Limitation analysis and proportionality in practice

The African Commission and the African Court have developed criteria for evaluating limitations on rights guaranteed under the African Charter, as already indicated above. These criteria include components of proportionality analysis. I discuss below each of these criteria. I begin with the requirement of legality, which is employed by both the Commission and the Court.

3.5.2.1 Legality

The limitation clauses in the other treaties, particularly the ICESCR, the European Social Charter and the Protocol of San Salvador, stipulate that limitation to a right should be provided by law. Article 27(2) of the African Charter does not contain this element, as discussed above, nevertheless, both the African Commission and the African Court require that limitations be provided by law. In Interights and Others v Mauritania, the African Commission summarised the requirements for evaluating limitations:

[F]or a restriction imposed by the legislators to conform to the provisions of the African Charter, it should be done ‘with due regard to the rights of others, collective security, morality and common interest’, that it should be based on a legitimate public interest and should be ‘strictly proportionate with and absolutely necessary’ to the sought after objective. And moreover, the law in question should be in conformity with the obligations to which the state has subscribed in ratifying the African Charter and should not render the right itself an illusion.’²⁴¹

In this passage, the African Commission refers to ‘a restriction imposed by the legislators.’ While the passage suggests that it is the power of the legislators to restrict rights guaranteed under the African Charter, it does not lay down stringent requirements that the restrictions should be by law promulgated by democratically elected representatives, unlike the Inter-American Court of Human Rights.²⁴²

In Mtikila v Tanzania, the African Court adopted the Commission’s position on requirements for evaluating limitations:

The Court agrees with the African Commission, that the limitations to the rights and freedoms in the Charter are only those set out in Article 27(2) of the Charter and that such limitations must take the form of “law of general application” and these must be proportionate to the legitimate aim pursued.²⁴³

The Court does not expressly require that the law limiting the exercise of rights be passed by a legislature, but it lays down other requirements. The Court states that the law restricting rights should be ‘law of general application.’²⁴⁴ The African Commission has also adopted this requirement.

In Prince v South Africa, the Commission accepted restrictions on the right to work on the ground that ‘the limitations are of general application.’²⁴⁵ When a restrictive law is promulgated to regulate behaviour of a single person, it does not qualify as ‘law of general application’. Although the Commission did not refer to the element of generality in Constitutional Rights Project and Others v

241 Interights and Others v Mauritania (2004) AHRLR 87 (ACHPR 2004), para 79. Italics added; Footnotes omitted.

242 Inter-American Court of Human Rights, The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC -06/86, 9 May 1986, para 38.

243 Mtikila v Tanzania, para 107.1.

244Mtikila v Tanzania, para 107.1.

245 Prince v South Africa (2004) AHRLR 105 (ACHPR 2004), para 44.

Nigeria, where the respondent State proscribed some publications by name, it found a violation.²⁴⁶ The Commission held that ‘laws made to apply specifically to one individual or legal personality raise the serious danger of discrimination and lack of equal treatment before the law’, and are therefore contrary to the African Charter.²⁴⁷

Clarity is another requirement of law that limits the exercise of rights. In Umuhoza v Rwanda, the African Court emphasised that ‘domestic laws on which restrictions to rights and freedoms are grounded must be sufficiently clear, foreseeable and compatible with the purpose of the Charter and international human rights conventions.’²⁴⁸ In Konaté v Burkina Faso, the Court explained the purpose of clarity in the law. It held that the objective of requiring laws to be clear is ‘to enable an individual to adapt his/her conduct to the Rules and to enable those in charge of applying them to determine’ what constitutes a legitimate restriction.²⁴⁹ Therefore, the clarity of laws is useful not only to the rights-holders but also to the courts with the power to determine the rights and obligations of individuals.

A related issue is the requirement in some provisions of the Charter that some rights should be exercised ‘within the law’ or ‘in accordance with the law’ or similar requirements.²⁵⁰ As discussed above, some commentators criticised the African Charter for providing states with wide discretion through clawback clauses.²⁵¹ The African Commission seems to dispel this fear. In Interights and Others v Mauritania, the Commission explained that:

To allow national legislation to take precedence over the Charter would result in wiping out the importance and impact of the rights and freedoms provided for under the Charter. International obligations should always have precedence over national legislation, and any restriction of the rights guaranteed by the Charter should be in conformity with the provisions of the latter.²⁵²

In sum, both the African Commission and the African Court require states to comply with the requirement of legality, although Article 27(2) of the Charter does not expressly state such a requirement. According to this requirement, limitations should be provided by a law of general application, which should be clear.

3.5.2.2 Legitimacy

The component of legitimate goal in proportionality analysis identifies aims that justify a restriction being imposed on rights. Article 27(2) of the African Charter requires individuals to exercise their rights ‘with due regard to the rights of others, collective security, morality and common interest.’ The African Commission and the African Court have identified these four grounds as legitimate goals whose protection justifies limitations on the rights under the African Charter.

Since its decision of 1998 in Media Rights Agenda and Others v Nigeria, the African Commission often quotes this statement: ‘The only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27(2), that is, that the rights of the Charter "shall be exercised

246 Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999), para 44.

247 Constitutional Rights Project and Others v Nigeria, para 44.

248 Umuhoza v Rwanda, para 136.

249 Konaté v Burkina Faso, para 131.

250 See African Charter, Arts 9(2) & 14.

251 Gittleman (n 197) 691.

252 Interights and Others v Mauritania (2004) AHRLR 87 (ACHPR 2004), para 77.

with due regard to the rights of others, collective security, morality and common interest".’²⁵³ The African Court has also held that ‘the limitations to the rights and freedoms in the Charter are only those set out in Article 27(2) of the Charter.’²⁵⁴ The Court has added that the states should provide

‘evidence that the restriction serves one of the purposes set out in Article 27(2) of the Charter.’²⁵⁵ From the use of the term ‘only’ in both quotes of the Commission and the Court, it appears that the legitimate goals are limited. No reason other than those stated in Article 27(2) justifies the restriction of the rights guaranteed in the Charter. If one reads Article 27(2) of the Charter only, its formulation buttresses this reading since the provision restrictively lists the goals. That is, Article 27(2) is not illustrative.

However, the list of legitimate goals is not hermetically sealed. The text of the African Charter and the practice of both the African Court and the African Commission all show that there are other legitimate goals that can justify restrictions of Charter rights. Some provisions of the Charter itself provide for other legitimate goals, such as national security, law and order, public health, safety, ethics, general interest and public need.²⁵⁶ In Good v Botswana, the Commission held that ‘national security or public interests are recognised as justifiable grounds to limit freedom of expression under the African Charter.’²⁵⁷ The Court has also recognised legitimate goals other than those specified under Article 27(2) of the Charter. In Umuhoza v Rwanda, the Court held that restrictions on freedom of expression ‘may be made to safeguard the rights of others, national security, public order, public morals and public health.’²⁵⁸

The African Commission and the African Court require that restrictions to Charter rights advance one of the legitimate goals, whether those goals are provided under Article 27(2) or identified by the Court and the Commission. In Konaté v Burkina Faso, the African Court held that restrictions, which are provided by Burkinabé libel laws limiting the exercise of the right to freedom of expression contrary to Article 9(2) of the Charter, serve a legitimate goal since they are passed ‘to protect the honour and reputation of the person or a profession.’²⁵⁹ One may argue that this falls under the goal of protecting ‘the rights of others’ under Article 27(2) although the Court does not squarely place it under this provision.

The African Commission has referred to ‘collective security’ in Sudan Human Rights Organisation and Another v Sudan.²⁶⁰ The Commission dealt with eviction and displacement of the civilian population in Darfur because of an internal armed conflict. It did not clearly rule that the eviction is a restriction to the exercise of the right to housing, however, it seems to suggest that evictions conducted for the protection of the civilian population from attacks or threats of attacks may serve the purpose of ensuring ‘collective security’.²⁶¹ Both the Commission and the Court hardly examined cases in which

253 Good v Botswana, para 190; Sudan Human Rights Organisation and Another v Sudan, para 166; Zimbabwe Lawyers for Human Rights and Another v Zimbabwe, para 176; Interights and Others v Mauritania, para 78; Constitutional Rights Project and Others v Nigeria, para 41; Media Rights Agenda and Others v Nigeria, para 68. Italics added.

254 Mtikila v Tanzania, para 107.1. Italics added.

255 Mtikila v Tanzania, para 106.1; Konaté v Burkina Faso, para 134.

256 African Charter, Arts 11, 12(2) & 14.

257 Good v Botswana, para 190.

258 Umuhoza v Rwanda, para 140.

259 Konaté v Burkina Faso, para 136.

260 Sudan Human Rights Organisation and Another v Sudan (2009) AHRLR 153 (ACHPR 2009), para 166.

261 Ibid, para 166.

states claim that their goals are the protection of ‘morality and common interest’. However, they have examined other legitimate goals that are not stipulated in Article 27(2).

In Scanlen and Holderness v Zimbabwe, the African Commission defined ‘public order’ as ‘conditions that ensure the normal and harmonious functioning of institutions on the basis of an agreed system of values and principles.’²⁶² It explained that the concept of public order ‘demands the greatest possible amount of information. It is the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole that ensures this public order.’²⁶³ The Commission concluded that ‘the restrictions imposed on the practice of individual journalists can thus not be justified on the grounds of public order.’²⁶⁴ In Umuhoza v Rwanda, the Court found that restrictions to the right to freedom of expression, which criminalises expressions minimising genocide committed in Rwanda, serve ‘the legitimate interests of protecting national security and public order.’²⁶⁵

Sometimes, the African Commission does not clearly identify the legitimate goal intended to be served by the restrictions to the rights. In Prince v South Africa, for example, the African Commission examined restrictions to the right to work due to the complainant’s use of cannabis. The Commission held that such restrictions serve a legitimate purpose,²⁶⁶ however, did not identify a particular legitimate goal from among those listed in Article 27(2) of the Charter or those added by the Commission.

In sum, the African Commission and the African Court recognise that states can limit rights guaranteed in the African Charter if there is evidence that those restrictions serve the protection of the rights of others, collective security, morality or the common interest. Moreover, the Commission and the Court have also accepted restrictions to Charter rights that serve the public interest, national security, public order or public health. Therefore, both the Court and the Commission have expanded the list of legitimate goals that justify restrictions to some Charter rights.

3.5.2.3 Suitability

The African Commission and the African Court hardly examine the suitability of restrictions to Charter rights. At the suitability stage, as discussed above, a decision-maker examines whether there is a rational connection between the restrictions and the legitimate goal.²⁶⁷ In Umuhoza v Rwanda, the African Court clearly identified each component of the proportionality analysis against which it evaluated the conduct of the respondent State.²⁶⁸ However, it did not identify suitability among these components.

In the Ogiek case, the African Court passed a suitability analysis as an examination of the legitimate goal stage. In this case, Kenya evicted Ogiek indigenous peoples from their ancestral land to preserve the environment in the Mau Forest. Because of the eviction, the Ogieks were unable to carry out their cultural practices. The Court accepted the preservation of the environment as a legitimate goal and held that ‘the restriction of the cultural rights of the Ogiek population to preserve the natural

262 Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACHPR 2009), para 109.

263 Scanlen and Holderness v Zimbabwe, para 110.

264 Scanlen and Holderness v Zimbabwe, para 111.

265 Umuhoza v Rwanda, para 141.

266 Prince v South Africa (2004) AHRLR 105 (ACHPR 2004), para 43.

267 Möller, Global model, (n 78) 181.

268 Umuhoza v Rwanda, paras 134-162.

environment of the Mau Forest Complex may in principle be justified to safeguard the "common interest" in terms of Article 27 (2) of the Charter.’²⁶⁹

However, the respondent State was not able to establish that the environmental degradation of the Mau Forest was caused by the Ogieks or their activities. This is evident from the Court’s holding:

‘Although the Respondent alleges generally [...] that certain cultural activities of the Ogieks are inimical to the environment, it has not specified which particular activities and how these activities have degraded the Mau Forest.’²⁷⁰ In essence, the Court is saying that the respondent State did not establish a rational connection between the eviction of the Ogieks and the preservation of the environment. In proportionality theory, this kind of analysis is conducted at the suitability stage.

Nevertheless, the Court concluded that ‘the purported reason of preserving the natural environment cannot constitute a legitimate justification for the Respondent's interference with the Ogieks' exercise of their cultural rights.’²⁷¹ Therefore, the African Court merges the suitability stage with the legitimate goal stage – at least in the Ogiek case.

3.5.2.4 Necessity

The component of necessity in proportionality analysis requires that restrictions to rights ‘should impair as little as possible the affected right’ as discussed above.²⁷² The African Charter expressly requires that restrictions to the exercise of the right to freedom of assembly be necessary²⁷³, but this requirement is missing from Article 27(2) of the African Charter. Despite the textual silence, both the African Commission and the African Court require that restrictions to Charter rights be necessary.²⁷⁴ As discussed above, restrictions to rights under the European Social Rights are necessary when there is a pressing social need,²⁷⁵ but neither the African Commission nor the African Court have yet required the existence of a pressing social need. Although the Commission and the Court have not explained the requirement of necessity, they require that states choose the least restrictive means.

In the Nubian Community case, the African Commission underlined that ‘any limitations should be the least restrictive measures possible.’²⁷⁶ In another case, the Commission added that ‘where it is necessary to restrict rights, the restriction should be as minimal as possible.’²⁷⁷

Likewise, the African Court has emphasised that states should adopt ‘less restrictive measures’ to attain their objectives.²⁷⁸ In terms of procedure, the Court expects respondent states to show that the restrictions to the exercise of the rights are necessary. In Konaté v Burkina Faso, the Court has found that the respondent State ‘failed to show how a penalty of imprisonment was a necessary limitation to freedom of expression.’²⁷⁹

269 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment on merits, 26 May 2017, para 188 (hereafter ‘Ogiek case’).

270 Ogiek case, para 189.

271 Ogiek case, para 189.

272 Urbina, Critique of Proportionality, (n 31) 49.

273 African Charter, Art 11.

274 Interights and Others v Mauritania, para 79; Mtikila v Tanzania, para 106.1.

275 GSEE v Greece, para 83.

276 The Nubian Community in Kenya v The Republic of Kenya, Communication 317/2006, Decision of the African Commission, 17th Extraordinary Session, 19 – 28 February 2015, para 89.

277 Amnesty International and Others v Sudan (2000) AHRLR 297 (ACHPR 1999), para 80.

278 Umuhoza v Rwanda, para 162.

279 Konaté v Burkina Faso, para 163.

3.5.2.5 Balancing

Proportionality in the narrow sense is called balancing, as discussed above.²⁸⁰ Balancing lies at the core of proportionality in the broad sense.²⁸¹ Balancing requires decision-makers to compare the evils of restrictions to rights with the benefits of achieving the legitimate goals. However, the African Charter does not clearly stipulate that restrictions to rights under the African Charter should be proportionate to the legitimate goal. In their practice, both the African Commission and the African Court examine whether restrictions on rights are proportionate to legitimate goals sought to be achieved.²⁸²

In Zimbabwe Lawyers for Human Rights and Another v Zimbabwe, the African Commission examined a complaint alleging that Zimbabwean police stopped the work of a newspaper organisation and seized its property because of the organisation’s failure to register according to a new law.²⁸³ Emphasising that the respondent State ‘ought to have responded proportionally,’ the African Commission explained that the ‘principle of proportionality seeks to determine whether, by the action of the state, a fair balance has been struck between the protection of the rights and freedoms of the individual and the interests of the society as a whole.’²⁸⁴ Moreover, the Commission identified five questions that should be asked to determine whether state conduct is proportionate: a) ‘Were there sufficient reasons supporting the action?’ b) ‘Was there a less restrictive alternative?’ c) ‘Was the decision-making process procedurally fair?’ d) ‘Were there any safeguards against abuse?’ and e)

‘Does the action destroy the very essence of the Charter rights in issue?’²⁸⁵

Some of these questions, however, do not seem helpful for the balancing stage. The first question relating to whether the limitation is supported by sufficient reasons should be asked at the legitimate goal stage, whereas the second question about the less restrictive alternative should be answered at the necessity stage. Thus, these two questions are redundant, particularly when the proportionality analysis is conducted in a sequential order. The other questions relate to new elements. The Commission usually emphasises the point reflected in the last question relating to whether the limitation destroys ‘the very essence of the Charter rights.’ In Media Rights Agenda and Others v Nigeria, the Commission underlined that ‘a limitation may not erode a right such that the right itself becomes illusory.’²⁸⁶ When a limitation is so severe that ‘a right becomes illusory, the limitation cannot be considered proportionate — the limitation becomes a violation of the right.’²⁸⁷

The practice of the African Commission and the African Court shows that both determine the proportionality of a restriction irrespective of how they go about it. In Amnesty International and Others v Sudan, the African Commission held that prohibiting any assembly for a political purpose ‘in all places is disproportionate to the measures required by the government to maintain public order,

280 See Alexy, Proportionality and Rationality, (n 43) 24.

281 Möller, Challenging the critics, (n 24) 710.

282 Interights and Others v Mauritania, para 79; Mtikila v Tanzania, para 106.1.

283 Zimbabwe Lawyers for Human Rights and Another v Zimbabwe (2009) AHRLR 235 (ACHPR 2009), paras 10 & 11.

283 Zimbabwe Lawyers for Human Rights and Another v Zimbabwe (2009) AHRLR 235 (ACHPR 2009), paras 10 & 11.