Communication 341/07 - Equality Now v Ethiopia
against
a
woman
because
she
is
a
woman
or
that
affects
women
disproportionately."16
145.
Thus distinctively exacting violence on someone simply because she is a woman, as
opposed to being a man (the comparator) or indeed exacting more violence on
women as compared to men in the same circumstances amounts to discrimination.
In Communication 323/06: Egyptian Initiative for Personal Rights and INTERIGHTS v
Egypt (2011) ACHPR the Commission posed the following questions to determine
whether there had been discrimination:
"Whether the women and male protesters had similar treatment; and
whether the treatment was 'fair and just', given that all women and men in
the scene were under the same circumstances, that is, exercising their
political rights." 17
146.
The Commission concluded that the victims were exclusively women and there was
no evidence showing that male protesters at the scene of the demonstrations were
also stripped naked and sexually harassed as the women were. On that basis the
Commission found a violation of Article 2 on prohibition of discrimination.
147.
To make out a claim of violation of Article 3 as read together with Article 2 of the
Charter, the complainant must make out a prima facie case that the respondent state
had not given the [victim] the same treatment it accorded to the others in analogous
situations or that, the respondent state had accorded less favourable treatment to
the victim than that accorded to others in relevantly analogous situation, or indeed
that the State imposed a disproportionate burden or restriction on the victim
relative to that imposed on others in relevantly analogous situations.18 The
complainant must identify the comparator and show how the treatment
complained of and that of the comparator are comparable.19
148.
When such a case is made out, the Respondent State has two options. It may
demonstrate with cogent evidence that the prima facie case is factually misconceived
in that the treatment exacted on the victims was also exacted on others in the same
situation as the victim or that the circumstances of the victims are relevantly
different from those of the comparator. Secondly, the Respondent State may admit
16
GR No. 19 "'Violence Against Women" Committee on the Elimination of Discrimination Aizainst Women (1992)
para. 6
17 Communication 323/06 - Egyptian Initiativefor Personal Rights and 1NTER/GHTS vEgypt (2011) ACHPR panu18 Communication 293/2004, Zimbabwe Lawyersfor Human Rights and the Institutefor Human Rights and.
Development v Zimbabwe (2008) ACHPR para. 127; Communication 294/2004, Zimbabwe Lawyersfor Hi
ft Institutefor Human Rights and Development in Africa v Zimbabwe, n 14 above, para. 101
19 Lithgow and others vthe United Kingdom, App. No. 28627/95, Eur. Comm'n H.R. (1986) 8 EHRR 32?