treated in an equal manner by the law and by the courts both with regard to
procedure and substance ».43
154. Whatever the case, the Commission raises an intrinsic inter-connection
between equality before the law and equal protection of the law, on the one
hand, and the right to the enjoyment of rights guaranteed by the Charter, on
the other hand. This inter-dependence is not specific to the African Charter. It
is noteworthy that the Inter-American Human Rights Court combines these
three legal prerogatives and treats them as a single principle. In its Legal
Opinion OC-18 of 17 September, 2003, the Court concluded that « the principle
of equality before the law, equal protection of the law and non-discrimination
is a jus cogens standard because the entire legal structure of public national
and international order reposes on this principle which transcends any
standard ».44
155. By adhering to this position, the Commission considers that in reality, the
right to« non-discrimination » which is protected by Article 2 of the Charter
constitutes a legal guarantee to ensure the enjoyment of the rights to equality
before the law and equal protection of the law under Article 3. In other
words, where discrimination occurs, equality and equal protection of the law
are automatically undermined. It follows that whenever a violation of Article
2 of the Charter is established, the rights under Article 3 have necessarily
been violated. The only exception to this logical position is applicable when
the discrimination authorized by law is justifiable and proportionate to the
targeted goal. In the Communication under consideration, the Commission
has already concluded that an unjustified discrimination has occurred.
Therefore, the exception mentioned should not be part of the on-going
consideration.
156. In the case in point, the Commission reiterates its preceding conclusions to
observe that the laws and procedures introduced by the Respondent State
have treated the Dioulas as a group which is inferior to the group of
« Ivorians by origin ». Through its very essence, the principle of « ivoirité »
instigated by the law and practices of the public authorities and crystallized
by the provisions of Article 35 of the 2000 Constitution promises express
inequality. Furthermore, the various testimonies of acts of illegal
discrimination by civil registry officers, police officers and judicial authorities
Zimbabwe Lawyers for Human Rights and one Other v. Zimbabwe Communication 293/04 (2008)
AHRLR 120 (ACHPR 2008) para 124.
44 Inter-American Human Rights Court, Juridical Condition and Rights of Undocumented Migrants,
Legal Opinion OC-18 of 17 September 2003, Series A No. 18, para 101. Translation and emphasis by the
Commission.
43
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