footing, of all rights and freedoms”.29 The Commission has further held in the Nubian case that “non-discrimination is a general principle which permeates the enjoyment of all rights guaranteed in the Charter”.30 158. In Kenneth Good v Botswana, the Commission established the following comparator test to determine whether a violation of the right to nondiscrimination occurred: (a) equal cases are treated in a different manner;31 (b) a difference in treatment does not have an objective and reasonable justification; and (c) if there is no proportionality between the aim sought and the means employed.32 159. Before dealing with the possibility of “other status” under Article 2, it is possible to first confirm whether there was discrimination based on the existing grounds of race, ethnic group, colour or national origin through the harassment faced by some of the Victims.33 On the facts, all of the Victims were Sudanese nationals. Furthermore, the Fourth Victim gave testimony about being verbally abused while being transported to the camps, particularly including references to the protestors not being human, having had a “nice shower” from being blasted with a water cannon and being a “black spot in the square”. 160. Because harassment is in itself wrongful and may result in a violation of human dignity (dealt with under Article 5 below), under the European human rights system no comparator is required in such cases to prove harassment. Drawing inspiration from the European system through the application of Article 60 of the African Charter, the Kenneth Good test would thus not be applicable to the assessment of harassment amounting to discrimination on one of the listed Communication 29/04 - ZLHR & IHRDA v Zimbabwe (2006) ACHPR para 91. Communication 317/06 - The Nubian Community in Kenya vs The Republic of Kenya, para 123. 31 The different treatment should be less favourable, which is determined through a comparison between the alleged victim and another person, who does not possess the protected characteristic under Article 2, in a similar situation. Where, as in the case of refugees and asylum seekers there are reasonable limitations imposed on their rights through international law, this would not amount to discrimination. This distinction is further justified by the provision in the Convention on the Elimination of Racial Discrimination, 1965, which explicitly provides that “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and noncitizens.” Clearly justifiable distinctions between nationals and non-nationals are allowed under international law. 32 Communication 313/05- Kenneth Good v Botswana (2010) ACHPR para 219. 33 Under European Law harassment as a form of discrimination is treated separately. See European Union Agency for Fundamental Rights and Council of Europe, Handbook on European non-discrimination law (2018) p64, at https://www.echr.coe.int/Documents/Handbook_non_discri_law_ENG.pdf. 29 30 41