JUDICIAL INTERPRETATION OF LIMITATION CLAUSES AT THE INTERNATIONAL AND REGIONAL HUMAN RIGHTS SYSTEMS: LESSONS FOR DOMESTIC COURTS

Abstract

Most human rights have no absolute character. In this sense, it is
permitted to restrict them by balancing their enjoyment against
other legitimate reasons or interests. For instance, the right to
freedom of expressions, freedom of assembly, freedom of
association ad freedom of movement can be limited on grounds
of national security or public order. The main challenge in many
jurisdictions is how a balance is struck between the enjoyments
of human rights on the one hand and the use of legitimate
grounds to limit the said rights on the other. The aim of this
article is to present international and regional jurisprudence to
illustrate how human rights tribunals have attempted to grapple
with the problematic aspect of balancing between rights and
legitimate interests. This discussion is crucial in a bid to provide
lessons to local courts in various jurisdictions, Tanzania
inclusive, when
interpreting
limitation clauses
in their
constitutions.  

Key words: Limitation clauses, legitimate interests, the principle of
proportionality, margin of appreciation.