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.
In 2001 Aberew Jemma Negussie abducted and raped 13-year-old Woineshet Zebene Negash, with the aid of several accomplices. Her abduction was reported to the police, who rescued her and arrested Mr. Negussie in Ethiopia. Evidence of the rape was documented in a medical report. Mr. Negussie was freed on bail and abducted Ms. Negash again, this time hiding her in his brother’s house for a month and forcing her to sign a marriage contract. She managed to escape. In 2003 Mr. Negussie was sentenced to 10 years’ imprisonment without parole and his four accomplices were each convicted of abduction and sentenced to 8 years’ imprisonment. However, on appeal, the Zonal Prosecutor recommended that the conviction be reversed. Accordingly, the High Court of Arsi Zone quashed the conviction on the basis that the evidence suggested consent, even though the Penal Code at the time provided that children under 15 were incapable of giving free and full consent to sexual intercourse. The five men were released. On appeal, the Cassation Bench of the Oromia Supreme Court held in 2005 that there had been no fundamental error of law. In 2006 the Cassation Bench of the Federal Supreme Court, declined to hear the case on the same basis. Consequently, in 2007, Equality Now and the Ethiopian Women Lawyers Association (EWLA) filed a complaint at the Commission on Ms. Negash’s behalf. They alleged violations of various provisions of the African Charter, regarding the right to equal protection of the law, protection from discrimination against women, integrity and security of the person, including freedom from cruel, inhuman and degrading treatment, as guaranteed by Articles 3, 4, 5, 6 and 18(3)).
Finding that Ms. Negash’s had exhausted local remedies, the Commission characterized the rape as “a serious violation of her dignity, integrity, and personal security as guaranteed under Articles 5, 4, and 6 of the [African] Charter, respectively.” The Commission held that the Ethiopian government “failed in its ‘duty to protect’” under Article 1 of the Charter by failing to prevent the rape, particularly in light of its awareness of the practice of marriage by abduction and of Ms. Negash’s previous abduction, or, in the words of the Commission, by failing to “adopt and implement laws and other measures to prevent violations including by non-state actors, or to provide for redress when the rights and freedoms have been violated.”
In relation to the government’s duty to prevent such acts by non-state actors, the Commission noted that awareness of the prevalence of the practice of marriage by abduction “required escalated measures beyond the criminalisation of abduction and rape under the criminal law that existed at the time”; it “required the Respondent State to adopt and implement heightened measures as a matter of urgency.” While acknowledging the state’s ability to decide on appropriate steps, it was instructive to note that the Commission outlined the type of measures that could have been adopted, including “immediately launching sensitisation campaigns in the area about the illegality of the practice of forced marriage by abduction and rape and the attendant penal consequences; providing direct security at the residences of girls attending school; conducting random patrols of the areas where the practice was rampant; or indeed requiring the owners of properties accommodating school-attending girls […] to adequately secure the premises.”
The Commission further found that although these acts were committed by private individuals, the Government’s failure to diligently investigate the criminal acts and respond appropriately through the judicial system violated Ms. Negash’s rights to integrity of her person (Art. 4), dignity (Art. 5), liberty and security of her person (Art. 6), protection from inhuman and degrading treatment (Art. 5),her rights to have her cause heard (Art. 7(1)(a)) and her right to protection of the law (Art. 3). Specifically, the Commission noted that “where the violations are of a criminal nature, the State has the duty to establish criminal responsibility by diligently investigating the violations with a view to ascertaining the facts; identifying the perpetrators; diligently prosecuting the perpetrators, and when convicted to adequately punish them. This is in addition to civil remedies that may be availed.” In the present case, the Commission held that the domestic courts’ operations in practice were “manifestly arbitrary and affront[ed] the most elementary conception of the judicial function” on the basis of inadequately reasoned rulings and the courts’ refusal to re-examine the matter in respect of the two key offenders.
However, the Commission declined to find discrimination contrary to Article 2 of the Charter because there was no showing that “a similarly situated person […] was accorded the necessary protection by the [Ethiopian government] or accorded justice for violations similar to those suffered by Ms. Negash.” In other words, whilst the Commission made reference to international recognition that gender-based violence constitutes discrimination against women, and to provisions of the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) and CEDAW regarding discrimination, the Commission stopped short of finding a violation of discrimination against women, on the basis that the complainant had failed to identify the ‘comparator’ in her argument that the respondent state had failed to ensure the same treatment it accorded to the others in analogous situations.
The Commission requested the Ethiopian government to pay Ms. Negash USD 150,000 in compensation for the non-material damage she suffered; adopt and implement escalated measures specifically to address marriage by abduction and rape, monitor such instances, and prosecute offenders, continue training judicial officers on specific human rights themes including on handling cases of violence against women, report to the Commission in 180 days on measures adopted; and include in its next periodic report statistics on prevalence of marriage by abduction and rape, documentation of any successful prosecutions, and any challenges faced.
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)