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.