The African Commission held that the Ethiopian government’s failure to take measures to prevent the abduction and rape of a minor girl and investigate and punish the perpetrators violated several obligations under the African Charter on Human and Peoples’ Rights, including the rights to integrity of person, dignity, liberty and security of person, protection from inhuman and degrading treatment, right to have cause heard, and protection of the law.
The parties to the case are requested to provide an update to the Commission on compliance with the decision within 180 days of being informed of the decision (4 March 2016). According to Equality Now, the Commission rejected the Government’s claims that it had already compensated Ms. Negash in accordance with a settlement allegedly reached with the EWLA acting on her behalf. The Government failed to present evidence of such compensation.
This case is an important consideration of the intersection of women’s rights and children’s rights, relevant to the abolishment of traditional practices affecting children’s health and representing a clear reiteration of the due diligence standard on violence against women (regarding state obligations to prevent, protect, punish and provide reparations in such situations), as developed in international law and as conceptualized in the framework of the mandate of the Special Rapporteur on violence against women, its causes and consequences.
The Commission characterizes forced marriage by abduction and rape as “one of the most repugnant traditional practices” and emphasizes that although rape is not listed under Article 5 of the Charter (right to respect for dignity and prohibition on torture, cruel, inhuman and degrading treatment), it is a grave violation often resulting in pain and “unimaginable mental anguish.” While the Commission commended the Government’s steps to eliminate “harmful customs” causing bodily or mental harm to women, it found that these measures were insufficient to meet the Government’s duty to protect and provide redress. The Commission’s emphasis on State responsibility, under the African Charter and international law, to prevent such violations is a significant victory. Additionally, the Commission found that monetary compensation for non-material damage should be determined as a matter of impression, taking all relevant circumstances into account. The Commission’s award of damages to Ms. Negash departs from its earlier focus on of declaratory relief and affirms the right to an effective remedy.
However, in relation to the claim of discrimination against women, the Commission applied a relatively narrow consideration of discrimination in situations of violence against women, where there will often be no obvious ‘comparator’. As such, the finding is not as progressive as certain comparative jurisprudence in which courts have adopted a broader approach in analysing indirect discrimination through a consideration of, among other factors, relevant statistical information, evidence outlining the specific context of vulnerable or disadvantaged groups requiring special protection (such as children), and less strict evidential rules allowing for a shifting burden of proof (i.e. where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent state, which must then show that the difference in treatment is not discriminatory). For an example of this approach, see D.H. v Czech Republic (European Court of Human Rights, App. No. 57325/00).
Equality Now, Ethiopian Women Lawyers Association (in early stages)