The limitation of rights under the Kenyan constitution

Abstract

This study set out to assess the provisions of Kenya s 2010 Constitutional framework in providing safeguards to the limitation of rights and fundamental freedoms vis-à-vis the international legal instruments protecting human rights. Concepts and purpose of limitation of fundamental rights and freedoms and notes that underlie limitation of rights is discussed. Limitation must take into account the protection of public interest and the rights of individuals. The structures of limitation clause are in general form and limit all set of rights or in specific form which limits specific rights. ICCPR does not have a general limitation clause and instead opts for a right-specific limitation clause. The limitation clause in CESCR allows for rights to be limited along the lines of progressive realization and not of immediate application since the rights are resource based. The African Charter embodies three types of limitations: right specific norm-based limitation; right specific claw-back clauses and the general limitation clause. Kenya s 2010 Constitution uses a single clause in limiting the rights under article 24 and grounded on article 24(1). The study reveals that in order to limit rights, the state must balance the rights and interests of the individual with that of the state; the limiting measures taken should not outweigh the actual circumstances necessitating the restriction; be non-discriminatory; and not make a country avoid her obligation under international law.