Substance
Equality / non-discrimination – article 2
The right to non-discrimination/equality is ‘imperative for the respect and enjoyment
of all other rights and freedoms protected in the Charter (African Commission on
Human and Peoples’ Rights v Kenya, application 006/2012, Judgement, 26 May
2017, para 137). The scope of this right extends beyond equal treatment of the law
and has practical dimensions which allows individuals to enjoy the rights enshrined in
the Charter without distinction (African Commission on Human and Peoples’ Rights v
Kenya, application 006/2012, Judgement, 26 May 2017, para 138)
The right not to be discriminated against (article 2 ACHPR) is associated with the
right to equal protection by the law (article 3(2) ACHPR) (Tanganyika Law Society,
The Legal and Human Rights Centre v The United Republic of Tanzania, application
009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania,
application 011/2011, judgment, 14 June 2013, (Separate Opinion of Judge
Ouguergouz), para 119); (African Commission on Human and Peoples’ Rights v
Kenya, application 006/2012, Judgement, 26 May 2017, para 138).
However, in the separate opinion of Judge Ouguergouz, the principle of nondiscrimination applies to the rights enshrined in the African Charter, whereas the
principle of equality applies to all the rights applicable within the municipal legal
system even where they are not provided for by the Charter. And where it is found
that a different treatment was meted out to different sets of people, the Court must
clarify that differential treatment does not necessarily mean discrimination (Mtikila,
paras 36 - 37).
The expression ‘any other status’ as part of the prohibited grounds of discrimination,
refers to grounds of discrimination ‘which could not have been foreseen during the
adoption of the Charter’. The Court would therefore take into account the ‘general
spirit of the Charter’ in determining a ground falls under this category (African
Commission on Human and Peoples’ Rights v Kenya, application 006/2012,
Judgement, 26 May 2017, para 138).
While differential treatment on the specified grounds, are generally prohibited, not all
forms of distinction or differentiation amount to discrimination. A distinction or
differential treatment only qualifies as discrimination ‘when it does not have objective
and rational justification and, in the circumstances where it is not necessary and
proportional (African Commission on Human and Peoples’ Rights v Kenya,
application 006/2012, Judgement, 26 May 2017, para 139).
The refusal to recognise an indigenous community (Ogiek) as a tribe, which would
enable them access to their lands, while other communities similarly placed were
granted such recognition amounted to an unjustified distinction based on ‘ethnicity’ or
‘other status’ (African Commission on Human and Peoples’ Rights v Kenya,
application 006/2012, Judgement, 26 May 2017, paras 141 & 142).
The protection of the right to non-discrimination in legislation per se is not enough to
fully guarantee the right. The right can be effectively enjoyed ‘only when it is actually
respected’ (African Commission on Human and Peoples’ Rights v Kenya, application
006/2012, Judgement, 26 May 2017, para 144). Thus, the failure of a state to
recognise an indigenous community cannot be justified by a purported need to
preserve the natural ecosystem in a forest which serves as the dwelling place of the
indigenous community and consequently amounts to a violation of article 2 of the
Charter (African Commission on Human and Peoples’ Rights v Kenya, application
006/2012, Judgement, 26 May 2017, paras 145 & 146).