In the article, A Theory of Equality Before the Law, published in The Economic Journal, Volume 131, Issue 636, May 2021, Pages 1429–1465, the erudite authors stated about equality before the law in the following words: “the notion of equality before the law maintains that laws should apply equally to all citizens: simply put, no one is above the law. This idea…is a mainstay of many current constitutions and is widely viewed as a central tenet of a fair and just legal system.” In other words equality before the law is a perfect reflection of rule of law: where the law rules equality before the law inevitably follows.
In the publication by the International Commission of Jurists, Migration and International Human Rights Law, (2014) page 44, the equality for all but, especially migrants, is described as follows “Of paramount importance for migrants, is the international legal entitlement of all human beings to the enjoyment of human rights on a basis of equality and free from discrimination on grounds of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status.” It is an inherent essential quality of the concept of rule of law that all are treated equally before the law.
Whether in Africa, Europe or elsewhere, equality before the law is an entrenched constitutional right which all human beings are entitled to by virtue of their inherent humanity. This is regardless of the court or tribunal empowered to with the adjudicatory mandate. Equality before the law entails, inter alia, the right to equal access to health service, the courts, right to a fair hearing, the right to universal adult suffrage etc.
The concept of equality before the law has been variably echoed in almost all legal instruments across the world: The right to equality and freedom from discrimination is protected by various provisions of the International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights: Articles 2, 3 (1), 14 (1), 14 (3) 26, 27; Universal Declaration of Human Rights: 1, 2, 7 etc; equally, Charter of the United Nations, Article 8 etc; and several provisions of the African Charter on Human and Peoples’ Right (the African Charter). This shall be amply discussed hereinafter with sufficient reference from the jurisprudence of the African Commission on Human and Peoples’ Rights (the Commission).
EQUALITY OF PEOPLES
Article 19 of the African Charter states as follows:
“All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.”
To start with, the Commission has always emphasized the need for independent assessment of facts and for parties to prove their respective claims with cogent and compelling evidence; therefore, it is not sufficient for a party to assert a violation without proving same to be true. The Commission had previously observed, thus: “…a Complainant that has made general claims and allegations needs to substantiate such claims and allegations with either documentary evidence or sworn affidavits or the corroborating testimony of others, Communication 308/05 – Majuru v Zimbabwe (2008) ACHPR, para 92. Therefore, it is for the above reason the Commission held in Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola para 119 that “in the absence of evidence to support the claim of unequal treatment [that is economic exploitation of Cabindan resources by the Republic of Angola: offshore oil, onshore mineral and oil] the Commission does not find a violation of Article 19 of the Charter.”
Furthermore, the Commission further elaborated that “…distinct and identifiable groups of “peoples” and communities exist within the State Parties to the African Charter and each set of “peoples” and communities is entitled to enjoy internal legal equality vis-à-vis other “peoples” and communities within the same state, Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola
Equality of all persons is a right that extends to everyone, individually and collectively. It does not matter whether those people identify themselves as indigenous people or minorities. For example, the Commission has always recognised the equal right of all. The Commission in one of its leading decisions opined thus: “What is clear is that all attempts to define the concept of indigenous peoples recognise the linkages between peoples, their land, and culture and that such a group expresses its desire to be identified as a people or have the consciousness that they are a people, 276/03 : Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya para 151.
Additionally, it has always been the jurisprudence of the Commission that when it comes to the enjoyment of the “respect and the same right,” the Commission always balances it against the international responsibility of the state towards its citizens. Therefore, the Commission does not overlook the violation of an international norm of jus cogens in favour of implementing a national law: the international legal obligation of a state supersedes it national obligations.
For example, the Commission held in Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola para 117 that “the view that real or substantive equality requires that groups who have suffered previous disadvantages or continue to suffer disadvantages within a state are entitled to some advantageous treatment especially where such groups bear an unequal part of the burden for the exploration of natural resources in that state”. Thus, the Commissions takes the view that the “principle of equality requires the striking of a balance between a group’s claim to advantageous treatment or affirmative action and the legitimate expectation of other groups within the state to share in the resources of that state, Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola para 118.
In conclusion, it must be noted that the Complainant(s) must always establish a prima facie case and prove allegations with substantial evidence before the Commission finds a violation of a provision of the African Charter. For example, the Commission admits that “…during the period 1989-1992, there were grave or massive violations of human rights [by Mauritania] as proclaimed in the African Charter”;
However, the Commission admits that “…the information made available to it do not allow it to establish with certainty that there has been a violation of Article 19 of the Charter…” 54/91-61/91-96/93-98/93-164/97_196/97-210/98 : Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme / Mauritania. Therefore, the basic rule of discharging a legal burden applies, “he who asserts must prove”. Complainants must always prove their case with enough corroborating evidence.
