A Critical analysis of article 24 on the limitation of rights and fundamental freedoms under the constitution of Kenya 2010

Abstract

This study sets out to critically examine and assess the main limitation provisions of Kenya's constitutional framework in providing a safeguard to the limitation of rights and fundamental freedoms vis- a-vis the international legal instruments that protect human rights thus setting out an internationally agreed upon standard for the limitation of rights. This study breaks down the provisions and examines it to see if they comply with the minimum requirement of a standard that is derived from an examination of three international instruments that set the stage with regard to the limitation of rights and fundamental freedoms. These instruments are, the African Charter on Human and Peoples Rights (ACHPR), the International Covenant for Civil and Political Rights (ICCPR) and The International Covenant for Economic, Social and Cultural rights (CESCR). Generally, limitation of human rights must take into account the protection of public interest and the rights of the individuals. The structure of a limitation form may take a general form, meaning that it limits all sets of rights or a rights specific clause that limits specific rights. However, under article 24 of the Constitution, if the enjoyment of an individual's right and fundamental freedoms prejudice the rights and fundamental freedom of another, the law provides a limit to that enjoyment. This paper will attempt to identify and discuss the jurisprudence of Kenyan courts on the limitation of human rights, the process by which Courts in Kenya have interpreted this limitation and how this provision measures up against international instruments which provide the International threshold on limitation of rights. The study eventually reveals that in order to legally limit rights, the state must balance rights and interest of the individuals with that of the state so that the limiting measures should not outweigh the actual circumstances that necessitate the restriction, they must be non-discriminatory and finally not make a country avoid her obligation under international law.