Indigenous Peoples of the Lower Omo v Federal Democratic Republic of Ethiopia (Communication 419/12) [2022] ACHPR 24 (2 August 2022)

Human Rights our Collective Besponsibrlitv COl11munication 419/12 The Indigenous Peoples of the Lower Omo (represented by Survival International Charitable Trust) v Federal Democratic Republic of Ethiopia Adopted by the .4frlcan Commi.uion on HfII1IlJn and People:J' Righla During the 7zt1 Ordinary Sesaion done virtually from 19July to 02 August 2022. The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org Phone: ec/prc/AIO https:/achpr.au.inVonD ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility Communication 419/12 - The Indigenous Peoples of the Lower Omo International Charitable Trust) v Federal Democratic Republic of Ethiopia by Survival (represented Summary of the Complaint: 1. This Complaint was brought against the Federal Democratic Republic of Ethiopia (Respondent State)! by Survival International Charitable Trust (the Author) on behalf of the Indigenous Peoples of the Lower Omo (the Complainants) on 20th April 2012. The Lower Omo Peoples are a collection <;:>£ distinct communities comprising the Bodi, Daasanech, Hamar, Karo, Kwegu (Of> Muguji), Mursi, and Nyangatom peoples domiciled in the Southern Nations Nationalities and Peoples' Regional State (SNNPRS) in southwestEthiopia .. 2. The Complainants allege that the Respondent State is undertaking two major development projects - the Gibe III dam construction and the Kuraz Sugar Project both in the SNNPRS of Ethiopia which has a potential to greatly imperil the economic, social and cultural life of the Lower Omo Peoples. 3. 4. claim that The Complainants the Lower. Omo Peoples are mostly agro- pastoralists whose primary means of subsistence is the cultivation of food crops such as sorghum and corn, and who rely on milk, meat and cattle for food and trade. The Complainants also claim that the Lower Omo Peoples depend on hunting in the surrounding forests to supplement their food sources, obtain hyde from animals for clothes, and cultivate bees for honey. The Complainants claim that the Lower Omo Peoples depend on a combination of flood retreat cultivation, rain fed farming in the bush belt, and cattle herding in the woody grasslands all over the Lower Omo. To exploit these resources, the Complainants claim that the Lower Omo Peoples often move from place to place within their territories, according to the flood circle of the Lower Omo valley. hltpsvachpr.au.int/O 0 a ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility 6. 7. 8. the state is entitled to exploit The Complainants state that, while the affected indigenous Omo communities its vast hydropower and sugar recognize that production potential, the Government has neither made an effort to inform the Lower Omo Peoples of the adverse impacts of the project nor obtained their prior consent on the Gilgel Gibe III Hydroelectric Power Project (Gibe III dam) before work commenced in 2006. The Complainants claims that the Kuraz Sugar Project involves the involuntary resettlement of large numbers of people, especially the Mursi who are billed to be removed, from their ancestral land to larger population centres in the vicinity of the Eastern irrigation canal without any effort by the Respondent to inform or consult the people prior to the start of the project. In order to make way for the Kuraz Sugar project, the Complainants allege that many members of the Bodi Community have already been.forcibly moved from their traditional land and habitations against their will to a much more arid land at Gura. In order to continue with the projects, the Respondent State is allegedly maintaining a strong military presence in South Omo and night patrols are carried out in parts of the affected communities in order to stifle dissent. Those opposed to the projects have been arrested and that the time this Communication was filed, about 200 Bodi, 30 Mursi and 20 Suri people were already in custody in Hana or Jinka. at Articles alleged to have been violated 9. The Complainants allege that the Respondent State has violated the provisions of Articles 20(1), 21(1), 22(1) and 24 of the African Charter. Prayers of the Complainants 10. The Complainants pray the Commission to: (a) Urge the Respondent investigations into the effect of Gibe III and the Kuraz Sugar Project on human rights, health and means of subsistence of the Complainants; independent to conduct (b) Urge the Respondent to make an objective appraisal, based on the data these from such independent projects can operate without endangering the Lower Omo P~_~im~ their livelihoods, and prepare a detailed "livelihood devel~[J:fen?-' for the affected communities in the Lower Omo. to determine whether investigations, i' o u An Or~}anof ~he African (~}' Union ""',# African Commission https:/achpr,au.intiO <) II ACHPR African Commission on Human and Peoples' Hiqhts Human Righls our Collective Responsibility (c) Call upon the Respondent to suspend further work on both the Gibe III and Kuraz and any further villagization of the complainants while these steps are undertaken. Procedure 11. The Complaint dated 16th April 2012 was received at the Secretariat of the Commission (the Secretariat) on 20 April 2012 and registered as Communication 419/12 - The Indigenous Peoples of the Lower Omo (represented by Survival International Charitable Trust) v the Federal Democratic Republic of Ethiopia. 12. At its 12th Extra-Ordinary Session, the Commission became seized of the Communication and the Parties were notified thereof on 17th August 2012. The Complainant was accordingly invited to make its submission on admissibility. 13. the Complainants wrote to the In response to the notification of seizure, Secretariat on 23rd August 2012 to request the original Complaint be that considered as its Submission on Admissibility. By email dated 14th November 2012, the Complainants again wrote to reaffirm its ~ntention to rely on the original Complaint as its Submission on Admissibility. 14. On 14th November 2012, the Secretariat transmitted the Complaint as the Complainants' Submission on Admissibility to the Respondent State and requested the latter to submit its Observations on the Admissibility of the Communication. On 30th January 2013, the Secretariat received the Respondent State's Submission on Admissibility and forwarded the Submission to the Complainant on 7th February 2013. 15. On 4th March 2013, the Secretariat received the Complainants' comments on the Respondent State's Submission on Admissibility along with the Complainant's request for Provisional Measures. 16. The Complainants request for Provisional Measures was considered and granted by the Commission in July 2013. On 16th July 2013, the letter requesting the Respondent State to take measures to prevent further eviction of the Victims was sent to the Respondent State. 17. https:lachpr.au.intiO 0 a ~:HP~\ACH PR ) African Commission on OHnr.( ~ Human and Peoples' Rights Human Rights our Collective Responsibility 18. On 17thOctober 2013 the Secretariat received the Complainant's submissions on the merits which it acknowledged and transmitted by courier to the Respondent State on 21st December 2013 with a request for the latter to present its written observations on the merits within 60 days of notification. 19. After the 60 days for filing of the Respondent's written submissions had elapsed without the Commission adopted a default decision on merits at its 17th Extra-Ordinary Session held in Banjul, the Gambia from 19thto 28th February 2015. the Respondent State presenting any arguments on the merits, 20. On 2ndand 4thMarch 2015, the Commission informed both parties of the adoption of the decision based on the submissions before it at the time. However, the text transmitted to the parties' pending authorisation of of the decision was not the 38th Activity Report of the Commission by the African publication under Union (AU) Executive Council and AU Assembly. 21. During the 56thOrdinary Session of the Commission held from 21st April to 7th May 2015, before the 38thActivity Report of the Commission was presented to the AU policy organs, the Respondent State submitted a request via Note Verbale N° 4-1/4/67/15 of the Commission's default decision on the ground that it had not been afforded a fair hearing. dated 6th and 7th May 2015 for a reconsideration 22. Upon receipt of the Respondent's request, the Commission withdrew the merit decision from its 38th Activity Report to the AU policy organs to allow for a consideration of the Respondent's application. some evidence 23. After a review of its internal processes, the Commission found that while there N° was merits transmitting ACHP/419/12/ETH/1418/13 submissions its to the Respondent State and inviting the latter observations on the merits had been shipped to the Respondent State by DHL courier on 21stDecember 2013, there was no proof of delivery of the parcel to the latter. Complainant's suggesting to submit a the Verbale Note that ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility (b) Re-opened the procedure for written submissions on the merits of the Communication; (c) Directed the Secretariat to transmit the decision on admissibility and the submissions on the merits to the Respondent State with a Complainants' request to the latter to present its observations on the merits in accordance with Rule 108(1) of the 2010 Rules of Procedure, and the Complainants to be subsequently accorded the opportunity to present a reply, if any, in terms of Rule 108(2) of the Rules of Procedure; and (d) Affirmed that both parties retain all other procedural rights. 25. By Note Verbale N°ACHPR/COMM/419/12/ETH/1334/15 date 25th August 2015, the Commission retransmitted its decision on admissibility as well as transmitted the Complainants' Submissions on the Merits to the Respondent State. 26. On 3rd September 2015, the Complainants an Addendum to Complainants' Brief on Merits dated 4thSeptember 2015with the Final Report by the Development Assistance Group (DAG). submitted 27. On 27tJ1 November 2015, the Respondent State submitted its written arguments on the merits in response to the Complainants' Submissions on the merits. 28. On 16th December 2015, the Complainants requested for extension of time to submit additional observations on the Respondent's brief on the ground they had only received the Respondent State's written submissions on 14thDecember 2016. By correspondence dated 5tJ1 January 2016, the Commission approved the Complainants request for the deadline for replying to the Respondent's written to Rule 108(2) of the 2010 Rules of submissions to be extended pursuant Procedure of the Commission. The deadline for the Complainants to submit their reply was extended to 27thJanuary 2016. 29. On 27th January 2016, the author submitted the Complainants' Additional Observations dated 4thSeptember 2015together with an additional supplemental bundle, which were duly forwarded to the Respondent by the Secretariat. 30. African ("""y. .:?; Union'\ htlps:/achpr.au.inVO 0 a ,~'HPt,ACHPR J African Commission on '.. " IfH1.f;Ii!. Human and Peoples' Rights Human Rights our Collective Responsibility 31. On 6th June 2016, to the the Respondent State submitted Complainants' Additional Observations and an annexed batch of documentary evidence in support of the Respondent's arguments. its response 32. Following a 5th May 2021request by the Commission to both parties for updated information on this Communication with regard to the current status of the Gibe III Dam Project and the Kuraz Sugar Project, and the Respondent submitted information update on 20th May 2021 and 15th June 2021, respectively. the Complainants 33. With all the parties' submissions duly entered, the matter was set down for the Commission's determination. Admissibility Submissions of the Complainants 34. The Complainants have not presented any submissions on the Admissibility requirements in Article 56(1), (2), (3), (4), (6) and (7) of the African Charter but dwells on Article 56(5) of the Charter and submit that they have complied with the requirements for Admissibility under the African Charter. 35. to exhaust In relation to Article 56(5) of the African Charter, the Complainants contend that local remedies because the exceptions to the they do not need to exhaust local remedies apply to this Communication on the requirement grounds local remedies are not available in the their Respondent State. The Complainants provide two main reasons for contention that effective local remedies are not available to the Victims in the present Corrununication. that effective and sufficient 36. First, the Complainants argue that local remedies are not available to the Victims to their because the Respondent State does not recognize their legal right traditional territories in spite of constitutional provisions which guarantee the right of pastoralists to free land for grazing and cultivation as well as a right not to be displaced from their lands. The Complainants argue that legislation for implementation of the Constitutional provision has not been enacted and existing legislation that guarantees compensation for acquired land is only available to holders of formal land title which excludes the present Victims. 37. ,"H::~,ACHPR ,I) African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility repercussions for bringing domestic action against the Respondent State. Citing a "Campaign for Reform of the World Bank" report, the Complainants claim that "no groups are talking publicly about the risks of the dams due to concerns of government persecution". 38. Further citing an Amnesty International Report, the Complainants argue that NGOs are unable to bring actions on behalf of the Victims because one of the effects of the Respondent State's Charities and Societies Proclamation is "entrench ... and institutionalise the climate of fear pervading the work of human rights defenders in Ethiopia". 39. The Complainants argue further that apart from the difficulties already pointed out, there appears to be no fora capable of providingeffectiye +~f!,I,'essfor a Victim in the Respondent State because "neither the Human Rights'Commission nor the courts are able to provide the Lower Omo peoples with an effective remedy". The Complainants contend that the Ethiopian Human Rights Commission lacks the power to provide effective redress while the courts are physically and financially inaccessible to the Lower Omo peoples. ,., :.,,~. J"'" L , '< " 40. While it concedes that the access to justice situation in the Respondent State has improved since 2004,the Complainant alleges that the Lower Omo communities, including individual members of those communities cannot afford a lawyer and no member of those communities is a qualified lawyer that can take up the case. 41. The Complainants argue further that the Lower Omo peoples are also prevented from exhausting local remedies because there is no procedure for bringing legal action relating to peoples' rights before courts of the Respondent State since only individual rights are accorded legal recognition. The Complainants allege further that even a representative action is not possible as organizations such as the Mursi Indigenous Community Association which could have brought such action have had their licences revoked without reasonable cause. Accordingly, the Complainants conclude that there are no adequate, effective and sufficient local remedies to be exhausted. An Orgall of the Afriqan ~~'".'~~ . Y.. U ruon "'iI'''". hllps:/achpr.au.int/O " a Human Rights our Collective Responsibility 43. With regards to Article 56(5) of the African Charter, the Respondent State contends that local remedies have not been exhausted despite the fact that they are available, effective and sufficient. The Respondent State submits that contrary to the claims in the Complaint, its legal system provides for both the legislative and the institutional framework for the realisation of the rights of the Victims in this Communication. 44. On the legislative framework, the Respondent State submits that Article 40(5) of and Land Use its Constitution as well as its Rural Land Administration Proclamation No 456/2006 jointly guarantee pastoralists such as the Victims a right of access to land and a right not to be displaced from their own lands to the developments made without on the land. The State Party states further that the rights claimed on behalf of the Victim are all guaranteed in its Constitution in addition to the fact that by Article international agreements such as the African Charter are 9(4) of its Constitution, an integral part of its domestic law and serve as a basis for legal claims before its national courts. the payment of compensation proportional 45. The Respondent State submits further that local remedies are available to the Victims because under its laws, an alleged victim of human rights violation has an option to either approach the Ethiopian Human Rights Commission or the regular courts for redress. The Respondent State contends that access to its Human Rights Commission is open to anyone including spouse, family member, representative or even a third party acting on behalf of an alleged victim. Based on its submission that none of these national the Respondent State contends that available effective and sufficient local remedies have not been used by the Complainants and the Communication should be declared inadmissible. institutions were approached, Complainant's Comments on Respondent State's Submission 46. The Complainants submit, in response to the Respondent State's observations, local remedies are not available to the Victims the Victims in prohibiting their that effective and sufficient because only a court order would assist involuntary displacement. 47. ,:H~r)ACH PR , ' African Commission on mUD:! ~ Hurnan and Peoples' Hiqhts ~ Human Rights our Collective Responsibility large scale such as the present case. Citing Article 19 v Eritrea.s the Complainants argue that they do not need to exhaust local remedies in such a situation. 48. The Complainants further submit that apart from the fact that the Ethiopian the Human Rights Commission is not a judicial remedy as envisaged under African Charter, neither the the Ethiopian Human Rights Commission nor regular courts would be able to make the kind of orders that will protect the Victims from further displacement or villagisation. Citing Cudjoe v Chana.; the Complainants sum up that there are no effective or sufficient local remedies for the Victims to exhaust in respect of the present Communication. 49. In relation to the legislative framework necessary to sustain the claims of the Victims, the Complainants submit that Articles 40(4) and (5) of the Respondent State's Constitution creates a dichotomy between the land rights of peasants and pastoralists. The Complainants argue that the Respondent State refers to in its observations relate to the rights of peasants but not pastoralists such as the Victims. Accordingly, the Complainants argue that Constitutional provision in favour of the pastoralists such as the Victims remain unenforceable by the national courts and are subject to Proclamation 456/2005 which empowers the State to displace or evict pastoralists from land supposedly for public purposes. the Implementation law that 50. The Complainants submit further that the right to self-determination guaranteed in the Respondent State's Constitution is only available to peoples with a legislative council. It being the case that the Victims have no such legislative council, the Complainants argue that the right is not available to the Victims. The Complainants add that even the African Charter is not in practice applicable before the local courts because the African Charter has not been published and translated into the local language as required by the Constitution. 51. The Complainants submit finally that the courts are not empowered to directly the Constitution and its provisions as the power to do so apply or interpret therefore resides in the Parliament which is a political body. The Complainant submits that the Communication satisfies Article 56(5) of the African Charter since the Respondent State has failed to prove that effective and sufficient local remedies are available to the Victims, The Commission's Analysis on /vdmissibilitu 2 Communication 275/2003 - Article 19 v Eritrea (2007) ACHPR. 3 Communication 221/98 - Cudjoe v Ghana (1998) ACHPR An Orqan of the African f/; '"U UnionC,,,,,/' https:/achpr.au.lnt!O 0 a (~~\ACHPR t' t .',j Afncan Commission Human and Peoples' Rights ctJ.1.l..t::c ' on Human Rights our Collective Responsibility 52. Article 56 of the African Charter requires the Communication to satisfy the seven Admissibility conditions listed therein. The Conunission notes that the Parties have not proffered any arguments on the requirements in Article 56 (1)(2)(3)(4)(6) and (7). However, the Commission's own assessment of the Communication indicates that the conditions in those provisions are satisfied. Accordingly, the Commission's analysis will focus on the requirement to exhaust local remedies as set out in Article 56 (5) of the Charter. 53. Article 56(5) of the African Charter provides that Communications received by the Commission shall be considered if the 'are sent after exhausting local remedies, if any, unless it is obvious that the procedure is unduly prolonged'. As the Commission has previously indicated, where local remedies are available, effective and sufficient, the onus to exhaust such local remedies or demonstrate that lies on the author of a Communication." they have been exhausted or attempted 54. The Complainant in the present Communication does not claim to have exhausted or even attempted to exhaust any local remedies in the Respondent State. Instead, the Complainants have argued that it should be exempted from the requirement to exhaust local remedies because in its opinion, effective and sufficient local remedies are not available to the Victims in the Respondent State. 55. The Respondent State disputes the claim that local remedies are not available and asserts instead that effective local remedies exist and should first have been utilised by the Complainants. 56. The Commission recalls that where a State Party asserts that effective and sufficient local remedies are available within its legal system, the onus is on that State Party to prove the assertion+ In Zimbabwe Launjers for Human Rights and this Commission noted that where a Complainant claims that Another v Zimbabwe, local remedies did not have to be exhausted because they are ineffective, unavailable or insufficient without the need for proof on the part of the Complainant, a burden is imposed on the Respondent State to prove the contrary." The Respondent State 'must then show that the remedy is available, effective and sufficient'." It is only after the Respondent State has established the existence of effective and sufficient remedies that the burden shifts back to the 7 As above. An Organ of Ihe AfriGan~~."~~)'\ UnIOn~~k( Human Rights our Collective Responsibility Complainant in the specific case." to demonstrate that those remedies were exhausted or ineffective 57. the Commission needs to determine In relation to the present Communication, the legislative and institutional framework required for an effective whether judicial realisation of the collective rights invoked in favour of the Victims exist in the Respondent State. 58. The crux of the Respondent State's argument is that by a combination of its Constitution and the Rural Land Administration and Land Use Proclamation No 456/2005, land-related human rights guaranteed in the African Charter can be claimed within its legal system either before the Ethiopian Human Rights Commission (EHRC) or before its national courts. The Respondent Parties argues further itself is directly applicable before its courts. Accordingly, the Respondent State submits that it has an appropriate legislative framework and its institutions can provide effective and sufficient remedies for the rights invoked in favour of the Victims in the present Communication. that by constitutional effect the African Charter 59. In relation to the need for an appropriate national legislative framework for effective domestic application of Charter guaranteed rights, the Commission has previously observed in its decision in Social and Economic Rights Action Centre that where a right or set of rights is not covered (SERAC) and Another v Nigeria'' by domestic law, it is unlikely that an action invoking those rights will succeed in that legal system. Thus, it has to be determined whether the existing legislative framework in the Respondent State allows for domestic judicial protection of the rights claimed in this Communication. 60. The Complainants allege that the Victims do not have any legal title to land and therefore fall outside the constitutional and statutory protection guaranteed under the laws of the Respondent State. In this regard, the Complainants have demonstrated that national law required for the implementation of existing constitutional guarantee has not been enacted as far as pastoralists are concerned. The Complainants have also demonstrated that the conditions required for direct application of the African Charter have not been put in place. This, according to the Complainants, makes the Africa Charter currently inapplicable in the Respondent State's legal system. An Org'''' of the African ((~~ Union ,,,"t. iH~~'ACHPR ~ African Commission on Human and Peoples' Rights (w.:mJ > Human Rights our Collective Responsibility the Commission agrees that 61. The Complainants have also demonstrated the difficulty that the Victims face if to self- they tried to enforce constitutional provisions that guarantee a right determination as a means of resolving the issues at stake. In the face of the evidence before it, the legal framework to sustain the Victims' claims in the present Communication is uncertain. The existence of a national is specifically tailored to implement the constitutional provisions in favour of the pastoralist is not doubtful. The Respondent State has also failed to show how the African Charter can be applicable in its national courts. Accordingly, the Commission finds that the legal framework to sustain the Victims' claim in the Respondent State is unclear and uncertain. implementation law that if at all it exists, 62. The Commission also needs to determine whether the institutional framework necessary for the application of the relevant laws exists in the Respondent State. While the Complainants allege that effective and sufficient local remedies are unavailable, the Respondent State asserts that both its National Human Rights Commission and its courts are effective institutions available to the Victims. 63. As the Commission has previously held, the term "local remedies II as used in the African Charter refers to an internal remedy of a judicial nature.l? This is consistent with the Commission's position that local remedies that a Complainant is expected to exhaust under Article 56(5) of the African Charter should be remedies that are effective to the extent that they offer a prospect of success and are sufficient to the extent that are capable of rectifying the alleged violation.'! 64. The Commission notes that although it asserts that complaints alleging human rights violation, the EHRC has powers to receive and investigate the Respondent State has not indicated that the decisions of the EHRC are binding. Where the local remedy held out by a State Party is one that lacks powers that bind the government and its agencies, such a remedy falls short of the standard of remedies that to exhaust. F The Commission is therefore, of the view that a petition to the Respondent State's EHRC is not a judicial remedy and does not hold the promise of an effective and sufficient remedy. The Complainants are accordingly not under an obligation to law requires a Complainant international Arl (")I'gan of the African t.."'u Union it's" ~C":~)ACHPR 4' African Commission on mHO;' Human and Peoples' Rinhts Human Rights our Collective Responsibility the remedy presented by the EHRC since it may be available, but it is not exhaust effective and sufficient. P 65. The Commission notes the Respondent State's contention that its national courts before bringing a are also available for the Complainants to the Commission. The Complainants provide at least four reasons Compliant that are the courts in the Respondent State to be remedies why they consider unavailable, the Victims and the NGOs which could have acted on their behalf fear that there will the government before the courts. be consequences and insufficient. The Complainants for bringing an action against to have approached allege that ineffective 66. The Complainants also allege that the courts are physically and financially inaccessible to the Victims. While they concede that access to the courts have the Victims cannot afford to improved since 2004, the Complainants engage a lawyer and no member of their communitiesjs It is also a lawyer. submitted that the Respondent State's legal system does not have any procedure for claiming collective rights. The Complainants have also alleged that by the operation of the Ethiopian Charities and Societies Proclamation, foreign NGOs cannot enter into the territory of the Respondent State to litigate on behalf of the Victims. insist that 67. The Commission recalls its early jurisprudence to require it would be illogical that in certain conditions where of local terror and fear exist the exhaustion remedies.l+ Fear of reprisals against Victims and/ or their lawyers is sufficient evidence that local remedies are not accessible. In the present Communication, cite reports of the Campaign for the Commission notes that Reform of the World Bank and Amnesty International an alleged regarding general climate of fear prevailing among civil society groups in the Respondent the Complainants do not adduce any evidence of specific threat State. However, to the Victims or anyone acting on their behalf regarding an attempt to approach the courts over the facts leading to the present Complaint. the Complainants 68. As the Commission noted in Anuak Justice Council v Ethiopia= beyond statements reports, needs to adduce that the apprehension alleged is founded on have failed to offer any the Complainants there is a basis for the alleged fear, the Commission is unable to of apprehension based on general concrete evidence and demonstrate that actual evidence that the Complainant risk. Against the fact :CHP:, ACH PR H f1 '\ wnu)) Human and Peoples' Rights .. African Commission on Human Rights our Collective Responsibility agree that there is such a regime of fear that excuses the Complainants from showing that local remedies have been exhausted. 69. Regarding the Complainants' submission that the local remedies presented by the national courts are physically and financially inaccessible and that the Victims are too indigent to afford a lawyer, the Commission notes that the Respondent State has not presented any response. Since the Complainants concede that the courts are now accessible physically, the Commission's analysis will focus on the indigence of the Victims qualifies them to be excused from the whether requirement to exhaust local remedies. 70. to exhaust to be able to exhaust v The Gambia.t» the Commission noted that certain In Purohit and Another categories of persons require legal aid in order local remedies. While the Commission holds the view that mere indigence of a victim does not trigger a finding that exceptions to the requirement local remedies apply, the Commission is conscious of the fact that the rule is neither absolute nor capable of being applied automatically.v In line with Article 60 of the African Charter, the Commission recalls the opinion expressed by the Inter- American Court of Human Rights that although indigence on its own does not excuse a person from exhausting local remedies, economic status can prevent a person from enjoying the guarantees in a human rights instrument." The Inter- American Court of Human Rights went further to opine that "if legal services are required either as a matter of law or fact in order for a right guaranteed ... to be recognized and a person is unable to obtain such services because of his indigency, then that person would be exempted from the requirement to exhaust domestic remedies"."? 71. The Commission notes claim that that the the Respondent State does not dispute the Victims are indigent people. The Commission Complainants' further notes the particular legal regime in the Respondent State which prevents foreign organisations to directly or indirectly access the national courts on behalf of the Victims. In the face of indigence and the absence of any form of free legal the Commission takes the aid provided by the State Party or any other group, view that it would amount to undue formalism to require the Victims to exhaust local remedies. 16 Communication 241/2001- Purohit v The Gambia (2003) ACHPR. 17 Lehtinen v Finland (2006) ECtHR (Application no 43160/98) 7. 18 Exceptions Convention on Human Rights), Advisory Opinion OC-11/90 of Aug. 10, 1990, Inter- A: Judgments and Opinions No. 11 (1990) paras 20, 22. 19 As above. of Domestic Remedies to the Exhaustion (art. 46(1), 46(2) and46(2)(b) American I~CH't\ACH PR (i '"J African Commission on ~(W,l\fj~ Human and Peoples' Rights Human Rights our Collective Responsibility 72. Regarding the Complainants' claim that the Respondent State's legal system has no procedure for claiming collective rights, the Respondent State replies that its courts are independent and open to everyone with "a justiciable matter". The Respondent State fails to respond to the specific claim that no procedure exists for claiming collective rights protected in the African Charter. the Commission notes that 73. The Respondent State does not also demonstrate how the courts could have provided effective and sufficient remedies for the Victims in this particular circumstance. As the Commission has previously noted, merely listing "in abstract" the existence of remedies without relating them to the circumstances of the case, and without showing how they might provide effective redress in the circumstances of the case" does not satisfy the onus on the State Party to demonstrate the existence of local remedies that to exhaust. 20 the Complainant ought 74. The Commission takes the view that the Respondent State has failed to supply enough specific evidence to demonstrate that available local remedies have the potential to be effective and sufficient in addressing the claims of the Victims in this Communication. Accordingly, the Respondent State has not satisfactorily discharged the onus placed on to show that effective to have and sufficient exhausted. No burden has therefore shifted back to the Complainant. local remedies exist which the Complainant ought the Commission finds that 75. Accordingly the Commission is convinced that the State Party has not provided the Victims could have accessed. The effective and sufficient remedies that to the Commission therefore requirement to exhaust local remedies applies to this Communication as there are no remedies to be exhausted. The Commission finds that Article 56(5) of the African Charter has been satisfied. takes the view that one of the exceptions Decision of the African Commission on Admissibilih) 76. In view of the above, the Commission declares this Communication Admissible in accordance with Article 56 of the African Charter. 20 Article 19 v Eritrea (2007) ACHPR para 73. Also see Communication Faso (2003) HRC. 1159/2003 An Orgall of the Afric;an (~t~) Union \.~ Human Rights our Collective Responsibility Merits Summary of the parties' submissions A. Complainants=submissions submissions 77. The arguments below are the submissions of the Complainants, having regard to (including the Addendum to on the merits their written the additional Complainants' Brief on the Merits) dated 4th September 2015, observations dated 26th January 2016, the further observations dated 31st August 2016 and the latest information update on the projects, together with all the bundles of documentary evidence respectively attached to their submissions before the Commission. 78. The Complainants submitted that the Respondent State, in pursuit of the Gibel Gibe III Dam Project and the Kuraz Sugar Project ("Gibe III and "Kuraz"), has repeatedly violated the rights of the Complainants protected under Articles 20(1), 21(1),22(1) and 24 of the African Charter. 79. The Complainants submitted that the Respondent's arguments, that the claims in this Communication are designed to obstruct its development or advance a romanticised ideal of the Lower Omo people that has no place in a contemporary society, are misconceived. They submitted that the Lower Omo peoples are not opposed in principle to development or dams, and do not want or expect to be insulated from modernity. However, they submitted that contrary to what proponents of large development projects often argue that development would trickle down to the indigenous communities caught in the slipstream, project- affected communities are most often the principal Iosers. A 80. The Complainants submitted in the context of the Lower Omo that the sugar cane project will take the best grazing land and leave the Complainants dependent on food aid, earnings from casual work on the plantations, and the sale of their photographs to tourists; and that they will not be lifted out of poverty, but driven ever deeper .into it. 81. The Complainants submitted that only if they are able to decide for themselves whether, when and how quickly they want to change their way of life is there any prospect let alone profit from, the huge projects now underway in the Lower Omo. that they will survive, 21 Cemea, Michael. Reforming the foundations of involuntary resettlement: introduction, in LV",:I'>'i'I.\I'1 and benefit-sharing. Oxford: Oxford University Press, 2008. N: O!llall of the AfriGan C:' '>.j Union ',\,,,,,,,;,,': ;HP? ACHPR , ' ., African Commission on Human and Peoples' Rights b:W:Wl Human Rights our Collective Responsibility 82. The Complainants submitted that the rights conferred by Articles 20(1), 21(1), 22(1)and 24 of the African Charter are not qualified and that the principle of self- determination is a common thread that connects all the aforementioned Articles of the African Charter. They also noted that none of these Articles was subject to the proviso attached to the right to property contained in Article 14 of the African Charter, which states that property may be encroached upon "in the interests of public need or in the general interest of the community." 83. The Complainants relied on Article 10 of the Vienna Declaration and Programme of Action supported by the Respondent and 170 other States, which states that: "While development the lack of development may not be invoked to justify the abridgement of internationally recognized human rights." They also submitted that not even the desire to increase food security can trump human rights as affirmed by the United Nations Food and Agricultural Organisation.v facilitates the enjoyment of all human rights, 84. As such, submitted that the Complainants the issue for the Commission's determination is not whether the Complainants will "benefit" from Gibe III or Kuraz or whether their rights can be encroached upon in the general interest of the community, but rather whether in its rush to complete these projects, the Respondent State had acted in breach of Articles 20(1), 21(1), 22(1) and/ or 24 of the African Charter. 85. The Complainants submitted that two deep-rooted attitudes of the Respondent State have led to the breach of each of these Articles of the African Charter: Firstly, indifference to the rule of law. They submitted that the Respondent's apparent the Respondent State had repeatedly shown that it was not prepared to allow its procurement and environment laws designed to protect people and the environment to stand in the way of "progress".23 impact assessment 86. Second, the Complainants submitted that the Respondent State is determined to get rid of the pastoralist way of life of the Lower Omo people. They submitted the Lower Omo people as backward and that uncivilised and seeks to transform them into farmers at the earliest opportunity.s+ in contravention of its constitutional obligation to protect pastoralists under the the Respondent considers An Orgel) 01 the African ((~~ Union ~",JI ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility Constitution of the Federal Democratic Republic of Ethiopia (Constitution)." The Complainants submitted that in breach of the Constitution, the Respondent State appropriated to itself vide Proclamation No. 456/2005 the power to arbitrarily evict pastoralists from land and transfer same to private hands." 87. The Complainants also submitted that the view that pastoralism is unworthy of the Respondent State' s protection is also reflected in the omission, from the first environmental impact assessment of Gibe III, of any reference at all to the impact of the dam on downstream communities. And that the Respondent State paid no attention to the report by the World Commission on Dams (WCD) on the impacts of large dams on downstream communities. 88. The Author it submitted that instituted this Complaint on behalf of the Complainants due to fear of the consequences for them and their families if they had lodged the Complaint themselves; and that it had not been possible to file witness statements of the people of the Lower Omo or obtain the assistance of local NGOs for the same reason. The Author claimed that, in January 2013, the officials of the Respondent State had informed a gathering of tribal peoples, non- governmental organisations (NGOs) and missionaries in Jinka that there would be consequences if they disclosed any information about developments in the Lower Omo to foreigners.27 That journalists have been effectively muzzled in Ethiopia resulting to the point of fleeing the Respondent State more than any other country in the decade preceding 2013. 89. The Complainants also submitted that whatever the truth of the criticisms that continue to be levelled against Gibe III, it has had or will have at least two undisputable consequences for the Complainants: (a) (b) It will eliminate the annual flood on which the Complainants depend for their subsistence; and The steady and constant flow of water down the Omo, which will replace the seasonal floods, will allow the irrigation of large tracts of land in the Lower Omo. This in turn will result in the displacement of the Complainants to make way for sugar cane, cotton and bio£uel plantations. An earth dam has already been built for this purpose, just over 200 km downstream from the dam. f,n Organ of the Africen K ..'~ Union AI;,. https:/achpr.au.lnVO 0 a ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 90. With regards to the Kuraz, the Complainants submitted that, contrary to the Respondent State's allegations of having conducted the necessary preparations and Environmental Impact Assessment (EIA) study, no study at all of the impact the Kuraz on the Lower Omo peoples was carried out "before the of if such a study existed at all, the commencement" of the Project; and that Respondent State chose not to release it to the public. 91. The Complainants submitted that even the original EIA of Gibe III was produced only after work had already started on the construction of the dam, but was confined to the middle basin of the Omo and ignored altogether the Lower Omo and the Complainants. And that it was only until 2008, after two years into the and project, recommendations from an "Additional Study" of downstream impacts and re- named the Environmental and Social Impact Assessment (the "ESIA"). the EIA was to include findings selected revised that 92. Based on this, the Complainants submitted that the EISA appeared to have been compiled without the involvement of any of the Peoples of the Lower Omo contrary to international guidelines and case law, which both show that the participation of indigenous peoples is an essential component of an effective impact assessment. 28 93. The Complainants took issue with the ESIA's proposal to release" controlled impact on flood" from the dam reservoir annually to mitigate the dam's downstream communities, over a period of 10 days in late August or early September. The Complainants to replicate the submitted that natural flood of the Omo was not sufficient to compensate the communities for all ad verse effects of the dam or avoid the' severe damages [sic] to downstream communities' for the following reasons: the proposal (a) Any benefit that the controlled floods might confer on the Complainants would be dependent on the Respondent State's determination; and (b) The decision whether to allow a controlled flood, when and for how long, rests alone with the Respondent State, which the latter mayor may not grant if the flood reaches a level sufficient to benefit downstream communities would also for the conduct of cultural, environmental traditionally occupied or used by indigenous 28 Citing the Akwe: Kon Voluntary guidelines impact assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and (Secretariat of the on lands and waters Convention on Biological Diversity, Geneva, 2004) Decision VU!16 F COP-7 UN Doc. UNEP ~ " (13 April 2004»; else 0100()' Merits, Reparations and Costs. Judgment of August 12, 2008. Series e No. 185 para 41, o. <~ Pueblo lndigena Kichwa de Sarayaku v Ecuador, Fondo y reparaciones, Judgment of27 245 paras 212-20 [Spanish Only). and Saramaka People v Suriname Interpretation of the Judgment of Preli ~§ 'foft1E.'Q)?~i and local communities ~~;~~H ~ 20 S~ries .: and social "CHP,q AC PR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility inundate the irrigation infrastructure 01' if release the flood would significantly reduce electricity production. (i) Alleged violation of Article 20(1) of the Charter 94. The Complainants submitted that by virtue of Article 20(1)of the African Charter, they are, at the very least, entitled to be given an opportunity to effectively participate in the decisions whether to embark on Gibe III and Kuraz and the to both opportunity either to give or withhold their prior informed consent projects. And that the Respondent State's failure to afford them either of these opportunities is a breach of Article 20(1) of the African Charter. 95. The Complainants consider that they could have effectively participated in the decisions to proceed with Gibe III and Kuraz only if: (i) (ii) (iii) The Lower Omo peoples had done so prior to the making of each decision, particularly before the Ethiopian Electric Power Corporation (EEPCO) entered into a legal obligation to proceed with the dam; The Lower Omo peoples had done so in sufficient numbers to ensure that they were representative of their communities as a whole. The complainants claim that only about 93"members of the community, representing 0.1% of the community and excluding include the Hamar, Bodi or Kwegu, were consulted during the course of six meetings held between May and December 2007;and that even the Respondent State's own Public Consultation and Disclosure Plan shows that people downstream of the dam were not consulted until at least 10 months after contracts had been exchanged by which time work had already commenced on the dam; The Lower Omo peoples had done so with sufficient knowledge of the likely impact of the Projects on their communities to enable them to come to an informed view whether the Projects. The Complainants claim that when the USAID and the Author visited the affected communities, they found that the communities knew little or nothing about the project.s? to support African Commi 31 Biji I'. CHP~.~6~,ttE~ Human and Peoples' Rights Human Rights our Collective Responsibility (iv) (v) The Lower Omo peoples had done so in the knowledge that they could suffering any adverse the Project without choose not consequences; and to support The Lower Omo peoples had done so according to their customs and traditions and 'in a form appropriate to the circumstances. P 96. The Complainants submitted that none of the above criteria was satisfied in connection with the Gibe III or Kuraz. 97. The Complainants further emphasised that, with respect to the Kuraz project, they were given no opportunity at all to participate in the decision to plant sugar cane on their customary lands. That their first knowledge of the project came about from the Prime Minister's speech delivered in Jinka in January 2011;but as those lands to sugar cane the speech made clear, the decision to convert that year had already been plantations and to proceed with the development made. (ii) Alleged violation of Article 21 (1) of the Charter 98. The Complainants submitted that Article 21(1)of the African Charter gives effect to the economic aspect of the right of self-determination established by Article 20(1). 99. The Complainants further submitted that the territories on which they have traditionally grazed their livestock is an invaluable natural resource, which the their consent and due Kuraz project had already encroached on without consultation of the affected peoples. They submitted that the loss of their grazing lands will make it impossible for the Complainants to maintain their herds. They also submitted that by being forced by the Respondent State to sell their cattle under the circumstances, their right not to be deprived of their wealth (and of their means of subsistence under Article 1(2) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights has been violated. 100. The Complainants submitted that even if the Omo River and/ or the lands allocated to sugar were regarded in whole or part as the natural resources of the Respondent State, the denial of access to the River Omo and/ or to their grazing lands will still have violated their rights under Article 21(1)of the African Charter 30 Endorois case. An Oroan of the Afri<~an(("'1 Union ~;"iiY.. (;H~:JACHPR ~, .:, African Commission, on a.a:UD Human and Peoples RIghts Human Rights our Collective Responsibility because of the arbitrary manner in which the Respondent State has put its plans into effect. 101. The Complainants submitted that they are "non-participants" in the Gibe III and Kuraz and have been offered no share in the benefits that will accrue from sugar cane production on their grazing pasture. 102. The Complainants also submitted that the Respondent State's claim that all displaced persons have been or will be given substitute plots of land equal in size to their previous holdings and proportionate compensation does not justify a breach of Article 21(1) of the African Charter. .'.:' (iii) Alleged violation of Articles 22(1) of the Charter 103. The Complainants submitted that both Gibe III and Kuraz will have major impacts on their lives and that the Respondent State's failures to conduct any (or a proper) impact assessment of either Project and to seek or obtain their free, prior and informed consent to either of them are violations of the Complainants' right to development under Article 22(1) of the African Charter. 104. The Complainants submitted that when a large-scale development have a major impact on the territory of a particular community, obtain the community's free, prior and informed consent to it. is likely to the State has to 105. The Complainants submitted, including in the Addendum to Complainants' Written Brief, that evidence of the Respondent State's breaches of Article 22(1) of the African Charter is summarised at paragraphs 44,55 to 68 and 81 to 90 of their written Submissions and they also rely on the Respondent State's failure not only to obtain their free, prior and informed consent to not undertake Gibe III and Kuraz but also to consult them about both Projects before committing itself to it. (iv) Alleged violation of Article 24 of the Charter 106. The Complainants submitted that Gibe III and Kuraz will deny them an environment which is either satisfactory or favourable to their development. And that in breach of Article 24 of the African Charter, the Respondent State has failed to conduct any proper study of the environmental impact of either Project or of the risks that the projects pose to public health. (~C··r\ACH PR ;[ African Commission on " Human and Peoples' Biqhts " ~oo..tW Human Rights our Collective Responsibility offered access to and are able to use the new irrigation channels, these are likely to be far less sustainable. 108. With regard to the Kuraz, conversion of the Complainants' unsatisfactory envirorunent virtually impossible for them to pursue their customary way of life. the Complainants Submitted that the wholesale territory to cultivate sugar cane has created an for pastoralists as the plantations have made it 109. The Complainants submitted that if the Respondent insists that it had due regard to the adverse impacts of the Gibe III and Kuraz on the rights of the Lower Omo peoples, then it must prove through documentary evidence that it assessed the impacts that the Gibe III and Kuraz were likely to have on the Complainants before it decided to embark on these Projects. And that failing which, the Commission will be entitled to make an inference that it acted in violation of the provisions of the African Charter. 110. On the basis of the foregoing, the Complainants prayed the Commission to urge the Respondent to: (1) conduct independent investigations into the effect of Gibe III and Kuraz on the human rights, health and means of subsistence of the Complainants. (2) in the light of the data generated by this communication, make an objective appraisal whether these projects can operate without endangering the lives or livelihoods of the Complainants; and if so, develop a detailed "livelihood development plan" for this purpose. (3) provide all information collated under (1)and (2)to the Complainants to enable them to give their free and informed consent to both projects. 111. The Complainants also prayed for the Commission to urge the Respondent to suspend further work on both the Gibe III and Kuraz and any further villagization of the Complainants while these steps are being undertaken before it is too late. B. Respondent's submissions 112. The arguments below are the submissions of the Respondent State, having regard to their written submissions on the merits dated 27th November 2015, the response to the Complainants' additional observations dated 6th June 2016, and J the latest information update information on the projects, together e \-IUMAty bundles of documentary evidence respectively attached to th . (fr& ~lAl1S..o e. ~ "'<7' before the Commission. o~ <:> I" <fl.• c.;," . ~c.;, ~ , 0 '(') ;z ~ n https:Jachpr.au.inVO 0 a I~CHP') ACHPR ~~.' ! \~ African Commission on , Human and Peoples' Rights Human Rights our Collective Responsibility 113. The Respondent State submitted that as the second most populous country in Africa with a rich mosaic of nations, nationalities and peoples who speak more than 80 languages, not only is Ethiopia one of the most diverse countries in the world but also that pastoralism is one of the oldest socio-economic systems in the country. 114. The Respondent State submitted that there are 12-15 million pastoralists who reside on 61% of its landmass majorly in four lowland regions -Afar, Oromiya, Somali, and the Southern Nations, Nationalities and People's Regional States (SNNPRS), in Gambella and Benishangul areas. 115. The Respondent State claims that the main livelihood systems of pastoralists include pastoralism, farming, and petty income-earning activities, and that the primary means of subsistence in almost all pastoral. communities. is livestock husbandry in open grazing areas. 116. The Respondent State submitted that the Complainant's submissions provide only a partial glimpse at the rich diversity of the people of the South Omo Zone in their communities. The and their expectation for change and development Respondent State submitted that there are 16 nations, nationalities and peoples in the South Omo Zone seven of which live along the Omo River and are said to be affected by the Gibe III and Kuraz. These are the Bodi, Dassanech, the Hamar, the Kara, the Kwegu, the Mursi and the Nyangatom. 117. On the basis of the background to the seven affected groups of people in the Lower Omo, the Respondent State makes the following submissions. (i) Right to self-determination under Article 20 118. The Respondent State submitted that contrary to the Complainants' assertion that they were denied the right to effectively participate in the decisions to proceed with the Gibe III and the Kuraz, all of the named peoples in the South Omo zone have traditional leaders and are represented by officials in their local districts, in the State Council and the Council of Nationalities of the SNNPR State and in the House of Peoples' Representatives and House of Federation of the federal government. 119. The Respondent State claims that all the representatives of the several pastoral il communities of the South Omo Zone in both the State Council and the Cou An Orr1al1of the African (r~') Union ~;, ~CH:t)ACHPR ",.il African Commission on (.lfl\'Hj~ Human and Peoples' Rights Human Rights our Collective Responsibility 120. In light of the scope of representation at various levels of state and federal government, the Respondent State submitted that the Complainants' arguments that the people of the South Omo are without representation is unfounded and should be discountenanced. 121. The Respondent State also submitted that, despite this prima facie evidence of representation, it conducted an extensive public consultation process that conclusively shows that the people of Bodi, Dassenech, Hamar, Kara, Kwegu, their political status [and Mursi and Nyangatom have "freely determine[d] pursued] their economic and social development according to the policy they have freely chosen" in accordance with Article 20(1) of the African Charter. 122. The Respondent State submitted that the public consultation regarding the Gibe III Hydro-Electric Power Project (HEPP) began in 2007 with the local administrators and the EEPeO-hired experts who explained the possible impacts of the dam on the Omo River. The Respondent State submitted that the public consultations documented the concerns of attendees there could be a reduction in the flow of Omo River and that this could impact their livelihoods. the people were positive and that However, despite their concerns, wanted to know how they could reap benefits from the project. the consultations showed that that 123. With regards to the Kuraz, the Respondent State submitted that based on the proximity of the sugar factories to the areas where the People of Bodi reside, the Government of Ethiopia spent significant effort to consult practically every elder and village chief in Selamago Woreda. That the consultations were organized at the zonal, woreda and kebele levels where members of the community were invited to participate in public discussions, presentations, and question-answer sessions with administrators as well as with representatives of the People in the SNNPR Councils, of People's Representatives. of Federations and House the House An Orgall onlle Afri~an fr~"-> . Unlon'-,- https:lachpr.au,lntiO 0 a ACHPR African Commission on Human and Peoples' Rinhts Human Rights our Collective Responsibility 125. The Respondent State submitted that Ethiopia remains firmly committed to the principle of self-determination, which tenet continues to be at the core of its the Respondent State constitutional submitted, the rights of Ethiopia's diverse nations, nationalities and peoples to speak, write and develop their own languages as well as express, develop, promote and preserve their culture and history. is referenced in the Constitution and guarantees and political makeup. This principle, 126. The Respondent State submitted that Ethiopia's highly diverse pastoralist and agro-pastoralist communities are guaranteed their full constitutional rights - in both principle and in practice - to determine their way of life, mode of subsistence, culture, and language. (ii) Right to dispose of natural resources under Article 21(1) 127. The Respondent State submitted that, contrary to the Complainants' claim that the seven affected peoples of the lower Omo will be denied their right to freely dispose of their wealth and natural resources, there will be no deprivation of wealth and natural resources for two reasons. First, the annual floods for retreat agriculture will continue as the EEPCOhas installed midlevel outlets to allow for controlled flooding for those who wish to continue the practice. Second, the Sugar Corporation did not deprive any of the seven affected peoples neither wealth or natural resources. 128. The Respondent State submitted that, assuming the Commission accepts the the floods which are neither Complainants' predictable nor provide for sustainable food security for the Omo population, constitute 'wealth or natural resource', no deprivation has occurred. This is because all seven peoples have welcomed the projects wholeheartedly. far-fetched arguments that 129. The Respondent State submitted that the extensive public consultations held between 2006 and 2014by the federal goverrunent through the representatives of the EEPCO and the Kuraz Sugar Corporation revealed that the people view the in the South Omo zone and project as gateways for fast-tracking development achieving food security, an issue that has bedevilled them for decades. 130. On this basis, the Respondent State respectfully urged the Commission to reject the Complainants' allegations that the peoples are denied their right to freely dispose of their wealth and natural resources. An Or;)al1 01 !he Afri~ane~"') UnIOn~iMl/ ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility (iii) Right to development under Article 22(1) 131. The Respondent State submits that while it agrees with the Complainants that "[tJhe peoples of the Lower Omo are not opposed in principle to development, it does or to dams, and do not want or expect to be cocooned from modernity", not concede that the people of South Omo Zone will ultimately be the losers of Ethiopia's development efforts in the region or driven ever deeper into poverty. 132. The Respondent State submitted that Ethiopia, prior to the construction of the Gibe III HEPP, generated only 2000 MW of electric pow~r for a nation of almost 90 million inhabitants. The Respondent State submitted that such energy including the constraint severely limits growth in key areas of its economy, agricultural and industrial sectors. 133. The Respondent State submitted that the major objectives of its energy sector are to provide sufficient and reliable power sources for economic and social development as well as for irrigation activities. 134. The Respondent State also submitted that agriculture and other services account for 90% of Ethiopia's Growth Domestic Product. For this reason, Ethiopia has nonetheless pursued several initiatives to help increase agricultural productivity in the nation, one of these being the Agricultural Growth Program (AGP), which initiative supported by the World Bank and other development is a national partners that is targeting smallholder farming. The Program is designed to help increase agricultural productivity and market access for key crops and livestock in Ethiopia. It focused on 83 districts with high potential for agricultural growth in four regions of the country, including the SNNPR. 135. The Respondent State submitted that the Gibe III dam and the Kuraz were borne in Ethiopia out of a necessity to end the cycle of poverty and underdevelopment and to help lead the agricultural transformation. 136. The Respondent State also submitted that the Commune Development Program (CDP) was a federal government program initiated by the Ministry of Federal and Pastoral Development Affairs and aims to promote a suitable settlement pattern for development and access to social services. An Ors.}an of the African f"'''''~ ~ Union' African Commissi 31 Bijilo Human Rights our Collective Responsibility 138. The Respondent State reaffirms that the COP does not displace anyone but merely seeks to bring socio-economic services to people who otherwise live in highly scattered settlements. (iv) Right to a general satisfactory environment under Article 24 139. In response to the Complainants' submission that Gibe III and the Kuraz will deny the people of Bodi, Dassenech, Hamar, Kara, Kwegu, Mursi, and Nyangatom a general satisfactory envirorunent favorable to their development in violation of Article 24 of the African Charter, the Respondent submitted that the goverrunent has enacted a series of envirorunental protection legislation and policies. 140. The Respondent State submitted that the Complainants' allegations of violation of Article 24 of the African Charter are on the most part based on fears and assumptions because development projects and activities in Ethiopia are carried out under strict guidelines, following a complex web of land, environmental, and labor policies. The Gibe III and the Kuraz are no exceptions. 141. The Respondent State submitted that the allegations do not take into account the fact that the EEPCO identified the potential impact of the dam and put in place mitigating measures, which in turn are included in the envirorunental and social impact assessment studies of the two projects. 142. The Respondent State submitted that no cause of action, either individual or collective, was brought in the federal or regional courts of the SNNRPS regarding either the Gibe III or Kuraz. And that, in any case, the Complainants can do so in the event the EEPCO and/ or the Sugar Corporation should cause any damage to the environment. 143. With regards to the Complainants' allegation that an envirorunental impact assessment study was not performed for Gibe III and Kuraz prior to their construction, the Respondent State submitted that the impact assessment study for the Gibe III was performed between 2007 and 2008 before the start of the construction of the darn in 2010. The Respondent state submitted that this study was available on the projects and the World Bank's website for public comment. 144. Similarly, with regards the Respondent State submitted that that assessment was completed in 2012 before the Kuraz was launched in 2013. Both studies were conducted followi~::;;:;o.;;;;;:::~ to the Impact Assessment Study for Kuraz, An Or:o. Janof the African ((~~ Union ~",,!I. Human Right.s our Collective Responsibility 145. The Respondent State submitted that it was incorrect for the Complainants to allege that the impact assessment study of the Gibe III does not include the downstream areas of the dam. This is because page 226 of the Environment and Social Impact Assessment of Gibe III provides a summary of the impact of the project downstream and refers to the detailed study over the downstream effects of the dam. 146. The Respondent State also submitted that the Complainants' claims that the and failed to include a impact assessment participatory process is baseless because the study was conducted under internationally accepted guidelines and treaties ratified by Ethiopia. study was not transparent 147. With regards to public consultation and the right of the people to be consulted on the development projects in their area, the Respondent State submitted that several consultations were held in accordance with the Environment Impact Assessment Guideline prepared by the Environment Protection Authority of Ethiopia which requires the participation of interested and affected parties. The Respondent State submitted that the guideline was followed to the letter in the course of conducting the environmental impact assessment of Gibe III. 148. The Respondent State denied that the public consuhation sessions that were held with both the upstream and downstream communities were platforms for the governmental consultations it held with the affected Omo communities were nothing but a genuine effort by the EEPCO to provide an honest overview of the construction and to receive questions and concerns. imposition. Rather the Respondent State submitted that 149. The Respondent State submitted that the consultations, done in the languages of the seven peoples, were held with the sole purpose of transparency, showing the advantages that come with the dam, and to gather the opinion and concerns of the impacted communities to allow the government to mitigate the short- and long-term impact of the dam. 150. The Respondent State also submitted that there is simply no evidential support for the Complainants' assertion that the Gibe III will deprive the peoples of the Lower Omo access to the Omo River for their livestock or lead to a loss of vegetation cover. . ., 'I',CH":h"O' ACH PR . ~;i . , . ,/. African Commission, o~ O:O.:nD , Human and Peoples Hiqhts Human Rights our Collective Responsibility environment favorable to their development. C. Complainants' reply 152. The Complainants submitted in reply to the Respondent State's brief on the the merits dated 27 November 2015 that both parties largely accept Complainants are a "peoples". That they have the right to decide for themselves whether, when and how to change their way of life which is a fundamental element of Articles 20(1), 21(1), 22(1) and 24 of the African Charter. The Complainants submitted that it is agreed by the parties "that the rights conferred by these provisions cannot be abridged in the interest of public need or in the general interest. that 153. The Complainants submitted that not only did the Respona~ntstate's arguments thereof fail to refute the key allegations against the and the evidence in support Respondent State, but also that the Respondent State confirmed that: (a) (b) (c) It failed to take into account while pursuing its development projects the rights of the Complainants under the African Charter or any other legal instrument contrary to Articles 20(1),21(1),22(1) of the African Charter; It took no effective steps to protect the Complainants' 21 of the African Charter to freely dispose of their natural resources; and rights under Article It took no effective steps to secure the Complainants free, prior or informed consent for either Gibe III or the Kuraz Social Development Plan. 154. In reply to the Respondent State's counter argument that the Omo annual floods are not a natural resource, the Complainants clarified that the concept of "natural resources" under Article 21 of the African Charter is unrestricted in its use in the African Charter as decided by the Commission in the Endorois case. is a broad one that 155. In reply to the Respondent State's submission or argument that flood retreat agriculture was not in itself sufficient to sustain the Lower Omo peoples, the Complainants submitted that Article 21 of the African Charter would have been robbed of any effect if it applied only to a natural resource which provided an is indigenous people with its sole means of subsistence. This, they argued, because most indigenous peoples depend on a variety of natural resources. An0'0'" ot the African (~)' UnIOn~,~1)j ? Human Rights our Collective Responsibility forward without a proper assessment of the problem it was intended to solve, but also that the proposal would still have resulted in a breach of Article 21(1) of the African Charter. This, the Complainants submitted or argued, is because they would have lost their right to their natural resources under Article 21 of the African Charter without the Respondent State providing a suitable alternative. 157. The Complainants also submitted in reply that the fact that the EEPCO alone will determine whether, when and for how long to release water from the Dam, if at to freely dispose of their natural right all, blatantly violates the peoples' resources. They submitted that but for the failure to o,qtain the free, prior and informed consent of the Complainants, the proposal for a system of controlled floods would have not violated the provision of Article 21 of the African Charter. 158. The Complainants submitted that contrary to the Respondent State'scontention that the vast majority of Omo pastoralists did not have a legal claim to land affect by the development projects, Article 21 of the African Charter is not contingent on land ownership. 159. In its further observations, the Complainants submitted that, contrary to the Respondent State's submission that Ethiopia has a supposedly decentralized and democratic system of political representation, they have not claimed any breach of the right of the Complainants as individuals to participate freely in the government of their country under Article 13 of the African Charter. Rather, the Complainants have confined their 'claim to breaches of their rights as peoples under Articles 20 to 24 of the African Charter. The co-existence of these rights in the African Charter reflects the principle that citizens are not expected to rely on their individual right to political representation to defend their collective rights as "peoples". Those collective rights merit and have been granted separate recognition. 160. The Complainants submitted that the Respondent State's submissions or arguments that it consulted members of the Bodi and Mursi communities in Hana City as well as in the villages on Kuraz do not sufficiently clarify whether the consultations took place before or after the Prime Minister's speech in January 2011 that the Kuraz project would start that year. )''\n Oig<:tn of the Atrican {(~"'~)'l Unlon'~iI Human Rights our Collective Responsibility 162. Based on these submissions, the Complainants invited the Commission to find that the Respondent State has acted in breach of Articles 20(1), 21(1), 22(1)and 24 of the African Charter, and prayed to the Commission for the following reliefs: (a) Call upon the Respondent State to ensure that the Complainants' right of access to their traditional lands is protected by law; (b) Call upon the Respondent State to establish an independent complaints mechanism to protect and prevent the rights of the Lower Omo people from encroachment; (c) Urge the Respondent State to ensure that re-settlements are voluntary, based on informed consent, and respect the cultural preferences of the people; (d) Urge the Respondent State to put in place mechanisms for guaranteeing greater transparency and more meaningful consultations; (e) Urge the Respondent State to require the relevant local government authorities impact as well as the plantation management assessment report for the Kuraz and provide communities with a fuller picture of plans for the development of the valley, as required by Ethiopian law, so that they can make informed choices on issues such as resettlement; to publish the environmental (f) Urge the Respondent State to provide a formal guarantee to protect communal grazing land in accordance with the domestic system of land administration; and (g) Urge the Respondent State to provide the Commission with a proposal for the livelihood reconstruction and long-term benefits for the Complainants as victims of the Gibe III and Kuraz development projects analysis on the Merits The Commission's 163. The present communication alleges that the Respondent State violated the rights of the indigenous peoples of the Lower Omo under Articles 20(1), 21(1), 22(1)and in the pursuit of two development projects in the 24 of the African Charter Respondent State, namely: the Gibe III Hydroelectric Power Project and the Kuraz. 164. The names of the affected groups are the Bodi, the Dassanech, the Hamar, the Kara, the Kwegu, the Mursi and the Nyangatom, which are distinct communities located in the South Omo zone in the Southern Nations, Nationalities and Peoples Regional State of Ethiopia. An Organ of the hltps:/achpr.au.intiO 0 a ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility is because peoples' rights are equally as important as individual rights.31 In this particular case, the communication alleges a violation of the rights of several groups of indigenous populations domiciled in the territory of the Respondent State. Having regard to the nature of the complaint, the Commission will now proceed to consider each of the allegations of the Complainants. Alleged violation of Article 20(1) of the Charter 166. The Complainants allege that by virtue of Article 20(1) of the African Charter, the indigenous peoples of the Lower Omo are, at the very least, entitled to be given an opportunity to effectively participate in the decisions whether to embark on Gibe III and Kuraz and the opportunity either to give or. withhold their prior informed consent to both projects. And that the Respondent State's failure to afford them either of these opportunities to self- determination under Article 20(1) of the African Charter. is a breach of the right 167. Article 20(1) of the African Charter provides that: All peoples shall haue right to existence. The1jshall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they havefreely chosen. 168. In the case of Centre for Minority Rights Development (on behalf of Endorois Welfare Council) (Kenya) and Minority Rights Group the Commission held that Article 20 of the African Charter provides for peoples to retain rights as collectives. F (Endorois v Kenya case), 169. Based on the nature of the complaint, the Commission considers it relevant to first bear its mind on whether the victims are, indeed, "peoples" and whether they qualify as "indigenous" groups within the contemplation of the African Charter, before addressing to self- determination under the African Charter. the substantive issue of right their hltps:iachpr.au.intiO 0 a · p-;CHPII. ACHPR African Commission on Human and Peoples' Rillhts Human Rights our Collective Responsibility exercised by a people, bound religious, ethnic, identities and affinities, or other bonds. P linguistic, cultural, together by their historical, ideological, geographical, traditional, racial, economic 171. By this interpretation, it is only a "peoples," whether a group can be considered a II people" under the African Charter. words, history, geography, right the Commission established a set of criteria for identifying In other bound by a cornmon ideology, of the as a collective of individuals language, economy, to self-determination.v' that can be the beneficiaries identity and affinity, ethnicity, tradition, religion, culture, race, 172. In the Endorois case, the Commission clarified thatfor people, they should manifest certain objective attributes a group to be considered a as a collective such as: tradition, racial or ethnic identity, cultural homogeneity, linguistic units], a common historical territorial connection, and a common economic life or other religious and ideological affinities, especially rights enumerated under bonds, identities and affinities - or suffer collectively from the deprivation of such articles 19 to 24 of the African Charter rights. What to define the concept of indigenous peoples recognise is clear is that all attempts the linkages between peoples, their land, and culture and that such a group expresses its desire to be identified as a people or have the consciousness they collectively enjoy - that they are a people» 173. In the instant case, it is not contested between the parties that the seven peoples the the Hamar, the Kara, of the Lower Omo, namely the Bodi, the Dassanech, allegedly impacted by the Gibe III darn Kwegu, and the Kuraz are "peoples" within the meaning ascribed to the concept under the African Charter. the Mursi and the Nyangatom, 174. In its written submissions, the Complainants occupy or have occupied until and shown on the maps communities delineated evidence.w The Complainants disputed that protection of Articles 20 to 24 of the African Charter. F the Complainants in the attached submitted recently the traditional that the seven affected territories of documentary bundle contended that since the Respondent State has not they are therefore entitled to the are" peoples", 175. The Complainants further submitted that even in the Respondent State's to rely upon the Submissions on Admissibility, the Respondent State itself sought 33 Gunme and Others v Cameroon (2009) AHRLR 9 (ACHPR 2009) para 171. 34 GU1111le case (n 33 above) para 171. 35 Endorois case (n 32 above) para 151; Communications Organisation and another v Sudan (2009) AHRLR 153. 36 Merits Brief for the Complainants para 1. para 80. 37 Merits Brief for the Complainants 279/03 and 296/05 - An Organ 01 the Afric;:an ~ ..-.,,) Union "'J'OJ.. hllps:/achpr.au.intJO 0 Q ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility fact that as" peoples" the members of the affected communities in the Lower Omo right to self-determination" under Article 39(1) of the had an "unconditional Constitution of the Federal Democratic Republic of Ethiopia (Constitution). It argued that this could only be because the Respondent State accepts that the victims are "peoples" under the Constitution and the African Charter. 176. In its response, the Respondent State did not challenge the characterization of the the Respondent peoples of the Lower Omo as "indigenous peoples". Rather, submitted that Ethiopia is a "rich mosaic of nations, nationalities and peoples" who speak more than 80 languages and has often been described as a "museum of peoples."38 177. From these submissions, it is not in contention that the seven identified groups of the Lower Omo in the Respondent State are "peoples" and therefore fall within the purview of Article 20(1) of the African Charter. However, the absence of any contention between the parties on whether the victims are "peoples", by itself, is not a sufficient basis for grounding a finding that they are such within the context of the African Charter. For purposes of certainty, the Commission's criteria for determining whether a collective of individuals constitute a "people" or group of "peoples" weighed against the established facts of each case should continue to be the objective basis for making such an assessment under the African Charter. 178. Based on the evidence presented before the Commission, including specifically the Ethnographic Map of South Om039 attached to the Complaint, it is clear that the seven communities allegedly affected by the Gibe III dam and the Kuraz Sugar Project have historically lived on the banks of and around the Omo River in the Respondent State. They are said to be pastoralist in nature, with cultures and traditions peculiar to each of them. 179. Besides the Respondent State's Constitution referencing its diverse population as a collection of "nations, nationalities and peoples,"40 the seven affected communities are factually shown to be domiciled along the Omo River, which is located in a unit of the Ethiopian federation known as the Southern Nations, Nationalities and Peoples Regional State (SNNPR). They are also factually shown to be largely pastoralist communities, each having its own ancestral lands, historical tradition, ethnic identity and cultural homogeneity common to it. 180. The Commission considers that established in its jurisprudence the seven affected for recognition as 38 Respondent's written brief on the Merits para 15. 39 Annexure 1 to the Complaint dated 16 April 2012. 40 Constitution of Ethiopia Art 8(1). hllps:lachpr.au.int/O 0 D (i;i). ACHPR 1V ~J African Commission on ,1:m.i"D Human and Peoples' Rights Human Rights our Collective Responsibility Commission has no reason to reject the characterization of the alleged victims as "peoples" within the context of Article 20(1) of the African Charter. 181. With regard to whether the affected peoples of the Lower Omo are "indigenous" peoples, the Commission has noted in its Report of the Working Group of Experts on Indigenous Populations/Communities the difficulty associated with defining the concept of "indigenous" peoples under the African Charter.v However, the term is often used in recognition of certain marginalized and vulnerable groups in a given society who suffer from particular problems. Such groups have not often been accommodated by dominating paradigms of development in their own country and, in many cases, they are being victimized by mainstream policies and thinking and their human and collective rights violated. F and subsequent jurisprudence 182. The Commission notes that the term "indigenous" is not intended to create a special class of citizens, but rather to address historical and present-day injustices and inequalities." Due to past and ongoing processes in their countries, indigenous peoples or ethnic minorities need recognition and protection of their basic human rights and fundamental freedoms. 183. As the Commission has noted in its Report of the Working Group on Indigenous Populations not only is it a fact that Africa is characterized by multiculturalism, but also that almost all African states host a rich variety of different ethnic groups, some of which are dominant and some of which are in subordinate positions. All of these groups are indigenous to Africa. However, the Commission recognizes that some are in a structurally subordinate position to the dominating groups and the State, leading to marginalisation and discrimination. It is this condition that the notion of indigenous peoples seeks to address. The concept is directed at the root causes of the subordination and other problems that such peoples face and emphasizes the human rights dimension for addressing them.v 184. The Commission recognizes that, in post-colonial African countries, certain groups who live on the fringes of modern-day society such as hunter-gatherers, pastoralists and some small-scale farmers, fall in this category.v Hence, the of the Working Group of Experts on Indigenous https:/achpr.au.lntJO 0 fa ACHPR African Commission on Human and Peoples' Hiqnts Human Rights our Collective Hesponsibnitv Commission in its Working Group on Indigenous Populations developed a set of four criteria for identifying indigenous peoples. These are: self-identification as a distinct collectivity as well as recognition by other groups; occupation and use of and a specific territory; or experience discrimination. subjugation, marginalisation, distinctiveness; dispossession, perpetuation of cultural voluntary exclusion of 185. In the present case, the peoples of the Lower Omo self-identify as indigenous. They have their own cultures and traditions. They are based on lands along and around the Omo River in the South Omo Zone which they have historically attributed as home. While the Bodi, Mursi, Dassenech, Hamar, Kara, Kwegu and - to varying degrees - also Nyangatom are predominantly for flood retreat practiced farming on lands which they have traditionallyused and rain-fed cultivation and grazing. These pastoral communities live on the fringes of Ethiopian society. As the Respondent State notrs, in its submissions, many of these communities have historically lacked access to basic social services and some of these groups such as the Mursi are one of the "most exotized and unfortunately caricatured people in the South Omo Zone and in the country."46 pastoralist, theyhave 186. The Commission finds that these attributes meet the four criteria for recognizing the peoples of the Lower Omo as indigenous. To the extent that these peoples of the Lower Omo self-identify as an indigenous group and are recognized as a group who rely on pastoralism and flood retreat historically cultivation for their continued survival, peoples" whose human and collective rights are entitled to be protected under the African Charter. they constitute "indigenous vulnerable 187. By the tenure the right of Article 20(1) of the African Charter, to self- by indigenous peoples can be exercised only in conformity with determination integrity of a State Party to the African Charter.f? the sovereignty and territorial it is clear the indigenous peoples of Based on the facts before the Commission, integrity or political unity the Lower Omo do not seek to challenge the territorial seI£- of the Respondent allegation that the right of the Lower determination. Rather, Omo peoples to self-determination has been violated is in two specific respects. First, that they were not afforded the opportunity to effectively participate in the they seek only to claim "internal" the Complainants' State. Rather, 46 Respondent Written Submissions on the Merits para 21(A). An Oryan 0: (he African (t1J~'-.'~ · mon ~/w. U \\11.); decision-making processes leading to the Gibe III dam and the Kuraz Sugar Projects. Second, that they were not given the opportunity to decide whether or not to give their free, prior and informed consent to the two projects. Human Rights our Collective Responsibility 188. By the very nature of Article 20(1) of the African Charter, to self- determination is underscored by the freedom of peoples to determine their own development. Where this right is sought to be exercised in conformity within the sovereignty and territorial integrity of a State, it must be understood to include the right of the people concerned to freely and effectively participate in the processes of the state as well as in decisions on economic, social and cultural matters that directly impact the rights and interests.w the right 189. This also means that the protection of the right to self-determination of peoples in the national context is not limited only to participation in the democratic processes of a State. It extends to the ability to pursue their own economic and social development according to the policy they have freely chosen. It also implies the obligation on the part of States Parties to ensure that vulnerable and marginalised peoples, including indigenous populations/ communities, are able to any give or decide to withhold their free, prior and informed consent development project affecting them. and Peoples' Rights, in the African Charter on Human 190. In the Principles and Guidelines on the Implementation of Economic, Social and Cultural the Commission Rights informed consent by declares that "States parties should ensure the prior to any exploitation of the resources of indigenous populations/communities lands and that they benefit accordingly."49 Similarly, in the their traditional Endorois case, the Commission held that any development or investment project that would have a major impact on territory of indigenous populations requires that the duty of the state not only to consult with the community, but also to obtain their free, prior and informed consent. Consequently, the Commission found that the consultations held by the Republic of Kenya with the Endorois people were inadequate as the people had not effectively participated in the process. 191. In this case, the Complainants submitted that the indigenous peoples of the Lower Omo have been denied an opportunity to effectively participate in the decisions to proceed with both Gibe III and Kuraz, and that their free, prior and their participation. Considering the informed consent is 'not possible without An Olllan of the African 6/.""')'\ Unlon~""" , Human Rights our Collective Responsibility potential for the Gibe III dam and the Kuraz to fundamentally change the traditional way of life of the Omo people, the Complainants contended that the indigenous peoples of the Lower Omo were entitled to effectively participate in the consultation processes. That the latter did not participate in the decisions to proceed with Gibe III and Kuraz because they: (a) were not involved in each decision on the two projects before the legal obligation to proceed with the dam was concluded; (b) did not participate in sufficient numbers to ensure that they were representative of their communities as a whole; (c) knew little or nothing about the project and so did not have sufficient knowledge of the likely impact of the two projects on their communities to enable them-to come to an informed view whether to support the suffering any adverse consequences, and (e) had done so Projects without according to their customs and traditions and in a form appropriate to the circumstances. they could choose not to support them; thought 192. The Complainants submitted that only about 93 members of the community, representing 0.1% of the community and excluding the Hamar, Bodi and Kwegu, were consulted on the Gibe III dam project over the course of six meetings held between May and December 2007; and that even the Respondent State's own Public Consultation and Disclosure Plan shows that people downstream of the dam were not consulted until at least 10 months after contracts had been exchanged. The Complainants submitted that, by that time, work had already commenced on the dam. 193. The Complainants further submitted that, with respect to the Kuraz project, the peoples' first knowledge of the project came about from the speech by then Prime Minister, Meles Zenawi, delivered in Jinka in January 2011. To the Complainants, the speech made it clear that the decision to convert the peoples' lands to sugar that year had already been cane farms and to proceed with the development made.w 194. Conversely, the Respondent State submitted that Ethiopia is one of the only states to self-determination in the world with constitutional guarantees of the right including secession, and one that has cherished the values of independence and self-determination throughout its history. In disputing that the Omo peoples were not adequately consulted before the decision to proceed with the Gibe III dam and the Kuraz, the Respondent State submitted that both projects were vital to the economic growth and prosperity of Ethiopia. The Respondent State (J:HPr\ACH PR O,fHW' Human and Peoples' Rint1ts ], African Comrrussion on Human Rights our Collective Responsibility submitted that the right to self-determination of the indigenous peoples of the Lower Omo should be assessed based on their representation within the political structures of the Ethiopian federation, The Respondent State contended that all the affected nations, nationalities and peoples of the Lower Omo in the South Omo Zone of the SNNPR of Ethiopia are administered by elected representatives at the Kebele, Woredrz, state and federal goverrunent levels, respectively. 195. The Respondent State contended that the Lower Omo peoples are represented in the SNNPR's legislature (made up of the State Council and the Council of Nationalities) and in the State executive through various goverrunental bureaus on pastoral, agricultural and other affairs. The Respondent argues that, at the federal level, pastoralist communities are also represented in the two chambers of the federal legislature, namely: the House of Peoples' Representatives (which has a Standing Committee on Pastoralist Affairs) and the House of Federation. the Respondent argues, represented These administrators and representatives, the voices of the affected communities at the various levels of goverrunent in which the decision to proceed with the two projects were taken. 196. The Commission notes that under the Respondent's Constitution, "[n]ationals have the right to participate in national development and, in particular, to be consulted with respect to policies and projects affecting their community."51 The Respondent State submitted that the goverrunent started public consultations with the Omo peoples on the Gibe III dam in 2007 before the project commenced and on the Kuraz in 2013.52 197. From the foregoing, it is clear that the claim that participation in the consultations was inadequate must be balanced against the submission that consultation was done through the elected administrators and representatives of the peoples. That balance can only be struck by a scrutinous look at the evidence before the Commission. In the particular context of projects executed on indigenous lands, this Commission has previously noted that a government must consult the indigenous peoples on the use of their land in the public interest. P Consultation cannot be an alternative to obtaining the free, prior and informed consent of indigenous communities for the use of their ancestral lands. In the Endorois case, the Commission held that in the event that /I any development or investment projects [... ] would have a major impact within the Endorois territory, the state 51 Ethiopian Constitution Art 43(3), 52 Respondent's Written Submissions on the Merit para 37. 53 Endorois case (n 32 above) para 291. (.-iC'"f.) ACHPR .,.y,' African Commission on • , a:rmn"" " Human and Peoples' Hiqhts Human Rights our Collective Responsibility has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions." 198. The Commission is inspired by the decision of the United Nations Human Rights case),54 where the Committee in Apirana Mnhuika Committee held tha t the enjoyment of the right of minority communities to their own culture "may require positive legal measures of protection by a State party and measures to ensure the effective participation of members of minority communities in decisions which affect them." The Committee noted that: v New Zealand (Mahuika significant economic the accepiabilibj of measures that affect or interfere with the culturally activities of a minori hJ depends on whether the members of the niinoritsj in question have had the opportuniiu to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. 55 199. In this case, there is no doubt that as pastoralist and flood-retreat farmers, the Omo peoples have deep ties to their ancestral lands on which they depend for their economic and cultural wellbeing and survival. Where indigenous peoples only seek to exercise the right to self-determination in conformity with the territorial integrity of a state, it should be understood to include the right, first, to be duly and adequately a proposed development project and, second, to give or withhold their free, prior and informed consent to a proposed project. consulted before commencing 200. Pursuant to Article 60 of the African Charter, the Commission is able to draw inspiration from the work of the United Nations in this regard. Under Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Article 1(1) of the International Covenant on Civil and Political Rights and Article 1(1) of the International Covenant on Economic, Social and Cultural Rights, in important decisions affecting them is recognised as an integral part of the right to self-determination= the right of indigenous communities to effectively participate 201. Also, the UN Expert Mechanism Advice No.2 (2011)on Indigenous peoples and the right to participate in decision-making has, in its interpretation of Article 3 of the UNDRIP, recognised the right to free, prior and informed consent within the context of the right to self-determination. In the Advice No.2, the UN Expert Mechanism observed that the requirements of consultation and free, prior and 54 Communication No. 547/1993, U. N. Doc. CCPR/C/70/D/517/1993 55 Mahuika case (n 54 above) para 9.5. 56 UN Declaration on the Rights of Indigenous Peoples Article 3. (2000) par .~------~------------------~~~--~~~ ..\n Organ of the AfriGan (l' ":] Union 'riJs;f informed consent form a crucial part of the right to self-determination. F The UN Expert Mechanism further noted that: Human Rights our Collective Responsibility 24. 25. The elements of free, prior and informed consent are interrelated; the elements oJ''Jree'', "prior" and "informed" qualifij and set the conditions for indigenous peoples' consent; violation of any of these three elements may invalidate (my purported agreement by indigenous peoples. intimidation or manipulation; "prior" The element of "free" implies no coercion, implies that consent is obtained in advance of the aciiuib] associated with the decision being made, and includes the time necessary to allow indigenous peoples to undertake their own decision-making processes; "informed" implies that indigenous peoples have is that been provided all information information to indigenous objective, accurate and presented in a manner and form understandable peoples; "consent" implies that indigenous peoples have agreed to the activity that is the subject of the relevant decision, which may also be subject relating to the actioiti] and that to conditions. 58 202. In the same way, the recognition in Article 20(1) of the African Charter of the right of peoples to "freely determine" their economic and social development must be understood to imply not only the requirement of consultation but also of the free, prior and informed consent of indigenous peoples. In the particular context of the right to self-determination, States Parties have an implied obligation to consult and obtain the free, prior and informed consent of communities in political, economic or social decisions affecting them. to the proposed activity be undertaken. Consent 203. With regards to proposed development or investment projects on the ancestral lands, territories or resources of indigenous populations, "consent" represents a is community's agreement "free" when it or manipulation by government or other actors. Consent is "prior" when it is given after due consultation with and participation by the affected community and before the decision to undertake a given project is made.s? Consent is "informed" when it is given after receiving all relevant information concerning the project has been supplied, and the information - including its potential adverse impacts coercion, harassment, is given without intimidation An Ofl)an of the Afncan (~')) Union \""F. Human Rights our Collective Responsibility on the community - is accurate, objective and presented in a form and manner that is understandable to the community.w 204. Furthermore, in the decision of the Inter-American Court in the case of Saramaka People v Suriname, it was held that in cases of: large-scale deuelopmeui or investment projects that would have a major impact with Saramaka territory the State luis n duty, not only to consult with the Saramakas, but also to obtain their free, prior and informed consent according to their customs and traditions» 205. In this case, the Complainants submitted that the Gibe III darn and the Kuraz sugar projects meet the criterion that the free, prior and informed consent of the alleged victims must be obtain because the projects will have a potentially impact on the affected communities. P The Complainants substantial or major contended that none of the affected indigenous have hereditary chiefs or elected representatives. That decisions are made at meetings attended by adult males in each community. And that elders are occasionally summoned to appear before local officials but have no authority to enter agreements on behalf of their community. communities 206. The Complainants further submitted the participation of the indigenous that peoples of the Lower Omo in the consultations on the Gibe III dam project was to construct not timely because the EEPca had already concluded the contract the darn before actual consultations with the people occurred. The Complainants also submitted that only 93 members of the affected communities participated in effective. the consultations, which was insufficient the consultations to render the information provided to the 93 The Complainants people who attended as it did not clearly the consultations was inadequate explain to the people what the assessment of the adverse impact of the dam was submitted that none of those on their sources of livelihood. The Complainants interviewed understood what consequences the construction of the dam would have on their lives and livelihoods. submitted that further 207. From the Respondent State's held consultations with administrators in the South Omo Zone, it has in certain cases 1/ spent significant effort to consult practically every in respect of elder and village chief in Selamago Woreda" and other communities account, not only has the government and elected representatives 60 As above. ACHPR African Commission on Human and Peoptes' Hinrlts Human Rights our Collective Responsibility the Gibe III and Kuraz projects. P The Respondent State submitted consultations were organized community members were presentations, representatives the and kebele levels where discussions, and and question-and-answer of the communities.s" the zonal, woreda to participate at invited sessions with administrators in public that the two projects raise, the Commission notes that the nature of the allegation and the serious human rights 208. Having considered the interviews concerns that have no probative value having not conducted and cited by the Complainants a person in been authenticated authority or other duly authorised official. More so, the written depositions supporting these claims suffer from the same evidentiary deficit having not been duly endorsed for Oath. As an the Commission cannot rely merely on the reports of third- international body, to party bodies or governmental come to an informed conclusion. nor signed by the interviewees agencies and non-governmental public or a Commissioner by a notary organisations themselves, 209. Furthermore, both parties placed substantial (DAG) mission the Swedish Embassy, of the Finnish Embassy, reliance on the Final Report of the up of to Ethiopia made the German for International the United Stated Agency for International Development, and the the Development Assistance Group representatives Embassy, the Dutch Embassy, the United Kingdom Department Development, European Union, in Addis. The DAG mission Government did not offer communities any alternative but to settle permanently, and that the to go along with this process, rather than debating options. After a communities careful consideration the Commission notes that despite identifying apparent human rights challenges associated with the state- the Mission "team found no directed resettlement evidence of forced migration" .65 of the DAG mission report, in the South Omo Zone, the focus of consultation to be an effort to persuade appears report notes that all 210. The Commission finds no indication that the peoples of the Lower Omo have to freely determine their economic and social been manifestly denied their right development or to participate in the consultations on the Gibe III dam. While the Commission agrees with the Complainants on the potential impact of the two there is neither a direct nor primary piece projects on the affected communities, of evidence the communities were to support on record its claim that in the consultation processes held by the Respondent State on unrepresented 63 Respondent's Written Submissions on the Merit para 37(D). 64 Respondent's Written Submissions on the Merit para 37(A)-(G). 65 Development Assistance Group Final Report (2014) page 2. An Organ of the African (!-. ",) Union ',,,r" I:HP~)ACH PR l~,: , Human and Peoples' Hiqhts Commission on (~African Human Rights our Collective Responsibility Gibe III. If anything, the documents and photographic images included in its In the Bundle of Documents depict various instances of such consultations. absence of a critical piece of direct evidence from the affected peoples themselves or other compelling documentary evidence, the Commission is persuaded to give to the evidence and arguments by the Respondent State, which more weight show that the peoples were duly consulted on the Gibe III. and traditional representatives, by itself, 211. The Commission, however, emphasises that mere consultation with a few village is chiefs, political administrators insufficient consultation, if it does not lead to the effective participation of indigenous communities themselves, including women, persons with disabilities and the elderly. To not clarify this would invariably permit violating governments that indigenous peoples be adequately consulted on national policies with the to self- leaders. consultation determination of such communities under the African Charter/governments and corporate actors, whose business activities have potential adverse human rights implications on marginalised and vulnerable communities, have an implied human rights responsibility to ensure that they seek and obtain consent and broad community support to substitu te the international human tights -requirement through adequate consultation. of a few partisan' In respecting. the right 212. In this case, the evidence adduced by both parties shows that the seven affected peoples have exercised their right to self-determination not just through their representatives in the SNNPRS and federal governments, but also by directly participating in the public consultations on the construction of the dam and sugar factories. The Respondent State emphasises that no one in Ethiopia can be forced to relocate or reside in place where they do not want to.66 213. Based on the evidence before the Commission, there is no indication that the Respondent State has forced the affected communities either to support the Gibe III dam and the Kuraz projects or to relocate to the villages built under the CDP. Rather, through direct and indirect consultation, the Respondent State seems to be working to persuade people to move into the alternative settlements in order to benefit from basic social services and acquire new farming skills. While there remains some concerns by the affected communities, they clearly are able to ventilate those concerns to the Respondent State through the consultation process or have recourse to the local judicial process. 214. As such, for the claim that the indigenous peoples of the Lower Om given an opportunity to give or withhold their free, prior and info ',.,. 'It'{0 I~ 66 Respondent's Written Submission on the Merit para 52(B). (.~i;~)ACHPR ·1 African Commission on M~: Hurnan and Peoples' Hiqhts Human Rights our Collective Responsibility to succeed, the evidence on the record must clearly support the claim. The burden is on the Complainants to provide direct or first-hand testimony or other primary piece of evidence in this regard. The evidence must show that the opportunity for the people through participating in the consultation processes or to legally give or withhold their consent to the two projects was non-existent. This, in the Commission's view, is not the case. to self-determination to express either right their 215. In light of the above, the Commission finds that the right to self-determination under Article 20(1) of the African Charter has not been violated by the Respondent State. Alleged violation of Articles 21(1) of the Charter 216. The Complainants allege that the Gibe III dam project will deprive the Lower Omo peoples of the annual floods and that the Kuraz Sugar Project has deprived or will deprive them of the lands converted to sugar cane farms, in breach of the peoples' right to freely dispose of their natural resources under Article 21(1) of the African Charter. 217. Article 21(1) of the African Charter provides that: All peoples shall exercised in the exclusive interest of the people. In no case shall a people be deprived of it. their wealth and natural resources. This right freely dispose of shall be 218. The Commission notes generally that, under Article 21(1) of the African Charter, the terms II wealth" or II natural resources" are not defined. However, in the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter reLating to the Extractive the Commission attempts to define both terms as concisely as possible. According to the Commission: Industries, Human the Environment Rights 2018, and the African Charter refer[s] to a people's 'Wealth' as used in Article 21 of tangible and intangible possessions hmling socio-economic value, including natural resources; and 'natural resources' as used ill Article 21 refer to both the non-renewable resources including oil, gas and including the sun, soil, water, wind, minerals and renetoable resources, tangible and intangible, fauna and flora. Natural the natural capital of a nation.67 resources titus encompass all assets or materials that constitute Q~C."r. Q'"'" ACH PR .:, African Commission on Human and Peoples' Rigt1tS m:u..lJ/" t Human Rights our Collective Responsibility Complainants also submitted that their livestock is their "wealth" within the ambit of Article 21(1) of the African Charter. The Complainants contend that the loss of the annual floods to the Gibe III dam will affect their ability to grow crops that will sustain them for the greater part of the year and deny the people the right to "freely" dispose of their natural resources without their free, prior and informed consent. The Complainants submitted that the Respondent State's proposal to r~lease annual floods will not cure the breach of Article 21(1) of the African Charter. 220. The Complainants also submitted that the loss of the peoples' traditional lands to the Kuraz will also entail the loss of all or most of the Complainants' livestock which previously grazed on them and will have no choice but to sell their cattle. The Complainants contend that even if the Omo River or the lands allocated to sugar were regarded in whole or part as the natural resources of the Respondent State, the denial of access to the River Omo and to lands upon which to graze their cattle will still have violated the Complainants' rights under Article 21(1) of the African Charter because of the manner in which the Respondent State has put its plans into effect. This is because the provision of substituted lands to displaced submitted, would members of the affected communities, sedentarise the pastoralist communities and justify a violation of Article 21(1) of the African Charter. the Complainant 221. The Respondent State submitted that the continuation of the annual floods through midlevel ou tlets installed on the dam by the EEPCO to allow for controlled will support continued flood retreat agriculture for those who wish to the Sugar pursue that practice. The Respondent State also submitted that Corporation did not deprive any of the seven named peoples their wealth or natural resources because the people have welcomed the projects and consider them as gateways to hasten development in the South Omo Zone. 222. The Respondent State submitted that the ancient practice of annual flood retreat agriculture is neither predictable nor provides sustainable food security for the people, issues which the projects are intended to solve. For those in the South Omo Zone who wish to continue flood retreat farming, the government argues that the EEPCO has installed outlets on the Gibe III dam at great cost to allow those farmers much more secure, regulated, and timely flooding occurrences as they continue to transition into more sustainable livelihoods. An Ofjlal1 of lhe AfriGan 6~)) Union 'fuN" ;(~~..) ACHPR ~ ,,' . '(I I. African Commission on ')~. Human and Peoples' Hintlts Human Rights our Collective Responsibility sugarcane plantations and establish a total of 4 sugar factories.sf The Respondent State re-emphasised that no single individual in the South Zone has been or will be displaced from his or her home as a result of the sugar development project. 224. Article 21(1) of the African Charter is closely associated with the right to self- determination under Article 20(1) of the African Charter.v? The Commission agrees with the Complainants that the flood retreats forms part of the water resources of the Respondent State as well as the Lower Omo peoples. In the to Wnter in Africa 2019, the Commission observed that Guidelines on the Right indigenous peoples' access and use of natural resources in their territory are intrinsically related to their right to life, food, self-determination and the right to exist as a people.?? Similarly, in the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights, the Commission declares that: States parties have an obligation to ensure the free, prior informed consent by indigenous populations/com niunities to any exploi iation of the resources of their traditional lands and that they benefit accordingnj.r' 225. As such, indigenous peoples have a right to participate in the decision to harness or dispose of their natural resources by the State. The Commission also affirmed the responsibility of States to ensure natural resource stewardship with and in the interest of the populations within their jurisdiction and affirmed the imperative to fulfil this responsibility in conformity with international human rights standards" 226. Similarly, in Resolution 224(LI)2012 on a Human Rights-Based Approach to Natural Resources Governance, the Commission emphasised the responsibility of States to take all necessary measures to ensure participation, including the free, prior and informed consent of communities, in decision making related to natural resource governance.v' The Commission noted in that Resolution that States should ensure that respect for human rights in all matters of natural resources An Ofw~n ot the Afriqan (/.i,~,.,~) Union ~"""/. development, prevails.i" management and governance, in investment agreements Human Rights our Collective Responsibility 227. As the Commission has previously stated in its jurisprudence, to freely lands dispose of wealth and natural resources located in ancestral or traditional is also vested in the indigenous populations by virtue of Article 21(1) of the African Charter. F> In the case of Social and Economic Rights Action Centre and that a people Another domiciled on a resource-rich territory within a state can claim the protection of Article 21 of the African Charter." the Commission made it clear v Nigeria (Ogoni case), the right land pursuant the Commission held - relying on persuasive jurisprudence 228. Although the Endorois case does provide a useful guide on how the alleged use to benefit or not lands in the public interest can be determined of indigenous benefit indigenous populations, it is not on all fours with the instant case. This is because, in that case, the Complainants claimed that they have a right to property to Article 14 of the African Charter. with regard to their ancestral Hence, from the to property in Article 14 Inter-American Court on Human Rights - that the right to natural of the African Charter resources located in ancestral lands. The Commission held that for Kenya to be justified in limiting the rights of the Endorois to Ruby mining on their ancestral test the Government was expected to satisfy the following two-pronged lands, that: (a) it was in the interest of public need and the general interest of the community; and (b) it was in accordance with appropriate laws. The Commission observed that none of these tests had been satisfied by the Respondent in that case and, as such, found a violation of the rights of the Endorois people under Articles 14 and 21 of the African Charter. The Commission held that the Endorois people have a right in consultation with the Respondent to freely dispose of their natural in that case."? is linked to the right of indigenous resources peoples 229. In the present case, the Commission notes that the Respondent State has been in consultations with the seven affected peoples of the Lower Omo. The evidence before the Commission shows that the Omo people have been participating in these consultations The evidence before the Commission adverse human rights that impacts of these projects have either been avoided or significantly mitigated. directly and through their representatives. the potential also shows https:lachpr.au.inVO 0 0 Human Rights our Collective Responsibility Regarding the annual floods, the Respondent State has undertaken mitigation measures to limit the impact of the construction of the dam on the peoples' annual flood retreat agriculture by releasing controlled floods periodically. Due to the construction of the dam, the Respondent State contends that the people are being taught modern farming techniques and that irrigation from the dam will help improve the fanning practices of the affected communities. 230. With regard to the Kuraz, the Respondent State submits that no grazing land will be touched and that no one has been evicted from their land. Rather, the projects have paved the way for acquisition of private holding through the issuance of landholding certificates for each household resulting in land certificates been issued to 596 households in Selamago Woreda." The Respondent State submitted that, under the SNNPRS land law, priority is given to farmers and pastoralists before lands can be provided to private developers." The Respondent State submitted that there was ample state land that was used for the Kuraz Sugar project in the South Omo Zone80 and, as such, no land was expropriated.sl The Respondent State submitted that the Constitution and Proclamation 455/2005 on Expropriation of Compensation provide for the processes and conditions that have to be fulfilled for expropriate to take plan. for Public Purposes of Land Holdings and Payment 231. From the evidence before the Commission, there is no indication that the Omo peoples are opposed to or have withheld their consent to the darn and the Kuraz sugar projects. There is also no indication that the mitigation measures adopted by the Respondent State to ensure that the Omo peoples have access to irrigation and annual controlled flood are unreasonable, have led or will lead to a loss of their livelihoods. In their information update to the Commission submitted in 2021, the Respondent State had implemented the controlled flood release but complained that the Respondent State had only done so once since the dam started operations in 2016. Regarding the Kuraz, the Complainants do not dispute that the lands upon which the Kuraz project has so far been implemented is state lands rather than indigenous territories. the Complainants acknowledged that 232. It is for the Complainants to show that the Omo peoples have not freely disposed of their natural sources and wealth located within the indigenous lands. The An Or~~aflof the African «~\\ Union ~'''''\i¥) ;"r'l- ACHPR /. . African Comrrussion on . Human and Peoples' Rlgtlts ouno Human Rights our Collective Responsibility evidence presented before the Commission by the Complainants does not disclose this. Unless there is compelling evidence to show that the Omo peoples were opposed to the construction of the Gibe III dam and that the lands upon which the Kuraz has so far been implemented are traditional lands forcefully acquired by the State, the Commission finds that there has been no violation of Article 21(1) of the African Charter. 233. In the circumstances, the Commission finds that the Respondent State has not violated the rights of the Omo peoples under Article 21(1) of the African Charter. Alleged violation of Articles 22(1) of the Charter 234. The Complainants allege that the Omo peoples' right to development under Article 22(1)of the African Charter has been violated as a result of the Respondent State's failures to conduct a proper impact assessment of the Gibe III dam and the Kuraz and to seek or obtain their free, prior and informed consent. 235. Article 22(1) of the African Charter provides that: to their economic, social and cultural development with due All peoples shall have the right regard to their freedom and idcntib] and in the equal enjoyment of the common heritage of mankind. In the Endorois case, the Commission noted that 236. The African Charter is the only binding international human rights instrument of right of the its kind that recognizes the right to development as a fundamental to collective. is two-pronged - that is, it is both constitutive and instrumental, or development useful as both a means and an end. The Commission held that fulfilling only one of the two prongs or a violation of either the procedural or substantive element of the right will constitute a violation of the right to development under Article to 22(1) of the African Charter.v By this Commission clarifies that the right is constitutive to the extent that it is recognized and protected by development to the extent that it entitles and empowers its holders to be law; it is instrumental to and participate in decision-making processes consulted, concerning them so that other rights are not violated. In all of this, the freedom of choice must be present as a part of the right to development.s- to contribute the right 237. Under international human rights law, is closely associated with the rights of peoples to self-determination and to freely dispose to development the right 82 Endorois case (n 32 above) para 277. 27 March 2009 para 7.6 '":rj' A· b;fl,I. HJ' '. ; ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility of natural Development, resource.v' In the United Nations Declaration on the Right to this is affirmed in Article 1(2) which provides that: The human right de iermina tion, which includes, Covenants on Human Rights, their ruiiural wealth and resources. to deuelopment also implies the full realization of the right of peoples to self- subject to the relevant provisions of both International the exercise of their inalienable right to full sovereignttj over all 238. Similarly, the Commission notes that Article 23 of the United Nations Declaration on the Rights of Indigenous Peoples provides as follows: peoples have the right for Indigenous to be In particular, exercising their right actively inoolued in developing and determining health, housing and other economic and social programl/les affecting them and, as far as possible, through their own institutions. to determine and deveLop priorities and strategies indigenous peoples have the right such programmes to development, to administer 239. In the Endorois case, the Commission cited with approval a Report of the United Nations expert mechanism on indigenous peoples' rights, which states in relation to development projects affecting indigenous people that the necessity for free, /I indigenous peoples are not coerced, prior and informed consent requires that pressured or intimidated in their choices of development."8S 240. As such, submission that The Complainants the Commission agrees with the Complainants' the enti tIes a community to be consulted prior to a decision that right to development affects it. The Complainants contend that the consultation must be conducted in good faith, in a culturally appropriate manner and with the objective of reaching a large-scale submitted agreement. is likely to have a major impact on the territory of a particular development free, prior community, the State and informed consent to it. And that if the project is allowed to proceed, must ensure mutually acceptable benefit sharing in the exploitation of natural resources and also improve the capabilities and choices of the affected group during the process. the State has a responsibility to obtain the community's that when further 241. The Complainants submitted that for the state to execute its responsibility in this regard, an impact assessment must be carried out before the decision is made submitted that by virtue of the whether to proceed further. The Complainants p. CHP~ PR Human Rights our Collective Responsibility Environmental Impact Assessment Proclamation 299/2002, an environmental and social impact assessment (ESIA) approved by the Ethiopian Environmental Protection Agency was necessary for holding consultations on the two projects. The Complainants contended that the requisite ESIA for the Gibe III dam was undertaken two years after construction began, while no assessment was undertaken for the Kuraz or, if at all, that that information relating thereto was never made public. The Complainants submitted that construction of the dam started in 2006 before environmental approval was received two years later in 2008. 242. In response, the Respondent State submitted that Ethiopia is recognized to have achieved inclusive growth and, as of 2015, was on track to meet most of the Millennium Development Goals (MDGs). The Respondent State also emphasized that Ethiopia remained one of the continent's most vulnerable countries. The Respondent State highlighted that it was in response to the food insecurity faced by over seven million people and the dependence by most ofits citizens on rain- fed agriculture amidst it launched the Growth and Transformation Plan (GTP). The Respondent State contends that the GTP places emphasis on ensuring effective public participation in implementation and monitoring of the Plan. The Respondent State also submitted that the Climate- Resilient Green Economy Strategy is also integrated into the GTP. increasing draught, that 243. The Respondent State also submitted that one important green resource identified in the Climate-Resilient Green Economy Strategy that will help the country reach its energy goal is hydroelectric power. The Respondent State contends that prior to the construction of the Gibe III dam, the country generated only 2000MW of electric power for a nation of almost 90 million inhabitants. The Respondent State submitted that the rural parts of the nation where most Ethiopians live, only a few households have access to electricity. As such, the Respondent State contends that it would be shirking from its responsibility if it fails to exploit its abundant hydroelectric power resources to achieve poverty eradication. An Organ of !he Africant~>~l Union ~~i/, Human Rights our Collective Responsibility measures. The process was participatory as the people of the areas concerned and other stakeholders, including the Nyangatom and Selamago Woredas found on the left side of the Omo River and also the people of Bacha, Dime, and Berayle who live on the left bank of the project area were consulted. 245. In the agricultural sector, the Respondent State submitted that it is implementing the Agricultural Growth Programme, which was designed to help increase agricultural productivity and market access for key crops and livestock in 83 districts, including the SNNPRS. The Respondent State submitted that both the Gibe III dam and Kuraz were borne out of a necessity to end the cycle of poverty and underdevelopment in Ethiopia and help lead the agricultural transformation in the country. 246. The Respondent State also submitted that the CDP is a water centered settlement scheme for people, livestock and crop production, which displaces no one. The Respondent State claimed that the primary reason for the CpP's existence is to boost food security and address the difficulties associated with making socio- economic services available to people who live in highly dispersed settlement, extension work possible, and health facilities, school, make agricultural veterinary clinics, flourrnills, and water supply more accessible. The Respondent State submitted that the CDP, which is a programme started in 1997 in the Benishangul regional state and now extended to other pastoralist communities in Ethiopia, is a purely voluntary programme. livelihoods, (PCDP). The PCDP, investment and disaster management 247. The Respondent State further submitted that the Government has also started the the Pastoralist Communities Development Project Respondent State submitted seeks to establish effective models of public service delivery, in the arid and semi-arid Ethiopian lowlands that address pastoral communities' priority needs, improve their their vulnerability. The Respondent State claims that the PCDP follows the principle of community demand-driven development where the beneficiaries of the project identify their own needs and contribute in cash and kind towards realizing them. And through the establishment of the Pastoralist Affairs Bureau in the SNNPRS, the Government is able to focus on issues that affect pastoral and agro-pastoral communities in the state, improve their lives, address the economic and social problems that affect them, and unlock their economic potential. alleviate poverty and reduce Human Rights our Collective Responsibility respect to policies and projects affecting their community.w The full disclosure of all information on the impact of the dam and the Kuraz project was essential for the peoples to exercise their freedom to choose or their free, prior and informed consent. The Commission public that consultations with the affected communities between 2006 and 2014, and that and on the web. public disclosure was made during However, there was ever such a and social impact assessment of the Kuraz Sugar disclosure of the environmental Project to the people, those consultations to show that the public or on the project websiteP there is no scintilla of proof the Respondent State held notes 249. Having ruled that allegation that to development the Complainants' the evidence before the Commission does not sufficiently the Omo peoples have not been support the Commission also finds that the evidence in support of adequately consulted, case does not establish that the Respondent State had violated the Complainants' the Gibe III dam. The in respect of right Omo peoples' Commission finds that the Respondent State made reasonable public disclosure on the impact of the dam through the national and local consultations held with the people and on the project's website. However, with respect to the Kuraz the Commission finds that there was no public disclosure of the impact project, livelihoods and way of life. The absence of of the project on the peoples' such critical information was fundamental to the peoples' exercise of their free, prior and informed consent to any development project affecting them. rights, 250. In the circumstances and for the avoidance of doubt, the Commission makes two the Commission findings on this issue. First, that in respect of the Gibe III dam, the Respondent State has not violated Article 22(1) of the African finds that Charter. Second, for the failure to undertake an ESIA or publicly disclose the report of the ESIA in respect of the Kuraz Sugar Project, the Commission finds that the Respondent has violated Article 22(1) of the African Charter. Alleged violation of Articles 24 of the Charter 251. The Complainants allege that the Respondent State violated Article 24 of the African Charter because the Respondent State failed to conduct a proper study of the environmental impact for both Projects to identify the risks the projects pose to public health. An Orqan of tne AfriqanU).;'·')) Union ~,,,"., :(:;,;~)ACHPR I,;\p' i I~ African Commission on <..1=; Human and Peoples' R qhts Human Rights our Collective Responsibility 252. Article 24 of the African Charter provides that: All peoples shall have the right to a general sati~factonj environment deuelopnte n t. favourable to their 253. In the Guidelines on the Right to Water in Africa, parties should ensure that both state and non-state actors alike respect of peoples to a satisfactory environment.f" the Commission noted that States the rights 254. Similarly, in the In the Ogoni case, the Commission held that to a general satisfactory environment clean, safe and healthy environment, State Parties to take reasonable measures promote conservation use of natural government's and secure an ecologically sustainable case, the Commission compliance with Article 24 of the African Charter: resources.s? In that the right of peoples not only entails the right of a people to a but also imposes an implied obligation on to avoid environmental degradation, development observed and that scientific monitoring of least permitting ... must also include ordering or at threatened environments, and social impact studies requiring and publicizing environmental prior to any major industrial deoelopnient, undertaking appropriate monitoring and providing to those C011l71l1.1I1itiesexposed to hazardous materials and activities and providing information meaningful in the development opportunities decisions affecting their conintunitiesw to be heard and to participate for individuals independent 255. The Complainants that the right of the people to both consultation the Constitution submitted recognizes views in the planning and implementation that affect them directly." The Complainants African Charter and its Constitution, meaningful assessment of the environmental at all of the impact of Kuraz. of environmental of the Respondent State and expression of their policies and projects submitted that in breach of both the the Respondent State failed to conduct any impact of Gibe III or any assessment submitted 256. The Complainants that that not only will Gibe III end the annual floods, the Omo people will no longer be able to recession cultivate sorghum, but that even if the millet, maize, peppers these are likely to be people are actually able to use the new irrigation channels, the Gibe III reservoir far less sustainable. The Complainants also submitted that will capture vast quantities of water which would have otherwise continued 600 or beans. The Complainants submitted 88 African Commission ,Guidelines all tile Right 30.3 & 33.2). 89 Ogoni case (n 75 above) para 52. 90 Ogoni case (n 75 above) para 53. 91 Ethiopian Constitution Article 91(3). An O;(lan of the African ({,roo Union \.", " ':\ to Wnter in Africa' (2019) para 10 (also paras 3.2, 16.5, 16.9, ----------------------------~~~~==~ Human Rights our Collective Responsibility km down the Omo. This, the Complainants submitted, will result in a reduction in the volume of water of between 57%and 60% in the river, and eliminate much of the riverine forest and woodland on which the Complainants are also reliant. The Complainants also submitted that the water reduction in the Lower Omo will further reduce or eliminate the peoples' access to the river to water their livestock and lead to a decline in fish stocks on which the Kwegus, the Nyangatoms and Daasenachs have traditionally relied. 257. With regard to the Kuraz, the Complainants the wholesale submitted that conversion of the Omo peoples' territory to sugar cane farms could hardly be "satisfactory" for the pastoralists because the sugar plantations have made it virtually impossible for them to pursue their customary way of life. The Complainants submitted that the public health risks associated with large-scale irrigation schemes include the increased transmission potential of vector-borne diseases, and especially malaria, which is already endemic in the lower Omo; the spread of disease agents such as HIV through the influx of large numbers of migrant workers, and the contamination of ground and surface water by factory emissions, and crop protection chemicals. The Complainants submitted that in the Awash Valley, below the Koka High Dam, the pollution of water resources by pesticides, herbicides and fertilizers used on commercial farms has been a particular problem for local people who have to use irrigation canals for all their domestic purposes as well as for watering their livestock. And that these problems are extremely likely to recur in the Lower Omo. fertilizers 258. In response to the Complainants' allegations, the Respondent State submitted that the allegations are for the most part based on fears and assumptions. The Respondent State submitted that it has a robust legal and policy framework on environmental issues that address the rights of its peoples. P The Respondent State submitted that development activities and projects are carried out in strict observance of environmental laws and rules, which if violated may be redress in the courts and through other administrative processes. The Respondent State submitted that the ESIA study on the dam was transparent, participatory and reflective of the concerns of the affected communities. The Respondent State submitted that during the consultation, many of those who participated were more concerned about the impact of the dam on the floods, their access to water for their livestock and fishing. Human Rights our Collective Responsibility implementing a seasonal release of controlled floods from the dam. Second is the long-term measure of training members of affected communities on more sustainable irrigation farming for improved yields and livestock production. These claims are supported by the written declarations of the Respondent's witnesses. The Respondent also debunked the Complainants' submissions that the construction of the dam will lead to a loss of vegetation cover, loss of fishing and access to the river for livestock was unsupported. 260. In the Ogoni case, the Commission found that the evidence of pollution caused by oil development on the territories of the Ogonis amounted to a violation of the people's right to a general satisfactory environment. In the present case, the Commission is not satisfied that the evidence provided by the Complainants have made out a case to show that the Respondent State has violated the peoples' right to a sa Lisfactory environment. There is also no evidence before the Commission that the development of the Kuraz has affected or will affect any vegetative cover or access to water for their livestock and for fishing in the South Omo zone. For the right to a general satisfactory environment to be considered to have been violated, a Complainant must prove that the existing conditions for normal life have been substantially upset by the activities of the Respondent or a third party supported by the Respondent. In the absence of any such evidence, the Commission finds tha t there has been no violation of Article 24 of the African Charter. Decision of the Commission on the Merit 261. In view of the above, the Commission: (i) (ii) Finds that the Respondent State has not violated the provisions of Articles 20(1),21(1),22(1) (in respect of Gibe III dam) and 24 of the African Charter. Finds that Charter in respect of the Kuraz Sugar Project. the Respondent State violated Article 22(1) of the African (iii) Requests the Respondent State to conduct an environment, social and human rights impact assessment study on the Kuraz Sugar Project to determine the potential or actual adverse impacts of the project on the indigenous peoples of the Lower Omo; or if the report of such a study already exists, requests that the Respondent State immediately discloses the report publicly and make it directly available to the affected peoples of the Lower Omo and the general public, within ninety (90) days of the notification of this decision. - An Off.)an (Jf the AfriGan (:~ "')) Union \'"",' ACHPR African Commission on Human and Peoples' f1iqhts Human Right.s our Collective Responsibility (iv) Requests the Respondent State to inform the Commission within one- hundred and eighty (180) days of being notified of this decision, the measures taken to implement the present decision in accordance with Rule 112(2)of the Rules of Procedure of the Commission 2010. Done in Banjul, The Gambia, from 19July - 2 August 2022during the 72nd Ordinary Session of the African Commission on Human and Peoples' Rights held from 19 July to 2 August 2022. African Commis 31 Bijil 59