the nature and extent of the limitation;
the need to ensure that the exercise of the right does not prejudice the rights of
others;
the relationship between the limitation and its purpose, in particular whether it
imposes greater restrictions on the right concerned than are necessary to achieve its
purpose; and
whether there are less restrictive means of achieving the purposes of the limitation.
In re Munhumeso & Others 1994 (1) ZLR 49 (S) at 64B-C the court pointed out that:
“What is reasonably justifiable in a democratic society is an elusive concept – one
which cannot be precisely defined by the courts. There is no legal yardstick save that
the quality of reasonableness of the provision under challenge is to be judged
according to whether it arbitrarily or excessively invades the enjoyment of a
constitutionally guaranteed right.”
In Nyambirai v National Social Security Authority & Another 1995 (2) ZLR 1 (S) at 13C-F,
GUBBAY CJ elaborated the test as follows:
“In effect the court will consider three criteria in determining whether or not the limitation is
permissible in the sense of not being shown to be arbitrary or excessive. It will ask itself
whether:
1. the legislative objective is sufficiently important to justify limiting a fundamental right;
2. the measures designed to meet the legislative object are rationally connected to it;
and
3. the means used to impair the right or freedom are no more than is necessary to
accomplish the objective.”
Section 86 of Zimbabwe’s Constitution is headed “Limitation of Rights and Freedoms”
(emphasis added). The word “limitation” also appears in the substantive portion of that
section. According to the Oxford English Dictionary “limit” means “confining within limits, set
bounds to, restrict.” It is clear, therefore, that section 86 does not authorize the state to
“eliminate” rights contained in the Declaration of Rights or to “hollow out such rights, so that
they no longer have any meaningful content.” Thus, the power to limit rights does not go
beyond the power to restrict rights. Writing about the limitation provision in the Canadian
Charter of Rights, Peter Hogg (2003:35-10) says that “… not every Charter infringement is a
‘limit’, and any infringement that is more severe than a limit cannot be justified.” In Ford v
Attorney-General Quebec [1988] 2 SCR 712 at 772 the Canadian Supreme Court drew a
distinction between “the negation of a right or freedom and a limit on it.” (A similar approach
was put forward in an earlier Canadian case, Attorney General Quebec v Quebec Protestant
School Boards [1984] 2 SCR 66 at 88).
Thus the courts must uphold the fundamental right to demonstrate and any limitations upon
this right must be reasonable and must not take away completely or eliminate the right or
remove the essential core of the right. In this regard the Constitution in section 46 (1) (c)
provides that our courts “must take into account international law and all treaties and
conventions to which Zimbabwe is a party.”
Zimbabwe is a party to the International Covenant on Civil and Political Rights which
guarantees various rights including freedom of assembly (Article 21). The Human Rights
Committee established in terms of Article 28 of this Covenant has commented upon what