202.
The Commission turns to consider how discrimination against women in
violation of Article 2 and 18(3) of the Charter may be established, absent the Male
comparator test. The Complainants implore the Commission to use a substantive
equality approach that is based on the victim's disadvantage, recognizing the
systemic way in which women are subjected to sexual violence particularly as a
result of multiple discrimination that intersect on the basis of sex, gender and
age. 136 This submission is synonymous with a prevailing call for the Commission 137
as well as other adjudicators, both domestic and international to adopt a
substantive equality approach as postulated by the Complainants.138
203.
The Commission notes that there is precedent and indeed a rapidly
developing jurisprudence on a ubstantive equality approach to discrimination
that has been applied by different International and human rights bodies. The
ECtHR in the last two decades has developed a substantive equality
jurisprudence, moving beyond the formal conceptions and focu ing on how
individuals and groups experience the reality of discrimination. Distinctively, the
European approach has laid an emphasis on discriminatory effect and not
essentially on notions of distinction. In DH v. Czech Republic, 139 the ECtHR
addressed the incidence of Roma children in special schools meant for students
with learning deficiencies. The Grand Chamber found that there was a
disproportionately large representation of the Roma children in the special schools
and held that this proved discriminatory effect. The Grand Chamber accepted
reports of European Commission against Racism and Intolerance (" ECRI"), and
the Advisory Committee of the Framework Convention on National Minorities as
well as statistics to prove that the discriminatory effect. Having proven the
discriminatory effect, the ECtHR shifted the burden to the Government to justify
it under the European Convention. The Grand Chamber rejected the justification
of the Czech government that the Roma children had f1/· ,..,,, ...... ~'\ hological tests,
0
◄...,
1/
I
f
'1
I
1 36 Complainant's Submissions, pa ra 118-124
~
137 Chekera-Radu (2017) wrote that "Predominantly the jurisprudence of
Ii
,.
, n Commissi
voured the
formal approach to equality ... .It is against this backdrop that the African '6.m·<W, ·
"' to develop
jurisprudence on WLPR based on substantive equality. Given that the juris
e'ik
ri a1 uman rights
system that shows recognition of substantive equality has been Limited, there is ">- 1f,o
·c_wi~.9>J)tnent of Afri an
jurisprudence drawing some of tl1e progressive norms and standards developed by
'
bodies." 137
138 Durojaye, E and Owoeye, Y (2017) " Equally equal or unequally equal: Adopting a substantive equality approach to
gender discrimination in
igeria" Internationa l Journal of Discrimination and the Law, 17(2): 70-85
(http ://core.a .uk/read r/161256040 );
139 Application
o. 57325/00, Merits, 7 February 2006.
=
53