circumstances where it is not necessary and proportional, is also prohibited
by Article 2.36
122. Given that there is no dispute between the Parties in this case that sections
6(1), 7(1), 7(2) and 7(3) effect a differentiation, the question to be resolved
by the Court is whether or not this differentiation amounts to the
discrimination proscribed by Article 2 of the Charter.
123. The differentiation in this case is as between those employed in the civil
service, who are eligible to serve in the Electoral Commission, and those
outside the civil service who are automatically ineligible to serve in the
Electoral Commission either as Director of Elections or returning officers.
124. As earlier alluded to, countries are permitted latitude in configuring their
electoral management bodies to deal with their peculiar local challenges.
This, however, does not mean that arrangements chosen by a State Party
are immune from scrutiny by competent bodies such as the Court.
125. The Court has taken note of the submissions by the Respondent State for
its preference in the use of civil servants for managing various aspects of
the electoral process. The Court recalls its earlier finding that the
involvement of civil servants in the management of electoral processes is
not, without more, per se, irregular. In the instant Application, in so far as
the Applicants have alleged a violation of their right to non-discrimination,
primarily, in connection with their right to participate in the government of
their country, the Court remains aware that participation in one’s
government can take many forms with serving as a Director of Elections or
a returning officer(s) being just some of the possible avenues. In the
circumstances, the Court holds that limiting the selection of the Director of
Elections and the returning officers, from the civil service is not a violation
of Article 2 of the Charter.
36
Ibid., § 139.
34