Wakilii

Mohamed and Others v Federal Democratic Republic of Ethiopia (Communication 455-13)

African Commission on Human and Peoples' Rights · [2023] ACHPR 6 · 2023 Petition Granted — Violations Found AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from the application of Ethiopia's Anti-Terrorism Proclamation No. 652/2009
Decision
Communication found admissible and violations of the African Charter established on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found Ethiopia's Anti-Terrorism Proclamation No. 652/2009 violated the African Charter. The law's vague and overbroad definitions permitted arbitrary arrests and detention of peaceful protestors exercising rights to freedom of religion, expression, association and assembly. Provisions allowing arrest without warrant, admission of intelligence reports without disclosure of sources, and hearsay evidence violated fair trial guarantees. Pre-trial publicity by government officials undermined the presumption of innocence. The Commission declared the Communication admissible despite non-exhaustion of local remedies, finding the eight-month delay before the Council of Constitutional Inquiry was unduly prolonged.

Outcome

Communication found admissible and violations of the African Charter established on the merits

Facts

In July 2011, the Ethiopian government began imposing the Ahbash sect on the Muslim community through coercive training of imams and religious leaders. Muslims peacefully protested and formed a Committee of Seventeen to negotiate with the government. In July 2012, the government arrested the Committee members and approximately 1,000 protestors, including the 29 complainants, characterising them as terrorists seeking to establish an Islamic state. The complainants were detained at Maikelawi detention facility, allegedly subjected to torture and mistreatment, held incommunicado for two and a half months, and denied access to lawyers and family. They were formally charged with terrorism offences under the Anti-Terrorism Proclamation No. 652/2009 in October 2012, three months after arrest. The government conducted pre-trial publicity campaigns declaring the complainants guilty before trial. The complainants challenged the constitutionality of the Anti-Terrorism Proclamation before the courts and the Council of Constitutional Inquiry, but their petition remained pending for eight months without decision.

Issues

  1. Whether Ethiopia's Anti-Terrorism Proclamation No. 652/2009 is so vague and overbroad that it violates the principle of legality under the African Charter.
  2. Whether the complainants' arrest and detention under the Anti-Terrorism Proclamation constituted arbitrary deprivation of liberty in violation of Article 6 of the African Charter.
  3. Whether the complainants were subjected to torture, cruel, inhuman or degrading treatment in violation of Article 5 of the African Charter.
  4. Whether the complainants' right to a fair trial under Article 7 of the African Charter was violated through pre-trial publicity, denial of legal representation, and evidentiary rules under the Anti-Terrorism Proclamation.
  5. Whether Ethiopia violated the complainants' freedom of religion under Article 8 of the African Charter by imposing the Ahbash sect and interfering with Muslim religious autonomy.
  6. Whether the Anti-Terrorism Proclamation and its application violated the complainants' freedom of expression under Article 9(2) of the African Charter.
  7. Whether the complainants' rights to freedom of association and assembly under Articles 10 and 11 of the African Charter were violated.
  8. Whether local remedies in Ethiopia were available, effective and sufficient, or whether they were unduly prolonged.

Orders

  • Communication declared admissible.
  • Violations of Articles 5, 6, 7, 8, 9, 10, 11 and 16 of the African Charter found.
  • No violation of Article 4 of the African Charter found.

Rules and key headnotes

Exhaustion of Local Remedies — Unduly Prolonged Remedies — Constitutional Interpretation by Non-Judicial Body
Where a complainant's constitutional petition before a Council of Constitutional Inquiry remains pending for eight months without decision, and domestic law requires resolution within 30 days, the remedy is unduly prolonged and the complainant is exempted from the requirement to exhaust local remedies under Article 56(5) of the African Charter.
Principle of Legality — Vague and Overbroad Criminal Legislation — Anti-Terrorism Laws
Anti-terrorism legislation that defines terrorism so broadly and vaguely that it fails to provide adequate notice of what acts constitute an offence, and that criminalises legitimate acts of protest, expression, and religious practice, violates the principle of legality and the right to liberty under Article 6 of the African Charter.
Fair Trial — Presumption of Innocence — Pre-Trial Publicity by State Officials
Where a government conducts coordinated pre-trial publicity campaigns through documentaries and official statements declaring accused persons guilty before trial, and continues such campaigns despite provisional measures ordering cessation, the right to presumption of innocence under Article 7(1)(b) of the African Charter is violated.
Fair Trial — Right to Examine Evidence — Hearsay and Intelligence Reports
Legislation permitting the admission of intelligence reports without disclosure of sources or methods of collection, and allowing hearsay evidence without access to primary sources or notice of witness identity, violates the right to examine and challenge evidence under Article 7 of the African Charter and renders a fair trial impossible.
Arbitrary Arrest and Detention — Arrest Without Warrant — Terrorism Legislation
Provisions of anti-terrorism legislation permitting arrest and detention without warrant based on intelligence reports that do not disclose sources, or based on hearsay or indirect evidence, create conditions for arbitrary arrest and detention in violation of Article 6 of the African Charter.
Freedom of Religion — State Interference in Religious Affairs — Imposition of Religious Sect
Government interference in the religious autonomy of a faith community by imposing a particular sect through coercive training, removing religious leaders who refuse to comply, and arresting those who peacefully protest such interference violates the freedom of religion under Article 8 of the African Charter.
Limitation of Rights — Proportionality — Anti-Terrorism Legislation
For a limitation on Charter rights to be justifiable under Article 27, the law must be sufficiently accessible and precise, pursue a legitimate aim, and be proportionate. Anti-terrorism legislation that imposes severe penalties including death for activities that include peaceful protest and minor property damage fails the proportionality test and cannot legitimise violations of Charter rights.

Legislation cited (11)

  • African Charter on Human and Peoples' Rights Articles 1, 4, 5, 6, 7, 8, 9, 10, 11, 16, 27, 56, 58
  • Anti-Terrorism Proclamation No. 652/2009 (Ethiopia) Articles 3, 4, 5, 6, 7, 19, 23, 25, 32
  • Constitution of the Federal Democratic Republic of Ethiopia Articles 9, 11, 13, 37, 78, 79, 83, 84
  • Proclamation 250/2001 (Ethiopia)
  • Proclamation 251/2001 (Ethiopia)
  • Proclamation 3/1995 (Ethiopia)
  • Proclamation No. 25/1996 (Ethiopia)
  • UN Convention against Torture Article 1, 11
  • Charities and Societies Proclamation (Ethiopia)
  • Mass Media and Freedom of Information Proclamation (Ethiopia)
  • Criminal Procedure Code (Ethiopia)

Cases cited (14)

  • Cudjoe v Ghana (Communication 221/98)
  • Human Rights v Swaziland (Communication 251/02)
  • Constitutional Rights Project v Nigeria (Communication 60/91)
  • Sir Dawda K Jawara v The Gambia (Communications 147/95 and 149/96)
  • Haregewoin Gabre-Selassie v Ethiopia (Communication 301/05)
  • Civil Liberties Organisation v Nigeria (Communication 129/94)
  • Kevin Mgwaga Gunme et al v Cameroon (Communication 266/03)
  • Anuak Justice Council v Ethiopia (Communication 299/05)
  • Monim Elgak and Others v Sudan (Communication 379/09)
  • Interights and Others v Mauritania (Communication 242/10)
  • Abdel Hadi, Ali Radi and Others v Sudan (Communication 368/09)
  • Media Rights Agenda v Nigeria (Communication 224/98)
  • Sudan Human Rights Organization and Center for Housing Rights and Evictions v Sudan (Communications 279/03 and 296/05)
  • Melaku Fenta and others case

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Mohamed and Others v Federal Democratic Republic of Ethiopia (Communication 455-13) [2023] ACHPR 6 (7 March 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.