“Every individual shall be entitled to the enjoyment of the rights and freedom recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.“
The principle articulated in Article 2 can be divided into two distinct components. The first addresses the scope of application, emphasizing that the principle of non-discrimination applies to the rights enshrined in the Charter. On a plain reading, this provision appears to suggest that the prohibition against discrimination is confined solely to these recognized rights.
The second component defines the substantive content of the right to non-discrimination. It expressly prohibits distinctions based on race, ethnicity, colour, sex, language, religion, political or other opinions, national and social origin, fortune, birth, or other status.
A superficial reading of the foregoing provision may imply that all persons would be entitled to the full range of civil, political, and economic rights enshrined within the Charter. However, ehese include rights such as political participation and self-determination that were never intended to apply so broadly, as the African Commission on Human and Peoples’ Rights has subsequently held.
For instance, in Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme v Zambia, the Commission acknowledged a state’s right to address illegal residency. Nonetheless, it found that the expulsion of non-nationals by the Zambian government was discriminatory on the basis of national origin, thereby contravening Article 2.
Also, in Communication 27/89, 46/91, 49/91, 99/93, in the case of Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, and others v Rwanda, involving alleged expulsion of Burundian refugees in Rwanda, massive human rights violations including arbitrary arrest, detention, and summary executions of Tutsis and political opponents in Rwanda. The Commission found that the violations of the rights of individuals in this case have occurred on the basis of their being Burundian nationals, members of the Tutsi ethnic group or members of opposition parties, and as such violated Article 2 of the Charter.
Article 2 of the African Charter shares similarities with Article 14 of the European Convention on Human Rights. Both provisions do not establish a standalone prohibition of discrimination but rather prohibit discrimination concerning the enjoyment of other guaranteed rights. Thus, the right to non-discrimination exists in conjunction with other substantive rights.
However, it is crucial to note that this interdependence does not imply that Article 2 becomes relevant only when a substantive right is violated. In certain instances, Article 2 can be invoked independently. This position aligns with the jurisprudence of the European Court of Human Rights, as demonstrated in Sommerfeld v Germany [GC] (2003).
