The African Commission on Human and Peoples’ Rights and its promotion and protection of the right to freedom from discrimination

Abstract

The African Commission on Human and Peoples’ Rights, the African Commission, was established by the African Charter on Human and Peoples’ Rights, the African Charter, with the mandate to promote and protect human and peoples’ rights in Africa. The right to freedom from discrimination is one of the rights provided for in the African Charter. In this article, the author examines the individual communications, state party reports, concluding observations of the African Commission on state party reports and the resolutions passed by the African Commission to highlight the ways in which the African Commission has promoted and protected the right to freedom from discrimination.

Keywords

African commission freedom from discrimination right African court state reports resolutions

Introduction

The African Commission on Human and Peoples’ Rights, the African Commission, was established by the African Charter on Human and Peoples’ Rights,¹ the African Charter, with the mandate to promote and protect human and peoples’ rights in Africa. Article 45 of the African Charter provides that in order to execute its mandate, the African Commission shall perform the following functions:

1. To promote Human and Peoples’ Rights and in particular: (a) To collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or make recommendations to Governments. (b) To formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations. (c) Co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights. 2. Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter. 3. Interpret all the provisions of the present Charter at the request of a State party, an institution of the OAU [now AU] or an African Organization recognized by the OAU [now AU]. 4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.

Apart from the above functions, the African Commission is also empowered to receive individual² and interstate communications³ alleging a violation or violations of any human or peoples’ right or rights in the African Charter. The African Commission also has the mandate to receive and examine reports from states on the measures they have taken to implement the African Charter.⁴ One of the rights provided for in the African Charter is the right to freedom from discrimination. The purpose of this article is to demonstrate how the African Commission has, since its establishment, promoted and protected the right to freedom from discrimination. The article will start with a discussion of the right to freedom from discrimination under the African Charter and how it has been interpreted by the African Commission.

The right to freedom from discrimination in the African Charter

One of the reasons for drafting and adopting the African Charter was to combat discrimination. The preamble to the African Charter states, inter alia, that African countries were:

Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex, language, religion or political opinions.

It is therefore not by accident that the African Charter, expressly and impliedly, provides for the right to freedom from discrimination in different Articles. Indeed, the African Commission held that ‘one of [the]…goals [of the African Charter] is the elimination of all forms of discrimination and to ensure equality among all human beings’.⁵ Article 2 of the African Charter provides that

[e]very individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

It is important to note that Article 2 does not use the word ‘discrimination’ but rather ‘distinction’. However, the African Commission held that ‘Article 2 of the African Charter stipulates the principle of non-discrimination, which is essential to the spirit of the African Charter’.⁶

Article 18(3) of the African Charter expressly refers to discrimination. It is to the effect that ‘[t]he State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’. Article 28 imposes a duty on every individual ‘to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance’. Two points should be noted about Articles 2 and 18(3). First, Article 2 is applicable to ‘every individual’, of course including women. Article 18(3) is applicable to women only (on the issue of expressly imposing a duty on a state to eliminate every form of discrimination). The African Commission has held that:

The non-discrimination principle generally ensures equal treatment of an individual or group of persons irrespective of their particular characteristics, and the non-discrimination principle within the context of Articles 2 and 18(3) of the African Charter ensures the protection from discrimination against women by States Parties to the African Charter.⁷

Secondly, unlike Article 2 which uses the word ‘distinction’, Articles 18(3) and 28 use the word ‘discrimination’. The challenge is that both terms are not defined in the African Charter. The fact that different terms are used in different parts of the African Charter means that the drafters of the Charter could have intended these terms to have different meanings. This argument is also supported by the fact that in the preamble to the African Charter, as mentioned above, the word used is ‘discrimination’ as opposed to ‘distinction’. However, the African Commission has taken the view that both Articles 2 and 18(3) ‘have an element of discrimination’.⁸ In its resolutions in which it has made reference to Article 2, the African Commission has used the words ‘discrimination’ and ‘distinction’ interchangeably. In some instances, it has stated that Article 2 provides for the right to freedom from ‘discrimination’⁹ and in others that it provides for the enjoyment of all the rights in the African Charter ‘without distinction of any kind’.¹⁰ In one resolution, the African Commission recalled

that Article 2 of the…African Charter prohibits discrimination of the individual on the basis of distinctions of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.¹¹

Of course this is not what Article 2 states. In particular, it does not include the word ‘discrimination’. Like the African Commission, the African Court on Human and Peoples’ Rights has also taken the view that Article 2 of the African Charter provides for ‘the right not to be discriminated against’.¹²

Apart from the above provisions which deal with the right to freedom from discrimination expressly, there are other Articles which can be interpreted as prohibiting discrimination. Two of these are Articles 3 and 19. Article 3 provides that ‘(1) Every individual shall be equal before the law. (2). Every individual shall be entitled to equal protection of the law’. Article 19 provides that ‘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’. Other relevant provisions are those which provide for the rights of ‘every human being’,¹³ ‘every individual’,¹⁴ ‘every citizen’¹⁵ and ‘all people’¹⁶ and those imposing duties on ‘every individual’.¹⁷ In addition to the African Charter, the right to freedom from discrimination is also provided for in other African human rights instruments such as the African Charter on the Rights and Welfare of the Child¹⁸ and the Protocol to the African Charter on the Rights of Women in Africa. However, it is beyond the scope of this article to discuss these other human rights instruments.

Although there are many Articles in the African Charter which deal directly or indirectly with the right to freedom from discrimination, the African Commission held that:

Articles 2 and 3 of the African Charter basically form the anti-discrimination and equal protection provisions of the African Charter. Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while Article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter.¹⁹

The importance of the relationship between Articles 2 and 3 has been emphasized by the African Commission in other communications.²⁰ In the above decision, the African Commission clearly emphasizes the importance of Articles 2 and 3 of the African Charter when it comes to the issue of the right to freedom from discrimination. The African Commission also makes it clear that the right not to be discriminated against is non-derogable. This should be understood against the background that the African Charter, unlike some international human rights treaties,²¹ does not provide for a list of non-derogable rights. The African Commission also makes a very important point to the effect that ‘in order for anyone to enjoy all the other rights provided for under the African Charter’, the right to freedom from discrimination ‘must be respected in all circumstances’. This point is important because of the fact that the experience of some African countries shows that discrimination on the grounds, such as race and ethnicity, has been responsible for serious human rights violations in countries such as Rwanda (the 1994 genocide) and South Africa (during apartheid).

The African Commission does not clarify which ‘principle’ in Article 2 is ‘essential to the spirit of the African Charter’ and ‘therefore necessary in eradicating discrimination in all its guises’. Could this be the principle that everybody must enjoy the rights and freedoms in the African Charter ‘without distinction of any kind’? It is this principle which is essential in eradicating discrimination. What is clear though is that the African Commission has taken the view that Article 2 deals with discrimination. For example, the African Commission noted ‘that Article 3 of the African Charter contains a general guarantee of equality which supplements the ban on discrimination provided for in Article 2’.²² Although Articles 2 and 3 provide for separate but closely related rights,²³ some jurisprudence from the African Commission is open to being interpreted as suggesting that there is no difference between the principle of equality (protected under Article 3) and the principle of non-discrimination (protected under Article 2). For example, the African Commission held that ‘the principle of equality or non-discrimination does not mean that all differential treatments and distinctions are forbidden because some distinctions are necessary when they are legitimate and justifiable’.²⁴ However, in the same Communication, the African Commission seems to have cleared up the confusion by discussing the relationship between Articles 2 and 3 and stating the following detailed criteria that should be used in determining whether the principle of equality under Article 3 of the African Charter has been violated:

Equality and non-discrimination are core principles in international human rights law. Consequently, the premise under Article 3 of the African Charter is that the law shall prohibit any form of discrimination and guarantee to all individuals equal and effective protection against discrimination on any ground, regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this respect, the State has an affirmative duty to prohibit discrimination and ensure that all persons are protected by the law and are equal before the law. The principle of ‘equal protection’ therefore places all men and women on an equal footing before the law. Furthermore, it indicates that all men and women are entitled to equal protection against any discrimination and against any incitement to such discrimination. The African Commission notes that, parties can only establish that they have not been treated equally by the law, if it is proved that the treatment received was discriminatory, or selective. If a party claims selective protection of the law, then the burden is on the party to show that the laws had discriminatory effects and purposes…[E]quality before the law also entails equality in the administration of justice. In this regard, all individuals should be subject to the same criminal and investigative procedures in the same manner by law enforcement and the courts. On the other hand, for all individuals to have equal protection of the law, the dignity of every individual, whether male or female should be fair, equally safeguarded by the law and this should also be the case when applying or enforcing the law.²⁵

Although the above communications indicate that the right to equality before the law is protected under Article 3 of the African Charter, in Open Society Justice Initiative v. Côte d’Ivoire,²⁶ the African Commission held that the law enacted by the respondent state which denied many people Ivorian citizenship on the basis of their parents’ origin and religion (Muslims) ‘violates the right to equality before the law protected by Article 2 of the African Charter’.²⁷ The African Commission also held that Article 2 protects the right to freedom from discrimination and ‘equal treatment before the law’.²⁸ In another communication, the African Commission held that Article 2 protects ‘the right to equality’.²⁹ It is important for the African Commission to be as clear as possible on the relationship between Articles 2 and 3 of the African Charter. Much as they are closely related, blurring the distinction between the two Articles creates the impression that the drafters of the African Charter intended both Articles to provide for the same right. Although it is beyond the scope of this article to discuss the jurisprudence emanating from the African Court on Human and Peoples’ Rights, it should be noted that the Court’s jurisprudence is clear that the rights under Articles 2 and 3 of the African Charter, although closely related, are different.³⁰ In Reverend Christopher Mtikila v. Tanzania,³¹ for example, the African Court on Human and Peoples’ Rights held that ‘the right not to be discriminated against is related to the right to the equal protection by the law as guaranteed by Article 3(2) of the Charter’.³² In Actions pour la protection des Droits de l’Homme (APDH) v. Republic of Cote d’Ivoire,³³ the African Court of Human and Peoples’ Rights held that ‘the principle of “equality” in law presupposes that the law protects everyone without discrimination’.³⁴ The challenge, though, is that the African Charter does not define ‘discrimination’. The result is that in different communications, the African Commission has defined ‘discrimination’ differently. It is to a discussion of this that we now turn.

Defining discrimination

In Purohit and Moore v. The Gambia,³⁵ in which the African Commission dealt with the issue of whether the legislation and policies in The Gambia discriminated against mental patients, it was held that the complainants had proved that the situation in The Gambia failed

[T]o meet the standards of anti-discrimination and equal protection of the law as laid down under the provisions of Articles 2 and 3 of the African Charter and Principle 1(4) of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Illnesses and the Improvement of Mental Health Care.³⁶

The African Commission then referred to Principle 1(4) which defines discrimination to mean ‘any distinction, exclusion or preference that has an effect of nullifying or impairing equal enjoyment of rights’.³⁷ In Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt,³⁸ the applicants alleged that the respondent had violated, among other rights, women’s right to freedom from discrimination under Articles 2 and 18(3) of the African Charter.³⁹ The African Commission observed that

[b]efore the African Commission proceeds to determine whether Articles 2 and 18(3) of the African Charter have been violated in this Communication, it finds it imperative to define discrimination and its relationship with gender-based violence as alleged in this Communication.⁴⁰

It is against that background that the African Commission referred to the definitions of ‘discrimination’ in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol)⁴¹ and in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).⁴² The African Commission analysed the evidence before it and concluded that the respondent had violated Articles 2 and 18(3) of the African Charter.⁴³ In this Communication, the African Commission did not state which of the two definitions it relied on to find a violation of Articles 2 and 18(3). It should be recalled that the two definitions are not identical.⁴⁴ The Communication also shows that although the African Commission stated that it was to ‘define discrimination’, and created the impression that it was to define the term generally, it ended up defining discrimination against women. In one mission report, the African Commission encouraged a state party to ratify the African Women’s Protocol ‘as it provides the definition of the concept of discrimination’.⁴⁵ This creates the impression that discrimination against women is synonymous with discrimination generally.

The African Commission has defined discrimination differently in another communication. In Dabalorivhuwa Patriotic Front v. the Republic of South Africa,⁴⁶ the complainants argued that the government pension legislation violated their indigenous and labour rights and was therefore discriminatory and contrary to, inter alia, Articles 2, 3 and 13 of the African Charter. The African Commission observed that before it could decide whether or not the respondent state had violated the complainant’s rights, ‘it is imperative to examine what amounts to discrimination under the [African] Charter’.⁴⁷ It referred to its earlier jurisprudence and held that it ‘has defined discrimination in terms of Article 2 [of the African Charter]…as’:

any act which aims at 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 equal footing, of all rights and freedoms.⁴⁸

The African Commission adopted this definition from General Comment No. 18 of the Human Rights Committee.⁴⁹ The Human Rights Committee coined this definition on the basis of Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR). The challenge of the African Commission’s approach in adopting the Human Rights Committee’s definition verbatim is that it ignored at least three differences, however minor, between Article 2 of the African Charter and Article 2(1) of the ICCPR. First, Article 2 of the African Charter does not use the term ‘discrimination’. Instead, it uses the word ‘distinction’. As the above definition shows, ‘distinction’ is a subset of ‘discrimination’. Other subsets are ‘exclusion’, ‘restriction’ or ‘preference’. Secondly, Article 2 of the African Charter does not expressly prohibit discrimination on the ground of ‘property’. It refers to ‘fortune’ which is broader than property. Thirdly, Article 2 of the African Charter prohibits discrimination on the basis of ‘national and social origin’, yet the ICCPR prohibits discrimination on the basis of ‘national or social origin’. In Open Society Justice Initiative v. Côte d’Ivoire,⁵⁰ in which some Ivorians alleged that they had been discriminated against on various grounds, the African Commission adopted another definition of ‘discrimination’. The African Commission defined discrimination as:

Any act aimed at distinction, exclusion, restriction or preference based on one of the reasons listed under Article 2 of the Charter, and which aims at or has the effect of annulling or restricting recognition, enjoyment or exercise by all persons and on an equal basis, of all rights and freedoms.⁵¹

In highlighting the importance of the above definition, the African Commission held that:

[A]lthough the letter does not state so expressly, the spirit of the provisions of Article 2 of the Charter and of the definition [above]…suggest that there is no need to prove an intention to discriminate. Indeed, this definition actually includes situations in which a law or a neutral or an apparently non-discriminatory measure produces the effects of an unjustified distinction.⁵²

What is clear is that the African Commission has adopted five different definitions of discrimination. The first three are situation specific (one on mental patients and two on women) and the fourth and fifth ones are general. The African Commission has relied on the fourth definition in other communications.⁵³ Failure by the African Commission to decide which definition to rely on means that one cannot rule out the possibility that the African Commission could come up with another definition of ‘discrimination’. The likelihood of this happening is strengthened by the fact that the African Court on Human and Peoples’ has used a definition of ‘discrimination’ which is different from the above five definitions adopted by the African Commission. In Actions pour la protection des Droits de l’Homme (APDH) v. Republic of Cote d’Ivoire,⁵⁴ the African Court of Human and Peoples’ Rights defined ‘discrimination’ to mean ‘a differentiation of persons or situations on the basis of one or several unlawful criterion/criteria’.⁵⁵ Measures may have to be put in place to put an end to this uncertainty. One of the ways to do this is to adopt a General Comment on Article 2 which should include a definition of ‘discrimination’. It should be noted that different African constitutions or pieces of legislation define ‘discrimination’ differently and that there is a need for a regionally acceptable definition.⁵⁶ There are communications in which the African Commission has found a violation of the right to freedom from discrimination without defining ‘discrimination’.⁵⁷ Our attention shifts to the issue of whether the list of the grounds under Article 2 is exhaustive.

Is the list of grounds in Article 2 exhaustive?

One important question is whether the list of the grounds on which a person may not be discriminated against under Article 2 of the African Charter is exhaustive. It should be recalled that Article 2 of the African Charter provides that:

[e]very individual shall be entitled to the enjoyment of the rights and freedoms recognized 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.

Some jurisprudence of the African Commission could be interpreted as implying that the list under Article 2 is exhaustive. For example, in Spilg and Mack & Ditshwanelo (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana,⁵⁸ in which the complainants alleged that the legislation authorizing the imposition of the death penalty on those convicted of murder was discriminatory, the African Commission, in holding that Botswana had not violated Article 2 of the African Charter held, inter alia, that:

Article 2 of the African Charter is a guarantee that every individual is entitled to enjoy all the rights provided for under the African Charter and that no person shall be deprived of the enjoyment of any of the Charter rights based on his/her race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. Therefore, for there to be a violation of Article 2 of the African Charter, it must be shown that the victim of the alleged violation has been deprived of the enjoyment of a Charter Right on the basis of his/her race, ethnic group, color, sex, language, religion, political or any other opinion national and social origin, fortune, birth or other status.⁵⁹

The use of the phrase ‘it must be shown’ suggests that one is obliged to prove that the treatment in question is based on one or more of the grounds under Article 2. In another communication, the African Commission held that the complainants had failed to prove that ‘the ground on which they were purportedly distinguished is one that is prohibited under the Charter’.⁶⁰ This interpretation also appears to be restrictive. However, most of the communications of the African Commission show that the list of grounds on which a person may not be discriminated against under Article 2 is not exhaustive. The African Commission has held that ‘the list under Article 2 of the [African Charter] is neither absolute nor comprehensive. It is merely indicative’.⁶¹ In other words, the African Charter prohibits discrimination ‘based on any of the grounds of discrimination listed out in Article 2 [of the African Charter] or on grounds similar to’ those under Article 2 of the African Charter.⁶² Against that background, the African Commission has held or stated that a person may not be discriminated against on the following grounds although they are not mentioned in Article 2 of the African Charter: age,⁶³ disability,⁶⁴ gender,⁶⁵ sexual orientation,⁶⁶ gender identity,⁶⁷ poverty and illiteracy,⁶⁸ living with HIV/AIDS⁶⁹ and albinism⁷⁰ and that ‘the African Commission considers violence against women as a form of discrimination against them’.⁷¹ It is argued that the African Commission’s approach to expand the reach of Article 2 is justifiable because the use of the words ‘such as’ and ‘other status’ shows that the grounds enumerated in Article 2 are just examples and that the list is not exhaustive.

General banning of discrimination under Article 2 of the African Charter?

Another issue that the African Commission has dealt with is whether Article 2 of the African Charter places a total ban on discrimination. In other words, are there cases where discrimination may be permissible without violating Article 2 of the African Charter? The African Commission held that ‘[l]ike Article 14 of the European Convention, Article 2 does not stipulate a general banning of discrimination; it only prohibits discrimination where it affects the enjoyment of a right or freedom guaranteed by the Charter’.⁷² In order for the African Commission to find a violation of Article 2, the complainant must prove ‘how the enjoyment of one of the rights guaranteed by the Charter ha[s] been hindered in a discriminatory manner’.⁷³

In Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt,⁷⁴ in which the security agents of the respondent state assaulted female journalists who were protesting against some government policies, the African Commission referred to the jurisprudence of the Inter-American Court of Human Rights and the Human Rights Committee⁷⁵ and held that ‘the principle of equality or non-discrimination does not mean that all differential treatments and distinctions are forbidden because some distinctions are necessary when they are legitimate and justifiable’.⁷⁶ In the same communication, the African Commission held that there had been a violation of Article 18(3) of the African Charter because ‘the treatment was neither legitimate, nor justifiable because there is no reasonable cause behind the discrimination that was inflicted upon the victims’.⁷⁷ At least two points should be noted about this decision. First, for the differential distinction and treatment to pass scrutiny under Articles 2 and 18(3) of the African Charter, it has to have ‘a reasonable cause behind’ it. In other words, to borrow the test that is increasingly being adopted in African countries, the discrimination in question should not be unfair.⁷⁸ Secondly, the decision is not clear whether for the differentiation to pass the scrutiny under Articles 2 and 18(3) it has to be ‘legitimate and justifiable’ or it suffices if it passes one of the tests, that is, legitimacy or justifiability. Jurisprudence from the African Commission shows that emphasis has been placed on the unreasonable nature of the alleged discriminatory act.⁷⁹ In this communication, the African Commission seems to have created two different criteria for determining whether or not the differentiation is in violation of Article 2 of the African Charter. Subsequent jurisprudence indicates that the African Commission appears to have settled the question of the criteria to be used in assessing whether or not there has been a violation of Article 2. In Dabalorivhuwa Patriotic Front v. the Republic of South Africa,⁸⁰ the African Commission held that it has ‘established the test to establish whether there has been discrimination’ to the effect that:

a violation of the principle of non-discrimination arises if: a) equal cases are treated in a different manner; b) a difference in treatment does not have an objective and reasonable justification; and c) if there is no proportionality between the aim sought and the means employed.⁸¹

The African Commission has invoked this test in other communications.⁸² The use of the word ‘and’ before the last criterion indicates that all three tests must be met before the African Commission will find a violation of Article 2. The African Commission added that:

Article 2 of the Charter does not require all individuals in similar circumstances to be necessarily treated in the same manner, it permits the different treatment of people similarly placed if such treatment is meant to achieve a rational and legitimate purpose that does not impair the fundamental dignity of the affected persons or infringe on their enjoyments of the rights and freedoms guaranteed by the Charter.⁸³

The above discussion shows that the African Commission has held that Article 2 of the African Charter does not place a total ban on discrimination. There are cases in which a discriminatory law or practice would not amount to a violation of Article 2 of the African Charter. The same approach has been taken by the African Court on Human and Peoples’ Rights.⁸⁴ The test to determine whether or not a discriminatory piece of legislation or practice violates the African Charter has been stated by the African Commission in the communications discussed above. The African Commission’s view that Article 2 permits discrimination in some circumstances makes it possible for countries to implement policies and enact legislation that promote affirmative action and positive discrimination without fear of violating their obligations under the African Charter. It is now imperative to have a look at the state reports and establish the manner in which the African Commission has protected the right to freedom from discrimination using this mechanism.

State reports

Article 62 of the African Charter provides that:

[e]ach state party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the present Charter.

On the basis of Article 62, states have submitted reports to the African Commission highlighting the measures they have taken to, inter alia, prevent and combat discrimination. The next section deals with these measures.

Measures taken by states parties

These measures have included adopting constitutions which prohibit discrimination generally⁸⁵ and also discrimination against specific groups, such as women⁸⁶ and girls,⁸⁷ children (boys and girls),⁸⁸ the elderly,⁸⁹ foreign nationals (including refugees and asylum seekers),⁹⁰ employees⁹¹ and people with disabilities.⁹² The measures have also included enacting legislation or adopting policies which prohibit discrimination generally,⁹³ or discrimination against specific groups such as women generally⁹⁴ or specific groups of women, for example, those who are pregnant,⁹⁵ people living with HIV/AIDS,⁹⁶ people with disabilities,⁹⁷ employees (in the labour market),⁹⁸ learners⁹⁹ and the youth and indigenous groups.¹⁰⁰ Other measures have included training of law enforcement officers on non-discriminatory laws and practices,¹⁰¹ ensuring non-discrimination in remuneration,¹⁰² ensuring that promotion at work is not based on discrimination¹⁰³ and criminalizing discrimination.¹⁰⁴ The reports also highlight case law from domestic courts which has prohibited gender-based discrimination,¹⁰⁵ discrimination against women in inheritance matters¹⁰⁶ and in divorce proceedings,¹⁰⁷ discrimination on the grounds of pregnancy and HIV/AIDS status,¹⁰⁸ discrimination against foreign nationals,¹⁰⁹ discrimination on the ground of sex¹¹⁰ and discrimination against women on the issue of the citizenship.¹¹¹ This case law shows that courts have prohibited discrimination against some cultural leaders,¹¹² have upheld the right to participate in political activities without discrimination,¹¹³ have abolished discrimination on cultural and religious grounds,¹¹⁴ and discrimination on the ground of sexual orientation,¹¹⁵ and have upheld the right to freedom of assembly without discrimination.¹¹⁶ Courts have also declared some cultural practices, such as female genital mutilation, discriminatory and unconstitutional.¹¹⁷ In the reports, states highlight detailed measures to protect women’s right to equality¹¹⁸ and detailed policy, legislative, institutional, administrative and judicial measures to prevent and combat discrimination.¹¹⁹

States have also informed the African Commission of other measures they have taken to protect and promote the right to freedom from discrimination, such as ratifying or acceding to human rights treaties which prohibit discrimination, such as the ILO Convention concerning Discrimination in Respect of Employment and Occupation,¹²⁰ the Convention on the Elimination of All Forms of Racial Discrimination,¹²¹ the International Convention against Discrimination in Education,¹²² the International Convention against Apartheid in Sports,¹²³ the Convention on the Suppression and Punishment of the Crime of Apartheid,¹²⁴ the African Women’s Protocol,¹²⁵ CEDAW¹²⁶ and the Protocol to CEDAW.¹²⁷ Apart from ratifying the treaties, states have also domesticated some of these treaties¹²⁸ and have submitted reports to human rights bodies with the mandate to promote and protect the right to freedom from discrimination such as the Committee on the Elimination of Discrimination against Women¹²⁹ and the Committee on the Elimination of All Forms of Racial Discrimination.¹³⁰ States have also implemented other measures, such as conducting public awareness campaigns on human rights aimed at preventing and combatting discrimination,¹³¹ prohibiting discrimination against trade unions,¹³² repealing or amending discriminatory laws¹³³ and abolishing discriminatory common law,¹³⁴ highlighting discriminatory laws which need to be repealed or amended¹³⁵ and highlighting positive discriminatory laws or policies.¹³⁶ It is encouraging to see that African countries have adopted national, regional and international measures to promote and protect the right to freedom from discrimination. The fact that these measures are brought to the attention of the African Commission shows, inter alia, that African states are willing to share the achievements registered and the challenges faced in the promotion and protection of the right to freedom from discrimination. The fact that some reports focus not only on achievements but also on challenges faced shows, inter alia, that some states are honest in their reporting and are willing to be guided by the African Commission with regard to the actions that could be taken to strengthen the right to freedom from discrimination. Reporting on the challenges also puts the African Commission in a better state to suggest concrete measures that could be taken overcome those challenges.

A survey of the reports shows that states are increasingly reporting in detail on the measures taken to promote and protect the right to freedom from discrimination. Most of the reports submitted in the early 1990s have very little content on the right to freedom from discrimination. These reports simply mention the relevant constitutional or legislative provisions on the right to freedom from discrimination without elaborating on the measures being taken to promote or protect this right. In some cases, they mention the international human rights treaties ratified by states parties without elaborating on the measures taken to give domestic effect to these treaties. The opposite is true when it comes to later reports.

Concluding observations on state party reports

After examining a state party report, the African Commission makes its observations on the report. In its Concluding Observations on these reports, the African Commission has commended states for putting in place measures to prevent and combat discrimination. These measures have included adopting constitutions which prohibit discrimination on different grounds¹³⁷; ratifying international and regional human rights instruments which prohibit discrimination, such as the International Convention on the Elimination of All Forms of Racial Discrimination,¹³⁸ CEDAW,¹³⁹ the Optional Protocol to CEDAW¹⁴⁰ and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa¹⁴¹; ‘the establishment of the Equal Opportunities Commission, which is mandated to combat all forms of discrimination in the country…’¹⁴²; the enactment of legislation which prohibits discrimination against persons living with HIV/AIDS¹⁴³; the introduction of legislation which prohibits discrimination against people with disabilities,¹⁴⁴ children living with albinism¹⁴⁵ and women¹⁴⁶; the adoption of measures to popularize the African Women’s Protocol and ‘to train magistrates on the implementation of’ CEDAW¹⁴⁷; adopting the National Plan of Action to, inter alia, ‘combat discrimination against children’¹⁴⁸ and the establishment of a special court to, inter alia, adjudicate in ‘cases of discrimination against women and persons with disabilities’.¹⁴⁹

In the Concluding Observations on state parties’ reports, the African Commission has raised the following concerns: ‘[a]bout the lack of concrete legislation at the national level on gender based violence, Female Genital Mutilation (FGM), and discrimination against women’¹⁵⁰; the fact that the constitution ‘does not adequately guarantee the right to equality and the right against discrimination’ and that ‘there is no constitutional provision incorporating the principle of equality between men and women’¹⁵¹; ‘[t]he existence of some provisions which discriminate against women, particularly in the Personal and Family Code…’¹⁵² and the lack of ‘statistics on the prevalence and pattern of violence against women and discriminatory practices in the various parts of the country’.¹⁵³ The African Commission has also raised concerns about ‘that persons with disabilities, especially children, face discrimination’¹⁵⁴; the delay in enacting legislation which prohibits discrimination against people living with HIV/AIDS¹⁵⁵; ‘[t]he continuous allegations of discrimination and stigmatization of people living with HIV in the workplace’¹⁵⁶; the existence of legislation discriminating against children born outside wedlock¹⁵⁷; and the government’s policy of encouraging the establishment of private schools ‘could result in discrimination against children from low-income households’.¹⁵⁸ Furthermore, the African Commission has raised concerns about the existence of discriminatory cultural practices especially against women¹⁵⁹; the fact that the state party has not ratified treaties aimed at prohibiting and combatting discrimination, such as CEDAW¹⁶⁰ and the Optional Protocol to CEDAW¹⁶¹; the

delay in finalizing the study on the identification of indigenous communities in Cameroon and the fact that to date no concrete steps have been taken to enact a law on indigenous populations, as recommended by the…UN Committee on the Elimination of Racial Discrimination in March 2010¹⁶²;

[t]he lack of an appropriate legal framework to eliminate the discrimination and marginalization of indigenous populations’¹⁶³; discrimination against some ethnic groups because of their affiliation with opposition political parties¹⁶⁴; and the ‘lack of information on concrete measures taken to combat and prevent societal stigma and discrimination against persons with disabilities’.¹⁶⁵

Recommendations to state parties

After raising these concerns, in its Concluding Observations on states parties’ reports, the African Commission has called upon states to put in place measures to prevent and combat discrimination against women by ‘undertak[ing] deliberate, concrete steps and policies which will enhance the participation of women in government and in key positions’¹⁶⁶; to ‘[p]ut in place concrete legislative measures on gender-based violence at the national level to address the problem of FGM and discrimination against women’¹⁶⁷; to ‘[t]ake steps to eliminate discrimination of persons with disabilities’¹⁶⁸; to ‘[p]ut in place measures, and legislations, that will protect persons living with HIV/AIDS from discrimination in the society…’¹⁶⁹; to enact legislation prohibiting discriminatory practices against women,¹⁷⁰ and girls,¹⁷¹ discrimination against people living with HIV/AIDS;¹⁷² and to ratify CEDAW,¹⁷³ the Protocol to CEDAW¹⁷⁴ and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.¹⁷⁵ The African Commission has also called upon states to ‘[a]dopt a comprehensive strategy to modify or eliminate negative cultural practices and stereotypes which are harmful to and discriminate against women…’,¹⁷⁶ ‘[r]eview the definition of Non-Discrimination in the Disability Act to include “Reasonable Accommodation,”’¹⁷⁷ repeal or review laws that discriminate against women¹⁷⁸ and children born out of wedlock¹⁷⁹ and ‘[e]laborate on the measures put in place to combat and prevent societal stigma and discrimination against persons with disabilities in the next Report’.¹⁸⁰

There have been cases where the African Commission, in its Concluding Observations, has raised concerns about some discriminatory laws or practices in some countries but the recommendations are silent on the measures that the state should take to prevent or eradicate such discrimination.¹⁸¹ Some states have taken the recommendations by the African Commission seriously. This is evidenced by the fact that they have reported to the African Commission on the measures they have taken to implement the recommendations the African Commission made in its Concluding Observations on earlier reports. These measures have included the ratification of treaties aimed at preventing and combating discrimination¹⁸²; the abrogation of discriminatory laws¹⁸³; enacting legislation to prevent and combat discrimination against women,¹⁸⁴ to combat harmful cultural practices against women¹⁸⁵ and to prevent and combat discrimination in employment¹⁸⁶; the training of judicial and law enforcement officers on human rights including laws and treaties prohibiting discrimination against women¹⁸⁷; measures being implemented to prevent and combat discrimination against indigenous communities¹⁸⁸ and people living with HIV/AIDS¹⁸⁹; and measures being implemented to ensure that children get access to education without discrimination.¹⁹⁰ Some of the recommendations in the African Commission’s Concluding Observations are specific and states may easily implement them, for example, those measures relating to enacting or amending legislation to prohibit discriminatory practices and to ratify treaties prohibiting discrimination. However, others are vague and difficult to monitor and evaluate, for example, taking concrete steps to prevent or eradicate discrimination. The African Commission does not clarify what it means by ‘concrete’ and does not specify the steps to be taken. An examination of the African Commission’s Concluding Observations on state party reports illustrates at least two points. First, the African Commission highlights the achievements a state party has registered and the areas that need improvement. It is against that background that the African Commission recommends some of the strategies that could be put in place by the relevant state to overcome the challenges it is facing and protect and promote the right to freedom from discrimination better. The African Commission does not use Concluding Observations as a means to embarrass the states. Secondly, Concluding Observations also show that the African Commission has encouraged states to ensure that they put in place measures to promote and protect the right to freedom from discrimination at national, regional and international levels. This indicates, inter alia, that the African Commission is of the view that different approaches at different levels are needed to promote and protect this right.

Mission reports

One of the ways through which the African Commission has promoted and protected human and peoples’ rights is through conducting visits to states parties to the African Charter. After each visit, the relevant commissioner(s) will write a report highlighting the issues that arose or that were dealt with during the visit. The reports show that the right to freedom from discrimination is one of the rights that the African Commission has sought to promote during these visits. Discrimination has a long history in some African countries¹⁹¹ and its negative impact on the enjoyment of other rights is not disputable.¹⁹² It is therefore important that the African Commission visits African countries to assess the measures being taken by governments to promote and protect the right to freedom from discrimination. This is so because some of the challenges these countries have faced in promoting or protecting the right to freedom from discrimination may not be brought to the attention of the African Commission through periodic state reports, as some countries take very long to submit them and others have never reported at all,¹⁹³ or through individual communications, as some of these issues may not be taken to the African Commission by means of communications.

Promoting the right to freedom from discrimination has sometimes been high on the agenda of the African Commission’s mission state visits. This is evidenced by the fact that in some cases, the terms of reference of these missions have included anti-discrimination specific issues, for example, to determine the legal framework and other measures governments have adopted to prevent discrimination against, and stigmatisation of, people living with HIV.¹⁹⁴ An examination of the mission reports shows three ways in which the issue of the right to freedom from discrimination has been dealt with during these mission visits. The reports mention the measures taken by states parties to promote this right; the issues of concern which have been identified by the commissioners; and finally, the commissioners make recommendations to guide states on the strategies that could be adopted to promote and protect the right to freedom from discrimination. The three approaches mentioned above are discussed next.

Measures taken to promote and protect the right to freedom from discrimination

One of the measures taken by states parties to promote and protect the right to freedom from discrimination is the ratification of treaties which prohibit discrimination. The mission reports outline the international human rights instruments ratified by the states concerned, such as CEDAW,¹⁹⁵ the Optional Protocol to CEDAW,¹⁹⁶ the UNESCO Convention against Discrimination in Education,¹⁹⁷ the ILO Convention 111 on Discrimination in respect of employment and occupation¹⁹⁸ and the International Convention on the Elimination of All Forms of Racial Discrimination.¹⁹⁹ The African Commission considers the ratification of these treaties as a ‘commitment…to human rights’.²⁰⁰ The reports highlight measures (substantially based on information supplied by states parties) states parties are adopting to prevent and combat discrimination, such as putting in place policies and/or legislation to prevent or combat discrimination on the ground of HIV/AIDS²⁰¹; forbidding cultural practices which are harmful to women²⁰²; the fact that the government respects the principle of non-discrimination²⁰³; there is no discrimination on the ground of gender when it comes to the issue of ownership of property²⁰⁴; the adoption of the Gender Policy to combat discrimination against women²⁰⁵; there is no discrimination in the issuing of identity and travel documents²⁰⁶; prisoners are not discriminated against on grounds of religion²⁰⁷; there is no discrimination in the recruitment of police officers²⁰⁸; domesticating international human rights instruments prohibiting discrimination such as CEDAW²⁰⁹; and the fact that the state party has submitted periodic reports or is in the process of submitting reports to international human rights bodies, such as the CEDAW Committee²¹⁰ and the Committee on Racial Discrimination.²¹¹ In a report on the mission visit to Angola, the Special Rapporteur on the Rights of Women in Africa noted that:

Angola may be congratulated for having ratified the Convention on the Elimination of all forms of Discrimination against Women on 17th September 1986, a very important instrument for the promotion and protection of Women’s Rights. However, it is deplorable to note that since that date, this State has neither submitted nor presented a report to the Committee of Experts on the Convention. This constitutes a serious discrepancy in the implementation of Women’s Rights in Angola and places Angola way behind in the international movement for the promotion and protection of the Women’s Rights.²¹²

The above observation shows the seriousness with which the African Commission takes states parties’ obligation to submit reports to the relevant human rights bodies. The missions reports have also highlighted the facts that ‘[s]ince independence the Government has enacted laws aimed at enhancing women’s rights and countering certain traditional practices that discriminate against women’²¹³; the existence of non-governmental organizations (NGOs) fighting discrimination against women²¹⁴; the criminalization of discrimination²¹⁵; that there is no discrimination against women and girls when it comes to access to the right to education²¹⁶; positive discrimination is being implemented in favour of women²¹⁷; and repealing or amending discriminatory laws.²¹⁸ As in the case of the periodic reports to the African Commission, the mission reports show that African countries have adopted national, regional and international strategies to promote and protect the right to freedom from discrimination.

Issues of concern

The mission reports highlight issues of concern, in some cases based on the information received from NGOs or some human rights victims, such as discrimination against specific groups, for example, sexual minorities²¹⁹; indigenous groups or populations²²⁰; people living with HIV/AIDS²²¹; and people with disabilities,²²² nationality²²³ and women during marriage,²²⁴ and on the issue of property ownership.²²⁵ The reports also show that some constitutions do not prohibit discrimination on the ground of sex²²⁶; that ‘[s]everal statutory laws, decrees and other administrative measures adopted by states are discriminatory against women’²²⁷; that ‘discriminatory practices are the order of the day’ in the field of employment²²⁸; and that discriminatory practices are against girls in inheritance matters²²⁹ and in practices such as virginity testing.²³⁰ The reports further show that HIV positive prisoners were discriminated against, ‘were not allowed to work in the kitchen’²³¹ and were subjected to verbal abuse²³²; that some prisoners complained that prison warders discriminated against them on the basis of their language,²³³ ethnic group or tribe²³⁴; that ‘prisoners with AIDS continue to be put in solitary confinement in this prison, in violation of their right to non-discrimination due to their serologic status’²³⁵; that ‘[c]ondemned prisoners…in [the] women prison said they felt discriminated and rejected: they were not allowed to go to other parts of the prison than their ward, except the yard’²³⁶; that because of discrimination, women have not benefitted from some government programmes²³⁷; that government policies discriminate against some people on the basis of their religion²³⁸; discrimination ‘regarding girl-child education’²³⁹; and discrimination against citizens because of their political opinions.²⁴⁰ The role of non-governmental and human rights organizations in making relevant information available to the African Commission is worth mentioning. In some cases, it is NGOs that have notified the African Commission of discriminatory laws and policies during the mission visits. Also worth noting is the fact that during these mission visits, the African Commission has not neglected the rights of vulnerable groups, such as prisoners and minority groups.

Recommendations

In some of these reports, recommendations are made to states parties where discriminatory laws or practices have been identified. Such recommendations have included the fact that discriminatory laws and practices against women are contrary to states parties’ international human rights obligations arising out of treaties, such as CEDAW and the African Charter²⁴¹; that discrimination against prisoners because of their ethnicity or the type of sentence imposed on them was a violation of

[t]he right to be protected from any type of discrimination [which] is stipulated inter-alia in the Universal Declaration on Human Rights (Article 7), the Constitution of Uganda (Articles 21–2), [and] the UN Standard Minimum Rules for the Treatment of Offenders (Rule 6)²⁴²;

that ‘all prisoners are entitled to equal treatment without discrimination’²⁴³; that not permitting HIV positive prisoners to work in the kitchen amounted to ‘discrimination against people suffering from HIV/AIDS [and] is not allowed’²⁴⁴; that ‘[i]ntimidation and discrimination should not be resorted to as a way of controlling prisoners and other measures should be used to keep discipline’²⁴⁵; and that the government should ‘take steps to ensure that all racial manifestations are dealt with in accordance with internationally recognized prescriptions, including Article 2 of the African Charter and Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination’.²⁴⁶ The African Commission has also called upon states to adopt ‘positive discrimination’ measures in favour of some marginalized indigenous groups²⁴⁷; to ‘[t]ake the necessary corrective and positive measures wherever discrimination against women exists’²⁴⁸; to ratify international human rights treaties, such as CEDAW²⁴⁹ and the African Women’s Protocol;²⁵⁰ to ‘[e]liminate the discriminatory practice compelling Women to present authorisation from their husbands before travelling abroad’²⁵¹; to ‘[e]nsure the equal and indiscriminate access of men and Women to employment’²⁵²; and, ‘[i]n collaboration with Women’s Associations, to elaborate policies aimed at eliminating all forms of discriminatory practices and raising awareness among Women and combating all harmful habits, practices and traditional beliefs’.²⁵³ The African Commission has also urged states to ‘take concrete measures to combat the stigma and discrimination suffered by’ the indigenous population²⁵⁴; to ‘[a]dopt a non-discriminatory Family Code which protects the rights of women and girls’²⁵⁵; to ‘[e]nsure that all persons living with disabilities are protected from discrimination and that they have equal opportunities, notwithstanding the extent of their disability’²⁵⁶; to ‘promote more sensitization campaigns, and where necessary legislation to ensure that people with HIV/AIDS are not stigmatized or discriminated against, especially in places of work’²⁵⁷; and to take into account the International Guidelines on HIV/AIDS and Human Rights in developing measures for preventing and combatting discrimination against people living with HIV/AIDS.²⁵⁸ The African Commission has further called upon states to ‘[e]nsure that prisoners and other people living with HIV/AIDS, held in prisons and other places of detention are not discriminated against on account of their status’²⁵⁹; to make ‘urgent efforts’ to ‘to erase the discrimination of’ female prisoners ‘especially in the process of rehabilitation’²⁶⁰; and to ‘amend the HIV/AIDS Prevention and Control Bill, so as to address the provisions that may attract stigma and discrimination by targeting already marginalized and vulnerable groups in society such as sex workers, pregnant women, and drug users’.²⁶¹ Some recommendations are specific and easy to monitor, such as those which require the enacting, amending or repealing of legislation, whereas others are general and difficult to monitor. In the author’s view, the best approach is to make specific and easily measurable recommendations. This would enable the state to know exactly what to do to promote and protect the right to freedom from discrimination and would make it easy for the African Commission to hold the state to account.

Resolutions

Another way through which the African Commission has promoted the right to freedom from discrimination is by passing resolutions calling upon states parties to protect this right if other rights are to be realized fully. In these resolutions, the African Commission has called upon states to ensure ‘[t]he accessibility of needed medicines to everyone without discrimination’²⁶²; to ‘[e]stablish impartial and non-discriminatory procedures with respect to all voting processes’²⁶³; to give effect to the rights provided for in the regional and international human rights instruments the state has ratified ‘without any discrimination whatsoever’²⁶⁴ or ‘without discrimination on any grounds’²⁶⁵; to ‘[e]nsure regular training of medical personnel on the protection of human rights in the context of health care, including the principles of informed consent and non-discrimination’²⁶⁶; to ‘[t]ake all appropriate measures including positive discrimination in providing funds for specific programs and projects to secure maternal health’²⁶⁷; and to ‘take effective measures to eliminate all forms of violence and discrimination against persons with albinism, and to increase education and public awareness-raising activities’.²⁶⁸ The African Commission is ‘concerned that PLHIV continue to be victims of discrimination, stigma, prejudices, status-engendered violence and harmful customary practices in many States Parties’²⁶⁹ and invited ‘its special mechanisms, as part of their respective mandates, to address the relevant aspects of the safety and non-discrimination of persons with albinism’.²⁷⁰ The African Commission is ‘concerned by the marginalization of and discrimination against indigenous children, youth and women in many African States’ and calls upon states to ‘[a]dopt policies, laws and measures to promote and protect the rights of indigenous populations/communities from marginalization, discrimination and poverty’²⁷¹; it is ‘[d]eeply disturbed by the growing trend of various State Parties across Africa toward criminalisation and mandatory testing of PLHIV which leads to greater stigmatisation and discrimination’.²⁷² The African Commission has called upon African states to ‘adopt plans, policies and programmes to improve the situation of young girls who face structural and cultural obstacles, in particular forced and early marriages, female genital mutilation, discrimination and other harmful cultural practices’²⁷³; has recognized the fact that ‘women human rights defenders are victims of violence and discrimination which impacts on their ability to actively participate in the socio-economic and political processes in the countries in which they operate’²⁷⁴; and has tasked the Special Rapporteur on Human Rights Defenders with the mandate to conduct ‘a study on the situation of women human rights defenders in Africa, the laws governing them and discriminatory practices aimed at restricting their role in promoting and protecting human rights on the continent’.²⁷⁵

The African Commission has called upon states to ensure ‘equal opportunity and general accessibility, both physical and economic, for all persons to education without discrimination’ and ‘that privatisation in education does not exacerbate discrimination against children, in having access to and quality in education, particularly girl children, vulnerable and marginalised children’.²⁷⁶ On the issue of nationality, the African Commission expressed its:

deep concern at the arbitrary denial or deprivation of the nationality of persons or groups of persons by African states, especially as a result of discrimination on grounds of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status

and called:

upon African states to refrain from taking discriminatory nationality measures and to repeal laws which deny or deprive persons of their nationality on grounds of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status, especially if such measures and laws render a person stateless.²⁷⁷

The African Commission requested ‘African States to take the necessary measures to strengthen civil registration services to ensure the prompt registration of the births of all children on their territory, without discrimination’.²⁷⁸ Through these resolutions, the African Commission has called upon African states to ratify treaties that prohibit discrimination. For example, the African Commission urged African states to ratify CEDAW ‘and member states that have ratified it with reservations to withdraw them’²⁷⁹ and to ratify the African Women’s Protocol.²⁸⁰ The African Commission has urged African states to:

[r]atify without reservations and ensure the effective implementation of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the Convention on the Elimination of All Forms of Discrimination against Women as well as its Optional Protocol.²⁸¹

Although states have ratified international and regional human rights instruments that prohibit discrimination against women, the African Commission is ‘concerned that…women are still deprived of their right to own land and property and continue to experience discrimination and harmful social practices as a result of gender inequality’.²⁸² Against that background, the African Commission has encouraged ‘State Parties to repeal discriminatory laws and adopt legislative measures to sanction customary practices that limit or have a negative impact on women’s access to, use of and control over land and other productive resources’.²⁸³ On the right to access to water, the African Commission has called upon African countries to:

comply with the principle of non-discrimination within and among riparian populations, and take into account the needs of vulnerable persons, in particular women and children, persons with disabilities, elderly persons, rural populations living in geographically inaccessible areas, displaced persons, refugees and persons deprived of their liberty.²⁸⁴

The African Commission is also concerned ‘that laws aimed at protecting women and children from violence are insufficient, discriminatory or non-existent…’²⁸⁵; it has noted that ‘human dignity is an inherent right which all human beings are entitled to without discrimination on the basis of disability’.²⁸⁶ The resolutions show, inter alia, that the right to freedom from discrimination is emphasized in the context of other rights.

Conclusion

In this article, the author has relied on individual communications, periodic state reports, promotional mission reports and resolutions to highlight the measures being taken by African countries and the African Commission to promote and protect the right to freedom from discrimination. The article shows that the protection and promotion of the right to freedom from discrimination is high on the agenda of the African Commission and of African countries. Different measures at different levels have been implemented to protect this right. However, there are also challenges, such as the fact that the African Commission has adopted different definitions of ‘discrimination’ and that some of the recommendations that the African Commission has made to states parties are vague and difficult to monitor. It is encouraging to note that African countries have taken the protection and promotion of the right to freedom from discrimination seriously by adopting various strategies at national, regional and international levels to guarantee this right.

Footnotes

Acknowledgements

I presented a short version of this article at a public lecture at the Palais de Justice (Supreme Court of Seychelles), Victoria, Seychelles on 2 May 2017 when I was a visiting researcher at the Department of Law, Faculty of Business and Sustainable Development, University of Seychelles, Victorian, Mahe, Seychelles. I am grateful to Dr Justin Valentin, the Dean, for organising the lecture. I am also grateful to Prof Leeman, University of the Western Cape, for editing the earlier version of this article.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.