On the alleged violation of Article 2
125.
Article 2 stipulates that "Every iizrliziidnril shrill be entitled to the enjoy/ment of the
rights and freerloins recognised and guarrnzleed in the present Charter without
distinction of any kind such ns race, ethnic group, color, sex, language, religion,
political or am/ other opinion, national and social origin, fortune, birth or other status" .
This provision of the Charter advocates non-discrimination. The Complainants'
allegations of violation of this right draws upon their understanding of nondiscrimination.
126.
The right to non-discrimination is a fundamental right in the contemporary
organisation and design of modern societies.
127.
In the Communication Zimbribwc' Lnwl/ersfor Hmmm Rights Cr lnslilulvfor Hmmm
Rights and Dewlopnierxt in Africa (on behalf of Andrew Barclay Meldrum) zi
Zimlmbwe, the Commission defined discrimination as: "any act which aims at
distinction, exclusion, restriction or preference which is based on any ground
such as race, color [. . .] or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons,
on equal footing, of all rights and freedoms".26
128. Similarly, in the Communication World Organisation Against Torture and the
Logue de la Zum' Africaim' pour In Dense des Droits des Enfrmls et Eléves (on behalf
of Célinc)
v.
Democratic
Republic of Congo,
the
Commission
stated
that
discrimination is unlawful or unjustified differentiation, i.e. based on one of the
distinctions listed in Article 227 Differentiation necessarily involves an explicit
or implicit, known or assumed comparator.
129. In the Communication Keniivfh Good v. Republic ofBofsrvm1n, the Commission wt
out three requirements to be considered in assessing whether there has been
discrimination. Thus, discrimination occurs when equal cases are treated in a
different manner, when the difference in treatment does not have an objective
and reasonable justification, and if there is no proportionality between the aim
sought and the means employed." The Commission also stressed that the three
requirements are cumulative and therefore proof of the existence of one of them
automatically implies a violation of the right to non-discrimination.
26 Communication 294/04 - ZLHR & IHRDA v. Zimbabwe (2006) ACHPR, para 91
27 Communlcatlon 325/06 World Organisation Against Torture and the Ligue de la Zone Africaine pour la
Defense des Drolls des Enfants et Eléves (on behou of Céline) v. Democratic Republic of Cong0.(2015) ACHPR
para 74
v.'.,";ll
19 -.
za Communlcatlon 313/05 Kenneth Good V. Republic of Botswana (2010) ACHPR para
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