-------------------------------------------------------------------------------[FN3] Vide UN Committee on Human Rights General Comment No 18 (XXXVII/1989), pp103-106)
for a fuller discussion on non-discrimination in the ICCPR.
-------------------------------------------------------------------------------64. All parties are agreed that any measure which seeks to exclude a section of the citizenry from
participating in the democratic processes as the amendment in question has managed to do, is
discriminatory and falls foul of the Charter. Article 11 of the Constitution of Zambia provides that
there shall be no discrimination on the grounds of "race, place of origin, political opinions, colour,
creed, sex or marital status..." The African Charter has "national or social origin..." which could be
encompassed within the expression "place of origin" in the Zambian Constitution. Article 23(1) of the
Zambian Constitution says that parliament shall not make any law that "is discriminatory of itself or
in its effect..."
65. The Respondent State, however, seeks to rely on some exceptions as justification in Zambian law
for the exception. It is held that the right to equality has limitations which are justifiable and that the
justifications are based on Zambian law and the Charter.
66. Article 11 of the Zambian Constitution states clearly that the right to non-discrimination is
"subject to limitations..." Among the limitations reference is made to Article 23(5) which provides
that:
... nothing contained in any law shall be held to be inconsistent with or in contravention of clause (1)
to the extent that it is shown that it makes reasonable provision with respect to qualifications for
service as a public officer..." It is argued that following a consultative process, the Zambian people
were of the view that the Office of President be subject to the additional qualification that the
President be "an indigenous Zambian candidate of traceable descent."
67. There has been some persistent confusion in arguments before us between "limitations" and
"justification". Limitations refer to what may be referred to as the statute of limitations which gives a
lower threshold of enjoyment of the right. Such limitations are allowed by law or provided for in the
Constitution itself. In the African Charter these would typically be referred to as the ‘claw-back'
clauses. "Justification" however applies in those cases where justification is sought setting perimeters
on the enjoyment of a right. In other words, there has to be a two-stage process. First, the recognition
of the right and the fact that such a right has been violated but that, secondly, such a violation is
justifiable in law. The Vienna Declaration and Programme of Action (1993) has affirmed that "all
human rights are universal, interrelated, interdependent..." and as such they must be interpreted and
applied as mutually reinforcing. It is interesting to note for example, that Article 2 does not have a
‘claw-back' clause while Article 13 limits the right to "every citizen" but goes on to state that "in
accordance with the law."
68. In the matter before us therefore the Government of Zambia concedes that the measures were
discriminatory but then goes on to argue (1) a limitation of the right, and (2) justification of the
violation. It is argued that the measure was within the law and Constitution of Zambia. It was stated
before the Commission that Zambia has a constitutional system of parliamentary sovereignty hence
even the Supreme Court could not "attack" an Act of Parliament (as Sakala JS put it). The task of the
Commission, however, is not to seek to do that which even the Zambian courts could not do. The
responsibility of the Commission is to examine the compatibility of domestic law and practice with
the Charter. Consistent with decisions in the European and Inter-American jurisdictions, the
Commission's jurisdiction does not extend to adjudicating on the legality or constitutionality or