24. Limitation of rights and fundamental freedoms (2024)
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--
(a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom --
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundmental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied. (4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage,divorce and inheritance. (5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service--
(a) Article 31 – Privacy; (b) Article 36 – Freedom of association; (c) Article 37 – Assembly, demonstration, picketing and petition; (d) Article 41 – Labour relations; (e) Article 43 – Economic and social rights; and (f) Article 49 – Rights of arrested persons.
As a legal expert specializing in constitutional law and human rights, I possess a comprehensive understanding of the principles and provisions outlined in constitutional documents, such as bills of rights and fundamental freedoms. I have extensively studied various legal frameworks globally, including those that emphasize the protection and limitation of rights, and have applied this knowledge in practical contexts, such as advising on legal cases, contributing to policy development, and conducting research in this field.
The passage provided appears to be an excerpt from the Kenyan Constitution, specifically detailing the limitations on rights and fundamental freedoms. It outlines the principles governing the restriction of rights, emphasizing the necessity of limitations being justifiable in a democratic society based on human dignity, equality, and freedom. The key components identified for considering limitations include:
Nature of the Right or Fundamental Freedom: Recognizing the nature and essence of the right or freedom being limited.
Importance of the Purpose of the Limitation: Evaluating the significance of the objective behind imposing the limitation.
Nature and Extent of the Limitation: Understanding the scope and degree to which the right or freedom is being curtailed.
Balancing Rights: Ensuring that the enjoyment of rights by an individual does not undermine the rights of others.
Relation Between the Limitation and its Purpose: Examining the connection between the limitation imposed and the intended purpose, considering if there are less restrictive means to achieve the same purpose.
Additionally, the passage stipulates conditions under which a provision in legislation may limit a right or fundamental freedom:
Legislation enacted or amended must expressly intend to limit a right or freedom, specifying the nature and extent of the limitation.
Clarity and specificity are required in identifying the right or freedom to be limited and the scope of the limitation.
The limitation imposed should not derogate from the core or essential content of the right or freedom.
Moreover, there are specific exceptions mentioned regarding the limitation of rights for individuals serving in the Kenya Defence Forces or the National Police Service, which include limitations on privacy, freedom of association, assembly, demonstration, labor relations, economic and social rights, and the rights of arrested persons.
Lastly, the passage also indicates the qualification of provisions on equality for the application of Muslim law before the Kadhis’ courts in matters related to personal status, marriage, divorce, and inheritance.
This excerpt from the Kenyan Constitution underscores the careful balance between protecting individual rights and allowing for justifiable limitations, ensuring a harmonious coexistence of rights within a democratic society.
The limits of human rights are primarily defined by the need to balance individual rights with the rights and well-being of society as a whole. This means that certain human rights can be restricted or limited if they endanger public safety, public order, or the rights and freedoms of others.
The right to freedom of expression is limited to an extent that expressions cannot be in respect of propaganda for war, provocation of imminent violence, or hate speech based on race, ethnicity, gender or religion that incites the causing of harm.
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right ...
Government can restrict the exercise of these rights to further important interests in public order, safety and health. Generally speaking, government can impose reasonable restrictions on public protest so long as it does not target a particular message, speaker, or group.
Fundamental rights apply to everyone, and are everywhere and always inviolable. However, they are not absolute or uncontrolled: even fundamental rights are subject to some restrictions. In certain cases the law may limit the enjoyment of these rights: for example to ensure a fundamental right of someone else.
Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.
No fundamental right is absolute. Freedom of speech and expression guaranteed by Article 19(1)(a) can be reasonably restricted on the grounds specified in Article 19(2). In the Draft Constitution, one of the heads of the restrictions proposed on freedom of speech and expression was “sedition”.
While international law protects free speech, there are instances where speech can legitimately restricted under the same law – such as when it violates the rights of others, or, advocates hatred and incites discrimination or violence.
The government only limits our rights in particular scenarios. These primarily include instances in which exercising the right causes harm to others. It also can include instances where the right is almost impossible to protect, like our right to privacy when in public spaces.
The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, and the right to keep personal matters private.
The standard of limitation of human freedom is based on the principle of proportionality. The standard of limitation on human freedom is that it must be prescribed by law, justified by legitimate aims, and necessary in a democratic society.
What are the limitations of citizens right? One person's rights end where they would infringe on another person's rights. For example, you have the right to free speech, but that does not include the right to shout down or obstruct another person's equal right to express ideas you might not agree with.
In the middle of the 20th century, the Supreme Court ultimately concluded that because the right to speak freely is so fundamental, it is subject to restriction only in limited circ*mstances. It is now an accepted doctrine that tolerance for discord is built into the very fabric of the First Amendment.
Civil and political human rights are fundamental, but difficult to measure. Violations of these rights often take place in secret and are denied by the people who order and carry them out. Often the violators attempt to place the blame for their actions on rogue agents or other actors.
The international human rights system cannot be explained or aided by the bilateral prisoner's dilemma, because, despite being constructed from a web of multilateral treaties, the international human rights system does not centrally address itself to interstate behavior (bilateral or multilateral) but rather to ...
Introduction: My name is Barbera Armstrong, I am a lovely, delightful, cooperative, funny, enchanting, vivacious, tender person who loves writing and wants to share my knowledge and understanding with you.
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