Applicants’ rights provided for under the African Charter on Human and
Peoples’ Rights.”
***
53. Article 2 of the Charter provides as follows:
Every individual shall be entitled to the enjoyment of rights and
freedoms recognized and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex,
language, religion, political or any other opinion, national and social
origin, fortune, birth or any status.
54. In African Commission on Human and Peoples’ Rights v. Republic of Kenya
the Court stated thus:17
Article 2 of the Charter is imperative for the respect and enjoyment of
all other rights and freedoms protected in the Charter. The provision
strictly proscribes any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national extraction
or social origin, which has the effect of nullifying or impairing equality
of opportunity or treatment.
The scope of the right to non-discrimination extends beyond the right
to equal treatment by the law and also has practical dimension in that
individuals should in fact be able to enjoy the rights enshrined in the
Charter without distinction of any kind relating to their race, colour, sex,
religion, political opinion, national extraction or social origin, or any
other status.
55. The Court has consistently reiterated that any party that alleges the violation
of the right to non-discrimination bears the duty of substantiating the same.
This can be done by a party leading evidence which establishes the unlawful
differentiation in treatment of similarly placed individuals.18
17 (merits) (2017) 2 AfCLR 9, §§ 137-138.
18 Alfred Agbesi Woyome v. Republic of Ghana (merits and reparations) (28 June 2019) 3 AfCLR 235,
§§ 138-139 and Majid Goa alias Vedastus v. United Republic of Tanzania (merits and reparations) (26
14