The African Court on Human and Peoples’ Rights’ Understanding of the Principle of “Equality Before the Courts and Tribunals” Considering the Drafting History of Article 14(1) of the ICCPR

Article 14(1) of the International Covenant on Civil and Political Rights provides that “All persons shall be equal before the courts and tribunals.” A similar provision does not appear in the African Charter on Human and Peoples’ Rights. Thus, Article 3 of the African Charter on Human and Peoples’ Rights (the African Charter) provides that “(1) Every individual shall be equal before the law. (2) Every individual shall be entitled to equal protection under the law. Article 60 of the African Charter empowers the African Court on Human and Peoples’ Rights to refer to international instruments when interpreting the Charter. Article 7 of the Protocol establishing the Court empowers the Court to “apply the provisions of the Charter and any other relevant human rights instruments ratified by the state concerned.” It is on the basis of those two provisions, the African Court has referred to Article 14(1) of the ICCPR when interpreting Article 3 of the African Charter. In many decisions, the African Court has held that the “right to equality before the law requires that all persons shall be equal before the courts and tribunals.” The African Court has also held that the right to equality before the law and the right to equality before courts are the same “in substance.” However, the drafting history of Article 14(1) shows that the principle of equality before courts and tribunals is different from the right to equality before the law under Article 26 of the ICCPR. Relying on this drafting history, the author argues that the African Court has blurred the distinction between the principle of equality before courts and tribunals and the right to equality before the law. This implies, as the submissions by some delegates during the Third Committee meetings show, that states may establish separate courts for different groups of people based on grounds such as race or economic status provided that such courts apply the same law(s) (people are equal before the law). In other words, the “separate but equal” approach. It also implies that some judicial officers may exercise their discretion discriminatorily.