71.In respect of Article 2 of the Charter, the Court reiterates its position that Article 2
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.19
72.The
Court
notes
that
while
the
Charter
is unequivocal
in its proscription
of
discrimination, not all forms of distinction or differentiation can be considered as
discriminatory.
contrary
A
distinction
to Article
2,
when
or differential
it does
not
treatment
have
any
becomes
objective
discrimination,
and
reasonable
justification and, in circumstances where it is not necessary and proportional.°
73. As the Court noted
in African
Commission
on Human
and Peoples’ Rights
v
Kenya," 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 under Article 3 of the
Charter. However, the scope of the right to non-discrimination extends beyond the
right to equal treatment before the law and also has practical dimensions 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” in 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 takes
into account
the
general spirit of the Charter.
74. The Court observes that the Respondent State, in its submissions, has not denied
the possible distinction effected by article 41(7) of its Constitution but it has argued
19 African Commission on Human and Peoples’ Rights (ACHPR) v. Republic of Kenya (merits) (2017) 2
AfCLR 9 § 137.
20 Ibid § 139. See also, Tanganyika Law Society and others v. United Republic of Tanzania (merits) (2013)
1 AfCLR 34 § 106.
21 African Commission on Human and Peoples’ Rights v. Kenya (merits) § 138.
20