*
115. In response, the Respondent State submits that this allegation is “…
baseless as the restriction is reasonable and allowed under Article 27(2) of
the Charter.” According to the Respondent State, not all forms of differences
in treatment are prohibited “… except those that are unreasonable and
without justification.”
***
116. The Court reiterates its earlier reasoning, in respect of the appointment of
the Director of Elections, and finds that sections 7(1), 7(2) and 7(3) by
permitting the appointment of returning officers only from the public service
do not violate Articles 13(1) and 3 of the Charter. While these provisions
indeed do establish a differentiation between those in the public service and
those outside it, as per the Court’s earlier reasoning, this differentiation is
not a violation of Article 13(1) and 3 of the Charter.
117. In relation to the above finding, the Court emphasises that differentiation
amounts to proscribed discrimination only if it, among other things, is
disproportionate and bears no objective correlation to the goal(s) sought to
be attained. In so far as the objective of selecting competent persons to lead
the Electoral Commission is concerned, the Court finds that such an
objective cannot be nullified simply by restricting candidates thereto to the
civil service only.
C. Alleged violation of the right to non-discrimination
118. The Court observes that the Applicants did not specifically plead any
violation of Article 2 of the Charter. However, in their submissions,
especially in substantiating the alleged violation of Article 3 of the Charter,
they have submitted that the manner in which the Director of Elections is
appointed is discriminatory. A similar argument has been made in respect
of the appointment of returning officers under sections 7(1), 7(2) and 7(3) of
the NEA. The Applicants submit that by restricting these appointments to
32