76. As to the purport of Articles 2 and 3 of the Charter, the Court observes that
in African Commission on Human and Peoples’ Rights v. Kenya it stated
thus:19
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 right not to be discriminated against is related to the right to
equality before the law and equal protection of the law as guaranteed
by Article 3 of the Charter. 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. The expression ‘any
other status’ under Article 2 encompasses those cases of
discrimination, which could not have been foreseen during the
adoption of the Charter. In determining whether a ground falls under
this category, the Court shall take into account the general spirit of the
Charter.
77. In so far as proving a violation of Articles 2 and 3 of the Charter is
concerned, the Court observes that in George Maili Kemboge v. United
Republic of Tanzania, it reiterated that “[g]eneral statements to the effect
that [a] right has been violated are not enough. More substantiation is
required.”20 Any alleged violation of Articles 2 and 3 of the Charter,
therefore, must be accompanied by adequate evidence to substantiate the
allegation.21
African Commission on Human and Peoples’ Rights v. Republic of Kenya (merits) (26 May 2017) 2
AfCLR 9, §§ 137-138.
20 (merits) (11 May 2018) 2 AfCLR 369, § 51.
21 Minani Evarist v. United Republic of Tanzania (merits) (21 September 2018) 2 AfCLR 402, § 75.
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