INTERPRETATION OF LIMITATION CLAUSES IN THE ZAMBIAN BILL OF

RIGHTS: A PROPOSAL FOR THE ADOPTION OF THE PRINCIPLE OF

PROPORTIONALITY

BY

CHALI BRIDGET CHIMANSE

(2017005994)

A DISSERTATION SUBMITTED TO THE UNIVERSITY OF ZAMBIA IN PARTIAL

FULFILLMENT OF THE REQUIREMENTS FOR BACHELOR OF LAWS

UNZA 2021
 COPYRIGHT DECLARATION

I CHALI BRIDGET CHIMANSE, computer number 2017005994 do hereby declare that this

dissertation presents my own work and that to the best of my knowledge, no similar piece of

work has been previously submitted for the award at this University or another University.

Where work of another scholar has been used, it has been duly acknowledged.

All rights reserved including the right of reproduction and reprinting in part or in whole in any

form without the author’s prior authorisation.

........................................ ....................................

Student’s signature Date

ii
 THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

I recommend that the Directed Research Essay under my supervision

By

Chimanse Bridget Chali

Entitled:

Interpretation of Limitation Clauses in the Zambian Bill of Rights: A Proposal for the Adoption
of the Principle of Proportionality

Be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the
requirement pertaining to the format as laid down in the regulations governing obligatory essays.

……………………………… ………………………...

SUPERVISOR DATE

iii
 DEDICATION

This research is dedicated to my late father Edward Bob Chimanse. You would have been the
happiest man to see me reach this milestone. Your hopes for my siblings and I encourage me to do
my best in everything because we are your legacy. Continue to rest in perfect peace Dad.

iv
 ACKNOWLEDGEMENT

I would like to sincerely thank the following:

My supervisor, Dr O’Brien Kaaba, for his guidance, direction and concern for the success of my
studies. I’m lucky to have the support of such an expert in constitutional law.

Dad, Mr Newton Sichembe, for considering me his own and for the encouraging me and financing
my studies. May God preserve and bless him abundantly;

Mom, Mrs. Tendai Sichembe, for her love and prayers. I’m blessed to have her.

Davies Chisunka. A true friend. Thank you for keeping me grounded and focused on the goal.

My dear friends and class mates, we ran the race together and God Almighty has brought it to
completion in His perfect time.

v
 ABSTRACT

Limitation clauses play an important role in human rights law by setting limits to the range of
actions which can justifiably infringe protected rights. In spite of this, the question of how these
limitation clauses should be interpreted remains controversial due to a lack of consistency in
international standards compounded by a failure to appreciate their significance. In Zambia,
particularly, there is no appreciation of how poor interpretation of limitation clauses undermines
the protection of human rights. For this reason, this research aimed at examining the structure of
limitation clauses in the Zambian bill of rights and exploring the prevailing jurisprudence in order
to discover the manner in which they have ordinarily been interpreted. Based on its findings, it
introduced the principle of proportionality as a doctrinal interpretation tool which provides a
standard and enhances the protection of human rights.
The research was qualitive and adopted a desk research approach through the collection and
examination of a range of primary and secondary data. Particularly, it made use of legislation, case
law, and various international instruments. In addition, it examined books, journals, reports, and
other published articles.
The research established that limitation clauses in themselves must not be shunned because they
ultimately function to preserve human rights by setting down a strict criterion for the limitation of
those rights. It also observed that the major problem with interpretation of limitation clauses in
Zambia is the lack of a standard principle which can be applied in every case. In addition, courts
often interpret crucial terms such as ‘reasonably required’ and ‘necessary or expedient’ in
dissatisfying and sharply divergent ways, which allows the State to adduce weak arguments in
favour of limiting fundamental rights. This is compounded by a tendency of courts to regard human
rights as equal or commensurate to competing public interests. The research also established that
the principle of proportionality is often mentioned in a manner that suggests it is not understood
nor is there any attempt to explain or apply it.
Ultimately, it is concluded that the interpretation of limitation clauses in Zambia is underwhelming
and the principle of proportionality is introduced as a preferred doctrinal tool which provides a
standard, structures discretion, and prevents arbitrary abuse of human rights.
Finally, the research recommends the adoption of proportionality analysis in the adjudication of
human rights disputes in Zambia. It proposes that this be facilitated, firstly, through the conduct
of further research by stakeholders on the principle of proportionality, which will educate judges
on its meaning and application. Secondly, that judges should consistently apply proportionality
analysis in interpreting limitation clauses so that it becomes an established principle through
judicial precedent. Finally, that the relevant governmental agencies should take steps to bring about
the amendment of the bill of rights so that proportionality analysis is expressly provided for.

vi
TABLE OF STATUTES

Constitution of Zambia, Chapter 1 of the Laws of Zambia

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

Public Order Act, Chapter 113 of the Laws of Zambia

Universal Declaration of Human Rights, 1948

vii
TABLE OF CASES

Christine Mulundika and others v The People (SCZ Judgement No. 25 of 1995)

JWM v Board of Management O High School (Kenya Petition 10 of 2019)

Kachasu v Attorney General (1967) ZR 145 (HC)

Mmembe and Mwape v The People (SCZ Judgment No. 4 of 1996)

Patel v Attorney General (1968) ZR 99 (HC)

Pumbun and Another v Attorney General (1993) 2 L.R.C. 317

Roy Clarke v Attorney General (2004/HP/003)

Sata v Post Newspapers (1992/HP/1395)

Viking- Case C- 438105, International Transport Workers’ Federation and Finnish Seamen’s
Union v Viking Line ABP and OU Viking Line Eeshi 2007 E.C.R. 1-10779 1 75

viii
Contents

CHAPTER ONE ........................................................................................................................... 1

1.1 INTRODUCTION.............................................................................................................. 1
1.2 BACKGROUND ..................................................................................................................... 1
1.3 STATEMENT OF THE PROBLEM .................................................................................... 4
1.4 RESEARCH OBJECTIVES .................................................................................................. 4
1.5 RESEARCH QUESTIONS .................................................................................................... 5
1.6 SIGNIFICANCE OF THE STUDY ...................................................................................... 5
1.7 LITERATURE REVIEW ...................................................................................................... 5
1.8 RESEARCH METHODOLOGY ........................................................................................ 11
1.9 OUTLINE OF CHAPTERS ................................................................................................. 11
1.10 CONCLUSION ................................................................................................................... 11
CHAPTER TWO ........................................................................................................................ 12
2.0 INTRODUCTION................................................................................................................. 12
2.1 DEFINING LIMITATION CLAUSES ............................................................................... 12
2.2 CATEGORIES OF RIGHTS IN TERMS OF THEIR LIMITATION. .......................... 14
2.3 STRUCTURE OF LIMITATION CLAUSES IN THE ZAMBIAN BILL OF RIGHTS16
2.3 WHY ARE LIMITATION CLAUSES NECESSARY? .................................................... 17
2.4 CONCLUSION ..................................................................................................................... 20
CHAPTER THREE .................................................................................................................... 21
3.0 INTRODUCTION................................................................................................................. 21
3.1 RIGHTS AND LIMITATIONS: A TWO STAGE ENQUIRY ........................................ 21
3.2.0 RIGHTS ANALYSIS IN ZAMBIA .................................................................................. 22
3.2.1 BURDEN OF PROOF IN RIGHTS ANALYSIS ............................................................ 23
3.2.2 STANDARD OF PROOF IN RIGHTS ANALYSIS ...................................................... 24
3.3.0 LIMITATION ANALYSIS IN ZAMBIA ........................................................................ 25
3.3.1 BURDEN OF PROOF IN LIMITATION ANALYSIS .................................................. 25
3.3.2 STANDARD OF PROOF IN LIMITATION ANALYSIS ............................................. 27
a. PATEL V ATTORNEY GENERAL.................................................................................. 28
b. KACHASU V ATTORNEY GENERAL ........................................................................... 30
c. MMEMBE AND MWAPE V THE PEOPLE ................................................................... 31
d. CHRISTINE MULUNDIKA AND OTHERS V THE PEOPLE .................................... 33

ix
e. ROY CLARKE V ATTORNEY GENERAL .................................................................... 34
3.4.0 THE PROBLEM WITH BALANCING .......................................................................... 34
3.5.0 CONCLUSION .................................................................................................................. 36
CHAPTER FOUR....................................................................................................................... 38
4.0 INTRODUCTION................................................................................................................. 38
4.1.0 DEFINING THE PRINCIPLE OF PROPORTIONALITY .......................................... 39
4.1.1 LEGITIMACY ................................................................................................................... 40
4.1.2 SUITABILITY ................................................................................................................... 42
4.1.3 NECESSITY ....................................................................................................................... 42
4.1.4 PROPORTIONALITY STRICTU SENSU ...................................................................... 42
4.2.0 BENEFITS OF PROPORTIONALITY .......................................................................... 43
4.3.0 CRITICISMS OF PROPORTIONALITY ...................................................................... 44
4.4 BASIS FOR THE ADOPTION OF PROPORTIONALITY IN ZAMBIA ..................... 48
4.4.1 ROBERT ALEXY’S NECCESSITY THESIS ................................................................ 48
4.5.0 CONCLUSION .................................................................................................................. 49
CHAPTER FIVE ........................................................................................................................ 50
5.0 INTRODUCTION................................................................................................................. 50
5.2 SUMMARY OF RESEARCH FINDINGS ......................................................................... 50
5.3 RECOMMENDATIONS...................................................................................................... 52
5.4 PROSPECTS FOR FURTHER RESEARCH .................................................................... 52
5.5 CONCLUSION ..................................................................................................................... 53
BIBLIOGRAPHY ....................................................................................................................... 54

x
 CHAPTER ONE
GENERAL INTRODUCTION

1.1 INTRODUCTION

Constitutional scholars generally agree that rights can be subjected to legitimate limitation by the

state. However, the precise nature and extent of those limitations is the subject of much debate.

Accordingly, an understanding of the substance of fundamental rights is incomplete without a

study of limitation clauses and the manner in which they are interpreted. The present study is

conducted with the aim of discovering the prevailing challenges in the interpretation of limitation

clauses in the Zambian Bill of Rights. It begins by providing an understanding of what limitation

clauses are and gives the rationale behind limitation of human rights. Thereafter, it evaluates the

prevailing jurisprudence for interpretation of limitation clauses in Zambia with a view to expose

its shortcomings. Finally, it introduces the reader to the principle of proportionality as a tool for

interpretation of limitation provisions and proposes the adoption of proportionality analysis to

achieve optimal protection of human rights in Zambia.

1.2 BACKGROUND

The importance of human rights in protecting the dignity and worth of human beings cannot be

understated. In the same vein, it is necessary to ensure that the enjoyment of human rights does

not compromise legitimate public concerns. To that effect, limitation clauses in human rights

instruments prescribe the conditions under which certain human rights can be limited by requiring

‘compelling justifications’.1 There is often said to be shared international language in the drafting

1
Heiner Bielefeldt, ‘Limiting Permissible Limitations: How to Preserve the Substance of Religious Freedom’ (2020)
15(1-2) Religion and Human Rights 3

1
of limitation clauses, yet in spite of this, the manner in which they are interpreted and applied is

diverse. These varying applications have important implications on the quality of human rights

protection in respective locations.

Internationally, the Universal Declaration of Human Rights (UDHR)2 can be said to have set the

standard for modern human rights instruments. Article 29(2) subject’s individual human rights to

‘… such limitations as are determined by law solely for the purpose of securing due recognition

and respect for the rights and freedoms of others and of meeting the just requirement of morality,

public order and general welfare in a democratic society.’3 This provision presupposes that it will

have a uniform application, yet it raises many questions. For instance, if ‘morality’ is understood

as the subjective conception of right and wrong, then what constitutes a just limitation to human

rights will differ depending on geography and culture. Moreover, to limit human rights for the sake

of the ‘general welfare’ raises an implication that rights are subjugated to a variety of factors which

aren’t properly outlined or defined. This is because the term ‘general welfare’ is sufficiently vague

as to include many circumstances.4 Nevertheless, the UDHR cannot be faulted for its failure to

sufficiently elucidate the scope of permissible limitations to human rights as its main goal was

merely to establish those rights at a time when they were by no means certain.

Accordingly, one would expect that subsequent human rights instruments must have identified this

weakness and attempted to cure it. However, there is significant overlap in the language of later

instruments such as the ICCPR5 and the ICESCR6. Under these covenants, instead of a general

2
Universal Declaration of Human Rights 1948
3
UDHR, art 29(2)
4
Gordon Brown "Limitations and Derogations." In The Universal Declaration of Human Rights in the 21st Century: A
Living Document in a Changing World, edited by Brown Gordon, by Global Citizenship Commission, 57-62. Cambridge,
UK: Open Book Publishers, 2016
5
International Covenant on Civil and Political,1966)
6
International Covenant on Economic Social and Cultural Rights,1966)

2
limitation clause, permissible derogations are placed under the specific article. They conform to

the general standard in requiring that all limitations are ‘prescribed by law’. Additionally,

limitations are expected to be ‘necessary’ in achieving a particular social goal such as ‘public

order’ or ‘public safety’ or ‘public morality’. Other articles set a condition that they must be

‘necessary in a democratic society’. Similar difficulties arise in the application of these limitations

as those noted with the UDHR. Most importantly, the clauses take up the very singular function

of setting up limitations, when it should adopt a much broader function of giving those limitations

a distinctive criterion.7

The Zambian Bill of Rights to a large extent mirrors the above international instruments in terms

of form and content. As a result, it adopts many of the same difficulties relating to interpretation

of limitation clauses. The case law on the subject is polarized, with judges either showing an

inclination to protect the human right totally or to sacrifice human rights on the pretext of a justified

limitation. Accordingly, there is a great responsibility placed on judges in interpreting and

applying limitation clauses when they are called to question. The tendency has been to deal with

any conflict on a case-by-case basis.

However, an alternative to this could be to follow the theories on interpretation of human rights

that have been developing internationally and in similar jurisdictions over the years. For instance,

human rights courts and treaty bodies have developed tests where a set of questions are asked

which will determine the legitimacy of a limitation.8 Additionally, theories of balancing and

7
IM Rautenbach, ‘Proportionality and the Limitation Clauses of the South African Bill of Rights’ (2014) 17(6)
PELJ 2229
8
‘Counter Terrorism and situations of Public Emergency’ www.unodc.org?e4j?en , Accessed 23 March 2021

3
proportionality posit that the validity of a limitation can be determined by weighing the harm

imposed by limiting a right and the benefit achieved by such a limitation.9

In trying to address the challenge of effective human rights protection in Zambia, a comprehensive

study of the mode of interpretations of limitation clauses is necessary. In doing so, its shortcomings

will be exposed and the necessary modifications can be made to suit the particular social context

thus effectively ensuring that the protection of human rights is not left to chance.

1.3 STATEMENT OF THE PROBLEM

The Zambian bill of rights provides that limitation clauses are important because they ensure that

individuals can enjoy their human rights without prejudicing the rights of others or the public

interest. However, there is no set standard for interpreting limitation clauses which has resulted in

a lack of consistency and coherence in judgements relating to human rights. As a result of this,

severe limits are placed on the enjoyment of rights by citizens. Accordingly, there is need to

conduct research which identifies the shortcomings of the principles currently used to interpret

limitation clauses in order to propose a more effective interpretative tool through the principle of

proportionality.

1.4 RESEARCH OBJECTIVES

1. To provide an understanding of limitation clauses and their importance to human rights.

2. To discover the legal framework governing interpretation of limitation clauses in Zambia.

9
IM Rautenbach, ‘Proportionality and the Limitation Clauses of the South African Bill of Rights’ (2014) 17(6)
PELJ 2229, 2229

4
3. To establish whether the application of the principle of proportionality can lead to better

protection of human rights in Zambia.

1.5 RESEARCH QUESTIONS

1. What are limitation clauses and why are they important?

2. What is the legal framework governing the interpretation of limitation clauses in Zambia?

3. How can the principle of proportionality improve the protection of human rights in Zambia?

1.6 SIGNIFICANCE OF THE STUDY

The Constitutional protection of individual human rights marks a milestone in the development of

national human rights law in Zambia. As such, it is imperative that any possible shortcomings are

identified and addressed. Accordingly, any arbitrariness or uncertainty relating to the interpretation

of limitations to human rights or the scope of limitations must be remedied. This research fills a

lacuna by examining the suitability of proportionality analysis in Zambian human rights discourse.

It will aid scholars, judges, legislators and litigants in their common goal towards optimal

realization of human rights.

1.7 LITERATURE REVIEW

The optimal realization of human rights through effective interpretation of limitation clauses has

been and continues to be the subject of continued scholarly discourse. To begin with, Mwansa10

examines the legal structure of human rights protection in Zambia and notes that with the exception

10
Abraham Mwansa, ‘Law, Religion and Human Rights in Zambia: The Past, The Present and the Practice’(2010)
8(2) African Human Rights Law Journal 546

5
of provisions relating to life, slavery, and inhuman and degrading treatment; other fundamental

rights may be derogated from in accordance with the provision of law. The author does not identify,

nor is he concerned with the precise instances of permissible restrictions to human rights and the

methods used to resolve conflicting interests. The present research goes further by discovering the

legal framework for the interpretation of limitation clauses and examining the feasibility of

alternative approaches.

Brown,11recognizes the shortcoming of the general limitation clause in the UDHR as too general.

He posits that restrictions on human rights are necessary and must not be taken to mean the right

is inconsequential. The author goes on to suggest that while there is a difficulty in clearly defining

the bases for limiting human rights, the international community should strive towards a shared

understanding as to what reasons “are not sufficient limitations”.12 This research concurs with the

authors observations on the generality and vagueness of the limitation clauses in the UDHR, but

goes further to suggest that the same weakness can be identified in the Zambian Bill of Rights

because of the similarity in the language used. Additionally, while this research also identifies the

need for a standard international understanding of limitation clauses, it proposes the adoption of

proportionality analysis in response to this. This is as opposed to the authors suggestion of

discovering what “are not sufficient limitations”, as such an exercise would be impractical and

inexhaustive.

Robert Alexy13, posits in his theory of constitutional rights that a right can be distinguished from

a rule. That for a rule, being a “definitive command”, it is easily discoverable whether or not it has

11
Gordon Brown, ‘Derogations and Limitations’ (2016), The Universal Declaration of Human Rights in the 21 st
Century: A Living Document in a Changing World, 57
12
Gordon Brown, ‘Derogations and Limitations’ (2016), The Universal Declaration of Human Rights in the 21 st
Century: A Living Document in a Changing World 57, 58
13
Robert Alexy, A Theory of Constitutional Rights (1st edn, reprint, Oxford University Press 2010)

6
been complied with. Contrarily, Alexy identifies a right as a principle, and being a principle implies

that the discovery of its scope depends on balancing it with competing interests. Thus, suggesting

that the limitation of a fundamental right is inherent in its nature as a principle. Rosa

Pati’s,14research concurs with Alexy’s theory by recognizing that the legal effect of a right cannot

be comprehensively determined only by an examination of its inherent nature and scope. The

author espouses that an analysis of applicable limitations must be undertaken in order to fully

appreciate the legal effect of a right. The present study agrees with the findings of the authors

above. Indeed, it is for the purpose of a wholesome understanding of human rights that this research

is undertaken. To that effect, it examines limitation clauses in the context of the Zambian bill of

rights and how it’s interpretation can be improved by the adoption of proportionality theory.

The principle of proportionality is identified as a recurring theme in contemporary human rights

discourse. For instance, Viljanen15 identifies three main stages which the European Court of

Human Rights follows in the interpretation of limitation clauses; that is legality, necessity, and

proportionality. Additionally, Rayburn16 states that a courts first step must be to determine whether

a measure infringes a right. Thereafter, a court must enquire as to whether the restriction is justified

and the onus to prove this rests on the party seeking to justify the interference.17 The author posits

that determining the legality of a measure is often the first stage in limitation analysis. That the

subsequent enquiries differ from jurisdiction to jurisdiction depending on judicial interpretation of

14
Rosa Pati, ‘Rights and their Limits: The Constitution for Europe in International and Comparative Legal
Perspective’ (2005) Berkeley Journal of International Law, 324
15
Jukka Viljanen,’The European Court of Human Rights as a Developer of the General Doctrine of Human Rights
Law: A Study of the Limitation Clauses of the European Court of Human Rights’ (Dissertation, University of
Tampere 2003)
16
Philips Rayburn, ‘The Constitutional Requirement of Legality in the Limitation of Human Rights (Dissertation,
University of Toronto 1998)
17
Philips Rayburn, ‘The Constitutional Requirement of Legality in the Limitation of Human Rights (Dissertation,
University of Toronto 1998) 38

7
the purpose and text of the provision in question. He notes that at this stage, some jurisdictions

asses the proportionality of the objective of the restriction and the means chosen to achieve it.

The authors analysis as to the onus of proof when justifying limitation measures is consistent with

this research’s findings in prevailing jurisprudence in Zambia. Furthermore, this research agrees

with Rayburn’s assertion that interpretation of limitation clauses depends on the means adopted

by the particular jurisdiction. In that respect, it proposes that the Zambian courts have the discretion

to apply proportionality as a mode of legal reasoning.

Rautenbach18 questions, in his study, the legitimacy of the South African Constitutional Court’s

application of proportionality notwithstanding the fact that proportionality is not expressly referred

to in the text. In response, Alexy,19argues that the application of proportionality analysis to

constitutional rights is natural. He defends the position that the use of proportionality analysis

arises out of its necessary connection to constitutional rights. The author posits that because of the

nature of Constitutional rights as principles (discussed earlier), they must be viewed in the sense

of ‘optimization requirements’ as opposed to ‘definitive commands’. As a result, the optimization

requirement of a right demands that it is ‘balanced’ against opposing interests. In other words, the

nature of a right as an optimization requirement leads to a necessary connection between rights

and proportionality.

This research depends on Alexy’s rationality of the use of proportionality as being a logical result

of the nature of human rights. It gives a basis for this research’s exploration of the adoption of

proportionality as an instrument for interpretation of limitation clauses in Zambia. While Alexy

18
IM Rautenbach, ‘Proportionality and the Limitation Clauses of the South African Bill of Rights’ (2014) 17(6)
PELJ 2229
19
Robert Alexy, ’Constitutional Rights and Proportionality’ (2014) 22 Revus 51

8
proposes a general theory in support of proportionality, this research goes further by identifying

key advantages of applying proportionality analysis in Zambia.

Andelkovic20, views proportionality as the most important requirement that must be satisfied in

the limitation of human rights. The author identifies the four elements of proportionality as;

legitimacy, adequacy, necessity, and proportionality stricto sensu. He identifies the importance of

proportionality in its ability to prevent arbitrary limitation of human rights and freedoms.

Nevertheless, the author is not blind to existing criticisms of proportionality, namely, that the

requirements of proportionality are not precise enough and that the ultimate decision to give

priority to one of the parties is subjective.

This research agrees with the authors contentions in so far as he asserts the usefulness of

proportionality analysis in preventing arbitrary actions. However, this research posits that the

factors identified as shortcomings of proportionality do not dismiss its potential usefulness in the

Zambian context. On the contrary, this research argues that proportionality analysis does not aim

for minute precision, but to set a standard of legal reasoning which aids judges in reaching a more

effective decision. Additionally, while a decision based on proportionality will to some extent be

subjective, it is far more likely to produce optimal protection of human rights because of its

adherence to the legal principles espoused by proportionality.

Cohen – Eliya and Porat’s21 research is concerned with discovering the reasons for the

international spread and success of the proportionality principle. They assert that the reason

proportionality fits the needs of so many countries is because it is a standard based doctrine which

20
Luka Andelkovic, ‘The Elements of Proportionality as a Principle of Human Rights Limitation’ (2017) 3 Law and
Politics 235
21
Moshe Cohen- Eliya and Iddo Porat, ‘Proportionality and the Culture of Justification’ (2011) 59(2) The American
Journal of Comparative Law 463

9
allows for flexibility. Additionally, it is effective in managing conflicts and creates a common

language of global constitutional law. However, the authors mainly attribute the success of

proportionality to a growing culture of justification which charges governments to rationalize

every action as opposed to claiming blatant authority.

This research agrees with the reasons which the authors attributes to the spread of proportionality

analysis. Additionally, the research focuses on the usefulness of proportionality in creating

transformative change in Zambian jurisprudence by raising the standard by which governmental

agencies will have to justify measures which restrict human rights.

Schlink22views proportionality as a means - end analysis. The author identifies and defends

proportionality against common criticisms which are levelled against it. Where it is said that

proportionality analysis is based on assumptions because of the difficulty in obtaining information,

the author counters that this is remedied by courts adopting a burden of proof rule which is

constantly shifting between parties. Additionally, where critics argue that balancing of rights,

interests and values is inevitably subjective, the author counters that the value of proportionality

is in its ability to structure reasoning and guide on the path to find answers.

This research concurs with the views of the above author. Moreover, the authors defense of the

proportionality theory against its critics strengthens the present research’s endeavor to justify its

adoption in Zambia human rights adjudication.

Bernhard Schlink, ‘Proportionality in Constitutional Law: Why Everywhere but Here?’ (2012) 22 Duke Journal of
22

Comparative Law 291

10
1.8 RESEARCH METHODOLOGY

This research is conducted using qualitative methods. It utilizes primary data such as case law and

statute law. Additionally, it makes use of secondary sources in the form of books, journal articles,

dissertations, text books, published legal and non-legal reports, conference papers, working papers,

theses, dissertations, law reviews, and various electronic sources.

1.9 OUTLINE OF CHAPTERS

This research is tailored in the manner outlined here:

Chapter two defines limitation clauses and shows how they are structured in the Zambian

Constitution. It also demonstrates why limitation of human rights is necessary. Thereafter, chapter

three delves into the legal framework governing the interpretation of limitation clauses in Zambia

by analyzing statute and case law. Chapter three further identifies the shortcomings of the

prevailing systems. Next, chapter four discusses the history and content of the principle of

proportionality with emphasis on its benefits and criticism against it with a view to proposing its

adoption and use in Zambia. Finally, chapter five concludes the research by highlighting its

findings and making recommendations.

1.10 CONCLUSION

This chapter aimed at providing context for the reader to better understand this research. It did so

by providing a background of the topic in order to represent to the reader the importance of this

study. It further reviewed the legal discourse surrounding the topic and gave an outline of the

structure of the research.

11
 CHAPTER TWO
DEFINITION, STUCTURE AND IMPORTANCE OF LIMITATION CLAUSES

2.0 INTRODUCTION
This chapter provides an understanding of limitation clauses in the context of international and

national human rights discourse. It begins by giving a general definition of limitation clauses and

demonstrating that the nature of rights as either absolute or non-absolute provides the basis for the

existence of limitation clauses. Thereafter, it discusses the structure of limitation clauses in the

Zambian Bill of rights. Finally, the chapter explores the reasons why the enjoyment of certain

human rights is limited. Throughout the chapter, reference is made to international human rights

instruments and the Zambian Bill of Rights to enable the reader to contextualize the discussion

and better understand limitation of human rights.

2.1 DEFINING LIMITATION CLAUSES

Post-World War two, the idea of human rights became increasingly accepted. The Universal

Declaration of Human Rights represented a global call for international human rights standards

meant to protect citizens from abuses by their governments.1 Thus, the focus was largely on

defining the scope of the rights established and ensuring their protection. However, in the

subsequent years human rights scholars became more aware of the conflict of interest which is

created by human rights because of their nature, which is that they often conflict with other

legitimate interests.

Human rights are universal. This means that they belong to everyone. As a result, many times an

individual’s enjoyment of his or her rights may clash with someone else’s or with the larger

1
Nancy Flowers, ‘Human Rights Here and Now’ www.hrlibrary.umn.edu Accessed 16 June 2021\

12
community.2 Because of this, human rights law needed to develop a means to limit the enjoyment

of human rights in a lawful manner. The answer was the development of limitation clauses. A

limitation clause is a legal provision which enables protected rights to be limited in the manner

provided for.3 The limitation clause provides a standard by which actions which infringe on human

rights must be judged against. Such an action is only considered lawful if it meets the conditions

which are specified in the limitation clause.

Limitation clauses have also been defined as ‘constitutional provisions which enable

constitutionally protected rights to be partially limited for democratically justified purposes.’4 This

definition emphasizes that rights which are constitutionally protected cannot be arbitrarily limited.

Any limitation to such rights must respect the supremacy of the Constitution thus must be provided

for therein.

Limitation clauses have a very important function in the protection of human rights by providing

for the lawful restriction of human rights. However, some authors identify that limitation clauses

plays an even more important role by limiting the scope of permissible limitations.5 This means

that limitation clauses must not only permit restrictions to human rights but must also narrow the

extent of those restrictions so as not to negate the right in its entirety. In order to achieve this aim,

2
Andrea Boggio, Matteo Zignol, Ernesto Jaramillo, ‘Limitations on Human Right: Are They Justifiable to Reduce
the Burden of Tuberculosis in the Era of MDR and XDR-TB?’ (2003) 10/2 Health and Human Rights Journal
3
Daliwood Ahmed and Elliot Bulmer, ‘Limitation Clauses’, International IDEA Constitution Building Primer
www.idea.intl/sites/default/files/publications , accessed 7 June 2021
4
IM Rautenbach, ‘Proportionality and the Limitation Clauses of the South African Bill of Rights’ (2014017(6)
PELJ 2229
5
Heiner Bielfeldt, ‘Limiting Permissible Limitation: How to preserve the Substance of Religious Freedom’ 15(1)
Religion and Human Rights 3

13
most limitation provisions are cumulative. This means that any action which infringes on a right

must demonstrate compliance with each part of the limitation provision.6

Limitation clauses are imperative for the protection of human rights and are employed in many

jurisdictions. The specific requirements of limitation clauses differ from jurisdiction to jurisdiction

based on legislative drafting and judicial interpretation. But in every place, limitation clauses play

an important role in protecting human rights from arbitrary abuse.

2.2 CATEGORIES OF RIGHTS IN TERMS OF THEIR LIMITATION.

In many jurisdictions there is a tendency to divide human rights into three different categories

which correspond directly to whether or not their enjoyment can be limited. This is because human

rights enjoy different levels of protection depending on whether they are categorized as absolute,

non- absolute or having inherent limitations.7

Firstly, absolute rights are rights which cannot be limited or qualified for any reason or under any

circumstance. This means that even under a state of emergency such as a war, absolute rights

remain absolute and must not be interfered with. There are no exceptional circumstances to justify

the restriction of absolute rights.8

There is a limited number of fundamental human rights which warrant the status of absolute rights.

They include prohibitions on slavery, torture, retroactive criminal laws, and recognition of a person

before the law. For example, Article 2(2) of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment states that ‘no exceptional circumstances

6
Philippa Rayburn, ‘The Constitutional Requirement of Legality in Limitation of Human Rights’ (Master’s Thesis,
University of Toronto 1999)
7
‘Limitations Permitted by Human Rights Law’,www.unodc.org accessed 7 June 2021
8
‘Limitations Permitted by Human Rights Law’,www.unodc.org accessed 7 June 2021

14
whatsoever’ may be invoked in justification of torture.9 Furthermore, the Human Rights

Committee has stated in General Comment No. 29 that ‘prohibitions against taking of hostages,

abductions or unacknowledged detentions are not subject to derogation’10 particularly because of

their status as norms of general international law. Similarly, in Zambia, article 15 of the Bill of

Rights states in very clear terms that ‘no person shall be subjected to torture, or to inhuman or

degrading punishment or other like treatment.’11 There are no exceptions listed at all, making the

right absolute.

Secondly, human rights are said to have inherent limitations. This happens where a right is

internally qualified or stated in a manner which excludes a particular possible application or a

number of applications.12 Rights which are inherently limited are stated in such a way as to curtail

their enjoyment in very specific instances. For example, in the Zambian Bill of Rights, Article 12

(1) which protects the right to life, expressly limits that right in the case of a person who is

sentenced to death by a court of law.13 Also, under Article 13, which protects personal liberty,

there are a number of inherent limitations including where a person is sentenced to prison as

punishment for a crime14 or where a person is contained for the purpose of ‘...preventing the spread

of an infectious or contagious disease.’15 Additionally, Article 16, which protects the right to

property is notorious for having numerous inherent limitations which allows private property to be

lawfully taken from its owners.16

9
United Nations Convention Against Torture and other Cruel, Inhuman Degrading Treatment or Punishment,
Article 2(2)
10
Human Rights Committee General Comment CCPR/C/21/Rev.1/Add.11.Paraa.13(6)
11
Constitution of Zambia (Amendment) Act No. 2 of 2016, Article 15
12
Philipa Reyburn, ‘The Constitutional Requirement of Legality in Limitation of Human Rights’ (Master’s Thesis,
University of Toronto 1999)
13
Constitution of Zambia (Amendment) Act No.2 of 2016, Article 12(1)
14
Constitution of Zambia (Amendment) Act No.2 of 2016, Article 13(1)(a)
15
Constitution of Zambia (Amendment) Act No.2 of 2016, Article 13(1)(g)
16
Constitution of Zambia (Amendment) Act No.2 of 2016, Article 16

15
Lastly, some rights are categorized as non-absolute or qualified rights. This is where a majority of

rights lie. Non-absolute rights can be limited by the state as long as they follow the conditions or

requirements laid down in limitation clauses.17 They are distinct from rights which have inherent

limitations because of the more general way in which the limitations are stated which allows much

more room for interpretation. Qualified rights can be limited in one of two ways; Firstly, by means

of a general limitation clause. This is a blanket limitation clause which applies to a number of

rights. It is stated in general terms which make it flexible and allows room for interpretation.

Secondly, a right specific limitation clause can be applied. Such a clause applies only to a specific

provision at a time and is tailored to suit the nature and importance that particular right.18

The present research is mainly concerned with non- absolute rights because it is for this category

of rights that limitation clauses are designed and interpreted. By virtue of their existence, it is

recognized that it is necessary to have a means of restricting these rights in a manner which

preserves their essence and importance but also fosters good will and order in society by allowing

the government to perform its functions.

2.3 STRUCTURE OF LIMITATION CLAUSES IN THE ZAMBIAN BILL OF RIGHTS

The Zambian Bill of rights makes use of both a general limitation clause as well as right specific

limitation clauses. The general limitation clause can be found in Article 11 and it applies to all the

rights in the Constitution. It states that the rights guaranteed are ‘subject to such limitations

designed to ensure that the enjoyment of the said rights and freedoms by any individual does not

17
Mark Rosen, ‘When are Constitutional Rights Non-Absolute: McCutcheon, Conflicts and the Sufficiency
Question’ (2014) 56 Wm.& Mary L. Rev. 1535
18
Daliwood Ahmed and Elliot Bulmer, ‘Limitation Clauses’, International IDEA Constitution Building Primer
www.idea.intl/sites/default/files/publications , accessed 7 June 2021

16
prejudice the rights and freedoms of others or the public interest’.19 Additionally, there are a

number of right specific limitation clauses which are tailored to individual rights.

Right specific limitation clauses in the Bill of Rights largely make use of the same terminology at

first and then digress to accommodate unique instances which may arise in respect of that particular

right. To illustrate, Articles 19, 20, 21 and 22 which protect the freedom of religion, freedom of

expression, freedom of assembly and association, and the freedom of movement in that particular

order, each have limitation clauses which make exception for laws, or actions done under the

authority of law as long as it is shown that it is ‘reasonably required in the interest of defense,

public safety, public order, public morality or public health’20 and that it is ‘reasonably required

for the purpose of protecting the rights and freedoms of others’21 and finally is shown to be

‘reasonably justified in a democratic society’.22

Notably, beyond these more common requirements, most right specific limitation clauses allow

for additional restrictions on a right. For instance, in the case of Article 17 which protects the right

to privacy of home, a search warrant may be executed on private property.23 Additionally, in the

case of Article 20, which protects the freedom of expression, there is an additional restriction in

the case of a law which is ‘reasonably required’ to protect the reputation and private lives of others.

2.3 WHY ARE LIMITATION CLAUSES NECESSARY?

This part seeks to answer a very important question in relation to limitation of human rights. That

is, why should human rights be restricted at all. Human rights law is entrusted not only with the

19
Constitution of Zambia (Amendment) Act No.2 of 2016, Article 11
20
Constitution of Zambia (Amendment) Act No.2 of 2016, Articles 17(1)(a), 19(5)(a), 20(3)(a), 21(2)(a), 22(3)(a)
21
Constitution of Zambia (Amendment) Act No.2 of 2016, Articles 17(1)(b), 19(5)(b), 21(2)(b)
22
Constitution of Zambia (Amendment) Act No.2 of 2016, Articles 19(5)(b), 20(3)(c), 21(2)(d)
23
Constitution of Zambia (Amendment) Act No.2 of 2016, Article 17(2)(d)

17
definition and implementation of the rights established in the covenants, but also with the

establishment of limits to those rights.24 In order to carry out this function properly, an

understanding of the factors which make limiting human rights necessary is indispensable.

Firstly, some rights are limited because of the potential which they have for abuse due to their

nature. These rights, if their enjoyment is left unchecked, may have an adverse impact on the rights

and freedoms of others.25 An example here is the freedom of expression. The right has important

implications for personal freedom particularly, and for freedom of the press in general.

Additionally, it is vital to people’s ability to participate effectively in democracy and it protects

individual’s right to hold opinions and to freely disseminate information which can be crucial to

ensure that the public is well informed.26 However, if left unchecked, the enjoyment of this right

can be abused in a number of ways. For instance, one can use their freedom of expression to spread

lies about others which may be damaging to reputation or to spread hatred or bigotry. In both

instances, there is an interference with the rights of others which is caused by unlimited enjoyment

of one person’s rights. Also instructive, is the freedom of movement. The enjoyment of this right

must be curtailed in order to protect private property and to protect the general public by sentencing

convicted criminals to jail.27

Secondly, human rights are limited in cases where they interfere with legitimate public concerns

or objectives. It is generally recognized that tensions between rights of individuals and public

policy objectives are inevitable.28 In such situations, some level of balancing is necessary so that

24
Oscar Garibaldi, ‘General Limitations on Human Rights: The Principle of Legality’ (1976) 17 Harv. Intl. L. J 503
25
Daliwood Ahmed and Elliot Bulmer, ‘Limitation Clauses’, International IDEA Constitution Building Primer
www.idea.intl/sites/default/files/publications , accessed 7 June 2021
26
Gehan Garatilleke, ‘Justifying Limitations on the Freedom of Expression’ (2021) 22 Human Rights Review 91
27
Gabriel Kitcher, ‘The Necessary Limitations to the Freedom of Movement Under the European Convention on
Human Rights and the EU Acquis: A Comparative Study’ (LLB Dissertation, L-Universita ta Malta, 2017)
28
Daliwood Ahmed and Elliot Bulmer, ‘Limitation Clauses’, International IDEA Constitution Building Primer
www.idea.intl/sites/default/files/publications , accessed 7 June 2021

18
the right must give way, at least partly, for the public good.29 In order to address this challenge,

limitation clauses often make reference to public safety, public morality, public order and so on,

as legitimate public concerns which can justify the restriction of certain human rights.

There are multitude of examples of circumstances where individual rights conflict with the public

interest. For example, the freedom of assembly and association may sometimes be curtailed in

order to ensure public order. In such cases, public authorities have a duty to ensure that the right

in question is curtailed no more than necessary to achieve the public order.30 Interestingly, the

question of limitation of rights for the public good has been brought to the fore with the COVID-

19 pandemic. For the sake of public health, restrictions have been placed on a number of

fundamental rights. For example, the freedom of liberty and security has been restricted for persons

under quarantine. Additionally, limits on freedom of speech have been imposed to prevent

misinformation and fear mongering. Furthermore, assemblies and rallies have been prohibited to

prevent the spread of the virus.31

Accordingly, limitation of human rights is necessary for two main reasons; firstly, to ensure that

the enjoyment of one’s rights and freedoms does not clash with the rights and freedoms of others,

and secondly, to attain legitimate public policy objectives. Without limitations, human rights are

not practical. They would be merely illusory and unable to work in the real world.32 Therefore,

they must be accepted and interpreted in the most beneficial way.

29
‘Traditional Rights and Freedoms- Encroachment by Commonwealth Laws’ (ALRC Interim Report 127)
www.alrc.gov.au accessed 14 June 2021
30
Neil Parpworth, ‘Freedom of Assembly and Public Order’ In Constitutional and Administrative Law (10 th edn,
OUP,2018)
31
Sanja Jovicic, ‘COVID-19 Restrictions on Human Rights in Light of the Case Law of the European Court of
Human Rights’(2021) 21 ERA Forum 545
32
Heiner Bielfeldt, ‘Limiting Permissible Limitation: How to preserve the Substance of Religious Freedom’ 15(1)
Religion and Human Rights 3

19
Notably, a conceptual difficulty which arises for many once they recognize the inevitability of

limitations to rights, is that the value of human rights is greatly reduced as a result of it. There is a

perception that human rights end up as ‘variables of unpredictable negotiations’33 in the courts of

law. However, limitation clauses are meant to cure or at least cushion this ill. The goal of limitation

clauses is to preserve human rights in situations where they clash with public policy concerns. By

insisting on compliance with laid down criteria, limitation clauses prevent human rights from being

unnecessarily restricted. Accordingly, this research recognizes the importance of limitation clauses

and shines a light on them in order to improve the protection of human rights in Zambia.

2.4 CONCLUSION
This chapter has defined limitation clauses and demonstrated to the reader that the nature of rights

as non-absolute entitlements makes limitation clauses necessary. The chapter further explored the

structure of limitation clauses in the Zambian Bill of Rights. Lastly, it demonstrated through

examples that limitation of human rights is necessary to protect individual rights and legitimate

public policy concerns. The following chapter will hone in on Zambia by examining case law to

discover the prevailing jurisprudence on interpretation of limitation clauses. It will critically

evaluate its finding it order to expose the short comings of the current methods and lay the ground

work for the eventual proposition of proportionality analysis as a preferred legal tool.

33
ibid

20
 CHAPTER THREE
A CRITICAL ANALYSIS OF ZAMBIAN JURISPRUDENCE ON INTERPRETATION

OF LIMITATION CLAUSES

3.0 INTRODUCTION
The present chapter examines statute and case law in order to demonstrate to the reader the manner

in which the Zambian courts have ordinarily adjudicated human rights claims with particular

emphasis on their application of limitation clauses. For ease of understanding, the chapter

differentiates between what it calls ‘rights analysis’ and ‘limitation analysis’ as the two stages of

enquiry adopted by the courts in claims of human rights violation. It goes on to show that within

these two stages a court assesses questions of burden of proof and standard of proof in order to

finally make a determination on a matter before it. Furthermore, the cases will show that while the

principle of proportionality is often mentioned, it is neither explained nor applied. Finally, the

chapter identifies a critical shortcoming of the courts in balancing rights against the public interest

which leads to the presumption that limitations are equal to rights and not mere exceptions.

3.1 RIGHTS AND LIMITATIONS: A TWO STAGE ENQUIRY

A careful study of cases dealing with human rights claims in Zambia and other jurisdictions shows

that courts often apply a two-stage method of evaluation. The two stages are said to derive from

the structure of instruments protecting human rights which begin by defining the scope of a

protected right and thereafter determining the appropriate circumstances for its limitation through

limitation clauses.

The first stage, referred to as the ‘rights analysis’, relates to the right protected by the constitution.

It involves defining the scope of a guaranteed right and determining the impact of the measure

21
complained about on it. The purpose of this enquiry is to determine whether the action or law

complained of interferes with the right such that it can be said that the said right has been violated.1

Only if the preceding question is answered affirmatively does the court move on to the second

stage of inquiry known as ‘limitation analysis.’ Limitation enquiry requires one of the parties to

prove that the action or measure which has violated a protected right is justified in the

circumstances. Additionally, such an action or law will only be justified if it meets the criteria set

out in the respective limitation clause.2 The following parts will show how rights analysis and

limitation analysis are applied in Zambia to adjudicate human rights disputes.

3.2.0 RIGHTS ANALYSIS IN ZAMBIA

Rights analysis represents the very first enquiry which courts must make in dealing with human

rights claims. It is important because this is the stage at which a protected right must be defined in

terms of its meaning and extent. It is also the point at which it is determined whether a measure or

law violates a right. Generally, the position of the law is that the provisions of the bill of rights

must be ‘broadly construed in favor of individual rights rather than in favor of the state.’3 It has

also been suggested that a generous and purposive construction must be given to human rights so

that they are enjoyed in their full measure.4

In determining whether rights analysis has been properly applied, particular attention must be

given to core issues of burdens of proof and standard of proof. 5 This is because the rules of the

court as to who bears the burden of proof and the requisite evidence needed to prove their claim

1
Philips Rayburn, ‘The Constitutional Requirement of Legality in the Limitation of Human Rights (Dissertation,
University of Toronto 1998) 35
2
ibid 27
3
Patel v Attorney General (1968) ZR 99 (HC)
4
Selected Judgement No. 33 of 2019
5
Jeremy Gunn, ‘Limitation Clauses, Evidence, and the Burden of Proof in the European Court of Human Rights,’
(2020) 15(2) The Religion & Human Rights: An International Journal 192-206

22
can affect the outcome of a case. Moreover, it has been suggested that a lack of consistent method

in evaluating burdens of proof and standard of proof in rights and limitation analysis leads to

inconsistent decision making and ineffective protection of human rights.6 The Zambian courts

have developed through precedent a systematic approach to these two issues, although they are not

always applied satisfactorily. The following parts give a better understanding of burden of proof

and standard of proof and demonstrate how they have been applied in by the courts in rights

analysis.

3.2.1 BURDEN OF PROOF IN RIGHTS ANALYSIS

Generally, burden of proof refers to a legal requirement which determines who is responsible for

presenting evidence that proves or defeats a claim.7 In the context of rights analysis, burden of

proof is understood to mean which of the parties in an action alleging violation of human rights is

expected to prove that the right has been violated. The jurisprudence of the Zambian courts shows

a consistent application of burden of proof in rights analysis by requiring that the applicant or

person who alleges that their rights have been violated bears the burden of proof.

This is demonstrated earliest in the case of Kachasu v Attorney General8. The court determined

that it was the applicant’s duty to satisfy the court that without her consent she had been hindered

in the enjoyment of her freedom of conscience. Thereafter, the court in Patel v Attorney General9,

followed the same reasoning by determining that ‘the applicant carries the burden of proving that

6
Jeremy Gunn, ‘Limitation Clauses, Evidence, and the Burden of Proof in the European Court of Human Rights,’
(2020) 15(2) The Religion & Human Rights: An International Journal 192-206, 193
7
Ben Crump, ‘What is burden of proof and why is it important?’ www.bencrump.com accessed 1st August 2021
8
(1967) ZR 145 (HC)
9
(1968) ZR 99 (HC)

23
his rights under the relevant provision have been contravened.’ Additionally, the court elucidated

that if the applicant is successful, there is a prima facie breach of the protected right.

The practice of placing the burden of proof on the applicant to prove the violation of a right has

been consistently applied by courts in subsequent cases.

3.2.2 STANDARD OF PROOF IN RIGHTS ANALYSIS

In order for an applicant in a human rights action to properly discharge his burden of proof, he

must be aware of the requisite standard of proof. Generally, standard of proof is defined as the

degree of certainty and evidence necessary to establish proof of a claim.10 The standard of proof

determines the duty of the person responsible for proving a claim in that it guides on the evidence

which must be adduced and its probative value.11 In terms of rights analysis, standard of proof

relates to the extent of evidence which an applicant must adduce to prove that his or her rights

have indeed been violated. The standard of proof adopted by courts in rights analysis can be

outcome determinative because it affects the level of difficulty applicants must endure to prove

their case.

In adjudicating human rights claims courts have a duty to develop and consistently apply principles

of standard of proof which enhance the protection of human rights. In order to so, the Zambian

courts have interpreted the text of the bill of rights to understand what the standard of proof should

be. To illustrate, in the above-mentioned case of Kachasu v Attorney General12, Blagden CJ

considered the issue for the first time. He determined that the standard to which the applicant had

to prove that her right had been violated depended on the interpretation of article 21. It read in

10
Webster.com Legal Dictionary, Merriam- Webster, www.merriam-webster.com/legal/standard accessed: 16th
August 2012
11
‘Burden and Standard of Proof’ www.iclr.co.uk accessed 16th August 2021
12
(1967) ZR 145 (HC)

24
part: "Except with his own consent, no person shall be hindered in the enjoyment of his freedom

of conscience . . ."13(emphasis added) He surmised that the use of the word ‘hindered’ indicated a

lower standard of proof. The applicant needed only to show a slight degree of hindrance not

necessarily amounting to prevention in order to prove that their right had been violated.

Accordingly, the standard of proof applied in rights analysis in Zambia is relatively low. As a

result, claimants often do not find it difficult to prove that their rights have been violated because

of the generous interpretive principles applied by the courts in that respect. However, the difficulty

usually arises once the courts move on to next stage which is limitation analysis. While the

development of the law has properly seen the burden of proof for limitations enquiry placed on the

state, the standard of proof still leaves much to be desired. The next sections will shed more light

on this.

3.3.0 LIMITATION ANALYSIS IN ZAMBIA

As stated earlier, limitation analysis represents the second stage in the adjudication of human rights

claims. At this point, the applicant has already successfully proved that the right in question has

been violated in relation to them. The court is then called upon to consider whether the particular

infringing law or action is captured by a limitation clause so that it can be said that it is justified.

Similar to rights analysis, the burden of proof and standard of proof are important to limitation

analysis as the principles applied in determining them can be crucial for a case.

3.3.1 BURDEN OF PROOF IN LIMITATION ANALYSIS

Initially, the position of the law on this point was that beyond bearing the burden of proving that

their right had been violated, the applicant further had to prove that none of the relevant exceptions

13
Constitution of Zambia 1964, s 21

25
applied. In Kachasu v Attorney General14, the said Blagden CJ, defended this position by

contending that there is what he called a ‘presumption of constitutionality’ of laws which are

passed by the legislature. Further, that this presumption extends to limitation clauses being

necessary and reasonably justifiable. Thus, according to him, the applicant who alleges that they

are not must be the one to rebut the presumption by bearing the burden of proving them otherwise.

However, it is generally agreed that there is far less deference to the presumption of

constitutionality in relation to laws which interfere with fundamental rights and freedoms.15

Moreover, requiring an applicant to prove that the action which infringes on their right is not

justified by an exception, places on them a sort of double duty. In fact, it raises the implication that

an individual has to engage in a battle of sorts to prove their case which in effect undermines the

value of their right. It is no surprise, therefore, that the above approach was categorically rejected

in the subsequent case of Patel v Attorney General16. There, the Court stated that the duty of

proving that the legislation or measure concerned comes within the permitted derogations belongs

to the state. The reasons advanced for this were that the state often has peculiar knowledge of facts

which were necessary to prove this point.

Additionally, the fact that the state bears the burden of proof during limitation analysis was put

beyond doubt in the case of The People v Mmembe and Mwape17 where it was stated that it would

be strange and contradictory to suggest that in fighting for his fundamental rights, a citizen should

bear the burden to prove that his rights have been infringed while the state bears no burden at all.

14
(1967) ZR 145(HC)
15
‘The Presumption of Constitutionality’ (1931) 31(7) Columbia Law Review, 1136-1148
16
(1968) ZR 99 (HC)
17
SCZ Judgment No. 4 of 1996

26
Beyond the state having peculiar knowledge of certain facts, a powerful motivation for its bearing

the burden of proof in limitation analysis is that it promotes a culture of justification of state action.

By placing the burden on the state, governmental action which interferes with human rights will

have to be justified on substantive grounds.18 The state will be required to show that its action is

justified or saved by the relevant limitation clause.

However, this safeguard for human rights will be rendered ineffective if the state is not required

to discharge this burden to a sufficiently high standard. It must not suffice for the state to be

allowed to render weak or implausible arguments in favor of restricting human rights. Accordingly,

the following section examines the standard of proof which the courts have applied to limitation

analysis.

3.3.2 STANDARD OF PROOF IN LIMITATION ANALYSIS

The principles adopted by the courts in determining the standard of proof during limitation analysis

are not easily discernable. This paper proceeds from the presumption that the particular language

used in limitation clauses and the manner in which the court interprets it determines the standard

of proof. The language referred to here is the common phrases which are used in various specific

limitation clauses as a precursor to identifying the circumstances under which a right can be

limited. For example, the bill of rights often provides that an action or measure done under the

authority of law is justifiable if it is ‘reasonably required’19 to achieve a public interest or protect

18
Moshe Cohen- Eliya and Iddo Porat, ‘Proportionality and the Culture of Justification’ (2011) 59(2) The American
Journal of Comparative Law
19
See article 17(2)(a), article 17(2)(b), article 19(5), article 20(2)(a)(b), article 21(2)(a)(b)

27
the rights of others. Other articles provide that the infringing measure must be ‘reasonably

justifiable’20 or ‘necessary or expedient’21 to attain a particular goal.

This paper argues that the standard of proof to which the state is put depends on the court’s

interpretation of phrases such as ‘reasonably required’, ‘reasonably justifiable’, and ‘necessary or

expedient’ to name a few. The definition of these terms represents the level of evidence which the

state must adduce to prove that its infringing action is indeed, for example, for the purpose of

maintaining public safety, public health or to protect the rights and freedoms of others. The

following parts will critically analyze, case by case, the manner in which the courts have

interpreted theses phrases in limitation clauses and the effect it has had on the protection of human

rights

a. PATEL V ATTORNEY GENERAL22

In this case, the applicant had successfully proved that his right to protection from deprivation of

property had been violated by the search and seizure of his postal articles at the post office. The

state then had the duty to prove that their action was within the relevant limitation clause so as to

be justified.23 The limitation clause stated that the action had to be ‘necessary or expedient’ either

in the interest of public safety or to ‘secure the development and utilization of property for a

purpose beneficial to community’24

The court had to interpret the meaning of the words necessary and expedient in order to determine

the state’s standard of proof. On the one hand, ‘necessary’ was interpreted to mean that their action

20
See article 12(3), article 13(1)(j)
21
See article 18(11)(a)
22
Patel v Attorney General (1968) ZR 99 (HC)
23
ibid
24
Constitution of Zambia 1964, Article 18(a)

28
must have been ‘essential for the desired purpose’. On the other hand, ‘expedient’ merely meant

that an action was conducive to achieve the purpose. Furthermore, expediency was taken to be far

short of necessity.25

The court further considered under what circumstances an infringing action could be said to be

‘reasonably required’. It stated that reasonably required must not be taken to mean urgently or

necessarily required, as that would be raising the standard too high. That an action is reasonably

required if it redresses a ‘genuine present need’. Additionally, that reasonable requirement

represents ‘something more than desire, although less than necessity.’26 Furthermore, the Court

opined that an action may still be reasonably required even though there is an alternative which

can be applied to achieve the same goal.

The Court went on to state that within any consideration as to whether an action is reasonably

required or necessary and expedient, the state must also show that its infringing measure or action

relates to the legitimate purpose it purports to attain in a ‘rational and proximate’ manner. This

means that the public interest must be in ‘grave and immediate danger’ in order for any infringing

measure to be justified.27

Most of the principles adopted by the court in this case are sound enough. For instance, the court

easily determined that the seizure of property was neither necessary or expedient for public safety

as there was no proximate tendency between the two. However, there is a glaring contradiction

between the principle that there must be a relationship of ‘rationality and proximity’ between an

infringing measure and the legitimate purpose it attains, and the Court’s assertion that it has no

25
Patel v Attorney General (1968) ZR 99 (HC), para 121
26
Patel, para 125
27
Patel, para 99

29
jurisdiction to determine whether an alternative action may have achieved the same objective. This

is because in order for the court to determine whether the states action has a proximate tendency

to the legitimate objective it seeks to attain, it must incidentally engage itself in an examination of

the efficacy of the state’s action. That is, it must question whether the infringing measure is too

extreme or whether the public interest could have been saved by an alternative means.

Indeed, by holding onto this principle, the Zambian courts are limiting their jurisdiction with grave

consequences on human rights protection. In Kenya, for instance, an infringing measure can only

be said to be a reasonable limitation if there is no less restrictive means of achieving the intended

limitation. If an action is unnecessarily intrusive or invasive, it cannot stand.28 Accordingly, the

principle that the court cannot consider alternative state measures which achieve the same public

purpose leaves much to be desired.

b. KACHASU V ATTORNEY GENERAL29

The applicant had successfully discharged her burden of proving that her freedom of conscience

and religion had been hindered by being compelled to sing the national anthem and salute the

national flag at school. However, the court held that the state had proved that the measures it

imposed were reasonably required in the interest of public safety. According to the Court,

national security depended on national unity which could be achieved through the compulsory

singing of the national anthem in schools.30

Notably, in reaching this conclusion, the court did not apply any legal reasoning or tools. It

merely indicated that it did not consider the measure ‘unreasonable’ and thus ‘surely it must be

28
JWM v Board of Management O High School (Kenya Petition 10 of 2019) p13
29
Kachasu v Attorney General (1967) ZR 145 (HC)
30
ibid

30
reasonable.’ Moreover, there is no attempt at defining what reasonable requirement is. Indeed, if

the court had applied the interpretation which was used in the Patel case it is unlikely that the

same conclusion would have been reached. This is because it is difficult to conceive that there

was any ‘genuine present need’ for a young school girl to sing the national anthem lest the public

safety be endangered. Additionally, the court did not consider whether a law compelling a school

girl to sing the national anthem contrary to her religious beliefs was ‘rational and proximate’ to

attaining public safety.

c. MMEMBE AND MWAPE V THE PEOPLE31

This was a reference to the High Court to determine the constitutionality of section 69 of the penal

code which criminalized defamation of the president. The applicants argued that it violated their

right to freedom of expression and protection from discrimination. The Court considered whether

the law in question was reasonably required for the relevant public interest. It stated that in

determining whether an action is reasonably required, an objective test must be used. Additionally,

the real effect and impact of that law on the fundamental right has to be taken into account.32

In spite of this definition, the court went on to apply subjective considerations in determining the

question. For instance, it considered that Zambia had a very fragile political environment hence

supporters of the president were likely to react violently to protect his reputation. Additionally,

even after considering the impact of the law on the freedom of expression, the court deemed that

the law was still reasonably required.

A noteworthy observation can be made about a particular passage that the court quotes as it deals

with the meaning of reasonable requirement. The passage reads in part; ‘… [A measure] is also

31
SCZ Judgment No. 4 of 1996
32
ibid

31
reasonably required upon the test of proportionality… when the limitation imposed by such law

[is] no more than reasonably necessary to achieve the legitimate objective.’33 A number of points

can be made here.

Firstly, the Court makes mention of the principle of proportionality, which raises an implication

that the Court views the meaning of ‘reasonably required’ as synonymous to proportionality or at

least that proportionality analysis is an aspect of determining reasonable requirement. However,

the court does not explain the meaning of the concept or even attempt to apply it. The principle of

proportionality is discussed in the next chapter as a tool for interpreting limitation clauses. It would

have been interesting to see how the court would have used this principle to enhance the protection

of human rights.

Secondly, the passage states that a law is reasonably required if it is ‘no more than reasonably

necessary to achieve a legitimate objective’. However, the Court later states that it has no authority

to assess the propriety or effectiveness of a law used to achieve the excepted purposes in the

constitution. This appears to be an outright contradiction because in order to ensure that a law does

no more than necessary to interfere with a right, the Court must inevitably engage in some analysis

as to the propriety of the State’s action. The Zambian courts would do well to seek guidance from

other jurisdiction which apply a least restrictive means principle to limitation analysis. The

principle entails that if an alternative regulation unquestionably achieves the state’s legitimate

objective while imposing a lower burden on fundamental human rights, then that alternative should

be applied.34

33
SCZ Judgment No. 4 of 1996, p 4
34
Alan O Sykes, ‘The Least Restrictive Means’ (2003) 70(1) The University of Chicago Law Review 403-419, 403

32
 d. CHRISTINE MULUNDIKA AND OTHERS V THE PEOPLE35
In this case the appellants challenged the constitutionality of section 5(4) of the Public Order Act36

which required persons seeking to hold an assembly to acquire a permit. Section 7 of the same Act

criminalized assemblies held without permits. The provisions were alleged to be contrary to the

rights to freedom of expression and freedom of association and assembly.

The Court did not dwell on defining terms such as reasonably required as was seen in previous

cases. Nevertheless, it opined that whether a law which derogates from fundamental freedoms is

reasonable or not can be judged from whether it invades the enjoyment of a right arbitrarily or

excessively. Furthermore, it quoted and agreed with the Tanzanian case of Pumbun and another v

Attorney General37, which gives two requirements which a law which limits a right must satisfy.

The first requirement being that it must make safeguards against arbitrariness to prevent abuse of

human rights by those in power. Secondly, the limitation must be no more than necessary to

achieve the legitimate purpose known as the principle of proportionality.

Once again, the Court focused its adoption of this case mainly on the first principle yet the second

could also have been useful to it. Indeed, the principle of proportionality is often mentioned

without understanding or application. Nevertheless, the Court still used the first requirement to

reach the satisfactory conclusion that the Public Order Act had no effective controls on the exercise

of power by public officers. This was because public officers could grant or deny permits at will

without even the necessity of giving reasons for refusal.

35
SCZ Judgement No. 25 of 1995
36
Public Order Act, Chapter 113 of the Laws of Zambia
37
(1993) 2 L.R.C. 317

33
 e. ROY CLARKE V ATTORNEY GENERAL38
The applicant authored an article in The Post newspaper which the Permanent Secretary and

Minister of Home Affairs took offence to. Shortly afterwards, an order for his deportation was

issued by the Minister who exercised powers granted to him by the Immigration and Deportation

Act. The applicant applied for judicial review of this decision. Additionally, he alleged that the

order was a violation of his fundamental right to freedom of expression and freedom of the press.

The applicant successfully proved a violation of his right to freedom of expression and it was left

to the state to prove that its actions came within the relevant exceptions.39

This case is mentioned here because of how the principle of proportionality features in it. It shows

an interesting overlap between administrative law and human right law in relation to the principle

of proportionality. Proportionality is being used firstly as a ground for judicial review and secondly

as a basis for gauging the appropriateness of a measure which limits the freedom of expression.

This is the first-time proportionality is properly applied to limitation analysis in Zambia and it is

not seen afterwards. Accordingly, the Court found that the state failed to show that deportation

order was saved by the relevant limitation clause.

3.4.0 THE PROBLEM WITH BALANCING

There is a trend which can be observed in some cases where courts interpret limitation clauses by

balancing a fundamental right against one conflicting public interest or another. Judicial balancing

refers to the subjective process by which courts weigh competing interests.40 It involves placing

competing interests on opposite sides of the metaphorical scale and deciding in favor of the interest

38
Roy Clarke v Attorney General 2004/HP/003
39
ibid
40
‘Balancing Test’ available at www.law.cornell.edu accessed 19th august, 2021

34
that weighs heavily against the other.41 The problem with balancing is that it assumes that the

fundamental human right and the competing public interest are equal or commensurate. This

results in a narrow understanding of human rights and judgements which are controversial and

unjustified. Furthermore, it results in judicial restraint and exaggerated deference on the part of

courts to infringing state laws.42

One need not look far to find examples of this in Zambian cases. In Mmembe and Mwape v The

People43, the Court made the following statement:

Side by side with the freedom of speech is the equally very important public interest in the
maintenance of the public character of public men for the proper conduct of public affairs
which requires that they be protected from destructive attacks upon their honor and
character.44

Similarly, in Sata v Post Newspaper45, the Court made the following pronouncement:

Freedom of press and protection of reputation in Zambia can be balanced where the
plaintiff is a public official by a more generous application of the existing defenses. Both
are equally recognized and no higher value can be placed on one or the other.

What is clear from these statements is that the court places an equal value on rights and limitations

to the detriment of the right in question. By engaging in balancing, they fail to recognize that there

are rights first and foremost, and then there are limitations to those rights. Indeed, the constitutional

41
Stavros Tsakyrakis ‘The Balancing Method on the Balance: Human Rights Limitations in the ECHR’
www.law.nyu.edu accesses 19th August 2021, p 1
42
Basak Cali, ‘Balancing Human Rights? Methodological Problems with Weights Scales, and Proportions’ (2007)
29(1) Human Rights Quarterly, 251-270, 254
43
SCZ Judgement No. 4 of 1996
44
SCZ Judgement No. 4 of 1996, p 4
45
1992/HP/1395

35
protection of fundamental rights in itself raises an implication that the law places great importance

on rights not in the same way as limitations.46

Notably, in Christine Mulundika v The People47, we see the correct approach being taken by the

court. It identified that the Public Order Act was unjustifiable because ‘… although the right to

expression and assembly are primary and the limitations thereon secondary, it reversed the order’,

making the enjoyment of a right contingent upon the satisfaction of a public officer.

The following chapter discusses the principle of proportionality which is distinct from balancing.

In fact, critics of balancing have suggested that proportionality analysis can be applied to cure the

ills of balancing. They suggest that balancing exercises must exhibit a strong commitment to the

principle of proportionality.48 It is unlike balancing in that it requires that the public interest must

be sufficiently important, and the measure applied has to be suitable and no more than necessary

to achieve the public interest.49 Accordingly, incorporating proportionality into balancing leads to

a balancing approach that ensures that the intensity of the restriction is not excessive in relation to

the legitimate interests and needs which gave rise to it.50

3.5.0 CONCLUSION
This chapter has explored the methods applied by the Zambian courts in interpreting limitation

clauses. It has demonstrated that the standard of proof to which the state is put in justifying its

46
Jan Velaers, ‘Constitutional Versus International Protection of Human Rights: Added Value or Redundancy? The
Belgian Case, in the Light of the Advisory Practice of the Venice Commission’(2016) 77(2) Revue Interdisciplinaire
D’etudes Juridiques, 265-295
47
SCZ Judgement No. 25 of 1995
48
Basak Cali, ‘Balancing Human Rights? Methodological Problems with Weights Scales, and Proportions’ (2007)
29(1) Human Rights Quarterly, 251-270, 253
49
Juan Cianciardo, ‘The Principle of Proportionality: The Challenges of Human Rights’ (2010) 3(1) Journal of Civil
Law Studies, 177-186
50
Stavros Tsakyrakis ‘The Balancing Method on the Balance: Human Rights Limitations in the ECHR’
www.law.nyu.edu accesses 19th August 2021, p 9

36
infringing action is outcome determinative in human rights claims. Furthermore, it has shown that

there is lack of consistency in determining the meaning of terms such as ‘reasonably required’ and

‘necessary or expedient’ which results in the state’s being allowed to adduce weak arguments in

favor of limiting fundamental rights. Additionally, as cases are examined it becomes clear that

while proportionality is often mentioned, there is little attempt to define or apply it. Finally, the

chapter demonstrates that the tendency of courts to balance fundamental rights against competing

public interests undermines the protection of human rights. In effect, the chapter raises the question

as to what alternative methods can be applied in the interpretation of limitation clauses to enhance

the protection of human rights. Thus, the following chapter is dedicated to answering this question

by proposing the principle of proportionality as a preferred legal principle in interpretation of

limitation clauses.

37
 CHAPTER FOUR
A CASE FOR THE ADOPTION OF THE PRINCIPLE OF PROPORTIONALITY IN
ZAMBIA

4.0 INTRODUCTION
Judges are entrusted with an important duty to administer justice and preserve the rule of law.

When fundamental rights are in question, this duty is even more pronounced. To that end, ideas,

principles, or concepts which aid them in interpreting the law and grounding their legal reasoning

are vital. The previous chapter demonstrated that there is a lack of such a standard and consistent

judicial principle in the jurisprudence of Zambian courts relating to interpretation of limitation

clauses. The result is excessive limitations on human rights often justified by incoherent and

illogical reasoning.

The present chapter introduces the principle of proportionality as a preferred legal tool for the

interpretation of limitation clauses. It begins by giving an understanding of the principle as defined

by various authors. Thereafter it briefly describes the subtests of proportionality, particularly;

legitimacy, suitability, necessity, and proportionality in the strict sense.

Next it presents the academic debate for and against proportionality. The debate will show that

human rights protection is much better off with proportionality than without.

Finally, the chapter considers a critical question as to the legitimacy of introducing proportionality

analysis in Zambia when it is not outrightly provided for in the law. It answers this question by

recourse to Alexy’s theory on the necessary connection between constitutional rights and the

principle of proportionality.1

1
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65

38
4.1.0 DEFINING THE PRINCIPLE OF PROPORTIONALITY
By certain accounts, the principle of proportionality can be traced back to Aristotle’s idea of justice

as a ratio determined by an abstract principle.2 This initial conception of proportionality was more

of an abstract idea and the principle as it is applied today owes much of its development to German

legal theory which structured proportionality within its legal system as a doctrinal tool for

interpretation of limitation clauses.3 From there, proportionality has spread to other countries like

Canada, Australia, France, Kenya, and South Africa. Additionally, it is consistently applied by the

European Court of Human Rights (ECHR). This spread of proportionality has led to its being

regarded as ‘the dominant doctrine’ in human rights adjudication internationally.4

Definitions of the principle of proportionality are largely similar, only deferring in the manner of

expression. It has been defined as a test to determine whether an interference with a right is justified

or constitutional.5 This definition shows that proportionality is intrinsically linked to limitations to

human rights.

Alternatively, proportionality is said to be a means to limit governmental abuse of human rights

by insisting that state action is ‘a rational means to a permissible end that does not unduly invade

fundamental human rights.’6 It does this by setting up rules which determine what circumstances

are ‘necessary’ and ‘sufficient’ for the limitation of a constitutionally protected right.7

2
Eric Engle, ‘The History of the General Principle of Proportionality: An Overview’ (2012) 10 Dartmouth Law
Journal 1
3
Tayla Ucaryilmaz, ‘The Principle of Proportionality in Mordern ius Gentium’ (2021) 36 (1) Utrecht Journal of
International and European Law 14-32
4
Ariel Bendor and Tal Sela, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal of
Constitutional Law 530-544, 530
5
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 711
6
Eric Engle, ‘The History of the General Principle of Proportionality: An Overview’ (2012) 10 Dartmouth Law
Journal 1
7
Ariel Bendor and Tal Sela, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal of
Constitutional Law 530-544, 530

39
Further guidance as to the definition of proportionality can be taken from the ECHR which defines

it as a set of standards which espouse that interference with a basic right ‘is warranted only if it

pursues a legitimate objective…, is suitable for securing the attainment of the objective which it

pursues and does not go beyond what is necessary to attain it.’8 This definition introduces us to the

subtests within proportionality which will be elucidated shortly.

This paper adopts Moller’s conception of proportionality as a working definition. That author

defines proportionality as ‘a doctrinal tool for the resolution of conflicts between a right and a

competing interest.’9 While there are different formulations of the principle, here it is taken as

including the following subtests: Firstly, the measure or law which interferes with a right must

pursue a legitimate goal. Secondly, the measure or law must be a suitable means of achieving the

legitimate goal. Thirdly, the measure or law must be necessary in that it must be as unrestrictive

as possible. Finally, the law or measure must be proportionate ‘in the strict sense’.10

The following parts will briefly give an understanding of the sub-tests of the principle of

proportionality in order for the reader to have a wholesome understanding of the concept.

4.1.1 LEGITIMACY
The first requirement of the test of proportionality is that a law or measure which interferes with

the enjoyment of a constitutionally protected right must pursue a legitimate objective. 11 The

successful application of this subtest depends to a large extent on what is taken to be a ‘legitimate

goal’. It has been suggested that what is a proper purpose is determined from the democratic values

8
Viking- Case C- 438105, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line
ABP and OU Viking Line Eeshi 2007 E.C.R. 1-10779 1 75
9
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 710
10
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 711
11
ibid

40
of the state which can be gleaned from the constitution. It would, therefore, follow that any purpose

which contradicts the constitution is not a proper purpose to limit a right.12

This stage acts as a gatekeeper by filtering out purposes or interests for which it is obvious that

they cannot reasonably justify restricting a protected human right. For instance, goals which are

entirely ‘moralistic and paternalistic’ should not be regarded as legitimate.13 Furthermore, there is

a slight variance in the way this subtest is applied depending on the country. For instance, in

Canada, the legitimate goal must only be ‘sufficiently important’, whereas in South Africa it must

be constitutional.14 Also, in some places, the urgency of achieving the legitimate purpose is also

taken into account.15

Even though Zambia does not necessarily subscribe to proportionality, the test of a legitimate

purpose can be likened to the public interests which are stated as purposes for restricting rights in

the Constitution. For example, public safety, public morality, public health, and the rights and

interests of others.16 The sub test of legitimacy can improve adjudication by requiring that these

interests are not taken at face value. The analysis can go further to consider whether the purported
17
goal is at least rationally connected to the public interest and whether there some urgency in

attaining that goal.18

12
Ariel Bendor and Tal Sela, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal of
Constitutional Law 530-544, 531
13
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 712
14
Madhov Khosla , ‘Proportionality: An Assault on Human Rights?: A Reply’ (2010) 8(2) International Journal of
Constitutional Law 298-306, 299
15
Aharon Barak, Proportionality, Constitutional Rights and their Limitations (Cambridge University Press, 2012)
251
16
Constitution of Zambia (Amendment) Act No.2 of 2016
17
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 712
18
Aharon Barak, Proportionality, Constitutional Rights and their Limitations (Cambridge University Press, 2012)
251

41
4.1.2 SUITABILITY
The second subtest of the principle of proportionality shifts the focus from the purpose of the

restriction to the particular means which is used to limit a right. It requires that there must be a

rational connection between the infringing measure and the legitimate goal it pursues, in the sense

that the former must be a suitable means to achieve the latter.19 In essence, the test is fulfilled if

the infringing measure fulfils the legitimate goal in some way.20 But if a measure does not promote

the purpose for which it is adopted yet obstructs the enjoyment of a right, it is not suitable.21

4.1.3 NECESSITY
The third subtest of proportionality places even greater expectations on the infringing measure

which can be said to justify the limitation of a right. It requires that there must be ‘no less restrictive

policy’ which can equally attain the legitimate goal.22 This requires the examination of all possible

measures which achieve the purpose of the restriction. If it is found that that there are alternative

measures which are ‘less intensively interfering’, then the measure adopted is not necessary.23

4.1.4 PROPORTIONALITY STRICTU SENSU

This final stage of the principle of proportionality is referred to as ‘proportionality in the narrow

sense’. It is taken to be synonymous with balancing and only becomes necessary when ‘costs are

unavoidable’.24 Essentially, it entails balancing the advantages of attaining the legitimate goal and

19
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 715
20
ibid
21
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65
22
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 715
23
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 715
24
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65

42
the detriments of the limitation to a right.25 Accordingly, what is balanced are competing interests

and the aim is to ensure that a right is not grossly interfered with for the sake of a legitimate purpose

to which little importance is assigned.26

Additionally, in order to determine proportionality in the strict sense, a moral argument has to be

made for or against the competing interests.27 In the end, the relationship between the means and

end of infringing state action and the cost to human rights must be proportionality.28

The four subtests of proportionality are used by courts which consider them useful in reviewing

infringements on human rights. The principle of proportionality is considered as to be an analytical

tool which ensures protection of human rights.29 The following parts examine the arguments for

and against proportionality analysis.

4.2.0 BENEFITS OF PROPORTIONALITY

The principle of proportionality has developed in the ECHR and around the world as a basic

constitutional principle for the interpretation of limitation clauses.30 Its success is owed to the many

merits which are attributed to it, the most prominent of which are discussed here.

One clear advantage of proportionality analysis is that it helps judges to structure their legal

reasoning in judicial review. Courts which apply proportionality are far more likely to ‘think

analytically and not skip over things which should be considered’.31 The principle of

25
Guy Lurie, ‘Proportionality and the Rights to Equality’ (2020) 21 German Law Journal 174-196, 175
26
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65
27
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 715
28
Guy Lurie, ‘Proportionality and the Rights to Equality’ (2020) 21 German Law Journal 174-196, 175
29
ibid
30
Stavros Tsakyrakis , ‘Proportionality: An Assault on Human Rights?’ (2009) 7(3) International Journal of
Constitutional Law 468-493, 468
31
Ariel Bendor and Tal Sela, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal of
Constitutional Law 530-544, 535

43
proportionality achieves this by ‘deconstructing the decision making process’ 32 so that all the

specific issues which need to be addressed are addressed within the subtests. This will ensure that

judgements are coherent and the legal reasoning can be easily followed.

Additionally, the principle of proportionality acts as a safeguard against state abuse of human

rights by insisting on the fairness of any action which restricts a right.33 Proportionality challenges

those who seek to interfere with human rights to be transparent about the ‘stages of their decision

making and the considerations supporting it’.34

Furthermore, proportionality has a universal nature which makes it applicable to wide range of

cases with different facts. When the test of proportionality is applied to determine the validity of

an infringing measure, the result varies according to the circumstances of the case. 35 This is

particularly important because where the principle is set up as a standard for interpreting limitation

clauses it can be consistently applied in a wide range of cases.

4.3.0 CRITICISMS OF PROPORTIONALITY

Perhaps the most enlightening way to make a case for proportionality is to lay out the arguments

against it in order to counter them.

The first criticism considered here is laid against the fourth subtest of proportionality;

proportionality in the strict sense. The allegation is that because this stage involves balancing

competing interests, human rights are placed ‘on par’ with all other interests which the State or

32
Madhov Khosla , ‘Proportionality: An Assault on Human Rights?: A Reply’ (2010) 8(2) International Journal of
Constitutional Law 298-306, 300
33
Tayla Ucaryilmaz, ‘The Principle of Proportionality in Mordern ius Gentium’ (2021) 36 (1) Utrecht Journal of
International and European Law 15
34
Ariel Bendor and Tal Sela, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal of
Constitutional Law 530-544, 535
35
Guy Lurie, ‘Proportionality and the Rights to Equality’ (2020) 21 German Law Journal 174-196, 177

44
other individuals have.36 Critics argue that this is unacceptable because the normative nature of

human rights must give them ‘absolute or near- absolute priority over competing considerations.37

According to Tsakyrakis, it is unlikely for infringing measures to be found unsuitable or necessary,

which reduces proportionality to its last stage involving balancing. Thus, this weakness of

proportionality is even more pronounced.

This paper agrees with this criticism as far as it condemns the consideration of human rights and

competing interests as equal. In fact, in the previous chapter this was discussed as a failing of

Zambian jurisprudence which often results in exaggerated deference to competing interests at the

expense of human rights.38 However, it was also suggested that where balancing takes place within

the context of proportionality analysis, this shortcoming can be overcome.39 This is because the

other subtests of legitimacy, suitability, and necessity place a burden on the competing interest to

live up to a high standard in order to be justified. This in itself leads to the inference that rights and

competing interests are not equal. As such, when taken as a whole ‘proportionality does not have

the luxury to be considered as a mere balance of interests.’40 Indeed, Tsakyrakis writes off the

effect of the first three stages of proportionality far too easily.

Moreover, proponents of proportionality argue that balancing within the context of proportionality

analysis ensures that constitutional rights override any considerations or interests except those

36
Tsakyrakis Stavros, ‘Proportionality: An Assault on Human Rights?’ (2009) 7(3) International Journal of
Constitutional Law 468-493
37
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 710
38
Basak Cali, ‘Balancing Human Rights? Methodological Problems with Weights Scales, and Proportions’ (2007)
29(1) Human Rights Quarterly, 251-270, 254
39
Basak Cali, ‘Balancing Human Rights? Methodological Problems with Weights Scales, and Proportions’ (2007)
29(1) Human Rights Quarterly, 251-270, 253
40
Tayla Ucaryilmaz, ‘The Principle of Proportionality in Mordern ius Gentium’ (2021) 36 (1) Utrecht Journal of
International and European Law

45
which also enjoy constitutional status.41 This ensures that human rights will trump most competing

considerations at the balancing stage except those expressly provided for in the constitution.

Additionally, proponents of proportionality suggest that the value of human rights can be

maintained at the balancing stage by ‘assigning a higher abstract weight to rights than other

considerations.’42 In doing so, human rights enter the balancing stage with more of an advantage

by virtue of their nature, and not equal to competing interests.

The second argument laid against proportionality in the strict sense is that of incommensurability.

Critics contend that proportionality strictu sensu calls for the comparison of competing interests

which cannot be measured or balanced.43 Moreover, that these competing interests often have

nothing in common or have ‘no common denominator’.44 For this reason, balancing is criticized

as no more than an ‘ambiguous metaphor’ which says ‘nothing about how the various interests are

to be weighed’.45

In response to this, Klatt and Meister contend that the success of balancing does not ‘depend upon

assigning exact mathematical quantification to colliding principles.’46 On the contrary, as long as

competing interests can be ranked by assigning each with levels of intensity, then they can be

balanced. For instance, it could be considered whether the detriment to a right or the benefit of

41
Matthias Klatt and Moritz Meister. ‘Proportionality-a Benefit to Human Rights? Remarks on the I.CON
Controversy’ International Journal of Constitutional Law 2012 10(3) 687-708, 690
42
Matthias Klatt and Moritz Meister. ‘Proportionality-a Benefit to Human Rights? Remarks on the I.CON
Controversy’ International Journal of Constitutional Law 2012 10(3) 687-708, 690
43
Guy Lurie, ‘Proportionality and the Rights to Equality’ (2020) 21 German Law Journal 174-196, 176
44
Ariel Bendor and Tal Sela, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal of
Constitutional Law 530-544, 543
45
Tsakyrakis Stavros, ‘Proportionality: An Assault on Human Rights?’ (2009) 7(3) International Journal of
Constitutional Law 468-493
46
Matthias Klatt and Moritz Meister. ‘Proportionality-a Benefit to Human Rights? Remarks on the I.CON
Controversy’ International Journal of Constitutional Law 2012 10(3) 687-708, 696

46
attaining a legitimate purpose is ‘light, moderate or serious.’47 Such a scale would make interests

which are seemingly incommensurable, at the very least comparable.48

Finally, critics of proportionality charge it with extending judicial authority because it inevitably

depends on judicial discretion.49 Indeed, in applying proportionality judges will have to exercise

their discretion to so some extent. However, proportionality plays the crucial role of confining

judicial discretion within a rational structure. The various subtests provide a ‘minimum level of

objectivity’ which prevents the arbitrary use of discretion.50 Additionally, proportionality

challenges judges to exercise the limited discretion it grants rationally for the benefit of human

rights.

It could be observed that perhaps critics of proportionality are unconvincing because they fail to

show that even the worst charge against it outweighs its overall usefulness. Khosla has suggested

that it is wrong to judge proportionality by cases in which it has been misapplied. He argues that

any argument seeking to challenge proportionality must show that it ‘yield[s] undesirable results

when properly applied.’51 Similarly, Moller has observed:

In order for an argument rejecting proportionality to be successful it would have to first

make the strongest possible case in favor of proportionality, only in order to show in a
second step that even this strongest possible case is too unreasonable to be maintained.52

47
ibid
Matthias Klatt and Moritz Meister. ‘Proportionality-a Benefit to Human Rights? Remarks on the I.CON
Controversy’ International Journal of Constitutional Law 2012 10(3) 687-708, 698
49
Guy Lurie, ‘Proportionality and the Rights to Equality’ (2020) 21 German Law Journal 174-196, 176
50
Tayla Ucaryilmaz, ‘The Principle of Proportionality in Mordern ius Gentium’ (2021) 36 (1) Utrecht Journal of
International and European Law
51
Madhov Khosla , ‘Proportionality: An Assault on Human Rights?: A Reply’ (2010) 8(2) International Journal of
Constitutional Law 298-306, 305
52
Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law
709-731, 710

47
4.4 BASIS FOR THE ADOPTION OF PROPORTIONALITY IN ZAMBIA
This research proposes the adoption of the principle of proportionality in Zambia. It has shown

that the principle would benefit the protection of human rights by being a standard doctrinal tool

for the interpretation of limitation clauses. Nevertheless, one may still rightly ask what is the

rationale or justification for the introduction of proportionality analysis in Zambia when it is not

expressly provided for in the constitution. This is the question which this part seeks to answer. It

relies on Robert Alexy’s theory on the necessary connection between constitutional rights and the

principle of proportionality.

4.4.1 ROBERT ALEXY’S NECCESSITY THESIS

Alexy posits that there is a necessary connection between constitutional rights and proportionality

analysis which arises from the nature of constitutional rights as principles and not rules.53 The

distinction is relevant because, on the one hand, rules are commands to be obeyed in the exact

manner in which they are proscribed.54 While, on the other hand, principles are described as

‘optimization requirements’, which means that their satisfaction is dependent on the prevailing

‘legal and factual’ circumstances. Therefore, it follows that the satisfaction of a principle is

dependent on balancing it against all the relevant factors.55

Accordingly, Alexy’s logic is that if constitutional rights are principles, and principles by their

nature require balancing or proportionality, then there is a necessary connection between

constitutional rights and proportionality analysis.56 Additionally, Alexy contends that this

53
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65, Para 1
54
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65, Para 2
55
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65, Para 2
56
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65, Para 22

48
connection between rights and proportionality although arising from an ‘ideal dimension’ must be

applied as an interpretive principle.57

This research bases its proposal of proportionality in Zambia on Alexy’s necessity thesis. It

contends that the nature of human rights as principles demands the application of proportionality

despite the fact that it is not expressly mentioned in the bill of rights. However, it is cautious of

suggesting that proportionality analysis is the only interpretive tool that can be applied to

interpretation of limitation clauses. Indeed, it does not go so far as to ‘claim omnipotence’ for the

principle, as this would only inhibit the development of constitutional law.58

4.5.0 CONCLUSION
This chapter introduced the reader to the principle of proportionality as a doctrinal tool for the

interpretation of limitation clauses. It discussed the advantages of proportionality analysis in

structuring judicial discretion and curbing arbitrary abuse of human rights. Lastly, it justified the

introduction of proportionality through Alexy’s theory on the necessary connection between

human rights and proportionality. The following chapter will conclude this research by

highlighting the findings of each chapter. Thereafter, it will make recommendations and suggest

areas for further research.

57
Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory and
Philosophy of Law 55-65, Para 25
58
Madhov Khosla, ‘Proportionality: An Assault on Human Rights?: A Reply’ (2010) 8(2) International Journal of
Constitutional Law 298-306, 305

49
 CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS

5.0 INTRODUCTION
This research explored the interpretation of limitation clauses in Zambia with a view to propose

the introduction of the principle of proportionality. It discovered that the methodology applied by

courts is inconsistent and incoherent which effectively undermines the protection of human rights

in Zambia. Furthermore, the principle of proportionality was proposed as a useful doctrinal tool to

aid in the adjudication of human rights disputes. The present chapter categorically concludes this

research by providing a summary of each chapter. Thereafter, it gives the findings of the research

and makes recommendations based on them. Finally, it suggests areas for further research.

5.2 SUMMARY OF RESEARCH FINDINGS

Chapter one gave a background to this research by providing an understanding of human rights

and limitation clauses within the international human rights structure. It briefly examined the

literature concerning limitation clauses and the principle of proportionality. Additionally, it

identified the problem which this research aims to address and the significance of its contribution

to academia and legal practice. Finally, it set out the objectives of the research and the methodology

used to achieve those objectives.

Chapter two provided an understanding of limitation clauses by defining them as legal provisions

which describe the manner in which constitutionally protected rights must be limited. It also made

a distinction between different types of rights and noted that it is for non- absolute rights in

particular that limitation clauses are cardinal. Thereafter, the chapter examined the structure of

limitation clauses in the Zambian bill of rights and showed that it mostly makes use of right specific

limitation clauses. In concluding, the chapter noted that limitation clauses are indispensable

50
because it is inevitable for individual human rights to clash either with other human rights or with

the public interest.

Chapter three engaged in an examination of the methodology applied by the Zambian courts to the

interpretation of limitation clauses through reference to statute and case law. Generally, it found

that the interpretation of limitation clauses in Zambia leaves much to be desired because of the

lack of a standard interpretive principle. In Particular, made a distinction between rights analysis

and limitation analysis and demonstrated that courts engage in limitation analysis by implicitly

determining questions of burden and standard of proof. In addition, it found that the courts’

interpretation of terms such as ‘reasonably necessary’ and ‘necessary or expedient’ which are

found in limitation clauses is outcome determinative in human rights claims. Unfortunately, an

examination of the cases revealed that there is no consistency or coherence in the manner in which

limitation analysis is carried out which in effect undermines the protection of human rights.

Furthermore, as cases were examined, it was discovered that the principle of proportionality is

often mentioned with little attempt to explain or apply it. Finally, chapter three addressed the

tendency of courts to view limitation clauses as equal to human rights which results in untenable

judgements.

Chapter four introduced the reader to the principle of proportionality as a doctrinal tool for the

interpretation of limitation clauses. It revealed that the principle has gained momentum as a

standard international constitutional law principle. Additionally, that it has been adopted in several

countries and international courts as a standard doctrinal tool for the interpretation of limitation

clauses. It highlighted the various subtests within the principle of proportionality being legitimacy,

suitability, necessity, and proportionality strictu sensu. Thereafter, the chapter explored the debate

for and against proportionality analysis and found that overall, it is useful as a legal standard which

51
ensures consistency and structures discretion. Finally, the chapter defended the application of the

principle of proportionality in Zambia through recourse to Alexy’s theory of the necessary

connection between constitutional rights and proportionality analysis.

5.3 RECOMMENDATIONS
The research found that the protection of human rights in Zambia is of utmost importance.

However, it has not been fully realized because of the difficulties which have been identified with

the interpretation of limitation clauses. To that effect, this research has identified and recommends

the following measures:

1. That Judges, when adjudicating human rights claims, should consistently apply the

principle of proportionality to interpret limitation clauses so that in time it will become an

established principle through judicial precedent.

2. That the Law Association of Zambia, interested NGO’s and other stakeholders should

conduct further research on the principle of proportionality and how it can improve

protection of human rights in Zambia.

3. That Parliament, through the introduction of a Bill, should take the necessary steps to bring

about the amendment of the bill of rights so that proportionality analysis is expressly

provided for as is the case in other jurisdictions.

5.4 PROSPECTS FOR FURTHER RESEARCH

There is need for further research to be conducted on the efficacy of proportionality analysis in

Zambia with emphasis on the manner in which it can be applied to cases. This will guide judges

as they apply proportionality analysis. Additionally, research on the way in which proportionality

analysis is used in comparable jurisdictions like South Africa would shed more light on its benefits.

52
5.5 CONCLUSION
In conclusion, the issue of interpretation of limitation clauses is often overlooked, yet it is often

during limitation analysis that most human rights claims fail. This research sought to enlighten the

reader as to the importance of setting standards when it comes to interpretation of limitation clauses

so that human rights protection is not left to chance. It is hoped that the use of proportionality

analysis will improve the protection of human rights in Zambia and increase confidence in the

judicial system.

53
 BIBLIOGRAPHY

BOOKS
Alexy R, A Theory of Constitutional Rights (1st edn, reprint, Oxford University Press 2010)
Barak A, Proportionality, Constitutional Rights and their Limitations (Cambridge University
Press, 2012)
Brown G, "Limitations and Derogations." In The Universal Declaration of Human Rights in the
21st Century: A Living Document in a Changing World, edited by Brown Gordon, by Global
Citizenship Commission, 57-62. (Cambridge, UK: Open Book Publishers, 2016)
Parpworth N, ‘Freedom of Assembly and Public Order’ In Constitutional and Administrative Law
(10th edn, OUP,2018)

ARTICLES, REPORTS, JOURNALS

Alexy R, ‘Constitutional Rights and Proportionality’ (2014) 22 Journal for Constitutional Theory
and Philosophy of Law 55-65
Andelkovic L, ‘The Elements of Proportionality as a Principle of Human Rights Limitation’ (2017)
3 Law and Politics 235
Bendor A and Sela T, ‘How Proportionality is Proportionality?’ (2015) 13(2) International Journal
of Constitutional Law 530-544
Bielefeldt H, ‘Limiting Permissible Limitations: How to Preserve the Substance of Religious
Freedom’ (2020) 15(1-2) Religion and Human Rights
Boggio A, Zignol M, Jaramillo E, ‘Limitations on Human Right: Are They Justifiable to Reduce
the Burden of Tuberculosis in the Era of MDR and XDR-TB?’ (2003) 10/2 Health and Human
Rights Journal
Cali B, ‘Balancing Human Rights? Methodological Problems with Weights Scales, and
Proportions’ (2007) 29(1) Human Rights Quarterly, 251-270
Cianciardo J, ‘The Principle of Proportionality: The Challenges of Human Rights’ (2010) 3(1)
Journal of Civil Law Studies, 177-186
Cohen- Eliya and Porat I, ‘Proportionality and the Culture of Justification’ (2011) The American
Journal of Comparative Law 59(2) 463
Engle E, ‘The History of the General Principle of Proportionality: An Overview’ (2012) 10
Dartmouth Law Journal 1
Garibaldi O, ‘General Limitations on Human Rights: The Principle of Legality’ (1976) 17 Harv.
Intl. L. J 503

54
Garatilleke G, ‘Justifying Limitations on the Freedom of Expression’ (2021) 22 Human Rights
Review 91
Gunn J, ‘Limitation Clauses, Evidence, and the Burden of Proof in the European Court of Human
Rights,’ (2020) 15(2) The Religion & Human Rights: An International Journal 192-206
Jovicic S, ‘COVID-19 Restrictions on Human Rights in Light of the Case Law of the European
Court of Human Rights’(2021) 21 ERA Forum 545
Khosla M, ‘Proportionality: An Assault on Human Rights?: A Reply’ (2010) 8(2) International
Journal of Constitutional Law 298-306
Kitcher G, ‘The Necessary Limitations to the Freedom of Movement Under the European
Convention on Human Rights and the EU Acquis: A Comparative Study’ (LLB Dissertation, L-
Universita ta Malta, 2017)
Klatt M and Meister M, ‘Proportionality-a Benefit to Human Rights? Remarks on the I.CON
Controversy’ International Journal of Constitutional Law 2012 10(3) 687-708
Lurie G, ‘Proportionality and the Rights to Equality’ (2020) 21 German Law Journal 174-196
Rautenbach IM, ‘Proportionality and the Limitation Clauses of the South African Bill of Rights’
(2014) 17(6) PELJ
Moller K, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of
Constitutional Law 709-731
Mwansa A, ‘Law, Religion and Human Rights in Zambia: The Past, The Present and the
Practice’(2010) 8(2) African Human Rights Law Journal 546
Pati R, ‘Rights and their Limits: The Constitution for Europe in International and Comparative
Legal Perspective’ (2005) Berkeley Journal of International Law, 324
Rayburn P, ‘The Constitutional Requirement of Legality in the Limitation of Human Rights (LLM
Dissertation, University of Toronto 1998)
Rosen M, ‘When are Constitutional Rights Non-Absolute: McCutcheon, Conflicts and the
Sufficiency Question’ (2014) 56 Wm.& Mary L. Rev.
Schlink B, ‘Proportionality in Constitutional Law: Why Everywhere but Here?’ (2012) 22 Duke
Journal of Comparative Law 291
Sykes A, ‘The Least Restrictive Means’ (2003) 70(1) The University of Chicago Law Review 403-
419
Tsakyrakis S, ‘Proportionality: An Assault on Human Rights?’ (2009) 7(3) International Journal
of Constitutional Law 468-493
Ucaryilmaz T, ‘The Principle of Proportionality in Mordern ius Gentium’ (2021) 36 (1) Utrecht
Journal of International and European Law 14-32
Velaers J, ‘Constitutional Versus International Protection of Human Rights: Added Value or
Redundancy? The Belgian Case, in the Light of the Advisory Practice of the Venice Commission’
(2016) 77(2) Revue Interdisciplinaire D’etudes Juridiques, 265-295
55
Viljanen J, ‘The European Court of Human Rights as a Developer of the General Doctrine of
Human Rights Law: A Study of the Limitation Clauses of the European Court of Human Rights’
(Dissertation, University of Tampere 2003)
‘The Presumption of Constitutionality’ (1931) 31(7) Columbia Law Review, 1136-1148

ONLINE SOURCES
‘Balancing Test’ available at www.law.cornell.edu accessed 19th august 2021
‘Burden and Standard of Proof’ www.iclr.co.uk accessed 16th August 2021
‘Counter Terrorism and situations of Public Emergency’ www.unodc.org?e4j?en
‘Limitations Permitted by Human Rights Law’, www.unodc.org accessed 7 June 2021
‘Traditional Rights and Freedoms- Encroachment by Commonwealth Laws’ (ALRC Interim
Report 127) www.alrc.gov.au accessed 14 June 2021
Webster.com Legal Dictionary, Merriam- Webster, www.merriam-webster.com/legal/standard
accessed: 16th August 2012
Ahmed D and Bulmer E, ‘Limitation Clauses’, International IDEA Constitution Building Primer
www.idea.intl/sites/default/files/publications , accessed 7 June 2021
Crump B, ‘What is burden of proof and why is it important?’ www.bencrump.com accessed 1st
August 2021
Flowers N, ‘Human Rights Here and Now’ www.hrlibrary.umn.edu Accessed 16 June 2021
Tsakyrakis S ‘The Balancing Method on the Balance: Human Rights Limitations in the ECHR’
www.law.nyu.edu accesses 19th August 2021

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