Limitation Clauses at the African Regional Human Rights System and Tanzania: Reflection of Judicial Decisions

Abstract

Enjoyment of fundamental human rights as
guaranteed by the African Charter or Constitution of
Tanzania is subject to limitations which are set out
by the ordinary law made by parliament. However,
case law has demonstrated that no provision of the
limitation clause in the African Charter or
Constitution may be interpreted as permitting a State
to suppress enjoyment or exercise of the rights and
freedoms to a greater extent than reasonably
required. Which tests or criteria should guide the
court or other authorities depends on the instrument
in question. Both the African Charter and the
Constitution of Tanzania do not have clearer guiding
criteria.
Courts have attempted, nevertheless, to come up
with criteria or tests by borrowing from international,
other regional and domestic human rights systems.
This article reviews case law from the African Court
and Tanzania and finally proposes the adoption of
the three-tier test in resolving tension when at issue before the Court is whether or not a legislation or
conduct is saved by Article 30(2) of the Constitution
which allows limitation of human rights. The benefit
of adopting this approach would enable domestic
courts to be consistent when deciding human rights
petitions.

Key Words: Limitation Clauses, Claw-back clauses, proportionality
principle, necessary in a democratic society.