;"r'l- ACHPR
/. . African Comrrussion on
ouno
.
Human Rights our
Collective Responsibility
Human and Peoples' Rlgtlts
evidence presented before the Commission by the Complainants does not
disclose this. Unless there is compelling evidence to show that the Omo peoples
were opposed to the construction of the Gibe III dam and that the lands upon
which the Kuraz has so far been implemented are traditional lands forcefully
acquired by the State, the Commission finds that there has been no violation of
Article 21(1) of the African Charter.
233. In the circumstances, the Commission finds that the Respondent State has not
violated the rights of the Omo peoples under Article 21(1) of the African Charter.
Alleged violation of Articles 22(1) of the Charter
234. The Complainants allege that the Omo peoples' right to development under
Article 22(1)of the African Charter has been violated as a result of the Respondent
State's failures to conduct a proper impact assessment of the Gibe III dam and the
Kuraz and to seek or obtain their free, prior and informed consent.
235. Article 22(1) of the African Charter provides that:
All peoples shall have the right to their economic, social and cultural development with due
regard to their freedom and idcntib] and in the equal enjoyment of the common heritage of
mankind.
236. The African Charter is the only binding international human rights instrument of
its kind that recognizes the right to development as a fundamental right of the
collective. In the Endorois case, the Commission noted that the right to
development is two-pronged - that is, it is both constitutive and instrumental, or
useful as both a means and an end. The Commission held that fulfilling only one
of the two prongs or a violation of either the procedural or substantive element
of the right will constitute a violation of the right to development under Article
22(1) of the African Charter.v By this Commission clarifies that the right to
development is constitutive to the extent that it is recognized and protected by
law; it is instrumental to the extent that it entitles and empowers its holders to be
consulted, to contribute to and participate in decision-making processes
concerning them so that other rights are not violated. In all of this, the freedom
of choice must be present as a part of the right to development.s237. Under international human rights law, the right to development is closely
associated with the rights of peoples to self-determination and to freely dispose
82 Endorois
case (n 32 above) para 277.
27 March 2009 para 7.6
51
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