Wakilii

Indigenous Peoples of the Lower Omo v Federal Democratic Republic of Ethiopia (Communication 419-12)

African Commission on Human and Peoples' Rights · [2022] ACHPR 24 · 2022 Petition Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication brought by Survival International Charitable Trust on behalf of seven indigenous peoples of the Lower Omo (Ethiopia) alleging violations of the African Charter on Human and Peoples' Rights arising from two development projects: Gibe III hydroelectric dam and Kuraz Sugar Project
Decision
Communication partly allowed. Ethiopia found to have violated Article 22(1) of the African Charter in respect of the Kuraz Sugar Project but not in respect of the Gibe III dam. No violation found of Articles 20(1), 21(1), or 24. Remedial orders issued requiring impact assessment and reporting.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the seven indigenous communities of the Lower Omo (Bodi, Daasanech, Hamar, Karo, Kwegu, Mursi, Nyangatom) constitute 'peoples' and 'indigenous peoples' under the African Charter. The Commission found that Ethiopia did not violate Articles 20(1), 21(1), or 24 by proceeding with the Gibe III hydroelectric dam, as evidence showed adequate consultation occurred. However, the Commission found a violation of Article 22(1) (right to development) in respect of the Kuraz Sugar Project due to the failure to conduct and publicly disclose an environmental, social and human rights impact assessment before commencement. The Commission ordered Ethiopia to conduct such an assessment within 90 days and report on implementation within 180 days.

Outcome

Communication partly allowed. Ethiopia found to have violated Article 22(1) of the African Charter in respect of the Kuraz Sugar Project but not in respect of the Gibe III dam. No violation found of Articles 20(1), 21(1), or 24. Remedial orders issued requiring impact assessment and reporting.

Facts

Seven indigenous pastoralist communities (Bodi, Daasanech, Hamar, Karo, Kwegu, Mursi, Nyangatom) in Ethiopia's Lower Omo region depend on annual floods from the Omo River for flood-retreat cultivation, livestock grazing, and traditional livelihoods. In 2006, Ethiopia commenced construction of the Gibe III hydroelectric dam upstream, which would eliminate annual floods and replace them with controlled releases. Concurrently, Ethiopia launched the Kuraz Sugar Project, converting traditional grazing lands to sugar cane plantations. Survival International brought this communication on behalf of the communities, alleging they were not consulted, not afforded the opportunity to give free, prior and informed consent, and that no proper environmental impact assessments were conducted before projects commenced. Ethiopia argued extensive consultations occurred through elected representatives and community meetings, and that both projects were essential for national development and poverty alleviation. The communities feared reprisals for speaking publicly about the projects.

Issues

  1. Whether the indigenous peoples of the Lower Omo constitute 'peoples' within the meaning of the African Charter entitled to collective rights under Articles 20 to 24.
  2. Whether the Respondent State violated the right to self-determination under Article 20(1) of the African Charter by failing to provide the Lower Omo peoples with an opportunity to effectively participate in decisions regarding the Gibe III dam and Kuraz Sugar Project and to give or withhold their free, prior and informed consent.
  3. Whether the Respondent State violated Article 21(1) of the African Charter by depriving the Lower Omo peoples of their natural resources (annual floods and grazing lands) through the Gibe III dam and Kuraz projects.
  4. Whether the Respondent State violated Article 22(1) of the African Charter by failing to conduct proper environmental and social impact assessments before commencing the two projects and by not obtaining the free, prior and informed consent of the affected peoples.
  5. Whether the Respondent State violated Article 24 of the African Charter by failing to ensure a general satisfactory environment favourable to the development of the Lower Omo peoples.

Orders

  • Complaint declared admissible in accordance with Article 56 of the African Charter.
  • Respondent State has not violated Articles 20(1), 21(1), 22(1) (in respect of Gibe III dam) and 24 of the African Charter.
  • Respondent State violated Article 22(1) of the African Charter in respect of the Kuraz Sugar Project.
  • Respondent State requested to conduct an environment, social and human rights impact assessment study on the Kuraz Sugar Project to determine potential or actual adverse impacts on the indigenous peoples of the Lower Omo; or if such a report already exists, to disclose it publicly and make it directly available to the affected peoples and the general public, within ninety (90) days of notification of this decision.
  • Respondent State requested to inform the Commission within one-hundred and eighty (180) days of being notified of this decision of the measures taken to implement the present decision in accordance with Rule 112(2) of the Rules of Procedure of the Commission 2010.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Indigenous Peoples — Absence of Effective Remedies
Where a State Party asserts that effective and sufficient local remedies are available, the onus is on that State to prove the assertion. A remedy that lacks binding powers on government does not meet the standard of effective and sufficient remedies required under the African Charter. The Ethiopian Human Rights Commission, lacking binding decision-making power, does not constitute an effective remedy for purposes of exhaustion. Where a complainant demonstrates indigence, no free legal aid is available, and foreign organisations are barred from litigation, undue formalism should not require exhaustion of local remedies.
Indigenous Peoples — Definition and Recognition under the African Charter — Criteria for Identification
For a group to be considered an indigenous people under the African Charter, they must satisfy four criteria: self-identification as a distinct collectivity with recognition by other groups; occupation and use of a specific territory; voluntary perpetuation of cultural distinctiveness; and experience of subjugation, marginalisation, dispossession, exclusion or discrimination. Pastoralist communities living on the fringes of society with historical lack of access to services qualify as indigenous peoples entitled to protection under Articles 20 to 24 of the African Charter.
Self-Determination — Right to Effective Participation — Free, Prior and Informed Consent — Indigenous Peoples
The right to self-determination under Article 20(1) of the African Charter includes the right of indigenous peoples to effectively participate in decision-making processes and to give or withhold free, prior and informed consent to development projects that will have a major impact on their territories. Consent is 'free' when given without coercion; 'prior' when given after consultation and before the decision is made; and 'informed' when given after receiving all relevant information in an understandable form. Mere consultation with village chiefs and elected representatives is insufficient if it does not lead to effective participation of the communities themselves, including women, persons with disabilities and the elderly.
Right to Dispose of Natural Resources — Indigenous Peoples — Ancestral Lands — Annual Floods as Natural Resource
Article 21(1) of the African Charter protects the right of indigenous peoples to freely dispose of their natural resources located in ancestral lands. 'Natural resources' is a broad concept encompassing renewable and non-renewable resources, tangible and intangible, including water resources. Indigenous peoples' access to and use of natural resources in their territory are intrinsically related to their rights to life, food, self-determination and existence as a people. States have an obligation to ensure the free, prior informed consent of indigenous populations before exploitation of resources on their traditional lands and to ensure they benefit accordingly.
Right to Development — Procedural and Substantive Elements — Environmental and Social Impact Assessment — Indigenous Peoples
The right to development under Article 22(1) of the African Charter is both constitutive (recognized by law) and instrumental (entitling holders to be consulted and participate in decision-making). The right requires that indigenous peoples be consulted prior to decisions affecting them, that consultations be conducted in good faith and in a culturally appropriate manner, and that free, prior and informed consent be obtained for large-scale developments likely to have major impact on their territories. An environmental and social impact assessment must be carried out and publicly disclosed before a decision is made to proceed with such a development. Failure to conduct or publicly disclose such an assessment violates Article 22(1) even if the project ultimately proceeds with community support.
Right to a General Satisfactory Environment — Duty to Conduct Impact Studies — Monitoring and Public Disclosure
The right to a general satisfactory environment under Article 24 of the African Charter imposes an obligation on States to take reasonable measures to avoid environmental degradation and promote ecologically sustainable development. Government compliance includes permitting independent scientific monitoring of threatened environments, requiring and publicizing environmental and social impact studies prior to major industrial development, undertaking appropriate monitoring, providing information to communities exposed to hazardous materials, and providing meaningful opportunities for individuals to be heard and participate in development decisions affecting their communities. For a violation to be established, a complainant must prove that existing conditions for normal life have been substantially upset by the activities of the State or a third party supported by the State.

Legislation cited (23)

  • African Charter on Human and Peoples' Rights Art 20(1)
  • African Charter on Human and Peoples' Rights Art 21(1)
  • African Charter on Human and Peoples' Rights Art 22(1)
  • African Charter on Human and Peoples' Rights Art 24
  • African Charter on Human and Peoples' Rights Art 56
  • African Charter on Human and Peoples' Rights Art 60
  • Constitution of the Federal Democratic Republic of Ethiopia Art 9(4)
  • Constitution of the Federal Democratic Republic of Ethiopia Art 39(1)
  • Constitution of the Federal Democratic Republic of Ethiopia Art 40(4)
  • Constitution of the Federal Democratic Republic of Ethiopia Art 40(5)
  • Constitution of the Federal Democratic Republic of Ethiopia Art 43(3)
  • Constitution of the Federal Democratic Republic of Ethiopia Art 91(3)
  • Rural Land Administration and Land Use Proclamation No. 456/2005
  • Environmental Impact Assessment Proclamation 299/2002
  • Charities and Societies Proclamation (Ethiopia)
  • Proclamation 455/2005 on Expropriation of Land Holdings for Public Purposes and Payment of Compensation
  • International Covenant on Civil and Political Rights Art 1(1)
  • International Covenant on Civil and Political Rights Art 1(2)
  • International Covenant on Economic, Social and Cultural Rights Art 1(1)
  • International Covenant on Economic, Social and Cultural Rights Art 1(2)
  • UN Declaration on the Rights of Indigenous Peoples Art 3
  • UN Declaration on the Rights of Indigenous Peoples Art 23
  • Vienna Declaration and Programme of Action Art 10

Cases cited (15)

  • Article 19 v Eritrea (Communication 275/2003)
  • Cudjoe v Ghana (Communication 221/98)
  • Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endorois case)
  • Zimbabwe Lawyers for Human Rights and Another v Zimbabwe
  • Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
  • Purohit and Another v The Gambia (Communication 241/2001)
  • Gunme and Others v Cameroon (Communication on file)
  • Communications 279/03 and 296/05 - Organisation and another v Sudan (2009) AHRLR 153
  • Anuak Justice Council v Ethiopia
  • Lehtinen v Finland (2006) ECtHR (Application no 43160/98)
  • Exceptions to the Exhaustion of Domestic Remedies (art. 46(1), 46(2) and 46(2)(b) American Convention on Human Rights), Advisory Opinion OC-11/90 of Aug. 10, 1990
  • Communication 1159/2003 v Burkina Faso (2003) HRC
  • Apirana Mahuika v New Zealand (Mahuika case), Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/517/1993 (2000)
  • Saramaka People v Suriname Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs. Judgment of August 12, 2008. Series C No. 185
  • Pueblo Indigena Kichwa de Sarayaku v Ecuador, Fondo y reparaciones, Judgment of 27 June 2012 Series C No. 245

Full judgment

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