Ethiopia’s Human Rights Report to Universal Periodic Review (UPR): A critical overview of its preparation

Abstract

State reporting is one of the mechanisms established for supervising the implementation of human rights treaties in member states. This mechanism utilizes both Treaty-based and Non-treaty-based supervisory mechanisms: like the Universal Periodic Review (UPR). Universal Periodic Review involves a periodic review of the human right record of the UN member states. This mechanism is a unique process, which brings a new forum for UN members to work together on human rights issues. However, how effective this mechanism is in addressing the human rights issues of respective countries is a point of contention. Ethiopia as a member of the UN participated in this mechanism since its first report in 2009. Ethiopia has also presented its second and third cycle UPR report. In this article, the writer tries to explain the stages that Ethiopia goes through in the preparation of the UPR report. Attempt is also made to look into the setback observed in the process of preparing the second cycle UPR report of Ethiopia. The author observes that the report is prepared without meaningful participation of all relevant stakeholders.

Keywords:

• Universal Periodic Review
• United Nations Human Rights Council
• Ministry of Foreign Affairs
• drafting team
• National Committee

PUBLIC INTEREST STATEMENT

This article basically deals with one of the mechanisms used by states to assess the Human Rights Situations of States. Among these different mechanisms, state reporting is an important one established for monitoring the implementation of human rights treaties in UN member states. In this mechanism, states will report to the concerned international bodies and reviewed by other states about the progress they achieved and the challenged they faced. Ethiopia as a member of the UN has reported to the treaty bodies and the United Nation Human Right Council by adhering to this mechanism. This article will analyse the challenges and prospects Ethiopia goes through to prepare such reports. Especially, the Universal Periodic Reports, which member states of the UN requested to report every four-year and half.

1. Introduction

Human right is defined by (Sepúlveda et al., 2004) as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. These rights basically aim to safeguard human dignity from illegitimate coercion, typically enacted by state agents. These norms are codified in a widely endorsed set of international undertakings: the “International Bill of Human Rights” (Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Social and Economic Rights); and other specific treaties. (Brysk, 2002)

(Baehr & Castermans-Holleman, 2004) asserts that Human rights are internationally agreed values, standards or rules regulating the conduct of states towards their own citizens and noncitizens. For many years, several governments adopted, at least in theory, the notion of human rights as a guiding principle for the treatment of their nationals. (Baehr & Castermans-Holleman, 2004) noted that by using different mechanisms, governments also tried to influence the human rights situation in other countries.

(Sepúlveda et al., 2004) declares that the numerous human rights conventions under the framework of the United Nations and the regional systems have led to the creation of a wide range of mechanisms for monitoring compliance with the standards agreed upon. The various supervisory procedures established in human rights treaties can be divided into four main groups. These include—reporting procedures, interstate complaint procedures, individual complaint procedures, inquiries and other procedures (Sepúlveda et al., 2004).

Among these monitoring mechanisms, state reporting is one of the most extensively used mechanisms enshrined in legally binding human rights instruments or conventions (Iceland Human Right Center, n.d.). According to (Kjærum, 2009), state reporting is a tool to make the state accountable to international monitoring mechanisms, but it is also an important element in a State’s obligation to respect, protect and fulfill its commitment under Human Rights Instruments at the national level.

All UN human rights conventions require state party reporting: Article 16 International Convention on Economic Social and Cultural Rights (ICESCR), Article 40 International Convention on Civil and Political Rights (ICCPR), Article 9 Convention On Elimination of Racial Discrimination (CERD), Article 19 Convention Against Torture (CAT), Article 44 Child Rights Convention (CRC), Article 18 Convention on Elimination of Discrimination Against Women (CEDAW), Article 73 Convention on Migrant Workers (CMW) and Article 35 Convention On the Right of women with Disabilities CRPD set out a reporting procedure. Article 29 of the International Convention for the Protection of all Persons from Enforced Disappearance also requires reporting. Under the regional systems, reporting mechanisms are found under Article 21 of the European Social Charter, Article 19 of the Protocol of San Salvador, and Article 62 of the African Charter on Human and Peoples’ Rights (Iceland Human Right Center, n.d.).

In addition to such treaty-based state reporting mechanisms, the United Nations established another non-treaty-based state reporting and review procedure in 2006 through the Human Rights Council, which replaced the Human Rights Commission. The Council is responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinctions of any kind and in a fair and equal manner (UN General Assembly [Res, 60/251], 2006). Promoting the effective coordination and mainstreaming of human rights within the United Nations system is among the mandates (Res 60/251, 2006). In order to address the credibility deficit of the UNCHR, the HRC is made different in several respects (Tadesse, 2016). The most innovative aspect of the HRC that directly deals with the selectivity and politicization accusation leveled against the former UNCHR, however, is the UPR (Tadesse, 2016). The UPR was the most tangible innovation of the reform process that created the Council. It carries the burden of delivering on the promise of the reform (Abraham, 2007). According to Human Rights Council resolution no 5/1, the UN member states are expected to report regularly for review of their human rights records. Under this mechanism, Ethiopia reported the third Cycle UPR report on May 2019. The author, in addition to his participation on the preparation of the second UPR report, had the chance to attend the consultative meeting held for the third Cycle UPR report. This was helpful in preparing the UPR report in the country, but there still are practical challenges.

This paper will narrate and analyze the procedure the country followed in the preparation of the second cycle UPR report, and the respective challenges. While doing this, the author will mainly consult relevant conventions, guidelines, literature written on the subject and interviews of relevant individuals who participated in the preparation of the UPR report.

2. Universal Periodic Review (UPR)

The UPR is a process which involves a periodic review of the human rights records of all UN Member States (UPR Info, n.d.). The UPR is an important innovation of the Human Rights Council, which is based on equal treatment for all countries. As one of the main attributes of the Council, the UPR is designed to ensure equal treatment of every country when their human rights situations are assessed (United Nation Human Rights Council, n.d.).

The UN General Assembly (UNGA) on 15 March 2006 by Resolution 60/251 authorized the establishment of the UPR based on objective and reliable information. This means the information on which the review has to be undertaken should be in an honest and tangible report. In its preamble, the Resolution further states that the UPR should be conducted in a manner which ensures universality, objectivity and non-selectivity in the consideration of human rights issues by treating all States equally (Res 60/251, 2006). According to (Dolnguez-Redondo, 2012), this is with the view to avoid the problems of the previous Commission, which was criticized for not treating member states equally as some states were consistently immune from public scrutiny and the system was employing a confrontational, naming and shaming oriented selective approach in entertaining the human right situation of these states.

The UPR is a key element of the UN Human Rights Council which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms (UPR Info, n.d.). The ultimate aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur (UN Human Right Council 5/1, 2007). The reviews are to be done in cycles of four years, which implies, as stated in paragraph 14, that “48 States have to be reviewed per year during three sessions of the working group of two weeks each”.¹ The review is carried out in a working group composed of the President of the Council and the 47 Council Member States by a troika. The troika consists of individuals, who could come from member State delegations or be experts nominated by the State under review. A different troika is formed for each State review (Sunga, 2009).

The modality of the review is to take place based on the report prepared by the state concerned, which can take the form of a national report. States are encouraged to prepare the information through a broad consultation process at the national level with all relevant stakeholders.² Generally the UPR has the following four phases: (i) the gathering and collection of information on the human rights situation of the state under review (Conte, 2011);³ (ii) an interactive dialogue in the UPR Working Group, including the drafting of the “outcome” report; (iii) the final adoption of the “outcome” report, including recommendations to the state, by the plenary Council; and (iv) the “follow up” to the review (Mulugeta, 2009).

The Council adopted the calendar of review for the first year cycle, containing a list of 48 countries to be reviewed. Except for two countries⁴ that become volunteered for review during the first session of the UPR Working Group, other states are selected based on a process of selection that takes into account different considerations such as regional representation, reviewing Council’s members during their term of membership and accommodating volunteers. A mathematical model was also formulated by the Office of the High Commissioner for Human Rights (OHCHR) Secretariat, which was presented to all missions present in Geneva (Mulugeta, 2009).

UPR, the function of which is to deepen respect for human rights through the provision of feedback to member states on their human rights performance, has concluded its first cycle of review (McMahon, 2012). As of October 2011, the UN Human Rights Council has reviewed the human rights records of all 193 UN Member States (UN Human Right Office of the High Commissioner, n.d.). Starting from the 13th session of the council which was held from 21 May 2012–4 June 2012, UN member states have submitted their second cycle UPR report based on the schedule. The third cycle of the UPR report started to hear member states in its 27th session on 1 May 2017. Ethiopia has also submitted the third cycle UPR report, reviewed by the Council on 14 May 2019.

3. The contributions and limitations of UPR

UPR is mainly a State-driven process, under the backing of the UN Human Rights Council, which provides the opportunity for each State to pronounce what actions it has taken to improve the human rights situations and to fulfill its human rights obligations (UN Human Right Council, n.d). According to (Gomez & Ramcharan, 2018), the Review system provides an opportunity for all States to speak out what actions they have taken to advance the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. As stated in the UN resolution UPR is designed to ensure equal treatment for every country of the UN when their human rights situations are assessed by the institution established for this purpose (Res 60/251, 2006).⁵

It is also stated that the review shall be done in a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; however, such a mechanism shall complement, not duplicate, the work of treaty bodies (Res 60/251, 2006).

The ultimate goal of UPR is the improvement of the human rights situation in every country. It is designed to prompt, support, and expand the promotion and protection of human rights on the ground (Res 60/251, 2006). To achieve this, the UPR involves assessing States’ human rights records and addressing human rights violations wherever they occur. The UPR also aims to provide technical assistance to states and enhance their capacity to deal effectively with human rights challenges and to share best practices in the field of human rights among States and other stakeholders (United Nations Human Rights Council, n.d.). As stated in Article 2(b-f) of Res 60/251 (2006) it has also the purpose of assisting states in fulfilling the State’s human rights obligations, commitments, assessment of positive developments and challenges faced by the State; sharing the best practice among states and other stakeholders; support for cooperation in the promotion and protection of human rights and the encouragement of full cooperation and engagement with the Council, other human rights bodies, and the Office of the United Nations High Commissioner for Human Rights.

As the first cycle of UPR came to an end in 2012, several aspects of the UPR were deemed successful. First, all 193 UN member states had participated in a review of their human rights records, voluntarily subjecting their national activities to international scrutiny. Second, over 21,000 recommendations were issued and 74% of those recommendations were accepted by the states under review (UPR-info, 2014). This can be proven through the participation in the mechanism. Acceptance of recommendations is integral to the effectiveness of the mechanism (UPR-info, 2014).

However, there are questions that are raised against this mechanism. The main question is related to the binding nature of the UPR. The Recommendations by the states depend on acceptance by the state under Review (Conte, 2011). This means the state under review may not be forced to accept a recommendation without its own consent. The other problem is related to less participation of other relevant stakeholders in the whole process. Though stakeholders including National Human Rights Institutions (NHRIs) and Non-Governmental Organizations (NGOs) may attend sessions of the Working Group, only States have the right of audience to participate in the review dialogue. This can be mentioned as one of the shortcomings of the UPR process (Conte, 2011).

States have 4.5 years in between reviews to take action on the recommendations that they have received under the UPR state-led peer-review process. As there is no mandatory requirement to submit a mid-term report, it is not always clear how to check what efforts are made by states to improve the human rights situation based on the recommendations until the subsequent report is due. Too often, states have rushed towards implementation only as they began to get ready for the national reports for the subsequent reviews, resulting in the “checking off of boxes”, rather than addressing core causes of intricate problems (UPR-info, 2014).

Under the UPR System, the performance of states in the realization of human rights is evaluated by other states instead of independent legal experts. Scholars contend that political bodies are inappropriate for dealing with legal questions (De Frouville, 2011). The UPR system might be abused by the representatives of the states. Several civil societies have the opinion that governments use the UPR as a podium for grandstanding to defend their human rights record instead of rectifying their deficiencies (Hodenfield & Van Severen, 2015).

The other major obstacle that is noticed within the UPR process is that states in the Council often organize themselves and undertake their activities in groups and networks (Mulugeta, 2009). Regional alliance is a major force influencing the review process. It is observed that groups never issue statements that are critical of one of their own group members. In fact, states belonging to similar regional groupings often make statements praising the human rights situation in the state under review (Mulugeta, 2009).⁶

4. The second UPR report of Ethiopia

Ethiopia as a member of the United Nations submitted its first cycle UPR in December 2009 (UN Human Rights Council, 2010).⁷ The country has submitted a second cycle UPR report to the UN Human Rights Council in January 2014 and presented its report in May 2014. As stated in the guidelines established by the Council for the preparation of information under the UPR, the national report of the state under review must explain the legal and policy framework for the promotion and protection of human rights, including national jurisprudence and infrastructure relevant to the implementation of the basis of review, namely the UN Charter, the Universal Declaration of Human Rights, human rights treaties to which the state is party and any voluntary pledges and commitments made by the State, including those made if and when the State presented its candidature for election to the Human Rights Council (Conte, 2011). As this report was the second report of the state, it mainly focused on the recommendation provided in its first UPR Report.

After the report was brought to the state representatives, the members recommended Ethiopia to perform numerous tasks up to the upcoming report period and the country pledged to undertake a number of recommendations forwarded by UN member states and rejected some of them.⁸

However, it is essential to examine how the report of the country was prepared and how far the stakeholders were allowed to participate in the preparation of the same. As stated in the General guidelines, the second and subsequent cycles of the review should focus on, inter alia, the implementation of the accepted recommendations and the development of human rights situations in the state under review (UN Human Right Council, 2011). As a matter of principle, the preparation of the report has to go through a broad consultation process (UN Human Rights Council, 2011). But how far the UPR report preparation process of Ethiopia was made in broad consultation requires an enquiry.

As this author was a member of the drafting team in outlining the report, an attempt will be made to narrate the procedures that the drafting team followed in the preparation of the second UPR report. In doing so, attempts will be made to figure out the strengths as well as the weaknesses observed in the preparation of the country report.

4.1. Procedures followed in the preparation of the UPR report

4.1.1. Preliminary activities

The Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia (The Ministry of Foreign Affairs) which was previously mandated to take the leading role in the preparation of the countries human right reports and accordingly took the initiative by notifying other governmental ministries about the date on which Ethiopia should submit its second UPR report (Reta, Personal communication, 21 August 2018).⁹ In late August 2013 the national committee, composed of main stakeholder ministries, was established under the chairmanship of the Ministry of Foreign Affairs. These were the six ministries,¹⁰ the Office of Government Communication (not existing in this time) and the FDRE Human Right Commission of Ethiopia. These members prepared the term of reference, which guided them as to how each ministry may handle its respective mandate. As stated in the term of reference, the member of the national committee should have a title of department head level official in their respective offices. In the term of reference, the national committees are mandated with tasks that are performed by individual ministries as well as in a group as a national committee.

Before the establishment of the national inter-ministerial committee, the Ministry of Foreign Affairs formed a drafting team.¹¹ In fact the legal experts in the drafting team had already begun working on preliminary activities like observing the second UPR report documents of other countries,¹² how these countries tried to address the recommendations provided to them, streaming the recommendation provided for Ethiopia in the first cycle into different categories, assessing the new laws that the country came up with after the recommendations given to the state and other related tasks. In fact, the activities undertaken by the drafting committee have assisted the National Committee to classify the mandate of each ministry.¹³

Unlike the Ethiopian case, the experience of other countries shows that they give mandates for institutions, in which such institution will entertain the UPR recommendations and identify key institutions to provide information for follow-up reports. For example, The Directorate for Human Rights and Democracy in Mexico plays a key role in collecting and entering recommendations in a database and in identifying key institutions to provide information for follow-up reports (“United Nations Human Rights Office of the High Commissioner,” 2016). The Directorate is responsible for responding to follow-up questions and recommendations from treaty bodies and the universal periodic review (“United Nations Human Rights Office of the High Commissioner,” 2016).

However, it should be mentioned that though the term of reference clearly stipulates the mandate of each ministry, they were not in a position to undertake their respective mandates except a few ministries (Felasfaw, Personal communication, 29 December 2018).¹⁴ This was partially because of the fact that they believed that this work is a mandate to be assumed only by the Ministry of Foreign Affairs (Felasfaw, Personal communication, 29 December 2018). Beyond this, it was observed that there was some sort of perplexity as to whether the Ministry of Foreign Affairs or the Ministry of Justice was the appropriate institution to take the leading mandate in the preparation of the national reports. Though this was raised at the expert level, it was not discussed at a higher official level. It was a point of contention among the experts (Reta, Personal communication, 21 August 2018).

At this juncture, it is important to note that the preliminary activities are mainly done by the Ministry of Foreign Affairs International Legal Department without the involvement of other relevant stakeholders.¹⁵ This was partially because of the fact that previously there were no clear guidelines on how these kinds of reports are to be prepared. Previous experience of the country shows that these kinds of reports were done on an ad-hoc basis by selecting some experts from different governmental offices. This has its own negative impact on the quality of the report and the overall objective of the UPR. However unlike the Ethiopian case, United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein in 2016 noted that many States have increasingly adopted comprehensive, more efficient and sustainable approaches to reporting, engagement and follow-up through the establishment of a new type of governmental structure, known as a national mechanism for reporting and follow-up, especially in the context of the Human Rights Council’s UPR (“United Nations Human Rights Office of the High Commissioner,” 2016).

According to the National Mechanisms for Reporting and Follow-up guidelines, National Human Rights Institutions (NHRIs) should by their very nature remain independent, often ensured by involving them in meetings of the national mechanism for reporting and follow-up, without membership status or voting rights (“United Nations Human Rights Office of the High Commissioner,” 2016). However, the practice observed and the term of reference prepared for the preparation of the second UPR report of Ethiopia clearly stated that the Ethiopian Human Rights Commission was a member of the national committee for the preparation of the report. Though the national committee was set up, the respective participation of these committee members was not to the expected level and the main tasks were handled by the Ministry of Foreign Affairs (Felasfaw, Personal communication, 29 December 2018).

4.1.2. Data gathering

Data gathering was the most challenging phase in the preparation of the second UPR report of Ethiopia. Though the Ministry of Foreign Affairs planned to send letters to relevant ministries and regional bureaus, it was finally believed that the regional offices cannot send the required data based on the stated short span of time. Therefore, it was taken as a position to focus on the report that would be sent by the respective ministries on the development they achieved in terms of human rights protection and promotion. However, most of them failed to provide a detailed and clear report. Some of the ministries simply sent their annual reports without clearly addressing the specific questions that were sent to them to address in terms of progress in the realization of human rights (Bethlehem, Personal communication, 29 December 2018).¹⁶

However, it is important to mention that some ministries like the Ministry of Education and the Ministry of Health provided detailed and comprehensive data regarding the progress achieved in their respective fields. However, the reports of these did not show the progress the state made after the first UPR recommendations. The other major obstacle was that most individuals who were assigned to prepare this report in their respective ministries were not legal experts. They were not clear even what UPR is and what is required from the state to include within the report. This was partially because of the fact that individuals in the ministries do not have exposures to such reports and lack of proper documentation in these ministries. This highly affects the timely gathering of all required data from governmental agencies.

After noticing these problems, the Ministry of Foreign Affairs together with the National Committee was forced to prepare a half-day training for the individuals who were assigned to prepare the reports of the respective ministries (Reta, Personal communication, 21 August 2018).¹⁷

Most ministries were reluctant to submit their report. Almost all ministries were not submitting their report in due time. What is worse is that ministries, like the Ministry of Labor and Social Affairs that served as a member to the National Committee for the preparation of the second UPR report were not able to submit the report in due time. In order to facilitate the gathering of the report from each ministry, the drafting team made an arrangement to follow their progress by a phone call. This was done with a belief that the ministries would give emphasis for the issue and would send their respective reports based on the letter sent to each ministry (Reta, Personal communication, 21 August 2018).

Despite the fact that most ministries were reluctant to send their report, the drafting team took the option of using the yearly Growth and Transformation plan (GTP 1)¹⁸ annual reports prepared by the then Ministry of Finance and Economic Development (MoFED), which is a detailed and supportive document for the report preparation. However, due to the fact that the latest report of the Ministry did not get the approval of the council of the ministries, the experts in MoFED were highly reluctant to give the report as it did not receive the approval of the Council of Ministries (Bethlehem, Personal communication, 29 December 2018). It is also important to note that Human rights work for that matter monitoring of the progress of the right itself has become a specialized profession which requires adequate preparation, specific technical skills, and significant substantive knowledge of the right in order to be effectively conducted (United Nations Publication, 2001). Unfortunately, most of the data brought by these institutions are prepared by focal persons who were not equipped with these skills.

During the data gathering, what was done was to focus on the Federal governmental office reports without crosschecking them with other stakeholders. This can be mentioned as a defect of the data gathering in the preparation of the second UPR Report, which was done without the involvement of other relevant stakeholders like the civil societies and regional states (United Nations Publication, 2001). This is against the very aim of UPR. As stated in Resolution 60/251which is adopted by the General Assembly to establish the UN Human Rights Council, the report by the UN member states for the UPR should be based on objective and reliable information. However, during this stage as the whole data are mainly collected from federal governmental institutions without the meaningful participation of the regional governments, and hence the objectivity as well as the reliability of these data is a point of contention.

4.1.3. Analyzing and synthesizing the data

After the data were collected from the respective governmental institutions, the experts in the drafting team tried to arrange the information gathered. Most of the information collected was in Amharic¹⁹; consequently, there was a need to translate these documents in English, the language of the National UPR report. Unfortunately, reports prepared by the respective ministries were unclear and fragmented. Moreover, almost all reports gathered from these institutions lack proper analysis of their respective activities from the recommendations given to the state during the first UPR.

The drafting team organized a tentative outline for the preparation of the UPR report and members of the drafting team were divided into groups for the preparation of the draft report. The outline includes introduction, international cooperation and best practices, civil and political rights, economic social and cultural rights, groups in need of special protection and human right education and awareness. At this stage, one of the demanding tasks was to analyze and synthesize the fragmented and unclear reports prepared and sent by the respective ministries (Felasfaw, Personal communication, 29 December 2018). Therefore, this limitation forced the legal experts to repeatedly request detailed information and data from the respective ministries.

Though the national committee scheduled to meet twice a week to evaluate the progress and come up with solutions in cases where the national drafting team faced problems and difficulties, most of the time only some of the members showed up, and some of them did not have a proper knowledge of the subject matter under investigation. As most of the individuals assigned for this task were busy with different responsibilities in their respective offices, the main task was finally pushed to the Ministry of Foreign Affairs and the drafting team (Reta, Personal communication, 21 August 2018).²⁰ The other major challenge to the drafting team was sending contradictory information and data from different ministries to the drafting team.²¹

Finally, the drafting team was able to come up with zero draft report of 69 pages. Then, this document was opened for discussion to the national committee and that of legal experts in the international legal department of the Ministry of Foreign Affairs. In fact, this zero draft was a very huge document when compared with the final report to be submitted to the UN Human Rights Council.²² As the zero draft was prepared based on the first classification of tasks by the drafting team, it includes repetitive information in the different parts of the report (Reta, Personal communication, 21 August 2018).

At this stage, the Ministry of Foreign Affairs with the financial support of the Ethiopian Human Rights Commission arranged a three-day intensive discussion and revision on this zero draft. This discussion was held by the participation of legal experts from the Ministry of Foreign Affairs, National Committee members and the Drafting team. For the sake of a detailed discussion on the subject, three categories were made. The first was responsible for issues pertaining to the report part that deal with the socio-economic and cultural rights. The second dealt with the civil and political right and the last one dealt with the issue pertaining to groups that needs special attention (Bethlehem, Personal communication, 29 December 2018). After each group investigated the assigned tasks, it identified issues that were properly addressed and issues that needed further investigation by the drafting team. This was done taking into account the recommendations provided after the first UPR report and the respective brief statement about the implementation of the accepted recommendations. This was a very successful discussion to incorporate all relevant issues within the draft report that helped to reduce redundant ideas incorporated in different parts of the report. After this discussion, the drafting team together with the legal experts from the Ministry of Foreign Affairs took the initiative to reduce the huge zero draft at least by half. After this meeting, the national drafting team tried to incorporate different issues that were not covered by the previous draft UPR report.

It is important to mention that issues which were considered as politically sensitive matters got the attention of the members of the National committee.²³ It was also a point of contention for the members of the National Committee on how the terms used in the draft report should be crafted to address recommendations under the first UPR report.²⁴ In fact, some of the accepted recommendations provided in the first UPR report were addressed evasively without precise description about the implementation of these accepted recommendations. This partly happens because of the fact that the members of the national committee were cautious about the politically sensitive issues that may get the attention of the Government (Felasfaw, Personal communication, 29 December 2018). The second one relates to the fact that as all members of the committee were government representatives their thought focused only on the interest of the government rather than a real commitment on the part of them to evaluate the human right situation in the country. However, this is against the very aim of UPR. States are required to show the challenges and constraints that they are facing in relation to the implementation of accepted recommendations (UN Human Right Council 5/1, 2007).

4.1.4. Consultative workshop

Though it was planned to undertake a consultative workshop in the term of reference, it was not undertaken as it was planned. However, the International Law Legal Department in Ministry of Foreign Affairs sent the documents to senior legal experts and diplomats to give their comment on the Draft UPR prepared by the drafting team which is composed of junior and middle-level legal experts. The content of the report was highly enhanced by these senior experts. In fact, these experts also requested further work on some issues that needed the focus of the drafting team. Considering the feedback and comments by these senior experts the drafting team enhanced the content of the report. However, the preparation of the report failed to allow a meaningful participation of other nongovernmental stakeholders to have a say on the report (Felasfaw, Personal communication, 29 December 2018). This will be against the very philosophy of the UPR, which requested the participation of all relevant stakeholders in the preparation of the report. In fact, the nonexistence of strong civil societies in the country especially after promulgation of the former charities and societies proclamation in the country may contribute to this problem.²⁵

4.1.5. Validation workshop

The validation workshop was undertaken to verify whether the report includes the required elements and assess the credibility of the information incorporated in the report. Before the validation workshop was undertaken, the Ministry of Foreign Affairs together with the National Committee listed out the names of the institution to be invited for the sake of verifying the report. There was disagreement among the members of the National Committee on issues whether the civil societies should be invited for the validation workshop. Finally, an agreement was reached to invite few civil societies to take part in the validation workshop (Bethlehem, Personal communication, 29 December 2018).²⁶ The draft report was sent to these invited governmental institutions, religious institutions, civil societies and both governmental and non-government owned media.

The validation workshop was scheduled to take place in Addis Ababa. After a discussion was made between the Ministry of Foreign Affairs and the Ethiopian Human Rights Commission higher officials’ agreement was reached to cover all financial issues regarding the cost required for the workshop by the Ethiopian Human Right Commission (Reta, Personal communication, 21 August 2018). It is important to note that almost all institutions which were represented in the validation workshop were governmental office representatives. This may lead us to say that the second National UPR report lacks sufficient involvement of Non-governmental institutions. Though the report was prepared in English, the presentation and discussion that was held in the workshop was done in Amharic. As the document was sent to these institutions very late most of the participants clearly stated that they had not gotten sufficient time to read the entire document and give feedback to the drafting team. Most of them appreciated the task done by the drafting team and recommended the incorporation of some missing data in the report.

It can be said that the validation workshop was not as such fruitful, as the participants were not given enough time to read; consequently, they failed to give critical comments on the content of the report. This will have a great impact both on the quality and reliability of the second UPR report. For a fruitful discussion, stakeholders should get the draft UPR report in advance to give their respective comments. However, it seems that the validation workshop was undertaken merely to comply with the procedural requirement stated for the preparation of the UPR report.

In this regard, it is important to mention the experience of Ireland in the preparation of its UPR Report. The Department of Justice and Equality which is empowered to take this mandate calls all stakeholders to have submissions to be sent in email on the human right situation in Ireland. This is with the view to hear on priority issues that stakeholders believe should have a place in Ireland’s second National UPR Report. Unlike Ethiopia, Ireland also organized a separate civil society consultation event to discuss issues raised in the submissions (UPR, 2017).

4.2. Submitting the second UPR report to the UN Human Right Council

The draft report was finalized after incorporating all relevant feedback gathered in the validation workshop. According to the schedule set by the Human Right Council the last date for submission of the Ethiopian UPR report was 27 January 2014. However, Ethiopia submitted the main report on 30 January 2014 and later the Corrigendum on 29 April 2014 to delete paragraph 105.²⁷ After the document was submitted to the human rights council, countries raised a list of questions prepared in advance based on the report. The questions were referred to Ethiopia through the troika (Report of the Working Group on the Universal Periodic Review Ethiopia, 27th session).²⁸ An attempt was also made by the drafting team and other legal experts at the Ministry of Foreign Affairs to address questions raised by these states.

4.3. The second UPR report presentation and review

Ethiopia presented its UPR report to the UN Human Rights Council with a delegation composed of high-level Government officials, experts and other stakeholders.²⁹

The UN human rights council on 15 January 2014 selected three states (group of rapporteurs (troika)) to facilitate the review of the report submitted by Ethiopia. These states were the Czech Republic, Kazakhstan and Namibia. Finally, the council in its 17th meeting, held on 8 May 2014, the Working Group adopted the report on Ethiopia (Report of the Working Group on the Universal Periodic Review Ethiopia, 27th session).

The president of the UN Human rights council invited the Ethiopian delegation to present the report to the podium. Ethiopian representatives noted the podium that the report was made in a transparent and participatory approach in which all relevant stakeholders participated in the preparation of the UPR Report (UN Human Rights Council [Meeting events], n.d.). It is stated relevant stakeholders like governmental institutions, religious organizations, civil societies, youth, women and worker association, business community and the media participated in the validation and consultative workshop (Meeting events, n.d.). However, though the consultative workshop was planned in terms of reference, it was not undertaken partially on financial and time constraint related issues. However, the business communities did not participate in the validation workshop. In fact, the participation of other stakeholders was simply a matter of mere presence in the validation workshop without any meaningful contribution (Bethlehem, Personal communication, 29 December 2018).

After the Ethiopian delegation presented the UPR report to the council, an interactive dialogue commenced and in this interactive dialogue, 112 delegations made comments and questions to Ethiopia (Report of the Working Group on the Universal Periodic Review Ethiopia, 27th session). A total of 252 recommendations were given to Ethiopia and 170 recommendations got full support of Ethiopia. The state also stated that about 11 recommendations had already been performed or in the process of implementation at the time of review, 18 recommendations were taken to respond in due course and 53 recommendations were rejected (Report of the Working Group on the Universal Periodic Review Ethiopia, 27th session).³⁰

5. Some points on the preparation third UPR report of Ethiopia

Ethiopia submitted the third UPR report to the UN Human Rights Council in May 2019. Unlike the previous UPR reports of the country, the preparations of this report undertaken by the FDRE Attorney Generals office, the office undertook this mandate with the involvement of other government offices. The team within this office was also mandated to prepare the Convention against Torture (CAT) and ICCPR reports of the country personal communication (Misker, Personal communication, 20 January 2020).³¹ The team attempted to prepare the report with the involvement of relevant stakeholders (Misker, 20 January 2020). However the team, which is mandated to prepare the report, has faced multiple challenges similar to what were observed in the preparation of the second UPR report of the country (Nigussie, 25 January 2020).³² Though the drafting team under the FDRE Attorney General plans to undertake both consultative and validation workshops, because of time constraints the team failed to undertake a separate meeting for consultation and validation on the contents of the report (Misker, 20 January 2020). Unlike that of the second UPR report preparation, in the third report the change in the government has its own impact on wide and open participation of relevant stakeholders (Misker, 20 January 2020). The country also managed to incorporate reports on the progress of noted recommendations that were rejected and failed to get the acceptance of the government before the reform. This can show that the political willingness on the part of the government has its own impact on accepting and implementing recommendations made to the Country.

6. Concluding remarks and recommendations

The UPR is a State-driven process, supported by the UN Human Rights Council. This mechanism provides for each State to declare what actions it has taken to improve the human rights situations in their respective countries. After coming into existence of this mechanism, a lot has been said as to its importance and shortcomings. Ethiopia as a member of the UN submitted the third report and was reviewed by the UN member states. As stated in the UPR report preparation guideline, the report preparation and the whole process that the reporting country goes through while preparing the report should allow for the participation of all relevant stakeholders in a transparent way. The report should be based on objective and reliable information. As a member of the drafting team, this author had the opportunity to look at the preparation of the report. It lacks meaningful participation of all relevant stakeholders from the early stage of preparing the report to the validation workshop. The objectivity and reliability of the information on which the report is based upon is also questionable. It was observed that even the governmental institutions lack the proper expertise about the recommendation given to the country and its respective mandates in the proper implementation of these UPR recommendations.

Lack of proper documentations in different ministries and offices of the government is also another challenge for the preparation of the UPR report. In this regard, the preparation of the second report was mainly made by individual efforts than institutional-based mechanisms. This clearly has a negative impact on the quality as well as timely delivery of the report.

The author recommends the following measures to be taken regarding UPR reporting and other human rights report preparations in Ethiopia. The first one is related to establishing a permanent office. It is good to establish a permanent office, which is responsible to prepare the different periodic National Reports of the country. Preparing these Human Rights reports using an ad-hoc drafting team and temporary National committees will have a negative impact on the quality of the report, on documentation as well as financial-related issues. Using an ad-hoc team to prepare country reports normally face the same capacity constraints every time they constitute a new drafting committee.

The second one is related to awareness creation. There should be awareness creation on the part of the governmental institution as to the states duties under international law. There are multiple Human Rights reports that should periodically be submitted by the country to the respective international and regional human rights monitoring organs. If the institutions are aware of the UPR and other Human Rights reports they can bring informative data that clearly shows the progress made by the state taking in to account previous UPR recommendations given to the state. This does have a direct relation to the quality of the report made by the state.

The third one is related to the wide range participation of relevant stakeholders. The report preparation in the country should be done with a meaningful participation of all concerned stakeholders in the different phases of the preparation. Along with all relevant stakeholders, the federal government should give a chance for the federating states and civil societies to participate meaningfully in the preparation of the Human right reports.

Additional information

Funding

The author received no direct funding for this research.

Notes on contributors

Zewdu Mengesha Bashahider

Zewdu Mengesha Bashahider is an Assistant Professor of law at Bahir Dar university school of law and serving the School as Vice Dean for graduate program, research and community service. He has research interest on law of treaty, International Human Right law, and International Watercourse law dealing with the River Nile. In addition to his take part as a legal expert in the preparation of the second Universal Periodic Review (UPR) report of Ethiopia, he has a chance to take part in research for assessing Ethiopia’s progress after the second UPR report and presented the finding to relevant stakeholders. Which the finding used as an input for the parallel UPR reports prepared by the Civil Societies.

Notes

1. This is because of the fact that during that time we have 192 Member States to the UN. This was before south Sudan became a member of the UN.

2. Relevant stakeholders include non-governmental organizations and national human rights institutions.

3. Peer review under the UPR is conducted on the basis of information from three primary sources: (1) a national report from the State under Review; (2) a compilation prepared by the OHCHR of recommendations to the State by UN human rights mechanisms; as well as (3) information provided by other stakeholders.

4. These countries were Switzerland and Colombia.

5. Under Art 5(e), it is stated that the council should undertake UPR based on objective and reliable information of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.

6. Look at pp. 19–20 (Mulugeta, 2009). A Joint NGO Statement made on Item 6, eighth session, Human Rights Council, 13 June 2008 stated that: “On the UPR Working Group, we note the value of a cooperative approach but express serious concern at the practice of some States which have been lining up only to praise their allies. This approach runs contrary to the agreed principle that the UPR should be conducted in an ‘objective, transparent, non-selective, constructive, non-confrontational and non politicized manner’. In this sense, the UPR has not lived up to the expectations of a move away from the ‘politicization’ of the past. Indeed, in many cases, this ‘politicization’ has seemed more pronounced than ever.”

7. Look at pp. 14–22, during this time the delegation is only composed of five members. In this interactive dialogue a statement was made by 53 delegates. Finally, 98 recommendations get the support of Ethiopia, 12 recommendations are noted to provide responses in due time and 32 recommendations did not enjoy the support of Ethiopia.

8. In the second cycle, Ethiopia accepted 188 of the recommendations out of a total of 252.

9. Mr Reta Alemu, former Director General of International Law Department at the FDRE Ministry of Foreign Affairs. After the promulgation of proc.no.916/2008 which defines the Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia, the mandate to prepare the Ethiopian national report regarding the implementation of human rights in the country is given to the Federal Attorney General. See Art. 16(17) of proc.no.916/2008.

10. The six ministries were - the former Ministry of Justice, the Ministry of Foreign Affairs, the former Ministry of Federal Affairs, the former Ministry of Finance and Economic Development; the Ministry of Labor and Social Affairs and the former Ministry of Children, Women and Youth Affairs. Some of the ministries are currently changed. That is why this article will use the former name of these ministries.

11. The drafting team was composed of young legal experts, who have no previous experience in engaging in similar tasks. In fact, the team was under the close supervision of the Director General for International Legal Affairs. One of the challenging issues was how the payment to the drafting team members may be covered. After long bureaucratic hurdles, it is finally arranged that the Ethiopian Human Rights Commission agreed to pay monthly salary for three members of the drafting team.

12. The legal experts were investigating the report made by countries like China, Jordan, Nigeria, Senegal, Bangladesh and the United Arab Emirates. The states were selected taking into account the reporting time. i.e. the states which have already submitted and presented the second UPR Report.

13. Classification of these 98 accepted recommendations into some sub-category helps the drafting team and the national committee to sort out the respective ministries and offices from where the very information about the implementation of each UPR recommendation can be sought. Finally, assignment is given to the drafting team to collect information from the respective ministries to assess what activities are undertaken after these recommendations are given to Ethiopia.

14. Mr Felasfaw Mulugeta served as a member of the drafting team in the preparation of the second UPR report of Ethiopia. He noted that—“there are even some ministries which assigned individuals who were not working at the time in their respective offices. These Ministries assigned an individual who was previously working in their respective ministries. For example, the national committee member representing the Office of Government Communication was from another government office. This causes some challenge to collect important updated information and data from the ministries.”

15. The non-involvement of relevant stakeholders in the preliminary stage of preparing the report may have an impact on the quality as well as how far the participatory requirement is fulfilled by the state’s report. As it is stated in the report, a national consultative workshop, co-organized by the Ministry of Foreign Affairs and the Ethiopian Human Rights Commission (EHRC) with the technical assistance of the Office of the UN High Commissioner for Human Rights, East Africa Regional Office was held in December 2010 aimed at awareness raising and implementation of the accepted recommendations.

16. Ms Bethlehem Ayalew was a member of the drafting team, in the preparation of the second UPR report of Ethiopia; Currently working as legal officer in the Ministry of Foreign Affairs of Ethiopia. According to her, even some ministries are simply sent their annual report and the first Growth and Transformation Plan progress report without any further explanation as to the progress made since the state received a recommendation after the first UPR report.

17. Mr Reta noted that the training mainly aims at introducing the experts as to what UPR means, the state duty in reporting UPR, what is expected from each ministry in providing relevant information for the drafting team and devising a modality on how each ministry can cooperate in preparing the National Report.

18. The GTP is a five-year development plan Ethiopia introduced in 2010/11. The main goal of the plan is to address social, economic and justice sector and good governance issues.

19. According to Art 5(2) the Federal Democratic Republic Ethiopia Constitution, Amharic is the working language of the Federal Government. That is why most ministries sent their report in Amharic.

20. This can be cited as evidence that the report is done mainly with a few individuals’ efforts rather than with the involvement of relevant stakeholders.

21. For example, the data on the access to safe drinking water in Ethiopia are contradictory. According to the Federal Democratic Republic of Ethiopia ministry of finance and economic development, annual report for the F.Y 2011/12, the national water coverage in the country increased from 52.12% in 2010/11 to 68.4% in 2012/13. The other data from The Federal Democratic Republic of Ethiopia, ministry of Water, Irrigation and Energy water supply sector performance, on October 2013, note that for the same period, the rural and urban water supply coverage increased from 48.85 to 66.5 and 74.64 to 81.3, respectively. On the other hand, the report stated in the national Human right Action Plan in the year 2011 states that the national rural coverage of clean water has reached 71.3% while the national urban coverage has reached 92.5% in the same year. Thus, the national clean water coverage has reached 73.3% in 2011. This can show how much the data brought from different ministries are contradictory.

22. Based on the UN Human Right Council 5/1 (2007) document. Under D(1)(a) it is provided that the written presentation summarizing the information will not exceed 20 pages, to guarantee equal treatment to all States and not to overburden the mechanism, which is approximately 20 pages or 11,000 words. However, later it was decided that the report should be a maximum of 10,700 words.

23. For example, the issue of the existence of Internally Displaced Persons (IDP) in the country was a point of discussion among the national committee and that of the drafting team. Some of the members of the national committee strongly insisted on this issue and noted that the state should report the non-existence of IDP in the country. This is due to the fact that accepting the existence of IDP in the country may lead to comments from other states.

24. In this regard, some members of the National Committee note that we should be cautious in using terms when we address politically sensitive issues like civil and political right related recommendations. On the other hand, other members of the National Committee repeatedly note that the report should be genuine taking into consideration the very nature of the universal periodic review.

25. According to the previous Charities and Societies Proclamation No. 621/2009, only Ethiopian Charities or Societies can work on human rights in the country, and they may be deemed as Ethiopian Charities or Ethiopian Societies if they use not more than 10% of their funds which is received from foreign sources.

26. Ms Bethlehem noted that, though some members of the committee raise the need for the participation of all relevant civil societies in the validation workshop, other members noted that the involvement of civil societies will not have any meaningful contribution for the purpose of enhancing the UPR report, they will distort the very validation workshop by exchanging unnecessary words with the government representative. Finally, agreement was reached to call a few civil societies like Human Rights Council (HRC) Vision Ethiopia Congress for Democracy (VECOD) Ethiopian Human Rights Service (EHRS) and Ye Ethiopia Ye Fiteh Seratoch Ma’ekel (Centre for Legal Pluralism in Ethiopia). Of these civil societies, only VECOD is presented in the validation workshop.

27. National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Ethiopia, corrigendum A/HRC/WG.6/19/ETH/1/Corr.1 Advance Unedited Version http://www.ohchr.org/EN/HRBodies/UPR/PAGES/ETIndex.aspx.

28. The countries include the Czech Republic, Germany, Mexico, the Netherlands, Norway, Portugal, Slovenia, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland.

29. The review of Ethiopia was held at the 13th meeting on 6 May 2014. The Ethiopian delegation was composed of five state ministers and eighteen high-level government officials and experts.

30. Look this document from pp. 13–28.

31. Mr Mesker Tariku is a Director of Civil Justice Administration and Public Prosecutor at the FDRE Attorney General, and he served as a member of the drafting team to prepare the third UPR report of Ethiopia.

32. Mr Nigussie Tizazu is a Higher Public Prosecutor at the FDRE Attorney General and served as a member of the team in collection of data for the preparation of the third UPR report of Ethiopia.