143.
Accordingly, the gravamen of discrimination against women on the
basis of sex and gender is the unjustifiable distinction or differential treatment
of persons in relevantly analogous situations. 45 The corollary is that for the
Commission to make a finding of discrimination of discrimination there must
be differential treatment of analogous parties which lacks justification. In
Egyptian Initiative for Personal Rights and Interights v Egypt, the
Commission acknowledged that no discrimination exists where a difference in
treatment is reasonable, objective, and aims to achieve a legitimate purpose.
144.
The Commission recalls that where a ,Complainant alleges
discrimination in violation of Article 2 of the Charter, they bear the burden to
make a prima facie case that the Respondent State had not given the
Complainant the same treatmen~, it accorded to the others in analogous
situations or, that, the respondent state had ,accorded less favorable treatment
to the Complainant than that accorded to , others in relevantly analogous
situation, or indeed that the State imposecl a disproportionate burden or
restriction on the Complainant relative to that imposed on others in relevantly
analogous situations. 46
145.
The Gommission notes that in the present case, the Complainants have
demonstrated that first daughters of chiefs do not enjoy some rights that are
undisputedly given to first sons. The Commission notes that eldest sons are
permitted to inherit their father's thrones whilst eldest daughters are not. Put
specifically, S10 of the Chieftainship Act as well as its confirmation by the
Lesotho Court of Appeal treat th~Erst Complainant differently from first-born
sons of chiefs. This is th,e ,Comrnissibn:' s view prima facie evidence of differential
treatment of analogously situated parties.
146.
As enunciated in Equality Now 47 and previously in Egyptian
Initiative, 48 following a prima facie case of differential treatment being made,
the onus would traditionally shift to the Respondent State to dispute that such
treatment was not differential or to justify the differential treatment as it were.
147.
The Commission recalls that in the present case, the Respondent State
has not participated in these proceedings. However, the Commission considers
that the information before it is sufficient to determine whether or not the
differential treatrnent between eldest daughters of chiefs and eldest sons of
chiefs constitutes impermissible discrimination in violation of Article 2 of the
Charter and Article 18(3) of the Maputo Protocol.