adequately and timely reliefthat :" redressing the specific violation suffered. However, the effectiveness of a remedy does . , not depend "~:rr the certainty or guara+tee of a favourable outcome for the complainant.t+ It is enough that the complaint is arguable, • I , : ; : ; in the seR~"i~~ --~'{\ ~~"ARIAr ,fj:P~Cbf,c~. J\ /~ . dl G\ .s as .o~o ~ t ~ g ~ and\Mlling fo~ his 13 For example, on 17 December 2012, 16 members of the EuropeanlParliament Ethiopian Prime Minister Hailemariam Desalegn, raising concern about releas~ . .-: similar . organisations. 14 M. S. S v Belgium and Greece (2011) ECHR (Application No. 306~6/09) para. 289 to the Ethiopian government letter was sent Ion 9 October 2012 by 29~. iff. ef'e~\.:-"'IlODgOV<~~9. Ufu' \. i ' :";0111 4"RICt-\~ <;?<v'!f" .' '~~;::::. issued a PUbl~"~tter fo then""~":' the imprisonment j ~e\a .. 18 I P age . I I -"_ ___.. The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout. Kombo North District. West Coast Region Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.orq Phone: http~:/achpr.au.int/O Q a , " ACHPR I I i I, susceptible to being adjudged 'meritorious ~s it may be adjudged unmeritorious upon African Commission on Human and Peoples' Rinbts . , . Collective Responsibility Human Rights our full examination of supporting and opposing evidence, and legal arguments. I 79. In light of the above, the Commission has I Article 80(3)(a) of the Constitution of Ethiopia which states, "the Federal Court has a power of cassation over any final court decision containing a basic error of " and Article 10 (1) of Proclamation No. 25/1996 which states: "In cases where they Supreme Court, shall have the power of cassa of the Federal High Court rendered in its appellate jurisdiction ... " 80. It is clear from the above provisions that, Supreme Court to entertain an appeal, it a final decision of the Federal ....",..,....0..,., basic/ fundamental error of law Federal High Court contained a basic/ law dictionary as '. E7§$~Qtial/, appealed agains;tiih~~~'~:~6i\ewitli contained a decision of the '. is defined in the oxford , meaning the decision 81. The Complaina~t§ in this on the case of Interights, Asadho et Maitre O. Disu \j:i;'ll?,~C and argued\~that. i Commission should dispense with the ~;~ e req· irement of e~i{~yeyjon of local ~(jmedies because the Cassation Division of the , I ·~>:<1,:.' , risdictfon over procedural and not substantive Fede it will only be a formality with no prospect of success. The the facts of the said case are distinguishable from this present c~~@!In the "former case, Ntt. the C:ommission found that t the Transitional COnStitution;~~~fi'createdthe Supreme COUt·tof Cassation had the force of law on the 1st April 2003,"threemonths after the Communication was filed before the Commission , , and thus its jurisdiction was not applicable to decisions rendered in March 2002. . not substance. Secondly, the jurisdiction of the said court Jas only limited to issue ~, .~~~ ~. IS'.;;. \ 0 ~ \ 82. In the present case, the.jurisdiction of the Cassation Division: 0 tihe 1Fed'€ra~Suprtme , ~J~ Ji.~c,~~(.#.,,':'i>;, !IJ~~4'....~ fIJ! {1~~ \~L~ C \ '~'~.~ i I i d , I . . Court IS over matters of baSICerror of la1 . , The African Commissi % ~'?t,~.,.. {J,_§ . .""onHa';;anand. P..~~.'1?Ies~, -....,'"Al'1{1V' Rj'''h{' '. 31 Bijilo Annex Layou , ~o'!J3)~J:rfct, "":'~~4J Phone: West Coast'onnioll Gambia , "">1 (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union,orq https:/achpr.au.intiO (J iI2 . P 19 I age ""","" Nrican{ri!;'i\ Union '""l\';,¥ r : ACHPR", African Commission on Human and Peoples' Rights. Human Rights our Collective Responsibility I and not matters of procedure simpliciter. The Complainants have also submitted that I , . an Appeal was filed in the Cassation Division of the Federal Supreme Court on behalf I of the Second Complainant and on the 8 J I I appeal because it found no fundamental 2013,the said court did hot allow her I I of law but rather confirmed the decision I of the Federal Supreme Court which to effect, upheld the Federal High Court's conviction on only one of the three ! that were leveled against the Second , . Complainant and varied the sentence I 14 to 5 years of imprisonment. 83. The Commission notes that the outcome of that, the Cassation Division of the capable of rendering judicial on substance as in this case. 84. In light of the above, the ~VJL.+,L. L. L Supreme Court is Complainant. The lqtt~~:,.bad .c ,~-,~':> )-'~':-.->" %;'..i!<::;; ~~,._ and succeeded i~l;getting a"" by the Federal SJ1preme Court. The ':! but used by the Second case argued and adjudged of sentence earlier delivered do not also allege that there were impediments in';~~~singthe remediJ~ the Second Complainant. 85. Wi Respect to th~l~eqg~d Compla~ant, Commission observes that her case has '~~<,,;·~:~~~:\':~:;tt::::.::'}/?: "._" ",:~"<:(Jfi/ , h the whoIe<gq~@~l~£;~judicial~rocedures and processes available to her eFederal High Court (0 the Federal-Supreme Court and then to 'he Federal Supreme Court which was not the case for the . First Comp ant. \f% '{H.:;:_,.: .' ',,' ,'\. 4';/ 86. In light of th~~l~,¢regoingreasons, the Comrniss!on is not satisfied that local judicial remedies have been exhausted in respect oflthe First Complainant but that same have . I I been exhausted in respect of the Second Complainant. I 87. Since the conditions listed under Article 561of the African Chart~....~. ~e..\~lm~!~"we,in . f th o ese con 1 IOns, 1 IS rna rrusst e, !sue I· line with the Commission's jurisprudence, 1¥hen a communic~t16g ef8~s-~~eO&is>.e /~·w f r.' t]l\ )0 ~~~ 1 . s ~'r'--~ ~i'9.21l a case, 1 d~It~unre ~~ %.\. The African Commi tr9..no.~. H~d"'%e'6PJ!f4 ''\\' ~.;;,.?'¢. ~iARI,I\l' it /If ,..u~. d . . SS~t IO~ &: diti 'bl I I 't" $10.11( A ' h .... ! I . : I I I I 31 Bijilo Annex iS~.:g_iJlt~.on;\)lb~lfrfo.t9ID.w let, W ~;l,;~sf-Re Lon.~c?a'mbia Phone: (220) 230 4361_"~201441 Email: au-banjul@africa-union,Q[g https:/achpr.au.intiO 0 GI 20 I P age "~'''.~' Afriqan6('i~ UnIOn'<)",,~ ACHPR,;, African Commission on Human and Peoples' Rights I Human Rights our Collective Responsibility Commission to consider the 'other conditions with respect to the First Complainant. 88. In light of the above, the last requirement I Article 56 (7) will be analysed in respect I of the Second Complainant. ' 89. The Complainants submit that, action falls within the scope of Article 56(7) if it involved the same parties, the same raised by the complaint before the African Commission, and must have settled by an international or regional mechanism. 15 According to them, with the present Communication. 90. The Complainants also aver that in July of the legal Representatives filed Conventions and Recommenda . Complainants, Woubshet Taye, 104 EX/Decision 3.3.16 91. The Complainants EX/Decision 8.3, the 92. The subn{i~,~i~n. Qffurther matte;l~~ith,~~~~~,~rotherwise on ,- -_._--~.ttEi~',I~;~'; on.behalf of the ,\.:,> ~J /Decision 3.3 and 77 .. Respondent State can be present. files the Communication cannot be from the UNESCO Committee after t have been considered and inviting the and that this process is repeated until the 93. The CorriBlC!'iil~mts~l1.bmit.that while the Complalnants' situation is being considered l by the UNE~~O Committee, it should be stressed that these proceedings are not of a I judicial natur~~;~i'Sismade clear by Article ~ of 104 EX/ Decision 3.3: "Considering that, \~'~~i~ _~:;if'!" ~~ ~ I in matters concerning human rights within its fields of competence, UNESCO, basing its efforts on moral considerations and its specific competence, should act in a spirit of I I +, ... ·1: " /!.~~!!~~\,AC H P R ", ~ ) '.' African Commission on Human and Peoples' Hiqhts international cooperation, conciliation and . , rnutual understanding, and recalling that Human Rights our Collective Responsibility UNESCO should not play the role of an international judicial body". I I 94. The Complainants also submit that 77 E~/Decision 8.3 explicitly states that the UNESCO Committee cannot take any fo)mal or binding action in relation to the human rights violations it has taken under bxamination:18 [ ... J Unesco is not authorized under its Constitution to take any measures in Iconnection with complaints regarding human rights. 95. The Complainants aver that therefore, as the . does not have the required mandate for dispute settlement ahdJ~ -,not an I '..::;',,J ": .•.., , a complaint filed with the UNESCO Commrttee'regarding .' '., ":":\ amount to a settlement in the sense q£, ::Artidl~\5~(7)o£.~t:tie 96. In line with th~ Commission's ju .:' denJ~:'.fbt:~f,~~~terto be .. in accordance with Article 56(7), it require <thatthe' has considered the ~at:{ \:~~g., . . I oriCh:~~;t~~>bodydealing with the matter _,,' took:r,t::;:;',~~~f~~~whi~~;:;'addresses the issues and j:r{g sought. It is not enough for ~~;J~:,;:~<.;? .- ,~ "<, concerns of the Complainant, iitl\ di j'g'the relief:! the matter to simply be di""ussed1y,~~~ todi~" 97. The Commission f?rther observes tha :',.\ .~ .\... Ji'respect to the Communications filed before UNESC~, ..1\inVolves both,;~OqJ I ainants and others not named in this Cor~H;~unication. The 'procedure is ilso not of a judicial nature because its outcome will ~\f'~l~~l?'.~esolve J~5\i~~s, the clrutS of the Complainants. The Commission is of t1\~,opihi~ri,IJb.?t since there is no evidence to show that the UNESCO is 'lt~?~_ <::():~""4':"~'~~'~-;:\i;::~l:r;t, :~,;~~& specificallg .,fiealing witlii;?'oris intended to deal with the allegations raised in the : \:k'Y /?;, , . present CO~p1unicati~~ then it cannot be authoritatively concluded that the matter has been dea1'fJ~,ithor is being settled in ac~ordance with Article 56 (7) of the African C~rt~. ~ Decision of the Commission on Admissibility 1877 EX/Decision 8.3, Art. 4, p. 14 ...................................................... 221 P age Afri<;an (;~;) Un!on~~ : I I I t I htlps;/achpr.au.inVO (; a African Commission on Human and Peoples' Hiqhts I Human Rights our Collective Responsibility 98. Inview of the above, the African Commission on Human and Peoples' Rights declared the Communication Inadmissible in ' of the First Complainant and Admissible I I in respect of the Second Complainant. Consideration on the Merits Complainant's Submission on the Merits Alleged violation of Article 7 99. The Second Complainant alleges trial which led to a criminal ~"'Fl,<A~,,1 from the time of her stated that the a non- derogable rig~'ti~~hich circumstances am'Pl'in Mgwdtzga ",;'::",,;>;;>;;" -e "'~~:\~'\' e 7 of the Charter is for any reason, in whatever 20 the Commission also stated that its protectif~ is important to of other rights in the Charter. She submits tha?~~e.provisions of A11ticle the Charter have been further elaborated by #Je Principles ~r\cl)'~Fidelines onj!he , :' , , "~:' :.,:" ~-'~,:<" : (~';,. to a Fair Trial and Legal Assistance in Afri2{>' \i-, \- rinciple~)"Jii~_,_.· •••,..,.'.__ "C_' < the Conditions of Arrest, Police Custody ntion in Africa (2015 pIes) and Resolution on the Right to 19 Communication No. 275/03 (30 May 2007), para. 98 20 Communication No. 266/03 (27 May 2009), para. 126 231 P age .:1 " I· AC African Commission on Human and Peoples' Rights The Second Complainant also alleges that she was not promptly informed of Human Rights our Collective Responsibility I 100. I the reasons for her arrest and the charges brought against her. She was held in I . detention for 76 days (21 June to 5 September 2011) and she learnt about the charges for the first time on 5th September 2011 at l"charging hearing". She alleges that the I charge sheet was extremely vague re~ardilg the times and dates and provided little detail to substantiate the alleged terrorists' activities that she was accused of. It also I has a list of nine anonymous witnesses without the 1" a ist a Journa IStIcartie es t at . 1 1· h . h d a no e,rmg b I. . statements and of terrorist ons activities that she was accused of. 101. The Second Complainant before a court of law and was on 21 June 2011 but her first aepearancesmxot trial including the underlined the Therefore, she Clln,ml be tried withou 102. ade~~~t~~¥>.p,:r,epare ·". C<,;(;~ ;,; the Commission ptly brought before a court. ptly brought before a court of law and I I that her right to legal representation and to were ~iolated. She. stated that she was denied ;'o, : access f~)eiaY;s~gns~tduring the first three months of her detention before she was , '. :' '~"~" _,\U;" ,,::; ";:'''')/:'''''':;~:'~::", I charged "'o/~)~lrian~ff~~~:e,and during ~his time, she was subjected to many • ,.. 1:, I interrogatioas over a long period of time. She also had no legal representation during .~~, I the charging \lj~:fif'ingbecause her lawyers ~.verenot given notice of the hearing date //" ../ J and she was not allowed to hold private meetings with her lawyers or discuss certain I details about her case and also denied thel right to call two expert witnesses in her I defence. In supporting her argument, ~he Second Complain~~~: ence In vocas ani ron teree on e aIf ",n®~!"pa ~l ~ b h If 1i~""T the .~'m 1Ft", . A t 5 C ..,.. omrruSSlOn SJurISPru d 21 ACHPR, Liesbeth Zegveld and Mussie Ephrem v. Eritrea, Communidation No. 250/02 (20 No\tJ,i\ber 2003), pa'Pa 56. 5 (I) 24 I P age ~~ ci~~t~~::~~~~r The African Commis j.\\.)'Ufl. ~ \ i~~ IS .. . i r "~>,,,., Africanfrq;.:~ Union\,1!# 31 BiJ'iloAnnex ~~t,,~orXtJ6"NbFih. Dl~tr,i ',., f,:e, We'S 'C:o@St,\lRegfdnG<imbia (220) 230 4361 p-~f2:2801~ 0504 Email: au~baniul@africa-union.org Phone: < 1'4 ./, ~ https.zacbpr.au.lnt/G (> illl ACHPR .... African Commission on Human and Peoples' Rights, !.' I Human Rights our Collective Responsibility v. Burundi where the Commission underlined theimportance I I of equality of arms in criminal proceedings=, Media Rights Agen~a v. Nigeria where it held that a detainee , held for 49 days without access to a lawyer was a violation of Article 7(1)(c )23 and Egyptian Initiative for Personal Rights and ttenghts I v. Egypt where it held that the absence of lawyers for the accused persons at the critical early interrogation stage was a violation of Article 7(1)(c )24. 103. The Second Complainant also alleges that the, nt State violated her right to be presumed innocent in that the 1lruOPiJ i-- ducted a negative publicity campaign against her aimed, a~ J?r~jy~icirigt~.t~~" Government officials including the Prim~~~i~~Jt~~~e , \ ,an<ll,:l' documentary was" to the end of the their guilt prior ,;~, , t, ',I television accusing the Second the trial the prosecution instead, she was £>v'....a'~f-arh,f- the Commission's ,own on national ",'" I lt as'cerrorist, It is also alleged that during Ii':" ,,' ,:, I burden of proving her guilt, '\>, " ,<, .- _"," " ,', ),' ' ! : ,">' against her. She cited & IHRDA (on behalf of former Dergue offipials) v Ethiopia,25 """"~!,,,><,-./ Suleiman v. Sudant» and Media Rights Agenda v:}:;Jigeria27 to support ':,;, " 104. The Secd~~'\Complainant '<:'\:'0"':':,: >, and d)wpetent independent she was not tried by an the government interfered in the judicial pro~~~;;~~~t~~~sof n~~a~~~'~::1i18?~f€i~ ; t her, countless fair trial violations during : 's11 the Appeals Court failed to address, existence of a pattern in : Ethiopia t8~itlvariably"~;~nvict journalists under repressive laws for their reports and ,/,:.:".\::,)...~" -[:'~::·:)f::::'~s:~.~,~:'~:"~~",DJ/ '~<~,..~.::;-·-:~:::t·:/~'\, ~;&_~, the pf(j~:~,ediiig;" ":!:~\ \::'~ .(f" commentaries on matters of public interest and cases of sentence of owners of \jh~ I Ethiopian pJ~~i¢~tions to lengthy custodifl sentences in abse~tia without any real evidence to support the convictions. Therefore, her right to be tried, .~~e . endent . : I I 22 Communication No. 231/99 (6 November 2000), para. 27. 23 Communication No. 224/98 (6 November 2000), para 55 24 Communication No. 334/06 (1 March 2011), para. 133. 25 Communication No. 301/05 (7 November 2011). 26 Communication No, 222/98-229/99 (3 May 2003), para, 54 27 Communication No. 224/98 (6 November 2000), para. 48 . 251 P age I I I I ! I ··..i t.'~o ~G i!~""'~NA"'D ~fi.'fA. R. l.qr .o~o ~ ~ /..s; !l 6,i I ~~,;.:-~'~\ 8 . L~' . ~ .....,. X. ~ I$'-a ~ ~ en s ~ '" ~. ~ ~. ,:y •. ,"'.60 ~~ '. (:OA/A"RI(."'~~:'i'<V.§' ~<i" (3 \Il ~ . ""; O,,",Mf [1 \>~ The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia (220) 23,0 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org Phone: https:/achpr,au.intlO 0 a. 1.••• 'I' ACHPR.\! African Commission on Human and Peoples' Rights Human Rights our Collective Responsibiiity and competent tribunal was also violated, She also referenced the Commission's jurisprudence-" to support her submissions! I ! I 105. She also alleges that her right to examine a witness was violated because the trial Court denied her the right to call two efpert witnesses who would have provided expert opinion regarding whether her activities amounted to journalistic work or otherwise and did not provide any reason for the denial. She also submits that the Federal Supreme Court failed to recognisJ the expert evidence on appeal and instead ~p~culated on the aQility of,' to refute prosecution evidence and concluded that t1~.,?T~0~~, U.1'J.··~~:;:::.ff'}.;.~'.~··l;.~J,.,~!'::t':~'~';~M~;~!~~",~! amount to journalistic work. In support.;£~rer suBhiti:~lQns, .; of the European Court of Human Rights29 in tl).i~'Yegard.,;' ',' ':iV:i\~(;'. ,,<. ! " . Alleged violation of Article 106. The Second CompHh"c:1 -:lJ ' . , ! ! . the Resp~n<ltent State has violated her ,:~,:,,(~>:,_-- ~.;> \" right to freedom of/~0_BE:~W~iona '.\ s ," ,;,6{theCharter because she was " ._ ...." n",·:.s:~" ,~ ed and '~bnvict' baseles " arges that were solely aimed at punishing her .1 " ork. The Second Complainant submits that the Commis n has elaborated~~he igations of State Parties under Article 9 of the·;C~~rter in its19<fl~I~tion of P~i,;;ciPlesion Freedo~ ~f Expression in Africa and , made, reference " .... ...... ·"':·\;::',:~::V·.:~·, '_ _ ,~·_;,r~;l .' . ···'·,j;:'0·8"'·' I I to' Arficl~!.'@'J'itp'~reofwhich defines Freedom of Expression and In£orITi~F~~';l"'a~f'r~r21,::'fi;~,jimdamentaland inaFenable human right and an indispensable \,;~ • . .: ',' ., .. ' ...• I componen(ofaemocracj/~ and Article 16 thereof which obligates State Parties to make > ' , ./ every effort, to give practical effect to the p~inciples outlined in the Declaration. That the importance-of this right has also been ~on£irmed by the Commission in many of its decisions s~ch as Constitutional Rights Project, Civil Liberties Organisation and Media ",\)~ANAflIDp 28 Wetsh'okonda Koso and others v. Democratic Republic of Congo, Communication No. 281/03 (~~Mayp'oqf~~. 29 European Court of H~man Rights (IECt~"),.popov ECtHR, Bocos-Cuesta v. The Netherlands, Application No. 54789/00 (10 November 2005), pa , v. Russia, Application No. 26853/04~t~ Jul~ 200~hB~).'a.18~;§ .~ , .~2-7-3'and ECSlif.-"Wlettblck I~ /",~,' , ::',':n~APP'i<a tiOn No2454'/94 (18 June 2002) . .. ... ' TheAfrican commiS"';;:s.~~fJ. . ~o~ ~~,(ARIAr f/. J' ~~CI~. ~o.o <'<tr.' 1) 79~• .g, ~ age ~",.":·" .. ~~~g~~ A ... ~ ~OMMEf_' ~~.!.1~~tS 31 Bll110 Annex Layol:ifi<1*0'I!bo~p't:th District, West CoasfRegion Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org Phone: https:/achpr.au.intiO 0 CJ ; .e .1. ACHPR African Commission on Human and Peoples' Ri~Jhts Rights Agenda v. Nigeria,30 Amnesty Zimbabue.» I Human Rights our Collective Responsibility Internati?nal v. Zambia" and Scanlen & Holderness v. I : I , 107. The Second Complainant also subm~ts that freedom of expression constitutes one of the essential foundations of a democratic society and may only be restricted in certain circumstances in line with inteJnational standards. In support of her I submissions, she cited the case of Konate v Burkina Faso33 where the African Court laid the three-part test in determining the restridtions; whis:lj:;~i~t(t~~fletherthe restriction was provided by law, (ii) whether the restriction ~~lt~~~\~Iegi~~~te purpose and (iii) whether the limitation was necessary to acJiev 'e s~~;~~j~tiv~:irld thatthis test was , ,::,'."~ ", "' .. '~ "". ',' also applied by the Commission.w TheA':' accomplished journalist who is well ~rl6 'rc a-, , '''''"_:':',,,, ~', ,'1 Ethiopian Government and as<g::J~$.plt,wa " "" laiitan~ avers lhat:sJ:l~ is an al stan~~'~tt'the_policiesof the . ed to threats and attempted , /' " intimidation to make her ab~nd~~e~';Wt'~;;j9,~rnllisf but she was undeterred. She . avers that she continuecll;fi~tL;%r.brkand.~ri~~c~tions ah'~:;~'f'0trndedher own monthly I' magazine called C~9:rzg~t:,~ndest~l:?Us¥tedher o~ti;1?~blishing house but it was shut I down in Novemb,~;'2010.'SRethe~'Wbrked as editbr':~fAddis Press, columnist for Feteh ~"""> """. ~'''t. AT" ,.',t"" ';;,';(" ;:,~. ," ,/ 'Ie, . , "" •. < . l;~,i.i: \~~,,' ':''')-'>~ I <J ~:;i;:1',- Newspaper, reg~~ar contributor to the ~t~iopian Review, all of which were also shut .. down. That as a r;~~'1Jltof her work, s~e w~s[inally arrested, prosecuted and convicted I of c?nspiracy to 2'o~! terrorist .~ji~Sand participating in a terrorist organisation und~1i'~~~e20£)9Terr~if~;m;r ~~t~~~~ion (Jroclamation of 2009) and Criminal Code '<i,r);:'~'i" :j,,;. 'IS ", . <-, ',\ "" --.... "',~ respectively.": ...',;;,""" \~\~ -. ,._ ',.,.: ....;, ''''.,..., " ·t_·}' ~~i(\.-~]~·- 108. TI1e:,~~condCOIU!31ainantsubmits thflt the restriction of her right to freedom of expression-did not meet the any of the iconditions provided above because the restriction wmfrtot provi~ed by law, it did 10t serve a legitimate purpose and was not 271 P age The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/acl1pr.au.intlO·(_t I!:!I ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility necessary in a democratic society. To substantiate this argument, she avers that the Proclamation of 2009 does not meet the standard of being provided for by law because I it contains broad definitions of "terrorist acts" in Article 3 thereof and "terrorist organisation" in Article 7 thereof. That to meet this criterion it is not merely the existence of a rule in a national legislation Jut the law must be sufficiently precise so that individuals would be able to regulat~ their conduct accordingly. The Second Compl~inant also submits that the various Jriminal .' '.. . .•....... in Article 7 thereof read together with the overly broad defiJtion Article 3 thereof results i~ creating an ambigUi: I in scope ~r~~;~lt?~~es . the public to know whether his or her astIons fall"\~IJt~m She further submits that the provisi {~e1 q a w~~~!variety '-''''''''~t-)t.~".u . as many activities of everyday lite::", enmnera:~e~t!herem. That I ,<.:",~~,~<:' •. . . . , of lhich :r~~V,~$its application being opened the wording : ia. She al,§ojsubmits that '«'<~.'-, -~~;> i! ,') used to describe the .intent «.: ~:"~' in ~~ , to ad~~nce a political, reli "intending 3' iJ br I '" 'e.or ideologj.cal cause", "coercing the government, ' /~~specific. That the phrases intimidating the pUblic or a section of the p destabilising or destroying the fundamental political, constitutiq~fll or economic or s~cial<institutions of the country" or II destabilising an inst{~~~;':are br~~(()1n_speci£ic ~~~;$et n4 borders. . . \;~,\~ provided'[r 109. \:i~~. CY:~~~~:~~It ...~: the af0!e9::~tlOned, thi Second Complamant submits that the restriction off.i~rr;i~l;e~domof expression on the basis of the Proclamation was not I ,.\~':-?:.,.'r'~,t;r~::·;t;)~,:'~, . \:. > .;;"~: 'constitutes a violation of Article 9 of the Charter. 110. The 'Second Complainant submits, that the restriction of her freedom of expression dj'~~i;flotserve a legitimate interest. She submits that whilst the protection ·~v~ of national security constitutes a legitimate ~nterest, the Respondent State has failed to I demonstrate a direct link between the expression and a specific t~~e1~ust a mere risk. She referenced UNHRC General Comment No. 3435 yVl}~Ji:.'sta.t€S'vvth ' . I State party invokes a legitimate ground for ~estriction of jreed;n!li; .~? ~J. TAR/4};T~~ ,'.,.,' ~~ . un ~ ~, \l'C ,t ~. e:ti..r;.~.~;\i m,:'g s » Cl ~I ";'/f ~~ j.y$ G) {Jf: <) r.:,.0 0·' ( -_ ...~ . is''}. -.y -\"mol,\!'<'. s: ~o ~ and.;:ge'6ol s' ss« - "'~It:er t....._~ . "" ~Rlghts The African commiSSiOnq~AUman Phone: 31 Bijilo Annex Layout, Koili"iro"1\Jorth District, West Coast Region Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org (; https:/achpr.au.intiO IICIi 35 Para 35 28 I PI. age "">"'" Afriqan6~~il Un!Oll'i:"Y.l I .. ' .. j ,/~,,"J(,~ACH PR .. !d. African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action token, in particular by establishing a direct I and immediate connection between the and the threat." to support this submission. She therefore submits that was only prosecuted and convicted for doing her job as journalist and this could serve any legitimate interest under any circumstances. 111. The Second Complainant submits democratic society. That the Johannesburg of Expression and Access to Information (J , I restriction sought to be justified on grc>. UljlOSor-nauonai "",":!>".,~ ... ~ unless its genuine purpose and oe:m(rns:trcll11J!l10~.~tect not necessary in a Security, Freedom tthe or sanctions is also reley;an~.,'i~"'''''''''''''H referenced the KO~~!~;:~,~,~,~" imposed on Kgllate on '2harges that harsh criminal penalties a disproportionate interference Wit~~;hisright to freedom (jt<iex"t)re;SSll~r 112. She also s-U:......ts that none of her ClJ"L,l\ .. J.<;'" have incited violence or can be in any !:~~.:·;.h 'f' -~:t;. . ""'._ way.~nderstood ~§ politi9~1~~~R~t~that is ',it~~Jl;~if{2~~' and cortviction,under Articles 4,7 and 9 of ..i, );"~")' ." . . " " " .~'~-.~.,, '" 0'- ,.. " \."-.,. " ty. Instead, her work contributes to a ry democranc society. Therefore, her prosecution Proclamation of 2009 and Article 684(1) necessary to counter the threat of terrorism and to protect the State's national security and thus constitute a violation of her right to fr~~,9.omof expression. ;~.._' Alleged violation of Article 16 36 Principle 2 (a). See also principle 6. 291 P age I ....·i ACHPR:. African Commission on Human and Peoples' Rights The Second Complainant 113. Human Rights our Collective Responsibility submits thrt her right to health was violated because I she was diagnosed with tumours in both ibreasts but not given adequate care and I treatment whilst in detention which contributed to a significant deterioration of her health. She also submits that her conditions of detention were inappropriate, I, she suffered delays in receiving treatment, received inappropriate post-operative care and insufficient medication and was not to an appropriate specialist establishment for treatment and care, was! . Jt,,( were cancelled, was not seen by any HL<:;UJ.~_ClHy I t given fgll'ow~':qEi~ppointments as they ~'\,i!;::\ ~ain~sl.,personiji:l;!~post the operation , 'Z ,i:' :::--,'\. c;-~;/ available. She also submits that as a horrendous living conditions in th~, typhoid, chronic gastritis and sil:\. U;;~ti~~:.,the amongst others on the Commission' ~~~~7j.tjples /':~:';} >._<::\?cr~i} , from,the C6mmission to make it 'IF,'"' "C, __ .:, ':' .. tre'~thl'ent and catEi"lmd the ':':> """_,,' ' 'i ~./:r,;,-;,> on the Implementation of ECOSOC Rights in the chtij;Ii~;!pt2011, Put3Jijt::and Gambia", Media Rights Agenda and others v"tif .ria38, }ji_t~pnf1;tiimal:Peiz\"t1?1AQJhers (On behalf of Saro-vviuia v I v lyIauritania and Monim Elgak, Osman , frican Associatioh~hd,Others Nigeria», Mala'll( ~,>f~:~·pl·-' ':, ", ~;y~:_~~- ,,_.- _"-!,"'~>'" ' =, '~ ':',_, ,o::,:,.'".,;t' _,;::)_ '\.... ,--.-. -. " -.t- " Hummeida and submissions. 114. ,;.\,' ~'. non-p~~~niary , ir Suliman (represent~d'~YJ:;lDH ~nd OMCT) v Sudan in support of her ,~. "~\ 'ij~), '.;:~-}}.',~ ,7; mplainant ';-tL\;:):;:!)·:h.~. al~~;subJits that she suffered both pecuniary and .,::t1:' I damag~s. )J~~lt of ,the alleged violations resulting In her imprisoi.vnerif"~ri~,;,.should .: ,}":',:<.:~,~j'~:,>.:,:~~::: \,~:' , '.\,,.,,",,,': be awarded !damages. She alleges ! that due to her imprisonmeritfor , 49:Tl}Qhths, she was prevented from continuing her professional ,,;r" wok as a jo-(trnalist, high school teacher and' tutor and therefore lost income to the tune of ETB 327,36~;;~Rewas also prevented fro~ continuing her studies in political science at the Indira Ghandi Open University School of Correspondence which she had paid , " I I , for as well as receiving relevant books for the course which she had ordered. That she I eventually had to terminate her studies beJause she had no choieeo\\\o\UMAIIlANol> I I : i a;~ C~~"M/41' /§,,? ~.':~~:'~~1 ~o se ("~ ,( j' Vri§ ~<f() (31 October i1998),paras 89-91~:Jt: '~' 37 Communication No, 241/01 (29 May 2003), para 80 38Communication No. 105/93-128/94-130/94-]52/96 39CommunicationNo,137/94-139/94-154/96-161/97(310ctoberil998), I I , para. 112 The African ~ ~ ~ en ~ ~ \.. c.!. ~ "'.5. -~,". Up. ,,,\oJ ~, c 31 Bijilo Annex-ta.¥~K. QITi!QQJ~~strict, comml,ssioriS'qB Human aQ_B' P2,PP. 5' 'Al4'''RlCP.'~ ~vR(ghts ~ "J ' f<"> Phone: Wesf,(i;gq§j;!RBgion Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org https:/achpr.au,intiO (; a 30 I P age """,,"" AJ~~g~) ACHPR fi ,', ' African Commission on Human and Peoples' Hiqhts She further submits that she is also entitled to non- pecuniary damages because Human Rights our Collective Responsibility I 115. it is well established in international law that where an individual suffers physical and I / or mental harm as a consequence of a bteach of their rights, damages should be available as part of the possible remedies. That she suffered serious and debilitating physical and mental injuries as a result of Jhe acts and omissions of the Respondent State, particularly the' conditions of her detention, her treatment whilst including failure to provide appropriate m~dical ass' "~~i~Jfu~~~.>a her life. "i':~:'Y.j . .' " I in detention serious impact on 116. The Respondent State did not su~II),~~\on t~~'::;~~rit~:-::~i~hi~l:Jhe tip,.leline stipulated in line with Rule 108(1) of,t~~J~~~s~on's' ~'~,i~0~f Pr<icetl~; 2010. However, prior to communicating tl}~Co~i~sion' ,'4~;~~'~ I .~<.~:'.~,." s;q.,ecision on:.: .<~".,., ."jssibility on 17 .., ,_.. :<r November 2016, the Responden,~;S":'" filed a motion to dismiss the'Comrnunicetion . ." I ". ,,',., dated 6 October 2016 an,~~~eived at itommi~i.~?;:s,secretariat on 1 November 2016. (,' \ s:» Respondent St.,_te's Submission 0 " !" Motion t91, 117. The Res~~~dent State submits tit' I tC~mmunication should be dismissed against the secri:~a\~omplainant be~.aus~:J~~r14 years imprisonment by the Federal HighCourt was r~chiced to 5 years b¥ the Federal Supreme Court on appeal and she ", "I was't~!~k,s~<;Lfmparole:i~IJl.i1&;..2,Qi'Eraftersdrving three years out of the five years. As ! \~~;:;1.-. ';~-L~:~:~{j;:r~:~::;;;,_;.,:~" ' ", 'I(. ..,. ".,,,,, . ~ • a resuU,;:gfherzT;~~~~s,ethe Communication because '~~ereif?~"~~'cae., ::i'5; action. should be dismissed by the Commission 118. Th;(:\i:~~espondent' State also submits that the MLDI filed a similar I.~ I communicati~il,;;:a:t the UNESCO Executive Board and same was considered and F.'F' I dismissed during its 197th Session held in October 2015. It alleges that this is contrary to Rule 93 (2) G) of the Commission's Rules pf Procedure 2010 and should therefore be I I dismissed because the matter was determined by another internaJi@lil.a:l~J:lnQceeding. : The Respondent State further submits on why the CO:rnil,}:tt.p.i(!;a{fu~s~8iJ;1" also ~utJl.t~ 119. be dismissed against declared the case 311 P age Af;i~;'"n{;,iii,i,"~.:l '" w, U Olon ",'l . ~ the First Complainant. However," si{{:~ trfe ~q;; 'rssio'rt· L.g ~ g ~ . \\'\."~ .:'1 ~ against II:~ the .~ [~ ( . . ' rhe African Co mls~~on..e.nRUman; dEPeo~ s' ~(;> (. Rjphts ~.~. as i First .: I'· j 31 Bijilo An ~ "J',si'r ~ ,~e~xt~fo·l)l\,I~p"rn...b~I\J~-St~21strict, '. We.r:!:fsia, ~!c.~e',gJP.~~l.:;jambia Fhone: (220) 23 ~:361:.t:ax'::t·2:2e)~41 0504 Email: a~'jljl'@'8trica-union.org https;/achpr.au.inUO <.113 ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Respondent inadmissible, it will not be nece~sary to summarise and analyse the issues raised therein. I I Second Complainant's Response to the R.lpondent State's Motion 120. The Second Complainant submits that the Respondent State only reiterated its submissions on Admissibility which the CobmiSSion l:l~~\~~r~~>~'considered during its deliberation partially Admissible during its 20th Extra-O Id· on the Admissibility of tie Cor .: nicati~~ hd has declared it ' '. '.;: 18 June 2016. ::D,~j~;~0r.~">;~;f~:7':f~» Rules"ofq~rocedure . 121. The Second Complainant submits t _",<{ _ .'~ 2010 and case law do not provide fo.~,the -p;:€;,;~~,bility'k~~filing a 'tt1;9~i.ol1J!fordismissal. '-t~_:":/~:~;~ '\L:"\~;;',\>'L' <'~: .~;~~:;. -" _. ./_.~;~v \i;;~~r;:.:)/' The Second Complainant also r~it.%r~t~sthat 'i " ,;gtlments were <~tready made and were considered at ~' .~':, ~-i'."'''.'', -., ';J?{"'_;;~'- the Ag,missibdrt)':y';,stage. 'f"'" ",,~cond Complainant submits therefore that the motion'shbtld r;,~t,.! The Second ~;qmplainan(~Js~~;tlbmit,s tha£e",~~}}ifthemotion for dismissal was ':";":',;", be dis~s~~~ withoui;~~~;tff~r consideration. /'.f" Alj]/ ,', ;, 122. /~'::;',';;:,."r"'~~"W -ol;.{t~~;-(i..<: ., . '{:, ~~'~ ;: ':";:'::~h, ~\:' _'''" ,;_'-,.:~_/,,- to be interpreteq~i~s a request for r~\i:i~\Yof the de,~lsion on Admissibility, Rule 107(2) .'tI'~~ "(:'{;:":-4:1\~ J <_. • of the Rules of ~t;ocedure 2010 of the CQipm~~sion does not provide for a possibility \'\"~'>';l;',;/ of a review onc~[{~\Communicatiorttis declared Admissible. She also relied on the 'I '·r~;:',>t,.) %f, . ' . W'. 'i,.;:';\, s jurisl1" dence in Lei i •eth Zlgveld and Mussie. Ephrem v Eritreas" and , Co~ission' urg~,4.tte;C:Qplmission' . '~<''''i'. 123. ~<\l ~~ stateq ~~rli~r, the Commission does also not deem it necessary to summarise ,," ....,.• ~, : ,)without further consideration. and anal;~~Jh~' r i~~~eS;~~~§{din respect of t~e First Complainant. ! .,-, Commission's-Analysis on the Merits , ! < I I 124. Before 'delving into the analysis on ~he merits, the Commission would like to , I " ~;~, deal with the motion to dismiss the CommJnication as a preliminar/$. Yis~; a finding. , . 49 Communication No. 250/02, para 47 321 P age I' I : I 1.. ······•·· .. , ~'~' ~ G~E;AP./~t ~ :' ,f?~ ~J() , I'8 .(."G)-:;:~) I ~ ~' Z;'! ''jI 't , .... " p.u·UA ~ 4. 1':1.' (.) ~ cr.. ~~ ~ ~. ",. c rJ;l.~~~Ble ~';o )".,.. 'v 4':RIC"'\~ ~<.~ e ;O~ o~ «\ ' UI ;. 0 o r-::r: is -. '" At' " ... ~"> "> (:5' S .)0. The African Commission on "''''' •• _::::Rlg ts 31 Bijilo Annex Layout. Kombo North District. West Coast Region Gambia (220) 230 4361 Fax: (220) 441 0504 Email: pu-banjuJ(1j)africa-union.org Phone: https;/achpr.au.intlO 4la ACHPR African Commission 011 Human and Peoples' Ri~Jtlts On the 1 November 2016, the Secretariat received. a motion for the dismissal of Human Rights our Collective Responsibility e 125. this Communication dated 6 October 2016. The motion was submitted pursuant , to Article 56(7) of the Charter and Rule 93 (2) O):ofthe Commission's Rules of Procedure I 2010. The Respondent State's submits that the Communication should be dismissed because there was no pending cause of actio~ since the Second Complainant's 14-year sentence was reduced on appeal to 5 years and she was already released from prison on 15 July 2015 after serving 3 out of the 5 yJars. In adqlti~ri~"t~¢ same complaint was I . , .' ': submitted on her behalf before the UNESCO Ex~c~t:ive Bo~rcl, and the latter has considered and dismissed the Complaint. • v 126. The question is whether this motio . ,,'i,i\~;;>~\ :,' ' :'.,-:--: ' .,':, t and'G~h,pe entertained by the . '< - ·f ',,>. ',~ """r~ ---"~~" "-." - .'_ _ :'::: ..,; . ,;;:.., Commission? Article 56(7) of the C~arter s ' and peoples' rights referred to in,~t~~l~ 55 ot tH shall be considered if they" .::do ~ot deh'l~iu.itblcases ib ,.,:·l~~~avebeen settled by these States /Pfter received Q~;the Commission, "CO 1},J' unicatioR~tel~ting to human involved in accordance ,~tltifIe~t~.~IPleS~!~~?i:r 0;t J.' ii'i'iedNations, or the Charter o~the orgallizatio:t,~~f,iX:;~~~Uhl~tf~:i:~h'eprorSi()'~~:~~<i/!l'pres~ntCharter", Rule 93 (2) (J) of the Co~~sslOn s Rules of P:r8,~~~~rI201g0also provides that "The Secretary shall ensure tha~§:ommunications addr~$$e.d,to the Commission contain the following ", ':~%:"indication that lithe co~p'laint has not been submitted to another information \}~:':~:1/>' ~,,( internfl~ionalsettlenie~~:~!f!:~f.ceedingas t~;ovidedin Article 56(7) of the African Charter", 127. \"t',-,,_ .~,,>. \!.'ArPi'fl,~.,,.56 (7) of'" ';;;'Fl~~':i;~l;~,:q~~}>:, ..:,: ;,'.. co~hnic'~ti'6~{;·to'. \("\" Q~ brought ,~,1::,,:,:,r:''1<. :'';','_..},~'..,''/' admissible, 01Votherwi~~; whilst I ,_' parter • is <;me of the conditions precedent for a under Article 55 of the Charter to be declared I rule 93 (2) 0) of the Rules of Procedure 2010 is a ,',. I requiremerit:ior an individual Complaint ~o be seized by the Commission. In this Communication,' >_;.' considered I . Complaint at 'its 15th Extraordinary Session held from 7 to 14 March 2014 in Banjul, to be seized of the the Commission and decided d.....' I The Gambia, having been satisfied that it has met all the requirements under Rule 93 I of its Rules of Procedure 2010 and same was officially communicated to the parties on I I I I 18th March 2014. The Commission also requested : the partiesA.@~ ;f!{f+ G~'i.1'AR'~r the ~o admissibility o~the cOmmUnicatiO~. The <r0mplainanls' May 2014 whilst the Respondent 3 I 3 P age """'" ~- Uniont:..~i. I s StatEt : su~1f,7~:!~t.~e: i!', {~ L (!) .)~§ The African Commi sl9nton\Human and Peoples'(/) . -e. % \.. p"u-Ut.. Rig'hts 31 Bijilo Anne \.:ayodf3'.,KO,.'ruboJ~.9f.tIfD,J~trilit', -f- est,C011.~~,~E(gl9,TJ'GaJ3i~~ - • . . Phone: (220) 230 ~~1~F&X;.\?2Q).44>~~(f4 Email: au=!ful.ljur@affiM;uniofJ.orq -.......~. https:/acnpr.au.intiO 0 Ill! ACHPR African Commission on ,. Human and Peoples' Ri~Jhts Human Rights our Collective Responsibility written Observations on the Complainants' submissions were received in September I 2014. The Commission had during its 20th Extra-Ordinary Session held from 9-18 June I, 2016 considered the submissions of both parties on all the legs of Article 56 of the Charter and decided to declare the Communication admissible in respect of the I Second Respondent having been satisfied that all the requirements under Article 56 of the Charter including Article 56 (7) thereof were met. The Commission also noted that the arguments stated in the motion were the sam // Respondent State at the admissibility stage. Furtl1e , that the motion for dismissal was received on.l,Novem j-~,~:;/,'" '~~f"'~'''~<~,~>. s canvassed by the decision on the admissibility of the COl1l1J1;p~ic~~fu'h~j~~ich (:.~~;.i:.'.)'" 1~<~"'_:._-~ ~:<§C;;;E:::_~~~ 2016, five (5) months prior to the req;,ipt oNl'i¢;1:Ilotion.: "";1(,')0"'\. "'~" 128. ." ::" \''pvr; ~ In Article 19 v Eritrea, theJs~~'~:<2:pden~Sfti~~'gileda motion £91- dismissal of the Communication in respons~~~}othe ~;r';i;;~>,:sion,~"'r'~~?,~~tfor the Respondent State to .'r!{~i~- _~_:' ~ ·~~:_~~r~:.·.i'/ submit its written obser.v:a:~~;p,~on th~~:~ ',..ainan~~~~';~riftensubmissions on the merits of the C0rn. Il1~iF~ati~~f~~ii1ll<g$;~~nd~·"'6',. bl({j:opardy. The Commission ~":<' " .. ,,","'..~; ,~t.l' ":"{;~~~:,~~"{;~~~':» • decided to refuse.the Respondent St~t~~~request] and held that tlf(jlreis no provision in'f.:' declared admissfblef1. "·;'~~~.~i';~;~1_~~·+ c ~\ M , .~ r dismissal of the Communication es to dismiss a matter after it has been 129. 'ij!"~,,In light of cill".t1)y,a£ore-men~t~ned,the Commission finds that the motion for \:.,: ,,;:':-"!.... • ~>;"'/? .~.\.,~ . '} dis~i~~~l;~~~,HR~comp~t~~~~!p:laJiV,;~~~6r the a~oidance of doubt the Commission opines '~_,~., ~.; :;:';;"~'. ',,'::.~?~:'., . I that the\provis!,pn~',l~Jied on to bring the application are not applicable under the ";/:~'~: ,~{/~)')"-' ::;i:2~·:·!:~I~:U;~~:,;«i;;.:,',;;~:;f : circumsta~,9,~,siasthey;~~~l with seizure and admissibility of communications which ~~{l;~.- <J;:~ the Commis~~onhas already addressed respectively. Further and in any event, there \:~. Jt;. is no provisi9'n~;<fnthe Commission' s Ru~es of Procedure 2010 which allows the Commission t~'dismiss a Communication ~fter it has been declared admissible. Alleged violation of Article 7 41 Communication 275/03, paras 83-85 https:/achpr.au.intiO (} Il:II l- ' ACHPR " 130. African Commission on Human and Peoples' Rights Article 7 (1) of the Charter provides that "Even) individual Human Rights our Collective Responsibility shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; , (c) the right to defense, including the right to be defen!ded by counsel of his choice; (d) the right to / be tried within a reasonable time by an impartidl court or}ribU~1J:_~l:~:, It is clear from the I / ", ", provision that the right to be heard requires that t1;lt:t~~l11:plain~l1~)prvictim must have unfettered access to appropriate justice which:res ,_ectscir1,dF'roteds'herJair trial rights as prescribed by law. :J?,t ' . I . ~J ,{\_. ~>"'''' >'} :~1'~~ftJ~l ""'~,"\V <' '<~~;t\ "" ',. -,~ _';,'. ~ , ;:'"> ..... 0,. ". 131. The Second Complainant allege'fVi~i?gon ~l';. A~ticle76£ the Charter because .-. .~:I~,"';;~:~':.~, /.~:/ '.~ . (a) she was not promptly info~IJJ~~';'p!the !re~~?:~"ror her arrest> (b) she was not promptly brought before a cqurt of l~w\:~n~her h'ikil!j~q,Sunduly delayed;(c) her right ....' .: :d~ ""'(';'~!'~,,:;:~:~ :.. .::, to a legal representation-was violated;(g~\:~h~xright 't'o:;"i~o~~(,presumedinnocent was /'/? '.~ .'" ~':: 't~~,~t: .. "'~',~'., -. violated; and (e) she was not tried -by art independent arid competent tribunal. ,-':',+, " '.' ,. ' . I I . I \\. Not promptly in-formed of the reasons'fer.arrest ;>;j,;.~> " '>. I ,. ? f) \/:";" . :'~:::~~~:j!:~\j:' ~~;i ". and charges brought against her 132. The Second 'cygmplainant alleges that she was arrested and detained for 76 days '\;'~-~~""...~;.~>.. .f~ I effective ~1 June 201i')'~~~\~p:~~;~~~tfig infoimed of the reasons for her arrest and the , :, ' »-: '·-'!·;)·";::<";-:h:(.~>l" chargeslevelled against her. She was only informed for the first time at a "charging hearing:;'~?e.ld<on 5~~:$~pt~mber 2011. She also alleges that the charge sheet was extremely\ ';~gue regi~ding the times and dates and provided little detail to substantiate the alleged terrorists activities that she was accused of. The charge sheet also has a list of nine anonymous witnesses without the summary of their statements and a list a journalistic articles that had no bearing with the alleged charges of terrorist activities that she was accused of. 133. The Commission however notes that the Respondent State~cl~litm~ mit its , 4ft:P:~..~,,\,M'4r ~ written observations to the Second Co~plainant' s allega~i~~§i,~«O~~.~r ,er re'b~.;.or confirm them despite being given the 351 P age ~ If? ~~ ,~\ ~) ~ 0 ~ ~ The African CO]riilSSiOn on Hum'lin and)pe?PleS \ <q. ,€Righi 31 Bijilo A ~~ La~qlJt~b~~N6~~"'Dl§'i9.i p..\J-UP- Phone: t, , ~ ia wesbCoaSfR,~giOn!' (220) ~SO 4:361'VF"ax~lf220'b-4'~11' 5 04 ion.org 0 ICII Emah-?:au:b'a"nlol@afilbaotJ '~nprau,intiO 'a ACHPR African Commission on Human and Peoples' Rights !, Human Rights our Collective Responsibility opportunity to do so. In such a situation, the Commission has always been guided by international best practice. This was reiterated in Alhassan Abubakar v Ghana where it held "like other international monitoring organs, where the respondent Government does not provide any substantive information in reply to the petitioners' allegations, the African Commission will decide the facts as alleged by the complainant."42 In light of this I I observation, the Commission will determine the merits of this Communication based I, on the facts alleged by the Second Complainant and s,upporttng;evidence provided. I I i /,.; ,,/ ''', "".'"'' '" \ .,\~,:,.\ '" , 134. The Commission notes that there wa~ a clela)'>o~76 day~' on the part of the agents of the Respondent State before discl~~,iAg,the reasonsforthe. arrest and the J ,J~~i,:i~';~ '( ::~:>.~. '' ,. ,"., ,"~ \'.'" " charges brought against the Second CornJPl~ihant:<{~e,questioitjs whether ,fKisdelay was unreasonable , to warrant a violation 6£Article 7 0£:the Charter;' ~~\ i '" I.. '" '~'F~::A~}>(' ":':<:'" .);,~/ . .. ;' /fr:f "", . ,.: 135. In its Principles and GUid~:lir:\~~:f:~,theIRig~;!~6,~~Fair Trial and-Legal Assistance in Africa, the Commission provides that '(a11yonewhq,(s:,qrrestedshall be informed, at the time of arrest, of the reason~f;r'his. or her ar~~';t;~ii'dshall~;'~l~{Jiijptlyinformed, in a language he or she understancJ~rBi'·(Jny'~1i'lztges«Jg~i~slh~~:6r,h~1).';'~~'The right "\: /:.:>~""""';;:':', ',:-, . / . informed of the ,!,¢asons for 'arrest <1R.dJ4e charges' levelled against an arrested person to be promptly I ',~)~:~\/,~.. I \' ' / ~f~~~ is also reiteratedsby the Commission 'lifitsl.:Guidelines on the Conditions of Arrest, L·., \ .,;,./ Police Custody '~~~'Ere-Trial Deten~\on i~ ~frica.44 This requirement is fundamental to the, fair trial rigl~t~',(9!a person /~¢cause every person has a right security ~hhE:!person i~~~~~~2~~~9-f1b~ detention. Ther~fore, where a person's right to liberty is curtailed as a result of being subjected to arbitrary or unlawful arrest and/ or to liberty and . . '" . ;,;,•. arrested 'qnd/or detainedhe ' ... ,:, , -,' ",. ~" " or she must be promptly informed about it so as to provide the ':opportunity for the lawfulness of the arrest! detention be challenged promptly in a court of law by the arreste~/ detained person, if necessary.v In Media 103/93' Alhassan Abubakar v Ghana,' para 10 42 ACHPR, Communication 43 ACHPR, Principles and Guidelines on The Right to a Fair Trial and Legal Assistance in Africa - ~lQnS Arrest and Detention 2003, para 2(a), 44 ACHPR, Guidelines on the Conditions of Arrest, Police Custo~y and Pre-Trial Detention in.,A'~i~~(ljlUan1!lhl·G~1'~- es) 2015, para 4(b) and para 5. 4S A similar requirement Ethi es opla a so provl the reasons for their arrest and of any charge against ('~ is provided in Article 9(2) of the ICCPR: The Constitution of the FE!~~ralDefnoeratic Rep~bll.0 at persons arreste the ri h tlv. J e rIg t to e I ormec promp y, In a ~nguage t w'u,nq~rstanul them", I hl!('!''\~\'iJ, ~). \ • ~ -;p 0!l: ) ~ iii b inf rave If!pt;~ /;:~ d 1 ~- ld th 'I .' I : , applicable to . ' II 36 I P ~"'"<" age 1J~~g~~J. - 1'1 <!I .l ~ \\d. ~ '~1.. $ C:: The African Comnt\'s~ion:on,Hum\~ andd)e~plesl ~()'<Ri!t~~ <?{S'$~ 31 Bijilo ;A.nne;·'~YO~t:~6rnbO<No1t~Drst~t, .,est~Q,~?'h~~gion§~fubia Phone: (220) 230 4' ;~~~P~1 Email: au-banjul@africa-union.org https:/achpr,au.inVO 0 III • I ACHPR African Commission on Human and Peoples' Ri~)hts Human Rights our Collective Responsibility Rights Agenda v Nigeria, the Commission had, in expounding on the guarantees of the right to fair trial under Article 7 of the Charter observed that the right to fair trial includes, among other things, the requirement that persons who are arrested" shall be informed at the time of arrest, in a language which they understand of the reason for their arrest and shall be informed promptly of any Icharges against I them. The failure and/or negligence of the security agents who arrested ;the convicted person to comply with these , requirements is therefore a violation of the right I fa fair i the Charter".46 Further, Article 60 and 61 of the I . • draw inspiration from international humafl.xights ':'>,':. " In P. Grant v. Ja1Jf/iica, principles of law. ,)/J :"'::' :f'~:;'l~~~j "r;~;t~! ',~;~,.,>:J,~, 'i'~::, determining whether Article 9(2) ..6f .tn~:,~~~CP~~},~. under Article 7 of in the complainant's right was violate /, . of the charges against him oz,idaysat ,;_::{~N~ . it also held tha,!f:a'~"=, Jamaica, 'ase 'hei.¢':':~~..e'·complainant only informed ~Ihad 1je~n,getained.47 In G. Campbell v. '.~ f more d0,e.~:.p6tmeet the requirements -,-,~_~ '; ", .~, of Article 9(2)48of the t~<;PR. .'<~<~F"'..':~., ,,~)~. : { 136. Therefore, :having regard t fads pre~~. ted, the position of the law and jurisprudence, ~! \ t,n,~fact that the Respond . ~ ate is also a party to the ICCPR, and the absence of any co:rtt.ary facts or evid'~nce",;.om the Respondent State, the Commission 'f){.~\. is s\lt!~fied that a 'd~!ff~,pf76 days iq~pnreasonable and thereby finds that the Second \!jF~:~-~!~:;:~:~>:" Corri"8V."'.,, \~>,> ~(~::::.'':s::~:r'::,,~"'i"~,.' , ~... C~) 's right to ;'&¢'!p~,qlXli?'tlyinformed of the reasons of her arrest and the . w.o. ';~""<~\.if). . . chargesq~veHela~'c1tg(l 'i:'i'.\ 137. The Sel c;'ndComplainant alleges that she was arrested on 21 June 2011 buther first appearance in court was in September 2011 and the whole trial including the e-, " ~.r. ~ ~" 46 ACHPR, Communication O'~ ~ 47 Communication No. 597/1994, P. Grant v. Jamaica (Views adopted on 22 March 1996), inlID~ dOG. G ~~W/51/!4~(VO II), p. 212, para. 8.1. 48 Communication No. 248/1987, G. Campbell v. Jamaica (Views adopted on 30 March 1992);, ~46, ~ara. 6.3~· '!!.t 224/98 Media Rights Agenda v Nigeria, para 43 "'~o~c.q.~~ Ii! Ii f",~1,,,,~'\ ~I>-~ ~"'D Peol>. " -<"'\)~I>-\'\'AT, .:.;J-t~!(- ~ " . . . 37 I P age ~"".•,. AfriG8n{,~~ Un'onoi;,. J?' '\~ '. The African Commis . \ "0 ~ if] !!I ~ .;:;; '1. «- cl4 ,j. 19n on1f;!um-an at;l,cLlJjeopl (~ts ' . 31 Bijilo Annex Lay LIt,J<0mb0'f'l~_ '~SION p.,r ?-.;,II>- __ :::-0a-st;Reglon Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org Wes ~o. <IDlstric,t, Phone: https:/achpr.au.inUO 0 III r-CHP}?f~..~.'~.~lAC H P R ....f>YIY African Commission on Human and Peoples' Ri~Jhts \~:-- ~:t£h;t~ Human Rights our Collective Responsibility appeal ended in January 2013; lasting approximately 17 months. Therefore, her right to be promptly brought before a court of law and be tried without undue delay were violated 138. The Commission notes that the right to be tried within a reasonable time is fundamental because the right to liberty of a person has been curtailed and any such curtailment must not continue for an unreasonable period of time. Thus, such a person shall within the shortest possible time be able to know his fate in, accordance with law I and due process and be given the opportunitf 7 (1) (d) of the Charter. In this regard, to <:n~lenge it a~';guaranteed in Article ' ; thJi,:,~,<?11l1riissior:\i~t~te:dInfhe Luanda .,', -', " /:;:,·;~;:!~,j:;::~.~::l~~:~:;!~~1i-\~""~" -., ",< '.~.~- ""'''' :....,... :'.,,; Guidelines that" All persons shall have th~,tf'ght to crf~l.'[j·triaZ,toiihin a reasonabie time, in accordance with international law an4,:s't~;~diz1~~S.',. incl~~iftg the principles .sei out in the ,.' ,-,';,.<~;;"'...' ~':;- " - ,~ ' .. -', " African Commission on Human andPeoples' RiW1ks:(;'Q~id~lines.on the Right to a Fair Trial . ; ", I . ,~:.":":<;', and Legal Assistance in Africc<~reiterating-the right {~::4. Jairtrial within a reasonable '.'1'_,- 'i,~~,J time. In the Principles ar~.d:G,4~4elinesOl}tft~n~ightto ~F~~~::t~ialand Legal Assistance \,":11'; f· ? ~::_,:_ -, "~:,-, '"'\'~~'~~h, .~.:>., I:')'.',~t. -, .(~;~Y· in Africa, the Commission has'ar.~Pi~xpoun4ed.ori-this.fight which must be accorded to the person ar~~sted ancf"detained .~.9asito inter 'alia prevent detainee's fundamental rights.s? This fundamental right is equally guaranteed under the violation of the "-'-~. I.:~.~,,;.;.> . ,. ~;: ~.' // ! -:". . -. I ' .~{~ ~ " • "'.;:' the Ethiopian Co~§~~~tion.50 \, '. <""" " T> ,~, ;', \~"';./' itr: I 139. . '. '; ·~'~i:.;.~,;::·:l<:.;::.\O.:~,. , The CommiS~i,~1),.,alsonotes t,Watthese allegations have not been contested by - the R~s?~ndentState slncei:~t,~~,~sp'(jt However, the-Commission has not only relied on that but also perused the records and evidence provided ..:!n her signed statement, the Second Complainant stated that submit its,observations on the merits of the case. "'i~<r;~ upon her ai~~eston Zl june 2011, she was kept in solitary confinement in Maekelawi Detention Cef;ltr~;for13 days and was interrogated for very long hours. Thereafter, she was mov~d to a cell with female 30 prisoners within the Maekelawi Detention 381 P age httpszachpr.au.lnt/O (; III ,I ACHPR \ African Commission 011 ., Human and Peoples' Rights Human Rights our Collective Responsibility continued their investigations against her. That she was only brought before a court of law on 5 September 2011 for a ,Icharging hearing" and was ordered to remain in custody; and on 8 September 2011, she was transferred to Kality Prison. She also submitted that the trial proper lasted 4 months because it commenced in September 2011 and she was convicted on 19 January 2012. 140. From the facts above, it is clear that the Second Respondent was not promptly I brought before a judicial officer/ court of la1 after .:' tion on 21 June ",,- ':,,::, •. ' . 2011. It is also clear from the facts that the delay .'wa~:·!1Qtas a ' ''':<\ >,:. the Second Complainant and there is no why it took the Respondent State 76 of law contrary to Article 19(4) of the justification for the delay in commencn Commission finds that the notion of <; Article 7(1) (d) of the Chartei~;~flsviola, " - ';,'f;"\ 'i." i ' , I ',' ia.'In, the absence of any by the State-Respondent, the \ notwithstanding the fact that, the triaq:~~;t:~~)~!~r4 m~~t~~'after /its " , t because the violation . i1i~~j;:! she made her ~~~;?en appearance. """ occurred from tti¢ ~ime sh~\V'as a~ie$ted a~d kep,f,:iridetention till September 5 when I ~';~;~:'.;';~~>, \:(:~;~\,,:j -.r'I'tf· I \;\ \!~~ ";,; Right to legal repre~~.ptationviolat "tl, ;,:<>, ~J 141. ': ';!;-'. , " "':[Z:\:~'i1~r;:'i,i,i,;-,~,~,_i,~,.,:,1~k.~,'~,"!,_~,\,:"i!:i,i{,:li'" . '.'" ~i';ii;~;i;~i~.;~!, ~:1:tide:';~(il-')~':Cof the Charter provides that every individual \t:~.~, in'P{y4b!fg t e ' "~ s: .~*;:::;}-,: ,- I defense, 'T'~;' a be defended by counsel of his choice. The Luanda Guidelines ;"~<> shall have the right to also reitera?~9 the obligation of the State to ensure that the arrested person have the right of acces~;;(1~ithoutdelay, to a lawyer of his or her choice, or if the person cannot \ };_'/~ ~: 'J. <;:'~{. ...1:;:;;i , afford a lawyer, to a lawyer or other legal service provider, provided by state or non- 391 P age https;/achpr.au.intiO 0 a ACHPR African Commission on Human and Peoples' Rights throughout thereafter the criminal Human Rights our Collective Responsibility justice precess." A similar protection is also provided under Article 20 (5) of the Ethiopian Constitution. 142. The Second Complainant alleges that she was denied access to legal counsel during the first three months of her detention before she was charged with an offence, and during this time, she was subjected to many interrogations over a long period of time. She also had no legal representation during the" charging hearing" because her lawyers were not given notice of the hearing/ date ~~;~h~~~~~~,rot allowed to hold I [':'-,\. ~~.<:,:,~J private meetings with her lawyers or discuss ce:t;tali1i('?i.~tailsa~pj. Ither case because . I '\ ~.·l ';:',,_ .;;;.,._,; the meetings were always held in the presence of.a se~ti~,i~)1"gJi'~t9'Wl1o.,~ou19)isten to their discussions. She was also denied.tl1e/right,to call ~~;,~l<p~r;~i:tIt~~~~~'inher "I. " tue;')3econd j Compl~i.ri,il1t.'felied on the , In supporting her argurpent, defence. '.. , .', .,,<~.~ /<'"i:·~;'·;~:f~·, /:>' ~\,"}y~ Commission's jurisprudence in4VO(~~~r~~ns rro%:tie~~,~,(on behalfofGaetan Bwampamye) v. Burundi; Media Rights Age11"dav. Niglriff:'~ntl EgypHqn:lnitiative for Personal Rights and Interights v. Egypt. -'''~:::'i~., .' . '~{i>:, 'I';</\!7:t.>: ' "\';;~;;"" . , ::~,~}1'V < ~, ' ' '~:._" :!, " , 143. The Commissi.?n.notes 'th:~t~tl}e;tightof iij~<!£5stedperson to have access to a .. .~ < ":;~.' ''-:, ._..... I \'_ " .,.'.:,~ lawyer and legalservices without del~~\is one of t~i{fundamental guarantees applied ''''" . '<:':, ~::' ,'.,_, I ,- in procedurall~w especially in ma~tei~<~il~~ngto deprivation of liberty. This is to ensure that there.is equality of arms ~,'~ndtFi~'arrested person also has the opportunity to bedefended appropriately and adequately. In this Communication, the Respondent ', ' ...... '. • .~. • ...'" '>ir Stat~'\J;lCl,S-J:I1<?'! . challeng~d::the _Jeiacity of the allegations made by the Second .'. ~ ~.<.;";:\ ~,~~': ,'.! .•., .": ",' ", ". •. ' Compla~nanC<'~R";th~. absence of any counter evidence, the Commission would 'I,::~ therefor~':~~~r#;k;~its'd~~is"i6nin Avocats Sans Froniieres (on behalfofGaetan Bwampamye) . ",','/ /:.. ' v. Burundi. ':yyhereit underlined the importance of equality of arms in criminal proceedings=. and holds that the Second Complainant should have been allowed \", access to a lawyer without delay including during the initial and various interrogations held by the State agents whilst in detention and the II charging hearing". ~P,MANDp' ~ o'Oj\'~\.i~RIAT~o~~, '"<'~. 51 Luanda ~u~delines - Ri~hts .ofan arres~ed p.erson, para 4(d) ~nd Access to legal services, par~f~{a) ~)tPa~~~ (iNii)~ ~ See als~ Principles and, Guidelines to a FaIr Tnal and Legal Assistance, G- Access to lawyers ~(11egal Sen{~(;:e~}T!dH~~~ ~ Legal aid and legal assistance, 52 Communication No. 231/99 , (6 November 2000), para. 27. I I) S+ ~v~~ I 0 ~~. I.> , , ~~. ,~ ,'b .. 40 I P age "0,,, • ., Afriqan((~i.~ Union ",1~ . .... . . . .. . . , I··· ' I'-U.\}I\.'. './ tJf§ ft '0"", . ... The African Commissio~ "Ii;J Human<and'PeBPles~ <~.~ '\. 3'1 Bijilo Annex Layout, KO~bOJM9r!.h!Iil.!§.t3. West Coast"R.e"'jpo:Gambia V.)1(/N ."I'I(~Riglj~ '"? "', , Phone: (220) 230 4361 Fax: (220) 441 0504 '" , Email: au-banjul@africa-unioll.orq https:/achpr.au.intiO (I r.a .~~!!~~ ACH PR «. 0 .~ f(~, :J~ 0$ African Commission on >;; Human and Peoples' Rights Failing to do so, the Respondent State had deprived the Second Complainant of the Human Rights our Collective Responsibility ~~ \~r ~~i1; opportunity to challenge the legality of her long detention and also to respond effectively to questions posed by investigators during the investigation and the prosecutor during the II charging hearing". The Commission also agrees with the I Second Complainant's articulation of its jurisprudence in Media Rights Agenda v. Nigeria where it held that a detainee held for 149days without access to a lawyer was a violation of Article 7(1) (c)53and Egyptian Initiaiioe Jot1?erson_afRights and Interights v. I . '~ " . " ,,;'~>";~~~ Egypt where it held that the absence of lawykrs for t~~;accused\persons at the critical early interrogation stage was a violation of/1fl!~~J~:i~~:) (Cl~4.q~th~<:h~~:e!~:'" .)\ ,.', . I I I -, ' 144. In light of the above, the Conuw~~ion fiii~~,:~!hatthe '£,~cond Complainant :;~"~·i:..' o: h'1. having been denied access to a law~er''frciITl,,·:tettim~i;;9,fher arreston. Zl; June 2011 to 'y::'~J:".~, ....."- . ", " .::' J -··{r),':tJ\\. ~io . ,/ , the time of the preliminary hearing"ori>5Septemli~r;/26i1without anyjustification: and ,. ",;," '~'" \<. . thereafter, in cases where s~e,?hadacc~s:s:;tq.lawye· ",;.";~ '<,_.;.·~t~~ -, "~~not allowed to hold private "'i:~i;l.-':·,;:~·-"... /~) meetings with them is a yiol,atiQnof Artid~\?(l} (c) of tH~::~i1arter. ' ...',;~~,-, ,.'< ' " II ~"<:·'ii(\,. "" , ..".. - -".. I -. "". /,.., Right to presumption of i~nocence,yioJated I ,-, ~ ".,', i " ,. ", < ~ !". <;:{' The Seco~d;"{::omplainantals'Qalleges that the Respondent State violated her .<!-. 145. -,:" :,- '\...... ~.,>"" rightto be presurtie~rf.np.ocent,in th~t the Ethiopian authorities conducted a negative ~ .',~' ,.__, '~<':~:·_·~r;·);i·'.(~,_,,,. ~:(:~;;;' publicity 'campaign agaii~s'~;':':lJ.~r:~:aimedat prejudicing the outcome of her trial. .' "<;. J,:> .. ";,!.j~'.}:~,', ' . Government officials including the Prime Minister made public statements to the Parliame~tflri~n~ ded~~i~g'her and others guilt prior to the end of the trial and a ,',', \' '" /, ',' t. \ r,.," .: documentary called JAkeldama' was shown on national television accusing the Second Complainantasterrorist. It is also alleged that during the trial the prosecution failed entirely in discharging the burden of p~oving her guilt, instead, she was expected to 53 Communication No, 224/98 (6 November 2000), para 55 54 Communication No. 334/06 (1 March 2011), para. 133. 411 P age ,'-t.:);r."Jr.\ Afriqanti~~ UniOn~,,,v. ACHPR African Commission on Human and Peoples' Rights ..», Human Rights our Collective Responsibility V Eihiopias" Law Office ofGhazi Suleiman v. Sudani" and Media Rights Agenda v. Nigeria57 to support her arguments. 146. Article 7(1) (b) of the Charter provides that "e'very individual shall have the right to be presumed innocent until proved guilty by a competent court or tribunal". The presumption of innocence until proven guilty by a competent court of law is a basic principle under criminal-law and international human rights law which requires that - the accused person/ defendant is given the benefit :c:)f the.doubt both before and 'l;, ;", '~,'~ " - during the trial as well as outside and within.·~t4~ -trial, u\:?,l guilt or criminal responsibility is fully established by the cO~5t;:~ the Pr~~dpl~-~.'~:rid'Gl+i.9~lilJ~sto a -,." ; i <~::,,.:'r:;_i~:;:~;:: Fair Trial and Legal Assistance in Africa'i~~~e'Co .«~~:F;:t;;~'i~~;.!. ::', " ... 'r-:;~::__ ~-._ ~ ";J~~\ioneXR~.upded orctlu{right of '~i:;:;.-':,<:;\ .; .." _' '" r / " . an accused person to be presumed innocenfiq:n~il prd$~¢nguilty by a competent court . of law and stated that public o££j~ial§:'s~allmaint~i~:the presumption /.(.,~~!/ ," .. .".... J;.~~;~.:.,~;~ : . . of innocence of about criminal .' the accused person. They-are alloW~'d. to iJW~in;, the public :f ._;. '~:_ . '\ -.-u:.~·~:-..~_~'. ""\:'w~'~';~.~, ~i-' investigations or charges; but.shall not expr~ss,a view a1F~iPtheguilt of any suspect.f ·-.c~r;,~ ...i> ";"~~~~' .." .,/>/ The UN Human Rights Committee.also expres~eq"a",/~iinilar position by stating that ,; .. ". .' .... " '.' .r_~ ~. _'''''_ , this obligation r,e'~uires allpublic cititho:rities to r~i~~in from prejudging the outcome of the tria1.59 " ~.: . "';. .' \--...., 1, -. v' ··,'··';li' 147. The Commission notes that the Respondent State had not responded to these :' allegations by challenging or otherwise its veracity. '~.':-- \:-:>'i~:''-"" ,', In the absence of such counter evidelfl~~~;'it:w.i.llmake a'fiD:8-iiJ,g:basedon the facts before it. The Commission agrees that with t~~\2~~~~~ijJfqt engage ~ri':Rrt{:{~~~~ilv~: objective of-prejudging the trial and determining her guilt before it ended. This has ~~blicity or statement or documentary of innocence requires against her with the the presumption the state not to , " been clearly ~~:q,F{datedby the Commission in Haregetooin Gebre-Sellaise & IHRDA (on behalfof former Dergue officials) v Ethiopia, and Law Office ofGhazi Suleiman v. Sudan and c' 55 Communication No. 301/05 (7 November 2011). 56 Communication No. 222/98-229/99 (3 May 2003), para. ,54 57 Communication No. 224/98 (6 November 2009), para. 48 421 P C1 g c .'~~'f.~ Afric;an(4\}';) Un/en,,;;; Human Rights our Collective Responsibility cited by the Second Complainant Therefore, the negative publicity campaign conducted against her by the Government officials including the Prime Minister's public statements declaring her and others guilty prior to the end of the trial and the 'Akeldama' documentary shown on national television accusing the Second Complainant as terrorist aimed at prejudicing the outcome of her trial offends the principle of presumption-of innocence and is a violation of Article 7(1) (b). 148. The Second Complainant also alleges that s ::iwaM;~:' rged with violating .)Criminal Code and Articles 32(1) (a)60,38(1)61and 684 (1) and (2)62qjj(;:',,;;: .!hiopi· <:"'_' "<'",;.:,;--.,<\ ..-. i ,../ Articles 4,7 and 9 of the 2009 Anti-TerrorismJ~r.oclamaHQir\:'bt.lf'n9n~:pfJheevidence :.. ;::'.\.,:<'.;>:,. ''<t,::''':;n;: ''':';~-_::.:~;;?'':if/ showed that she was involved in an of£~rio'e. Insfeap:/~'.~hewa,,~!i~equired'f '<~tt~~;,:~·i~:;~~.~ ,:,::f:;S:: '{;~~\"_ \.~~ , \ ,'rove her innocence and also in the process w(J~'derii~<;l'the rig1fi(tobring eXpert"yvitnesses. The .«(;:'i): "'" :;.,":\,_ /" ,,<.-., ;../ that Commission reiterates the prosecution has a legal obli,gati~n ~~::. i,:t::v,~ the 'itiif"~f the accused person beyond \j'~~·:P):';:'t_~ th~_/fR'i~umptioh~''Pftiimocence , -.' ~/,;{~::J!,._ reasonable doubt and ndf:;f@,i';,~heaccu,~~'ff:i:I::p;~~pon . '. " to prove his/her also: 'means that innocence. The Commission notes tl1if·.the jJ;~f~~li),t~·(~;·th~q;~~~~~gr:. ,J1i~h Court found the Second v -~~ '., ; -<.:.(;'':~.~: Complainant guilty of aiding pers6R,~~f9,rthe purpose of a terrorist act, supplying of ',; " ~';"}~.;;:}'"'' " .- information helpful to the terrorism aCf"i#:::~o:yertoperations and sentenced her to 14 :. "', < • J _" ":1~i':>~~!:~:" years imprisonment, The Commission al~c{notes that the basis of the conviction and • \~ .' , :' E sent~:n~ewas not adequately substa~tiated in the reasoning of the Court. The evidence reli~~L¥~on~inthe judgn,.~~t~ete!.fh'~ statements of witness's No.6 and 7 who testified 'y<:;'~\ "·¥"·'.l- ;~':~: ~:~,:,:~~\_,;:, ' •.• , _..... being opserver~:::~Wb~p.files in the email account of the Second Complainant were '~,:;', opened andprinted . <".'~.::;"'" ·~';·:r'<.:: -', :'- bY';fhe investigator, and the Second Complainant borrowing a ...,<.~,,'~ '. ,_,' ',,'< ...... J " digital carri~I:~from her at different times respectively. It made a finding that the '!";" Second Compl!'!frtant had established a working relationship with the 1st defendant ,j(4' . ," ' ~tM),N AND p~ o¥>,\,.,{,.,RIAT , o~ o~~v~ '" I:) I» , fl ~IS', -. <~~ '0 ~ ~ 0 ~ as! tchif: (a) he~ (Jl ful'C:eot- ) g '. . 60" Any person shall be regarded as having committed a crime as a principal criminal and Ii' nishe actually commits the crime either directly or indirectly, 61 "Where two or more persons enter into an agreement ~ocommit a crime the provisions ret!tding\p.articip}ition,an'a § . aggravation of punishment due to the above-mentioned 62 money laundering and aiding under the provision of Article 684 of the Criminal Code in particular by means of an animal11bita nabral circumstances are applicable (Art. 8~t11d)Y~__",/~~~~ ,r.,,~~ (§;'? /j ,,~'Q~ 431 P age ·, ...t 'kCM~o:E\O'--~ The African Commission on HUmal):ano'Peoples' Rights 31 Bijilo Annex Layout, Kornbo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union,org https:lachpr,au,intlO 0 III ., i ; I ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility posted on his website despite evidence confirming that the Second Complainant was working within the context of her profession as a journalist. 63 149. The Commission therefore agrees with the facts as stated by the Second Complainant, having regard to the circumstances of the case including the wide . . negative publicity regarding her guilt prior to the end of the trial, and the fact that I upon appeal, she was acquitted of two (2) out of the three (3) counts brought against I her and receiv~d a reduction of sentenc1 from 14. to,>5"ye~p:s:~d thereby finds a i violation of Article 7(1) (b) of the Charter. /..>~~~'>" . , . '.' c ' I . . • """. Not tried by a competent . and independe /("/ ~".' " -, I !/:;,:;;/~::/;:';:,}:;r,;., :t'court'<;<':\\ \,":'~, f' . ·~"1:!;!i!i}.>:~~_,(,b~/ , I 150. The Second Complainant .~n~ges that nehtrigRt to be tried !:w an independent //. i -. and competent trib~nal was-also Vi61~~~d. Sh~ ;al~q::1t:eferencedthe Commission's jurisprudence= to suppott:..ner -submissioris:\;;;'::':.. '\ _.' "1;"':,::,:';~),::, ""~<'~~-.:,;'~~ .~..~.;~/' . ,:t\ _:~~~;_, 1;: ":. :;"_., 0., "':":;~?':':~~._:_~c.. ':;;;:'l~;~;E:;:" Ji~:;Yv '.. 151. The trial bYeA:~:9. Flpet~n{'cmdIndepeiident. C.9ffrt/ tribunal is fundamental because firstly, it'~~e~~~:~aran~~~'~~~.right of th~individual to have his/her dispute decided or resdr~\ed by a neutral body·:~~.:iagthority. Secondly, it also guarantees the ";;-:11;:4_ f; \~~:;-.:./" rule of law and s~p,,;~rationof powers, ArtiCle 7 (1) (d) of the Charter provides for the .,):': -"._, ::'; trial by an imparti~[;.c:9~rt or triburjal. It did not specifically state that "/_",' .. _< 'A.;~:.\'::::".. 'c',; '.~ -; that the trial should ,be by a compel~htJ:;;iad~p;~hdent and impartial court as provided in Article • • . . • • , - ..~' , " ._<;I~ .• "' ... ~ 14(1) of the ICC;J?R)::Iowever, the Commission in providing interpretative guidance • ; • '. ~,; ~. , . ? / -", •••. on Article ;.~..read with;~fficle 26 has through its Principles and Guidelines on the Right to a Eair Trial and Legal Assistance in Africa obligated States to ensure that judicial bodies shall be established by law to have adjudicative functions to determine matters within their competence on the basis of the rule of law and in accordance with proceedings conducted in the prescribed manner and all judicial bodies shall be independent from the executive branch and shall base their decisions Oti~;_ . . J} I...: II fj , R 63 See Annex 14B of the Complaint, page 11 64 Communication No. 281/03 -Wetsh'okonda Koso and others v. Democratic Republic of Congo, pars~.z~. I . . . . ~.. 44 I P age '0'.''''' AJ~~g~'jf~ . 'The ~ '(I ~". RIAr ~o..· l ~o v~-v;. ~~ e . <'~\S'. ~ ~"C> .-' -; ~~ 0 ~ '(!.-l ~~d .~;,:,~. g (11 .,.\)9') Q '" ~'" iii ».v._ AfricanCommissio ~n ~tman,and.pe~~l:r~:§" ... (! \ . .)SION Ar'W<R)gbfs' 31 Biji!o Annex LayoQt,~m~b}?r~.9Jt!1(..~rsfr~G, West Ccrast-R'fJgioTI. Ga1i'ioia . ,"'fu Phone: (220) 230 4361 Fax:(220")441 Email:au-banjul@africa-union.org https:/achpr.au.inUO 0 113 . r~ACHPR '.it} African Commission on \~ >~. .; Human and Peoples' Rights I I / / . I , Human Rights our Collective Responsibility evidence, arguments and facts presented before it. 1talso provides that judicial officers shall decide matters before them without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason and the process for appointments / to judicial bodies shall be transparent and accountable and the establishment of ~n independent body for this purpose is encouraged. Any method of judicial selecti!on shall safeguard the independence and impartiality of the [udiciary.w Similarly, th~ jurisprudenee df,th~\~OmmiSsion and the I ". Human Rights Committee. have also recqgnized;:thq..i~,t~e right to have once cause '; . I -, ',,,- ,':. heard by an independent an impartial court i~rc,tpf?q!ute'and-without exceptiol],,~6 I";r;'~.:.::;:,::,<:<:',,.. "", .:< .... " : ' '~,' 152. The Second Complainant arguedil1~t the tr~~1~:~asnQ,t~~ne by a'eempetent and independent /~:::,' court because the ,g6ver I terms of the negative publicity ~g'at~~~~.~,r~JiiG~J~~~ws a real or perceived problem ",," ,:::,,~]Jtint~#,~red in the judicial process in '~({\.;:r!~t}:>~, £/,~,/ /,~,:~;f., \' ,': ','~ ' -- .' with the independence of the-court, S~d!Q~4ly,tha{tl;t~\RrOsecution failed to prove its case and the court shift~1,~~t·e burde~;;~~", -, . ,,·,;:;w~ e Sec~n~,F96~plainant .:;~ /.;.;' to prove her innocence which amounts to a ~t"qlAdi~~egard"<§i::ekmen:tarycriminal procedure and .. ';, , ".::::~~>;;:.~. ' <~~:~-:-'-'--;:.'" thereby exposes-the incompetenc~':t~~>t~e court !j1")~ddition to other fair trial rights violations. Thir~lY, that the fair trial i~~~'~$:!}M~'J1enot addressed by the appellate court. .: . <\ \ffJ:~j,l 153. In the absence of any coti,nter<t~vidence and/or "( submissions from the Resp~~dent State, the Commission would like to examine whether the trial court was comp~terit:a118 independent . "-.<_ <:':~r:;:'_;.:·.~~'~;>... ~\ \ .. The competence of a court or tribunal .,''' ..... ,..".' . is the authority or power \~\ the<,~~~t ..cgf.__trih.unalto exert jurisdiction over a person or thing or to \}~ .r{ij;_~Y determineicases '1', ~. Ji'./ <..".< '~:' :-:":.:;~:r,;:",'·:jF J; ,.7 or suits>The Commission notes that this matter was brought before the Federah~igh Cou;t of Ethiopia which has jurisdiction over such matters.s" The Second Comp~a~hant did not also raise any objection to the Court's jurisdiction. In the absence of such objection, the Commission shall take notice of the fact that the court .'~;':!'" is competent to adjudicate such matters as provided Proclamation. . in the~Jl!.~r.~Courts \'IU';~"~up~ 0.0 ~ ~"(~RIAT ~..,. o~. Y! ~' J g C/l 65 Para A- General principles applicable to all proceeding, 4(g)(h) and 5. 66 See UN HRC General Comment No. 32, para 19, ACHPR Communication 322/06, Tsatsu i~jka!~\\.,Ghan~,p~Ja 'J;~6~ .:\\:iI-,.... '~l«S,_~~~'v<;) s: . 67 See Article 12 of the Federal Courts Proclamation No. 25/1996 "'.".-.... ~ ~ . .,\~,~ , . -.. The African . Commisslorbon Slofll ,~t:Il\Ct' tfM.,lTifo.t.aMnf..a_t:nTd,.~PE!OPest ~ : ,.,9 ~l(,v~ I .0 . !j /~ Il;.; . : ~ <'«'II'. "p , .\ - . . . .. " ... 45 I P age ~"",e" AUfri<;an[~~ n,on,,_,y '-..~~ights 31 Bijilo Annex Layout, KOiiibO"KJorth District, West Coast Region Gambia Fax: (220) 441 0504 (220) 2304361 Phone: Email: au-banju/@africa-union.org /lUps:/achpr.au.inVO 0 a tff.~)ACHPR \.~\]~.. J; African Commission on ~:rutnY~ 154. Human and Peoples' Rights The next question is whether I , Human Rights our Collective Responsibility the Federal High Court was independent . ' and impartial in adjudicating the case brought against the Second Respondent. For a court to be considered independent, the adjudicators must ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected, and it shall be ! I impartial if it determines cases on the baSis/of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any !quarter 0 ";6~r~~~;',r:~ason.68 The Second Complainant argues that the negative stateinents.b ,Jl~:,Respo*d~nt State at the pre- • . I /. "a; "; _::,;,"i trial and trial period dearly demonstrated ,tl)e"go;~~~nt;{';ltostili!'y .}" "i;",:: ~~'"~,'~:'~'~'. '~'..::~:_~;~::~:., .: - ~.~ h_:~("';,:<;'~:'~:~'~;./ aI].8-bias towards the Second Complainant and q.tijer journalists anaJb~reby " \, ': '", 'i'<' ..:, \ irifluenced the conduct of the proceedings Commission notes that and ?ivtco~e~~~:,the ~~cision of't~:~':::~ial court. The the ResH9i5.~£~!State h~~~!'1.,~tcountered tJjese allegations by 'I': ~",.,. '~:::("~_ ",',:",). .. :" I. ';\~f.'~_i{b.,I in'\t;n.~.absence-of-such, and having regard to the "<, ~,,:)_"- (_'':,:. '.;.'J;"~,;~;.~, . , ,'~ '.. submitting its written observations, facts and evidence est~blish~!~'3,~d cir~~~~t~8;~:,s of th'eF~se, the Commission agrees I with the view of the-Second '@,8Wl?Jain'llntirl\{~hfl!!,.,t!te negative pre-trial campaign "J'~:.i,;~;."~.'., ~. Lft:::;,' ':l.. /!?!,] _< .: . " , ~ '~<~'.'~ '~l~:"~~,;:1'.;:""'~I '~::~';i;;;~lj:)fY, ' particularly of the 'i~ri;rne Ministers' '., ·~<;. L:;:~~;t:,,'1. documentary aired on television had or"'~9J:l19~'haveinfluenced the proceedings to Parliament the-statement and the Akeldama and : . its outcome to 't~e .detriment of th~ SrP6nd Complainant. For these reasons, the Commission find~'thcit· the Second ¢~rr{plainant though tried by a competent Court the i~t~~~~*$ls:~otind~~'en~,~ij~;fH;l~i~p~rtial in the conduct of its proceedings thereby '\'\ ", ":""(~~:' ..:.:~n·,",,-. , violatingArtid¢'tkH.(d) "" .; " ' of the Charter. \~.), ,:.;:;:;>,.., ~',. ,..~:::".;-:(:~"?:T~'~:',~~;:7 ~,;, .. ; .." ",_"", ,(" " v: Right to exalpine a witness violated ','" '" \{,\. 155. The Se~~~d Complainant also ~lleges that her right to examine a witness was violated because the trial Court denied her the right to call two expert wi would have provided expert opinion regarding whether her a,ct1w,tJ.~~~amcrJfi• to AND esses who ,,~o~~~~~~ rtl~(JA \0 ~. >, 68 UN Basic Principles on the Independence of the Judiciary (1985),principles 2 and 6. See alf,olGeneral !pes an~ Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa- (A) General Pl'inciple~ 9-\pplitable to~lkEegJl~ ' Proceedings, paras 4 and 5 . if. (/) ~\y- l~!j§!:1 '~1:0....___./~~ ~ ~ ,,'</ ' , ()' a 0 c 46 I p. '«"".... AfriG8nfr§p Un!on"W,>, ~~. :'~<.)- The African CommiSsiQ~o.o H(ims~gn~rPe~'pr~!>' ~ ,~£'t.i.~hls 31 Bijilo Annex"LayoLi~~9ii:ib~I~brtb::Ellstrict, tl:< ( Phone: 220)' 230 West CoasfR'Jg!on Gambia, ( ax: 220 ) 441 0 F Email: au-banjul@africa-union.org https.rachpr.au.im/O 0 !Ill ACHPR African Commission on Human and Peoples' Rights I1..=: , I', I Human Rights our Collective Responsibility journalistic work or otherwise and did not provide any reason for the denial. She also submits that the Federal Supreme Court failed to recognise the relevance of the expert , evidence on appeal and instead speculated on the ability of the said witnesses to refute prosecution evidence and concluded that th~ Second Complainant's activities did not amount to journalistic work. In support of h~r submissions, she cited the decisions of the European Court of Human Rights69 in this regard. I I The right to examine a witness is proyided for,.~I}:1\rth~,l~,·~{l)(c) of the Charter ' , ;":,~:.';:':; 156. which guarantees the right to a defence. Thi~ provisi6p.),~,desi~ed to guarantee to the right to an effective defence, as well as pnbv' powers of compelling the attendance './' I .,' ", .::,...', .,.." th~\:g~~;use~:::~i~h-thesa~~ legal ""., '... " and 'i·~£z.·e?,aminillg:·'oi·cross- _"('.::: .: '" examining any witnesses as are av~i1able I . j':l}:~ '~;" Guidelines on Fair Trial and Legal~sf'istab.~e .. .,': I the accused has a right to examine, or hati~;:ffmined, " nesses against him or her and to obtain the attendance an4:"~X~!k~l~ation0~;I4zt~~$,{eson li conditions asr:~~~i;::~~gI,~s~·Yii~i;~.,.r.r:.:;~;tHoll 1~~;B~~r' \,\"i,\ s., ....., ,., /' _"/~'i'/' 'i,,<~, ,"j'11erbehalf under the same ..:f/:lel d right may be limited to those witnesses whose ~~wtimony is l;elevanUl'iJ.~~~':~lrto ass~.sfin ascertaining the truth.70 157. From theJ!~bove, it is clear that fh~/~~ghtto examine witnesses is not absolute. This means thaf~j~~ecourt can restrict \(!:;.!:!:r;~t" ,'. I HO~.~~~~,such a res ··..·tion must no deny/the right of the accused person to examine th~~~~~ht in line with its national legislation. a relev~~! witness whos' ." IS likely to assist the court in ascertaining the truth or has' probath'~· value, alleges that. she calle:q::~~0urwitnesses at I the trial journalist B~~she was denied the right to-call In the present communication, , . the Second Complainant to testify regarding her being a two other expert witnesses to provide expert opiniot;t:as,to whether her activities amounted to journalistic work without any '" reasons and that on appeal the decision of the lower court was upheld. 69 European Court of Human Rights ("ECtHR"), Popov v. Russia, !Application No. 26853/ ECtHR, Bocos-Cuesia v. The Netherlands, Application No. 54789/qO (10 November 2005), pa .~2~}and v. Poland, Application No. 24541/94 (18 June 2002)., 70 Para N - Provisions applicable to proceedings 47 I P ag ~ . .. The African commiSSiO~)~~> ... ,. . l).., .'\ , relating to criminal charges, 6 (f). See also U~. JIRC.."~~ ~~iC. 1~lp2~~ ..3 ~i~~:~ ':>~ . I . ;:/' ~ 0:':'~~AIIl AIt/() ~~ ~'C.1AR'A'" "'0... ('~.' ,ff°\1)~ t rj~) ~Jt ~ trw July 2005kpaia. 18~i g c;: /<v.t' y V Ef~tIdR, Wieffibic \..~ •• <;,,~ i " ...~." AfriG8n6,~ UniOfl'%,,·, 31 Bijiio Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 4410504 Email: au-banjul@africa-union.org https:/achpr.au.inVO0 IIlI I '. ACHPR African Commission on Human and Peoples' Rights The issue is whether 158. the denial amounts to a violation of her right to examine Human Rights OUf Collective Responsibility a witness. In Bulut v Austria, the European Court on Human Rights reiterated that , I the principle of equality of arms implies that; the applicant must be "afforded a I reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a.-vis his opponent."71The Second Complainant has confirmed that she ;. . I was allowed to lead evidence on four witnesses to show that she was a journalist but not on two others who would have without any reasons. There is also expert opinioRpJl;:her journalistic work : :,:'~ -:;,,! \\~~ '~,,~,,\ on r,ecotd(tthat on';~!?peal to the Federal evidence that the Second eng~~ng i ,:'~, . ........ ,'-"';~,.,,¥if\~,;)'!;1,·':,;th~Z~i~hcOtif{Oh,theissue, on the 'J UJLUS. J. L\.. I,".have l¢tu,te d the'Fir6secu tion' s -, "'~~\~ •<~'>:~_,-(;v'~~'<.~~X:"v::---,;," ':~T-'"_-.':.;~.~:'/~::> ", in:\'fhe collection . , and The Commission notes that of evidence at the na . the expert eviden~e.of'lll~ assessment of tl},eevidence before "W~~,"~orksfor a terrorist organization . .~.;, :,;-, stand ;~b,r.c,lerson the issue of evaluation ·:\~",~·8,-,,.:ii_. Sta£~y;:Thedecision not to allow • / have been made upon the notes that, base~\ on the facts before court gave no reasons why it has 'f~':",:--;\ refused the testlW9ny of the two Ov.,nD1't- . However, the Federal Supreme Co, "" t has made it~·,Q,\.vll assessmentjor '-: ~, ,../ . . '\~-, facts before upholding the correctness of the til~,r.~Q1,l:J;;t'sruling on'~,~t~:;i§$:ti~;TheCo±nmission further notes that it is not within ~.;~:~, '-.~ -*{tf;!~'<~Pt;-··;·,.·,,_,,: . ' -:.: -, .-~.;?-,.. - its cOrrl'Nt:;tence:t9i"determinewhether the Federal High Court and the Federal Supreme \1{:1~_ .,<~::;P/. Court haq;:p,reperly e '"' ted the evidence before it so as to determine the relevance or otherwi~i~;~pfthe te~~~onies of the two experts since this is within the remit of the . ~ national cour't,\h~;'linewith its national laws. l"~-:' 159. In light" of the above, the Commission is of the view that the denial to examine , the two expert witnesses is not a denial ofjustice and the right to a defence within the 481 P age https.zachpr.au.int/O 4) r:I ' ACHPR African Commission on Human and Peoples' Riqhts Alleged violation of Article 9 .. . I I' I I Human Rights our Collective Responsibility 160. Article 9 of the Charter states (1) "Even) individual shall have the right to receive information. (2) Every individual '. shall have the right law". 161. The Commission in its Declaration Africa (the Declaration) aimed at that freedom of expression and impart information and ideas, through any other fundamental and democracy.t? The with it responsibilities, which limitations on t~~right. However, .{.: .., . I "~'" to exp~ess ~nd dis ';:(fnifi.~~::;ihJsopinions within the ')1;.;1\. I f ~r.!J7.c!plesQ~:gp;~;,<.··m'9lJ~<~pres~onin . plerfi€~ntllng';Article'9~Qfi;theCh:a-rfet..;.provides ,'" :'il <:'(;:.> '_':~:"':':~J' "<>~i,:"'::,<'~ /Y'" .. ,,,.,.,:;::::,(~, _ " -~{""~~':;_'" U. L' ............. ,•.•··j",,:, the rigRt:~f\~;~~~!<,receive and "lAl'<l:Jrn'nu· •or in print, i:q};trleform of art, or .,/ .~'," ';; - Fl,-' across frontiers, is a iIldispensable component of j '",' i'exercise of this right carries allow for certain restrictions or on freedom of expression and serve a legitimate aim and is a neqe~?ary and proporhQrate means t9 achieve the stated aim in a democratic society'". 'ii~:~~~';;,".t~Y~:;;".:·,::~;:f~;;>:_> In C'q.~~$~tl;utionalRight~. P:f;oj~c.t;;i:;ivilLiberties Organisation ;"j,:':: Ji,: :'',,:"r Agel1dt:i:1WNigettq;,'C},' <,:':;~~;:'>',:::,~r;, \~fif:~ 'r)gR;py'vital e Commission opines that Freedom of expression is a basic "~ . and Media Rights development individual's personal political human and an ... ,' .., '?'ii·;:,.:,.,:> consciousness, and to his participation in the conduct of public affairs in his country, ,. _' ... and comprisJ~J!~e right to receive information and to express one's opinion for which its limitatiomP'~ust be strictly proportionate with and absolutely necessary for the advantages, which follow and not , to erode illusory.o 491 P age Af;i~n(;ii,1;.'11 Union'<;,}ti ,"H!~,AC H P R <$ African Commission on 162. Human and Peoples' Riqhts The Commission takes note of Article. 27 (2) of the Charter which establishes Human Rights our Collective Responsibility certain restrictions in the exercise of the rights and freedoms enshrined in the Charter. , However, the Commission also recognises that the right to express oneself through the media by practicing journalism shall not be Jubject to undue legal restrictions." I The Second Complainant submits that the Respondent State has violated her 163. right to freedom of expression as enshrined in Article 9 of the Charter because she was . . . . .... ,'>, prosecuted, detained and convicted on ba~eless c~~~.~es';:tJl:~f:~eresolely aimed at punishing her for her legitimate journalistic worl_<:,'m:fit~"was a ~es;trictionof her right ..( ,." _,°1· ~,.:"_,:: )"\'" • to freedom of expression which did not mJet t e an; o},:th~~~~ditions_provi_dedin Konate v Burkina Paso because the restri . a legitimate purpose and was not nece sa ".r/'( 164. The Respondent State diq.c:li\'rsub~t ' ", .,......" ,;: "; , rovid,~(lJ?ylaw;'did,rtot serve ,.> "," s- " ' ", .. ,. '\ 't" -., " atic soci-ety;,»..,,-> '\~~,~.;,)' vations on tl~¥merits including I I I ! ...~~. '. i I on this issue. In determini~g: whethe'r':tJ:j~J~esporilit~~~L;~asviolated Article 9 of the .. " " • , , , Charter as alleged, the ~ord';in~$sionw0;:41d\:relyon the:.t~pfs and evidence before it. The issue for deter~irl~~ipn i~:~)~~~tD~r;;hek~~~i)d?<;;;C:H;i~i~inant' '~:~4;'~',';;<)r~~., I expression was 5~stricted, if yes, wb~tb,~rsuch a i~~triction is provided by law, serve s right to freedom of :.(~~f~~)"x,,·,;.r·~w··";;~':'i;;~i!!\: ",:<'...:,;,,.:,~:.:>I I a legitimate ai~$&nd is a necessary andV~dkQ~tionate means to achieve the stated aim }J;' " in a democratic \~~~~,rty. ':1'.:,<" .!:+"J '1,-, .. " h'~ '<'~,,~j~,'>"'" '1%, ~ M;; ~';" <, '{" ResJr~~igr:~f..~reedo " '-:l" ; ", '~:> "' ( ,"-. 'v , "; ~ 'y , 165. Th~,~~C;b~~;~~~PJa{~antsubmits that she is an accomplished journalist who is well knowrffor her critical stance on the policies of the Ethiopian Government and as a result, was s'9J:'jectedto threats and attempted intimidation to make her abandoned her journalistic work but she was undeterred. She subits that she continued her work and publications and founded her own monthly magazine called Change; established her own publishing house but it was shut down in November 2010 because her advertising clientele were warned by some members of the~.oM~ t to ~O,.6(' ~~<S'~ ~'" ~"(~RIAr /rf/j~4J~Ij~_. if I ~ /~\ \(:,~.(}J i>-u·U1 ~ ~\~. 0 ~ ~ iA The African Commi sion on Human"and Peop'?es' ~ \ " Ri§''htSJ, 3i Bijilo A.nne~~lYo'3t\ KQmboNorth/pi%triG~~ Phone: (220P30"\4~61 F§lSi~('220')4~~0'5&a '~\'.~s(6W'srRegio!1'Gam~,.' Email: au~Jidl@)afriCa~uf.liC(4L9. http'~tWPauJntlO (' Q 75 Principle 19(1) 50 I P age I.". ACHPR African Commission on Human and Peoples' Rights , Human Rights our Collective Responsibility advertise with her magazine as it was critical of government and this made it difficult to continue with the publication of the magazine. That she then worked as editor of J Addis Press, columnist for Feteh Newspaper, regular contributor to the Ethiopian Review. Addis Press and Feteh were also shui down due to numerous death threats received by its journalists as well restricting their revenue base through warnings given to their advertising clientele not to advertise with these papers. She submits that I as a result of her work, she continued to receite death tJq$ea ,"",dntimidation directly and indirectly from the government I ", officials: ,~Et, ,0< ~ " ,r~,;::" ,Jan Pegp,le's Revolutionary Democratic Front (EPRDF) as well as warh~f.\~s:A~orriZ!t~~~i,,~~~~,~~i::iIt?,· r '~(" ;" '~':::;:"" t.,:t;:v' ector ~8stop 'i'g~ their r ~;;~nf .:~:::;~t>~ 'tl)'a;t,.,s}1:ewas finally ,,,,,,,,,, i~i~orist acts and writing about politics. Similar threats W;~~¥1~1~~>;~~~l¥ed"(~( neighbours for her to stop writingi\ai;ticles::Z?he also'isubmits ,,;/,::;,.;..,.,':::::"~~.,,~,;, ~.~,".(i'~\ 1"">" arrested, prosecuted and /A' Criminal Code respective .(.,' , . Feteh criticising t~,~:,~tn!~g~an its associated f~,p;d-raising'~ctivitie "+ifJ~;';i:'i" co~'s~~rMY to commit ',:' r:.: I ,~er th~"2~09,,:rerrorism Proclamation and , ...v~, ':~""'M._'''";- I,,::~~,!,~ftersfi~;;'!1~dpublished an article on ' ! ··:jf~~·::;;~;:',~,~, ' entis pr~)i' I ,,~~>,. 'uild a hydroelectric dam and 166. The Commission notes that the'(r:!'::'t;,.1e:f}guarantees the right of every person to express and diss~!lijnate his or her opiniqn orally, in writing, in print or in any other forl'!1:. QfCommu~~a_t~6n~ithin the !~w. Thb Commission also notes that Article 29 (1) ',tT and "(~} ;,"" \ J '<, ,,""'" ,,"j I ~,EthiopiaR;;G~'f:~eJttlfion provides . ,,,.":!1'·J:;:;£:~'h''r.' I opinions~~pithjjll~;~~t~r;frtel1ce"and "Everyone has the right .:<'t, '''~:':4:~'-'f/V; _4',(v~ \~ '? that "Everyone has the right to hold to freedom of expression without any interjd~~~:9il This'rf ii'" hall include freedom toseek, receive and impart information and _c.'/ _,/~' ideas of all ki~1s, regardless of frontiers, either orally, in writing or in print, in the form of art, 1':?: or through anY;~{1(fE1iaof his choice." In this case, the Second Complainant as a citizen of "',,..' I' Ethiopia was [,;ercising her right to express her opinion on particular issues of concern to her in writing and print and disseminating same through a media of her choice as I protected by the Constitution. It is therefore the obligation of the Respondent State I and/ or its officials or agents to ensure tha;t this right is respected1a~ I Respondent State. Therefore; by sendin~ the Second com,J:llVim[nt~,}!.~th t~-:l~'ts, . ~ , ' P/o~ c.~ETARI4'" , 'V:<j" r~ (~'\ ,'1: '" ~" by the .0.... ..... ~ $ \ ll!>:r, The African COlni;1iiSSL0\OnHu-m~l,l"andl~,,opms It "~. ~'." AU...."... ~Rig /. 31 8ijilc Ann~~ L~yp,~t~~. Q,IJLI?O"N~~. V:l<)l?j~t,~t, Phone: (220) 2-3~t~a6)M~ax;~~0:)~4'';:; -, ~e's~C.p~~B¢'giof1,~G'a bia 5 04 Email: ·atJ;baojJi@'afr.lea- nian.org htlPSTaC'hp-r.au.intiO 0 a contributing actively to the closure of ~er 511 P age I·· ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility magazine as well as other newspapers that she was working with, intimidating her and her parents to make her stop writing her articles would amount to a restriction of /interference with her right to freedom of expression unless same is provided by law, I I .. d . te ai I d serves a egitima e aim an IS a necessary m c;t I provided by l~w I Is the restriction/interference . . ti emocra IC socie . ty . 167. In determining whether the restrictioJ of a(f)" 's free of expression and I . .." .. I v access to information is. provided by la~i~~f.,~::'~~~l Cameroon as follows; "in order. to determine:'.ivhether'a,aenial 6jJii;,broadcasting,.[ieence was l~~~<~SJI ,'1 .:.... ',:::.r;,\ "prescribed by lato", the interference mu~J.1tave<~9tr!~,.basis Jr1:' domestic·T4.iM'Jl;V4·,thelaw should be... formulated with sufficient pr~;£i~i~~(1)';.:to rOl'~~f;~'l:~:o' a degree tha~:;!,lfreasonable. .. the 4(ti' I c., '~r " ..' ":'" .,.,.,. consequences which a given aciiop. may en'f econd, the.~ornestic law must afford a measure of \., ...../..... .. I I •..• '.• )?,; legal protection 41";; against nr,Mfii ~~- ': 1 public\';(l~(thorities. "76 Similarly, in its ~~.':r Principle 9(2) of the 1J~Glaratio the:Commission has also set out the criteria for q~termining.whet That is, the domestic law must be c1ea 'I t-';' , • , accessible and foreseeable as well as provide e££ectiv~safeguards from ar1Jitra~;{interference and abuse. . .,. -. . ';': (;~ II '. ~;, {, 168. :i'~~i~%~~~\?eCOnd"t~~l'a\Qql}t~:$.~tmits Ithat she was arrested and charged with , violating ArtiGl~~,g,7c(1)(a),38(1) and 648 (1) and (2) of Criminal Code of Ethiopia 2004 '\~J::\"'<":;f;':;j~;'r:t;;1;~;1~}_-". -t-. ~ 1-;l,:~t:.-~.,J:< _-:;",. - ,. "' ',:,,- ,',,'. . , - and Arti~1~s,:I¥/(7'a~d~~J~t7tRe2009 Proclamation. She submits that the Proclamation of ':~;i..;~::?'·;~ '~~iit' 2009 does ~Rt meet ~~~~: tne standard of being provided for by law because it contains broad definitl~:tH~}of"terrorist acts" in Article 3 thereof and "terrorist organisation" , Article 7 therd5£. That to meet this criterio~ it is 119tmerely the existence of a rule in a "\';"iJ<~>' in national legislation but the law must be sufficiently precise so that individuals would 76 Communication 290/04 - OSJ1 v Cameroon, para 140 https:/achpr.au.lntlO 0 a I I I ACHPR African Commission on Human and Peoples' Hiqhts ) Human Rights our Collective Responsibility overly broad definition of terrorist acts in Article 3 thereof results in creating an ambiguity in scope which makes it impossible for a member of the public to know whether his or her actions fall within the scope of the law or not. She fu~ther submits that the provisions refer to a wide variety o~legitimate conduct as many activities of I everyday life are enumerated therein. Th~t the proclamation also fails to define specific terms used which leaves its applicat~on being opened to abuse such as against ._ ,;.'<: ~ ~~~-,-f>"";~;'" members of the media. The Complainant lalso sub~~tsdtha~Y~hewording used to describe the intent in Article 3 thereof is Ibroad'~~~~i;'I'l:1nspe~'iii~. That the phrases . ';:-,~t<·,.;'·. ",,- f "intending to advance a political, religious or i~e.ol.. intimidating the public or a section of the pubZ' 'cal c~~~~~'~::~'f:~~rf:!.~~:.t~~~~~~~1Jment, . g ;rl1~~h:~ying t~eJuhfiamental political, constitutional or economic o~ s::;~d I he countfg<?~:~~flestabilising an institution" are broad, unspecifis,;ap"E!~~§etn~ b n light of thk~orementioned, the Second Complainant submits th:t::~~~!~~strictidn~j~f,herfreedom of expression on the basis of the Proclamati6~{~Cl$not pr~~i*~ii,by la~"~ -:fi~sconstitutes a violation of Article 9 of the5'~L'5~~~*~....' ';" < .'" ., ...• "" .'t~~jt~~·,;, .~ I I . .». ;:' 169. Article 3;!.~rthepro~iamati~h!qt'~~?r defiIJ,~i~'terrorist acts" as "Whosoever or a group int~ndingl}~Jf advance a political;';:rtn~fus or ideological cause. by coercing the government, intiJi~~~~ng the public or "f:Ctioit!O!the public, or destabilizing or destroying the juncllJ1?!ental politi~~ti!')' nstituJional O1/$jeconomicor social institutions of the country:" (1) .~: ....,~._, ~~ ;; ;,. __ :::,{~J causes~iiP~er!iOJ(sdeath 0 e <';'~i!t;~i;~~~~tly injury; of the p~~liC ori:~e¢,tign of the ;;lblic; ;;" . -, (2) creates serious risk to the safety or health (3) commits kidnapping or hostage taking; (4) causes serious d~1;~~geii/propef,~i,(5) causes damage to natural resource, environment, historical or '. ,_..-~,.,. .1<:.,/ cultural heritages; (6) endangers, seizes or puts under control, causes serious interference or disruption sub-articles o/any (1/10 (6) of this Article; \,1,-"0',: public service; or (7) threatens to commit any of the acts stipulated under l is punishable ioith rigorous imprisonment from 15 years to life or uiith death." 170. Article 4 of the 2009 Proclamation states "Whosoever plans, prepares, conspires, incites or attempts to commit any of the terrorist acts stipulated under suli~~, . . I of Article 3 of this Proclamation under the same Article." is punishable 53 I P age .,""""" AfriG8nf;~;] Un!on\,~l' ...... I 1%-,........v~~"I"1'\A¥ in accordance with th~i{(.4t:Jp,~~n~(~1 01- ...tr(iJfc!'V.ided.fb . !I ~) \ \ . The African Commissl ' oi-rl ~'v~Righti9 ,~ofi?ti~man al{(H~"egp1e~'" . 31 Bijilo Annex Layo~t, K61h9~Nor.th~[)lstriG~ (3, ._cirrlb" . We~t,C.o.a§t R"".e_<9.·,"'.iOQ .~. ' - ~ Phone: (220) 230 4361 Fax;.:(~Q)..9.1-0:1 04 Email: au-banjul@afrtca?uiiion,org https:lachpr.au.i_ntlO 0 ICI IE,' ACHPR African Commission on Human and Peoples' Rights _' , Human Rights our Collective Responsibility Article 7 (1) of the 2009 Proclamation states ;'Whose'oer recruits another person or takes training or becomes a member or participates in: any capacity for the purpose of a terrorist , organization or committing a terrorist act, on the basis of his level of participation, IS punishable with rigorous imprisonment from 5 Article 7(2) of the 2009 Proclamation states serves as a leader or decision maker in a terrorist organization is punishable with Article 9 of the 2009 Proclamation states that a property is a proceed of terrorist act or conceals or disguises the properiv is pu rigorous imprisonment from 5to 15 years." Article 2 (4) of the 2009 Proclama association or organization which is ' of committing acts of ferrorism", terrorism or assists or . organization so proscribed. as 171. From the ,:~iJov'€''...>..n~TH" 'terrorist acts' aDd the elements that with an notes that the definition of broad, not pre'~~~'~"and not formula ,', I I sufficient precision to foresee the cOl1~equences which,,~,given action tJiay entail. For example, it is not clear as to what '.}~" '.'. . -, :,." ,,'.~ . : I amoq$(i§;::JP "destabilii;iHg\\'or" ~~~tifoying the fundamental " "',~,.."'.~«,' ..' ::r_.), )' \::i)~<;::~~t:~~';·~·;;'~~i~~~~~::. ...'''~ ;, I political, constitutional or, econom~:~,or:soefg,~i\iY;§J:itutionsa/the country" or" creation of serious risk to the safety or health ~r~~:·\ ':/~J;h:;,t::;~~T:;:~iL.,~,~, I • of the pu1:Jtt~orc::(ifctio-n"o]i'j~public."Secondly, the offences enumerated therein are broad \(r.s{iy';' 1:1:~0;:" I enough to l~~lude legitimate/lawful "s -, acts which would otherwise be protected under national and{'~:t1t,~rnationallaw., Also, the definition of 'terrorism organization' in i '<'",-",'" • Article 2 ther~6f and the "terrorist acts" in Articles 4 and 7 thereof are all linked to the broad definition of Article 3 thereof and' the offences listed therein. Therefore, the application of these provisions is susceptible to being used arbitrarily or in an abusive I manner against . . Commission also notes that certain category of persons ! the Second Complainant or organi§_ations. The or groups . .,' .~~ANANOA~" 'Y IS a Journafl.sb"aS;&V:V&en~@. . - ,I ~, the various media houses she worked f01!, the establishment o~'I1~r;~Whl~ 54 I p age A7ri;;nh~~ Unlon~l : , l:lll ! i I ~ The African Commi ·sion o~ HUI~11)?andpeqp~s'Cil \(\C::TJ)\ ~. ~ \ ~ l}igJits \ - 51J!, ~mbO\N~rt~[)l~ri~J? ,;of>.- t:§;g_astBSl910Il feamgl6 ' 31 Bijilo Anne Phone: (220) 23 , 61'Fax~(~~Q.)A~1q5'11 Eniail: a >bar:Jiul@afriGacunran~&rg hiip~?i~cr:mti6 {} G ACHPR African Commission on Human and Peoples' Ri9hts I Human Rights our Collective Responsibility was later forced to close and the international awards received for the work she was doing as a journalist and disseminating information to the general public?", Further, that the publication of articles in the media on issues of interest to the general public as a journalist are activities which are ,protected under the Charter and the Constitution of the Respondent State. Therffore, there is no basis for its restriction under the 2009 Proclamation as a terrorist aft, and doing so ~~a violation of Article 9 of the Charter. Does the restriction serve a legitimate aim kn4;j.~<pec~s ,,,.-, -, I .» ~,~~! '"", r>i. /':fi" '~-L.~ ,.~,' ,_" ! ~. , " ", , , _ . . ../ ::f:" , "gcratic Society? '<2::i;;~::' :;/ , .' s ~/- ;~,:.,"':;:~;~._;. the <;:J\) society, In determining whether the re tri~tf8~~§~,rvesa,l¢gitimat~~' j~,\'flBdis necessary . sio~ tet~r~:.::t6,its jurisprB!a~nce in as/I v in a democratic Cameroon where it opined '~tha;'the intr"t ~nces'~dith,\theVictim's freedom of expression _-', do not meet the requiremf$1:iJ't~;~:."wfulnes ,tB<''': -a: "Article 9\(¥).:>ofthe African Charter and Principle II (2) of the R¢91a-ratioil!~):;'ii'reea~::nh; not examine whetJ{i"thes~ 'itterfer~n 'l!'~: ursJed a ltill~~ate aim and were necessary in a I 'IZt~~fiolJ:,~'fheCommission therefore need -.~:-::;t~t·ji ':'" /~.i}~. :.'~~\.., '''~','' ""i, " , , , democratic socieiy:~' 172. 173. In light o'f-ff:teabove, the COnlpliss'~~nalso notes that it has made a finding that the, restriction ha~'n~',basis in domE),~ticl~las it does not meet of I lawf~l~i§s .because it '2i~~~:~<?t:;~9pffthlated:with sufficient precISIOn to foresee the consed~~~2eg'Whi!'>h"a giv~~"0~~~ionmay' entail and thus violates Article 9 of the the requirements 4h ,~ " . '~.:'\ r", ~'''.~"' "', • ", > ",' "", ,.' -, ' Charter. 'The:Ji,~fore,ifWjltnot examine whether • • ~ • ':'~r " > / and is necessary in a democratic Society. Alleged violation of Article 16 the restriction serves a legitimate aim : https.rachpr.au.lnt/O 0 D ·j:t " , ..:.. , ' ACHPR African Commission on Human and Peoples' Hiqhts Article 16 (1) of the Charter provides that "Every individual Human Rights our Collective Responsibility shall have the right to 174. enjoy the best attainable state of health." Article:16 (2) provides that "State Parties to the present shall take the necessary measures to protect they receive medical attention when they are SiCk'll, the health of their people and to ensure that 175. The scope and application of the Article 16 of the Charter has been clearly espoused by the Commission . in its !Principles I and Guidelines ,.,' ,. on the Implementation of ECOSOC Rights in the African Ch~rteii::(jrfHuman and Peoples' I I ~.;. .~. < ,'~-" ~ ".',' \ . Rights (the Guidelines) of 2011 wherein i1 inter{,dli~{,~:~~tes I;'t~~,right to health is an inclusive right that encompasses both health care and the unae.rly.i.1J&~etermirul1}ts ofhealih." It also sets out the minimum core obliga .' I state of physical and mental health ~Di . ',' s t~;~ij~~;~"'th~~:b~~~'~atf~~nable ',. ~ g others;;(~g:r,Wg the right of ,~ ~ . access to health facilities, goods Cl:p,<q.!:~r~ice1onA",\;,!,;$,,:,-discriminatory'basis,especially for vulnerable or marginal~\~edgrouP~';,:;'I~JPurohi~:~~~~,Moore v The Gambia, the Commission stated that/5eiL!:4~rent of th~1;hi,t;~~~:Frighi'1&\;g~fltth as it is widely known is vital to all aspects ~,+,~f;?~:s1if~~fl?k!leli~+~gf¥'JR~i~}ltcial other [undamentatiiuman rig11.tsand ft~e#qrns. ThisrigIzfincludes to the realisation of all the to health facilities, the right access to goods a~i services. to be guara~~. J4tQJ~II"rvit~u t discrimination of any kind." 176, The SecOl1"P1<;::omplainantsubl;p.itst4,'C;lther right to health was violated because !;\Y~Ji,i'~:";'. , '~1:l ~/ , sh~:~as diagnosea.;'. ' 'Jh tumours i~ both. breasts but not given adequate care and tre~tm~'lit o/):lilstin de ' :~~[!'contributed to a significant deterioration of her healt~\~h~'~i's~:;~ubJ,nitsthat her conditions of detention were inappropriate and she -(> .. ". suffereddelays \ , ~, in recei'v;imgtreatment. She received inappropriate post-operative care ~.. , and insufficient medication and was not transferred to an appropriate specialist establishmeri~'f8Ptreatment and care, was not given follow -up appointments as they r ./ were cancelled~'was not seen by any medically trained personnel post the operation and her medical file declared lost upon a request from the Commission to make it , . I horrendous available. She further submits that as a result of the poor treatment and care and the typhoid, chronic gastritis and sinusitis a~ the time she wast:tram ., iso~lI.• ;. living conditions in the prison, she was suffering ~0~ £o~~~1'~RIAr ~>,rna, . o~ , I . 2015. She relied amongst others on the (f . $ \~ 56 I P age Af;l;;n~~~ Union\Q!w. The African Commi 31 Bijilo Anne sion 0 ,Human <!Jid'P~opies' ~, ~~I"'\. /~Ight~ ~\J ,'1:!Y,Out7{l¥"mbo. Nor!. WDilQ3CjU 'est Co'as! ~egl0n ~Yj~lW~ Phone: (220} 2~O4, ,~~EJ6. J~€CU\45:1:P.&'i"'4 Email: au ..5af.1ltJl~?fflea:;;l:Jii(on,orE https:/achpr,au.int/l' (; 11:1 I.j~S!f~~~1AC H P R }j African Commission on Human and Peoples' Ri~Jhts ~ J .' • '~. I _ Human Rights our Collective Responsibility Commission's Principles and Guidelines on the Implementation of ECOSOC Rights in the Charter of 2011 and jurisprudence " in support of her submissions. 177. To determine whether the Second Complainant's right to health was violated I . by the Respondent State, the Commission! notes that at the initial stage of the prosecution of this Communication, the Secdnd Complainant had raised the issue of . I I her health status and therefore req uestedl the Commission to issue Provisional Measures. When the Commission decided to be seizec . A'~':!t· issued provisional measures requesting thi Res,p>0~-; office of the land, to provide medical care to f?~~..¥~~l;?tH .~~~,~.~;f medical expert to avoid irreparable harr;r(~~rthe' S¢,PbndCohiJ~~~~nanta .» fiforeport t State{'through the highest ",' ':tf'::' :ti".,k ,,~;:l!,' '<.':::,/,;c: in.de!?,~pdent "<": ~:<},~~::_ ")" ; .'I·";~{t\t"\\. e;@Bmmunication, it also "j,t":i'~1'. back on the actions taken in this \.vi~~in.15 days, The 2!g~~§§ion notes that the Provisional Measures letter / official/ agent of the «esoonerer received on actions L'.. U"'-~·l· Second Complainant. ,,~ ." .'" -~ 1",,' . .' .' \./ ..;i' 3 April 2014 C!,:ia received by an of the health of the 5 but to no avail. 178. The Comrrtission als~ notes on record which shows that the Second COll:l;R~ainant's breasts and diagnosed at the Addis Ababa University, Facutt~\pf Medicine (Se~1 ~ ~ Cytg}pgy Report (F~AF,Report oIlj,the \ 1). Annex 2 is a Fine Needle Aspiration breasts and Annex 3 shows the breast "";::_'::'::~':";:': "'", ", .. :, -_' _ , _, " _ , , ',' '''' i"-'_: ultr~~.~~~~::;fln~surg~~y~thM::w~ik\:arriedlout on the breasts in the United States of ',j , 0" ~ , , Americ~,.;wher~~~~~.:~Fently resides, after her release from prison in 2015. 179. TA~,g~~~~si~~I~;g~~sfurther that in its Guidelines on the right to health it has ~\.;::1( ,;;;:'1-' indicated tH~,tone of the core minimum obligations of State Parties is to "ensure that V"_\ prisoners and 6~~g~'persons deprived of their Uberty, under anyform of detention, have access ,lit ~ I to conditions of detention consistent with human dignity and the highest attainable standard of health. Measures taken must ensure adequate food, clothing, exercise, pj}y's'~Gasecurity, , and Moore"o The Gambia, para 80, - Communication 105/9~;'128/94 II 78 Communication 241/01Purohit - Media Rights Agenda & Constitutional Rights Project v Nigeria, paras 89, Communication 13;g94_1f'9/if1~(96_161~~7f v Nigeria, para 112, Communication 54/~~;Pl/9\l-98~9.2,. J64/97~o6 iil International Pen and Others (On behalfofSaro-Wiwa 196/97-210/98 Malawi African Association and Others v Mauritani~ and Communication 378/0§Molii1n Hummeida and Amir Suliman( represented by FIDH and OMCT) v Sudan Elgg&"JDsmlnfi ()-.t' ' ~\}tMN ANO.c; ':-., o~ c.,,~1'ARIAl' ~ ~ -. J..a0.~94-),1~f.%.. 57 I P · age ',,,,,,"'. African(;i~\ Un:on'\J'i>!1 I .. The African Commlssld t C''\;J,~'"'' ~~ t:J e: l".on(Hfffnaiii?ifnf(f ~45] 5' '.~~ 31 Bijilo Annex Layout, Komtro:lIJoitfrDistrict, _..~s~_....# E~Rights ./ Phone: West Coast Region Gambia (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.orQ' . https:/achpr.au.intiO 0 Ill! ACHPR African Commission on Human and Peoples' Rights \ Human Rights our Collective Responsibility reading material, rehabilitation programmes and medical treatment. This should include access to trained medical personnel, essential drugs, and access to preventives measures against diseases. Special emphasis shou ld be given to the' health needs of 'Women in prisons and other places of detention. " i I 180. From the medical evidence and tHe provisional measures issued by the Commission, .the second Complainant needed medical care. Therefore, it was the I .'~r.:.;....,. responsibility of the Respondent State to proride it to,~~i;W;it~~~~.,~nydistinction. This responsibility was heightened because she/ was ,~~;/n/. ,~of l\~ilibert~ ~~d in the custody of the agents of the Respondent Stat~,.~?It wa " j .,< ..:", -">. ....' . Respondent State to ensure that the l~:e(Vcal'ttea~ent " ,," "BQ,!}Slblhtyof the ~9:;;':'\0~~1""'",,',j? \.;;~~:~,~c"(:~Ss;J4f()?trained medical personnel, essential drug:~!~r:daC1;~~:t~c~~1itions of'l~" with human dignity and the hig~~§"i" tain~bl('!'§,Mqdardof health. 181. The question is wheth~r ~h, ~pond~httj:~S~atehas complied with its . . " '<,:::::~')<,., " . ~,shewas. Ci}5tgnosedwith breast tumor ,··:~~,1i~: obligations. The Second 9om12!?inant st in her left breast in .e.firlx 2012:'air -~~t~i~~~~:~!""~ '~', :_::f:;::' j,::.; >~-~~::~:';(:;t~;h~ ,)' leaving her in e'5tiremepainduring immediately af~~ the operation and "':i " I '. ter the s sc , 'ery. She was taken back to prison .have any post operation treatment or observation at tii.'iL.r~spital. The stitd.p.eswere to be removed by the treatment doctor after one week ~~~f·:~hY. ! " ·;{L;')~:>~,",_ claimi·Dg;thatshe had ·'i.tat~~p;9~ng1ientand the nurse at the prison health facility also prison au~Mori~~Sfailed to take her back to the hospital ~ ," ~_-. .,./~~j. failedtb::~~i~e"'~l1~,wound ~~:;:~y leaving the stiches unattended for the duration of her det~~ti9~. §~~;~l~~~]~}i15~itsthat the she used her clothes and some cotton given by the nur~~\to removlthe bleeding of the:breasts daily with great pain and suffering and that she-only had one post operation visit at the hospital in July 2012 but the stitches were hot removed and another appointment was scheduled for 13 January 581 P age A7r1~nli~,\ Union\'Y~ I:lttps:/achpr.au,lntlO 0 I!:I ACHPR African Commission on Human and Peoples' Ri9hts Human Rights our Collective Responsibility that a Fine Needle Aspiration (FNA) Procedure be conducted to confirm same but instead she was compelled to do a biopsy, a more intrusive procedure as recommended by the Prison Facility nurse on 13 March 2013 despite indicating FNA I as her preference as per the Radiologist' s ad~ice. Upon receipt of the biopsy results, another surgery of the right breast was r~commended but after series of failed I appointments, she was not operated upon dnd she stayed with so much discomfort I ,,' ,.,}, "" and pain on the right breast for the remaind~r of her ,ti~~tik,~~i$pn. She also submits conditions of tre Pf;iso~:;.s,~ealso' contracted typhoid, that due to the unsanitary chronic gastritis and sinusitis until the time sh~was relea~edfr9:tp'pr,ison. in 20:L5. \':';;>, , '. , I 182. In light of the above, the Commissi ",.ote, ,~~tth~~ii~~p\>~d~nt'S~ati~id not /' . '4~;':i~."i;~:!;;! \ ::'~;: ..~.:t" comply with its minimum core o];>,lfga1; '<;~. J rticle iO'~tof,.the Charter 0 -r- ,>y '''~: as exemplified in. its jUriSprudenc~/,a~~i!~te Grid) , 's; in that it ha~~ri~t provided the Second Complainant with ~9cess to torigi~9ns of , •.':t~~tion consistent with human ,- " '".,'-~¥~J~';, " '~:~~·~)~>;;~h.. __/~l. dignity and the highest crttai.tlal?lestandfl'fal~,gf:,healthaU;~:!t(5'poorsanitary conditions , of the prison. Ith~~i~!~2.'t~i~~ed{8~~~~i.~eas~res';tQ~;~~~.~:f.~'·adequateand timely medical I ~<:>:_>.,:.:.;. <:'1 :t:~,.·;t,~\__:.__ : :l._.~::)'<~" f:~'./ >,._._ treatment incll1i~i~g acc~~s to ~~~'~f~,t!~lldrug~:/'hained medical personnel and preventives me~~;rres against diseases;h~¥i~g regard especially to her health needs i(,> "Y""'~; I as a woman beC~p:El,~the treatment and care given to her was grossly inadequate to ,; "- ;, ~:' ,,_ ~"1 . ">~".<~, <'r r I guarantee her he~li~~I;;;rather left h~r in ~ situation which was both life threatening and\j,~6'~~tdi~ed h~;':" J~I~~t,the absence of any counter submis'~i<?n~''ft9~'~4e,,,~espondent State and having regard to its non-response to the evidence and/or 4·, ,', \. \;' ,,(',:~~j.',,'r ~-' :"t'~A~" ;'0 ._<._-;.\ Provisional. Measures iS$.uedto prevent irreparable harm to the Second Complainant, the Commission finds a violation of Article 16 of the Charter by the Respondent State. '/" Reparations . . I ' ~~~p . ov. ~~~RIAT ~o~ 183. The Second Complainant pecumary . amages as a resu to' . d alleges that she suffered both R. ~J:~~~.'~Ly-afla~no~,p. f h 1" t e :VI: ations resu ting 111 e ?'mpns~~rt ~ t '. a;n~ c;: /"'--" . ~ h f:;r '(,II{;J . 'I . O,_:J"$. . I should be awarded damages., 591 P age I . ' .. .1 ~ I 'i 'b\ 1 ,,,.,,~):; . I!J r.s » ~'v .:§ ":>~v; . ~~ ~ ~~ " ~ ~~ ';?'-s --~-- SION A.:R\C.~ The African Commission O~l;J~(q!'). Q!p.e~o~§ . ~ghts 31 Bijilo Annex Layout. Kombo North District, West Coast Hegion Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union,org https:/achpr.au,intlO {; iCI ACHPR African Commission on , Human and Peoples' Hiqhts , The Commission notes that Article 1 of the Charter obligates State Parties to Human Rights our Collective Responsibility . 184. recognise and give effect to the rights, duties and freedoms enshrined in the Charter. Therefore, any violation of these rights by .the State shall give rise to redress and reparation to the victims of the violations. This is also in line with the Commission's established jurisprudence'v and internationJllaw81• I In its Principles and Guidelines on the Right to a Fair Trial and Legal As~istance in Africa, the Commission has established that everyone has the right to an Jffective r < ", 'Y"iolationof the rights granted by the Charter which includes accJss toju' ~;~,and reFit-ation for the harm suffered. F The Commission further , restoration, and material and / o~financi~k~~inpens~t~~p an <1: I °":\\;;':;1"'" tl1:a" ' :"k:;~-~~'~(~"'\;"':~',>:;·~:>~" ' established 0, 'i '" ,;Y ~;"'~"':'" t be falr/a:tI.equate, effective, sufficient, appropriate, ~amage suffered. P iJfjL ..f::":,;~t~_~:_ _ saf."'factd,&::o:(~R- the .~~~timand P~~~~~fPtionateto the " '.' I' ~;f,~_~~;~i~~~" .,' t;;;' ?i;\'~,.\}~ 185. I The Second Compla,~f~mt subrill.~~,",thather i~.p:r~sonment for 49 months (21 June 2011 - July 2015), <p~~~~!~t~dhe~,t~~@-, Q.~tinuiri~:'~e{ professional work as a . """ journalist, high sC~H?iJ~~~~,;~e;:!~'~T,~tJ;'a~d tnd~~~~~~lg~tincome to the tune of ETB 327,369. She wa~,:cifsoprevented frd' ~c>'.rtihuing_,,~~rstudies in political science at the Indira Ghandi Open University School 0 '1ii~~~esp~ndencewhich she had paid for and received relevant 8Poks for the course W;'IUchshe had ordered. That she eventually , :-~ ';(f~,'" hacl~;~@~i.~~,:minateher~~~~~~~"becau~;!.:,sheh:d no choice. \ .~. ,~,\,' ~:'~~~ r 186. '~g:: -\. . ,,,,,~;~legatioris a~~;l§t~t.¢J::l'inthe signed witness statement dated 14 January '';~t;:~~;(~~{~;:,<":,,, 2017. Tli~re is''~b~:q::.;1j1~L~ounter journali~'f'i:'t~,~@h~;~~~~F~~6'; evidence disproving that the Second Complainant who was in gainful employment at the time of her arrest ·_~#t."- " < is a v,- . :l:.)? 80 See Communication 59/9i:~f.~ntbga Mekongo Louis 7}. Cameroon para 2; Communication 253/02 - Antonie Bissangou v Congo para 84; Communication 313;05- Kenneth Good v Botswana para 2~(1); Communication 318/06 - Open Society Justice Initiative 379/09- Monim Elgak, O~man Hummeida and Amir Suliman (represented by FIDH and v. Cote d'Iuoire para 19; Communication OMCT) v Sudan para 142(iii)(a); Communication 389/10 - Mbiankeu Genevieve v, Cameroon para 130 81 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations-of Inte~na~onal Huma~ Ri~hts Law an~ Serious V~olat~ons of Internatio~al Hu~anita.rian Law,(200~~~AN 82 Principles and Cuidelines on the RIght to a Fair Trial and Legal Assistance 111Africa - (c) RIg~~t~E~GL1~~RI-Rem;~~ <t>.'" para (a) and (b) (2003) 83 Communication 389/10 - Mbiankeu Genevieve v. Cameroon par~s 131-132; See also UN Basicj ",d11ciplesa~,·'["€iWdelin\l.sOn " the Right to a Remedy and Reparation for Victims of Gross Violations of International Hu' ~ H,igt'hts' 'a~,~nd S~r?ou!l: J ~ -i Violations of International Humanitarian Law (2006) . 6. 'l:" J 0 ~ J;ltlP. It' The African cornm. issio\.~n I-I'llrna.n 1.mol~\e~lgs; / . ~'\... .... ';..' " p. U·v ../ 'v Iv.. RI\" If!t 19J~, (,J~" . :z: d, '(.) 0 60 I P age '%'" ~N~ \~ Il~' ,'.j>. I. I. (' I I r en. . . 31 BijiloAnnex LayoUi,:,~i~6~iSlti'~t, . Phone: West Coast-Re~mbla (220) 230 4361 Fax: (220) 441 05 04 Email: 8u-banjul@africa-union,or:g https:/achpr.au.intlO 0 III AC PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility and her enrolment to the Indira Ghandi Open University. In the absence of any , evidence to the contrary, the Commission is.minded to believe the facts stated in the , signed witness statement of the Second Complainant wherein she stated the outfits she has worked for as a journalist, the incident at the school where she Was a teacher ~. I and her work as a tutor. Therefore, the Commission finds that she is entitled to compensation for loss of earnings and potential earnings due to her imprisonment . ; which should be paid by the Respondent State subjec.tJdpiEf~~nt,ationof the relevant I. documentary evidence and verification of tre act:9ii"':~'.ounts d;:hi~and payable if the : human rights violations had not occurred. ~},:;:~~"1:~':·::~~~, 'iFI')':· /;;:::t /;i;~nj ". ~ 187. The Second Complainant ,'. Jso entif eal'to non- , 'i' .' '; ,,~,~.},>: "".;:-Em:q;~::\". pecuniary damages because it is ~e,11~sta:~~i.~h~,din 'i~ternatio~'i:l~(·f,~~:.!~hatwhere an :._::,:~\~i'.\. . 0;:1' > . .i/,:,;:;:?:;;~.;> furthe~:. Jfrgues'.tJi~t she ' "l'J? individual suffers physical and !DLzf,n~J1talharri).'.~s~aconsequence,:~(~ breach of their rights, damages should be aX~iil~ble~~·J~t:~J~fthe'~d~~~l~ remedies. That she suffered serious and debilitating: ;:plii:§%,~aland~;~~tg.t.}njUri~~\~~~\:'~result of the acts and omissions of the R~~~~n?"e~1::§~*.t~/1Pcir:tic*I~~lYEt~\e,spriditions of her detention, her treatment whil~,t··in det~ntion incl~~i~1gI failure. to provide appropriate medical assistance had a'serious impact on her li£,eJ:. ,! .::' '" I 188. i~~~~~:~\. The Co~~~~ion Ii, ,~.~~:~-; also notes '~~hat.:following the arrest and detention of the I·. '. . , ~ Second Complaina-~ '\'",; ',,, ~ " '. prolonged interrogatioit ":" -, .-;_ >' he was keit tft":J <,.;{? ,ml.]>.f~!!.>.nal i ' .~"t;.~,,~.~!-1,<' "h~' in very unsanitary conditions, subjected' to stress, refused access to visitors, and when she was dikgn~sed':withtumQr in her breasts; had typhoid, chronic gastritis and sinusitis '':) •• ,.-i';. , . but did not te~~iv~"ad~~tr~teand appropriate medical care. As a result, she had to . " /;/ endure prol~~ged pain and suffering and insomnia. This situation inevitablyled to frustration, anger~emotional stress and artxiety about the risks to her health. Her right to health continued to be violated by the Respondent State throughout her time in , I prison despite the Provisional Measures; issued by the Commission in this regard. I These facts have not been countered by the Respondent. Sta~~".-t~ ~o ave not •. • [ •• .~ ~p..fU"'T reported onthe implementation of the Pr;ovlslOn.aIMeasures.:)trst''W~ ,~. R') 1'_ ....~,,_ Ii:; , ....\~. In light of the above, the Commission holds that u..·.nclttr the cjf~.~~~.,~tstari<t.e~ ...'\ ~ "" ' ..:~~~ I'J /f] is entitled. to non - Second Complainant ihe ) 0 I I 16( ~oS'~ 189. 611 P age ... .... ... .... ~ ~" /.&1 \ "'~I'~ '::r.ss .• s' The African Con Aissron on Htman,ahd;Pebb . /;' • cl-~ 31 8ijilo Ann ~W ......";f, - q_Ci .«ayou{,CK:b"lii1}bI;IIQ~! ·"·V~esfiGoast:lf~ior?'Ganibia r.i:::"'<:" .j hts [strict, Phone: .'. (220) 230 4§64;;~~('220) 441 0504 Email: au-banju!@africa-union.org https:/achpr:au,intiO 0 CIlI ACHPR African Commission on Human and Peoples' Ri~Jhts Human Rights our Collective Responsibility pecuniary damages for the extended pain and suffering physically and emotionally, anxiety, frustration and diseases contracted whilst iri prison for 49 months, and the impact it has and continues to have on her life. The Commission therefore holds that . I the Respondent State should pay financJI' compensation that I is adequate and satisfactory to the victim as well as proportionate to the damage suffered by the I Second Complainant; in line with international law and standards applicable to payment of co~pensatory damages. In asseising th~!~1itahtul~~-~~,~mode of payment, the Respondent State shall also consult €he Sec0hCJ.;;"CompI:i:l.inantand. her legal I I 1/Y\> '~'~\~ f \?0" ";'~~:~:~e:j;;" t:~~? i'.:':· <, '~,!,~_j.~i':/:'~ ,~~,:.~' < representatives. 190. For the foregoing reasons, the CQroWission:" t;·:~·~t-~':~:i~"~f1~/, ." ,';t _.\. i. declares that tr(~(~~~ponden~~~$1~f~';:hasviol ..;,~:flfherights of the Second I '0: is',, ' Complai!l.~R~f?toted~~~~!pp.~'rArticl(?~~~~?,9,aJl'a'16of the Charter; I ", '< '.' i· ,,' '''. ',;~;>,., '<;'}. to;'. l~Y "".-,j' ,. ':: j ;", ',:•.1"" " ,,' ,': ii. reque,tts th~t the Respond'~~!~~~jtepa~?,~adequate,sUi.tabl~and satisfa~tory comp.~,¥1-sahonto the Second\~~wplamant for the violation of her nghts l(~~'j~,. "i\_ underl~~~!~~harteras follows: (a) for 16~:$~;~tearnings c:1t,jldpotential earnings due to her imprisonment \,,:,(,A',. 'i, I '.",J~:~// "'r' ';."subj~ct, to"F~, ",~l~&~Q~:::tofthe relevant documentary evidence and "\ ~~ilfi~~tt~p~of the actual amounts due and payable if the human rights (I.t.<__ ,,/ , {;._!:; "violations hcfd::notoccurred; and !:., ·;t',. .: I -, ... :",:- ~. " (b))for the extended pain and suffering physically and emotionally, anxiety, .... 0";'" ,. frus;tt?tion and diseases contracted whilst in prison for 49 months, and the "\~·t~, .,: impact it has and continues to:have on her life. The compensation should I I be adequate, satisfactory and proportionate to the damage suffered by the Second Complainant, in line with international la~w am:d=staliudards "'NO" ~·!<1;\. RIAT ~9~~ applicable to payment of comp1ensatorydamages. In assesslIi!g:-dle uanru, ~~"'N ~"" • I . I and mode of payment, the Re~pondent State shall all~~on Ut.;[~~. SeGo'kdl ,. ) : I , , I ; -!fk~,.,,«,< lSI. s l ~~')~~ ~ Q '" z <s. C! l!onCHu 1$. ""'". e.. U "», ~ "<~'$ CI) an and Pe0p.l'es'4.i .. ,l ~~ ~Ight§ ut, Kon{So' Nbf:tf1rnistr1~t./ we~t~.oastc~.~gi~(1\Gili)pI'ti " The African Commissl \ 31 Bijilo Annex La , Phone: (220) 230 4361~4'1~a5 Email: au-banjul@africa-union.org https:/achpr.au.intlO 0 III 621 P age . ACHPR African Commission on Human and Peoples' Rights Complainant and her legal representatives; .... ,,(\ , . , ' Human Rights our Collective Responsibility iii. declares that the 2009 Anti-Terrorism Proclamation in not in line, with the > Respondent's State obligations under international I law: iv. request the Respondent State to! take steps ~o amend the 2009 Anti- Terrorism Proclamation I to bring: it I in line with international law and standards v. requests , relating to the combat of terrorism; and '~~ : ',p,>.' ':>'q~ssion the Respondent State tp infor .<. I I hundred and eighty (180) days of b~ within one- decision, the measures taken to implement 112(2) of the Rules of Procedu~e.:~f the C~~issi6 :." the pr~s~nt decl '~>, i ••'J«·":, ';~;~~.);,~;i :. , ......" Adopted at the 72nd Ordinary Session Q -'I' "fri~an>€;q¥~ission on Hq-man and Peoples' ;" \, ;:':,~::,:; -, Y'~;-:;·;~:.:..:~; ~::)) 631 P age