119. The Human Rights Committee has made the following observations:
“discrimination” as used in the Covenant should be understood to imply any
distinction, exclusion, restriction or preference which is based on any ground such
as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms.57
120. When identifying whether a certain situation amounts to discrimination, the crux
of the matter is not so much the mere existence of differential treatment, although
this is certainly a starting point, but rather a difference in treatment between
objects, subjects or circumstances that are for all intents and purposes considered
to be in an analogous situation. This then begs the question as to the level of
similarity that needs to exist between an alleged victim of discrimination and
their comparator in order for a difference in treatment to amount to
discrimination. This must be decided on a case-by-case basis, and will
fundamentally depend on the purpose or aim of the measure which has led to the
alleged discrimination.
121. In this particular instance, the difference in treatment is twofold, firstly based on
residency, which accords different rights to resident and non-resident citizens,
and secondly, on the nature of work abroad, which accords favourable treatment
to persons in government service.
122. In addressing these two issues, the Commission first tackles the submission of
the Respondent State that residency does not form part of the prohibited grounds
for restriction under the African Charter. In this regard, it should be noted that
the list of prohibited grounds under Article 2 of the African Charter is not
exclusive, which is evidenced by the inclusion of the term “other status” in
addition to the expressly enumerated grounds. The purpose of Article 2 is to
regulate differential treatment based on any identifiable criteria, which in this
instance would include both residency and nature of work abroad. The
Commission further notes the arguments of the Respondent State that the Victims
are not refugees and so can voluntarily return to Zimbabwe to vote. In this regard,
the Commission is of the view that it need not prompt any discussions as to the
status of the Victims, except in relation to residency or nature of work abroad, as
the Complainants have not made any submissions claiming to be refugees.
123. In relation to the first tier of distinction, between resident and non-resident
citizens, the Commission has already examined this matter in its discussions on
57
Human Rights Committee, General Comment No.25, para
30