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iconRightToLifeiconFreeFromTortureiconLibertyiconEqualLaw Equality Now and Ethiopian Women Lawyers Association (EWLA) v. Federal Republic of Ethiopia (2016): states must take action to prevent and protect women from abduction, rape and forced marriage
Rape; abduction; forced marriage; marriage by abduction
African Commission on Human and Peoples’ Rights 

 

What happened? | What was the decision? | Commission recommendations |
Learning from other institutions | Significance 

 

What happened?

Woineshet Zebene Negash was 13 years old when she was abducted for the first time by several men and raped by Aberew Jemma Negussie (“A.N.”). She was rescued by the police and A.N. was subsequently arrested. Evidence of rape was documented in a medical report. however A.N. was released on bail. Shortly after his release, Woineshet was abducted and raped again. She was held captive in the home of A.N.’s brother and forced to sign a marriage contract. After enduring a month of detention and suffering multiple acts of rape, Woineshet escaped. She reported what had happened, and A.N. and his accomplices were arrested again. A.N. was sentenced to 10 years imprisonment without parole. The other men were convicted of abduction and faced 8 years of imprisonment.

Following their second arrest and conviction, A.N. and his accomplices filed an appeal. At this point, the prosecutor assigned to Woineshet’s case appeared to sympathise with the men, despite his duty to present her case against them. During the appeal, he stated that a woman could not be raped unless she was a virgin. Throughout the proceedings, it was clear that the prosecutor generally supported the acquittal of A.N. and his accomplices – although at one point he did suggest that there should be a retrial of two of the accused.

At the end of the trial, the bias of other officials within the Arsi Zonal High Court became clear. The presiding judge decided to overturn all of the convictions, disregarding the prosecutor’s suggestion that at least two of the men’s cases could be retried. This is because the judge held that the evidence presented suggested that Woineshet had, in fact, consented to the acts committed against her – therefore, no crime could have taken place. In delivering his decision the judge also went further to declare that “no one” would rape a woman who wasn’t a virgin. Later evaluation of this decision would reveal that no clear evidence was offered to support this conclusion or for the High Court’s decision to overturn the convictions.

Woineshet’s lawyers submitted two appeals against the decision of the Arsi Zonal High Court, to no effect. At this point, with all of the domestic remedies available to Woineshet exhausted, Equality Now and the Ethiopian Women Lawyers Association took her case to the African Commission on Human and Peoples’ Rights (the “Commission”).

Throughout her 15-year pursuit of justice, Woineshet endured a multitude of threats and was forced to seek asylum in a different country. A.N. and his accomplices continue to enjoy impunity in Ethiopia and have not been arrested.

What was the decision?

The Commission decided that Ethiopia was responsible for violating Woineshet’s human rights, specifically:

  • African Charter on Human and Peoples’ Rights
    • Article 3: Right to equality before the law and equal protection of the law
    • Article 4: Right to life
    • Article 5: Prohibition of torture and cruel, inhuman and degrading treatment
    • Article 6: Right to personal liberty and protection from arbitrary arrest
    • Article 7(1)(a): Right to a fair trial/right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force

In considering Woineshet’s story, the Commission first recognised she had been deprived of her dignity, integrity and personal security while abducted and raped by A.N. and his accomplices. Outside of the formal justice system, detention of a person becomes kidnapping or abduction (para. 116) – and a violation of the right to liberty and security of person (Article 6). And, at the heart of Article 5 of the Charter (Prohibition of torture and cruel, inhuman and degrading treatment) is the right to respect of human dignity, which “…entails each human being is a moral agent possessed with the conscience and personal volition to decide what happens to his or her body.” (para. 118). To guarantee the dignity of a human being, certain acts must be prohibited, including all forms of degradation and exploitation. This includes rape (para. 120):

In the Commission’s view, by rape, the victim is treated as a mere object of sexual gratification against his or her will and conscience. The victim is treated without regard for the personal autonomy and control over what happens to his or her body. By rape, the personal volition of the victim is gravely subverted and disregarded, and the victim is reduced from being a human being who has innate worth, value, significance and personal volition, to a mere object by which the perpetrator can meet his or her sadistic sexual urges. Inevitably, rape may, and often does, inflict physical pain and invokes in the victim a sense of helplessness, worthlessness, and gross debasement, which cause unimaginable mental anguish beyond the physical suffering. Clearly, rape degrades and humiliates the victim. Thus, even though not expressly listed under Article 5 of the Charter, rape is one of the most repugnant affronts to human dignity and the range of dignity-related rights, such as security of the person and integrity of the person, respectively guaranteed under Articles 6 and 4 of the Charter.

For the Ethiopian State to be held accountable for these violations suffered by Woineshet, the Commission would need to determine that it had failed to meet its obligations under international human rights law.

Failure to Prevent.

Starting with Article 1 of the African Charter on Human and Peoples’ Rights (the “Charter”), the Commission noted the dual obligation all states parties have to recognise and give effect to the rights and freedoms of all individuals within its jurisdiction. This means that states parties must do more than formally recognise the Charter, they must also take action to respect, protect, promote and fulfil the rights and freedoms expressed within it. Consequently, if any state fails to meet these obligations as a result of inaction, it may incur international human rights responsibility for having done so.

Once Ethiopian officials became aware of the danger Woineshet faced, they should have taken all appropriate action to ensure she was secure in her rights and freedoms. This did not happen. In fact, there were several moments during Woineshet’s pursuit of justice that indicated that the state could be held responsible.

When Woineshet was rescued by authorities after her first abduction, the state became aware of the danger she faced – yet no efforts were made to protect her. Ethiopian officials released A.N. without clear explanation and without any additional measures to deter him from attacking again. And when Woineshet was abducted a second time, she was forced to suffer for over a month without help from police or any other state official.

The state also had knowledge of the high occurrence of abduction and rape young girls faced in Woineshet’s area. However, no preventative measures (e.g. securing dormitories, such as the one where Woineshet lived; sensitisation campaigns) were taken. Though abduction and rape were criminal offences, this criminalisation was seen to be ineffective when the public learned A.N. had been released and perpetrators were not being punished.

In these regards, Ethiopian officials had failed to prevent the violations suffered by Woineshet.

Failure to Protect.

According to the Commission, “the duty to protect also entails the duty to provide for a mechanism or take measures for redressing violations when they occur” (para. 133). This includes an obligation to investigate violations; identify perpetrators; diligently prosecuting perpetrators; and adequately punishing them if found guilty.

Although the Commission could not challenge or overturn the domestic court’s decisions regarding A.N. and his accomplice’s guilt, it could evaluate the court system’s proceedings and conduct. In Woineshet’s case, the Commission determined that Ethiopian officials had “clearly failed” (para. 134) to investigate what had taken place; identify all who took part in the acts perpetrated; and had not adequately delivered any punishment for their crimes. In addition, the Arsi High Court had wilfully chosen to disregard the prosecutor’s assertion that two of the men could be retried and acquitted all men of their charges. No clear reason was given for the acquittals.

From the facts available, the Commission recognised the failures of the prosecutor and Arsi High Court demonstrated, noting that they had “suffered no concern about rendering any form of justice to Ms Negash [Woineshet]” (para. 134). These failures were repeated and reinforced by the Oromo Supreme Court and Federal Supreme Court as Woineshet was denied the opportunity to appeal against the acquittals.

While the Ethiopian state was not guilty of abducting and raping Woineshet, it was clear that the state’s failure to prevent and protect her resulted in a violation of her basic rights and fundamental freedoms, as required by international human rights law. For its misconduct and inaction, the state was responsible for violating Woineshet’s rights under Articles 3, 4, 5, 6 and 7(1)(a) of the Charter.

Was this a case of discrimination?

Although the Commission had decided Woineshet’s rights under Article 3 of the Charter had been violated, it also considered whether this violation had been the result of gender-based discrimination. To make this determination, the Commission moved to consider Article 3 in conjunction with Article 2 of the Charter. This is because Article 2 “embodies the principle of non-discrimination which reinforces the equality rights under Article 3 by prohibiting unjustifiable discrimination” (para. 143).

Under Article 2, two basic entitlements were owed to Woineshet: 1. To enjoy the rights under the Charter; 2. Not to be discriminated against in the enjoyment of the rights and freedoms under the Charter. Previously the Commission had determined that discrimination against women occurred when, for example, the victims were exclusively women or that the victims suffered more violence compared to men in the same circumstances (e.g. EIPR and INTERIGHTS v. Egypt). In Woineshet’s case, the Commission was unable to identify a “comparator” (i.e. a case where the circumstances were the same, but involved a male victim). Additionally, the Commission held the it was “…difficult to find that the Respondent State distinctively failed to protect Ms Negash’s rights by preventing the abduction and rape as compared to others similarly situated.” (para. 150). Unfortunately, for these two reasons, the Commission held that it could not confirm the harm suffered by Woineshet was due to gender-based discrimination, as there was a lack of comparative evidence. And, as such, the Commission decided not to conclude that a violation of Woineshet’s rights under Article 2 had occurred.

As the Commission had already determined Articles 3-7 were violated, it stated that there was no need to consider the violations through the lens of gender-based discrimination.


Commission recommendations

 
As a result of their conclusions, the Commission requested Ethiopia:

  • Pay Woineshet Zebene Negash $150,000.00 as compensation for the non-material damage she suffered as a result for the affirmed violations
  • Adopt and implement escalated measures to specifically deal with marriage by abduction and rape; monitor instances of marriage by abduction and rape
  • Diligently prosecute and sanction offenders
  • Continue training judicial officers on specific human rights themes including on handling cases of violence against women
  • Report to the Commission within 180 days on the measures adopted to implement the above recommendations; and also include in its next periodic report yearly statistics on the prevalence of marriages by abduction and rape, cases of successful prosecutions and challenges face, if any

Learning from other institutions

Throughout the text of the case document, Woineshet’s story was supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document).

Significance

Woineshet’s case was the first time the Commission had considered and issued a decision on a rape, abduction and forced marriage case. Thanks to Woineshet and the work of her defenders, the decision sets a legal precedent that affirms both the rights of girls and the responsibility of states to take positive action to uphold those rights – specifically in cases involving rape and abduction. In this case, that responsibility includes monitoring the occurrence of marriage by abduction, adequately training judicial officers, and promptly prosecuting perpetrators.

Thanks to pressure from EWLA and Equality Now, Ethiopia moved to change its Penal Code in 2004. Although Woineshet would not get justice through the Commission until 2015, this was an important advancement for gender equality. Ethiopia not only removed the exemptions rapists received if they married their victims, but introduced more severe penalties for rape.

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