I deeply appriciate your questions and I will answer them one by one. But I beg your indulgence to let me give precedence to previously posed questions that I must first address.
on Limitation upon Fundamental Rights and Freedoms(article 26).
This question was the third of 8 questions asked by a compatriot who asks:"Why the need for Article 26 of the Constitution, "Limitation upon Fundamental Rights."
The relevant provisions states:
"The fundamental rights and freedoms guaranteed under this constitution may be limited only in so far as is [necessary] in the interests of national security, public safety or economic well-being of the country, health or morals, for the prevention of public disorder or crime for the protection of the rights and freedoms of others." (article 26(1).)
The following subsection of the Article further clarifies the conditions of such limitation. It requires that the law prescribing such limitation must:
a) be consistent with the principles of democracy and justice;
b) be of general application and not negate the essential content of the right or freedom in question; and
c) specify the ascertainable extent of such limitation and identify the Article or Articles of the constitution on which authority to enact such limitation is claimed to rest.
Simply stated, Article 26 is a general limitation clause which rests on the assumption that there is no absolute right that cannot be limited under any circumstances. As stipulated in conditions a), b) and c), criteria are set forth for the courts to apply, when called upon to decide whether a limitation of a fundamental right is valid and acceptable. These criteria must be satisfied to the satisfaction of a court of law in order for fundamental rights to be limited.
To reiterate the basic condition, the courts must be satisfied that the limitation may be placed only in so far as is necessary in a just and democratic society, and in the interest of the nation or for public safety, for common economic well being, and health and morals and public security. The burden of proving that the measures are necessary is on the authorities who propose to take them.
In addition to the general limitation that is permissible under Article 26, other limitations are also placed on some of the fundamental rights in terms of specific provisions of certain Articles of the constitution. For example, a government may take actions to ensure the advancement of women and disadvantaged groups in society which, on the face of it, may be contrary to the equality clause of the constitution (Article 14). I other words, tehequality principle, being a fundamental element of a democratic sciety must be jealously guarded. However, there may be circumstances justiying or requiring te measures placing liits on such equality, such as providing for quotas for women or disadvantaged groups in teh nation or in society.
Similarly, the right to economic activity may be limited by other policy considerations, and property may be expropriated subject to criteria spelled out in article 23(3) of the constitution. It provides "The State may, in the national interest or public interest, take property, subject to the payment of just compensation and in accordance with due process of law."
It may be of interest to cite other jurisdictions for comparative purposes. For example, although for historical reasons, the American constitution has no provision similar to Article 26 of the Eritrean Constitution, the US courts have developed similar guiding principles. The Canadian constitution is also helpful in this respect, placing fundamental rights subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (Article 1.)
Likewise, the South African constitution provides that a fundamental right may be limited by "a law of general application" provided that such a limitation is "reasonable" and "justifiable in an open and democratic society based on freedom and equality."(Section 33(1) (a) ).
The German constitution contains similar provisions, as does the European Convention of the Protection of Human Rights and Fundamental Freedoms. (Article 9). Other examples may be given, but this is enough to demonstrate that there is universal agreement on the belief that limitations may be placed on rights under certain conditions and subject to certain criteria.
Despite the universal application of limitation, there are certain rights that may not be limited under any circumstances. These are called in law non-derogable rights. However, different constitutions have differing provisions as to what is or is not non-dierogable. For instance, under our constitution, there shall be no limitation on rights and freedoms guaranteed under Articles 14(1); 14(2);15; 16; 17(2); 17(5); 17(8); and 19(1) of the constitution.
It would take a lot of space and time to reproduce the provisions covered under these various Articles and sub-articles. Let me suggest that you go ahead and read them and, if you want get back to me with a question. I will be glad to answer it.
I hope this answers your question.