restrictions on rights must be necessary in a democratic society and they must be
reasonably proportionate to the aim pursued.
101.
The
Court also acknowledges
that once a complainant establishes that
there is a prima facie violation of a right, it behooves on the Respondent State to
establish that the right has been
legally restricted in line with the provisions of
Article 27(2) of the Charter. The Respondent State can discharge its burden
by
proving that the restriction is authorized by law - both domestic and international and also by establishing that the restriction serves one of the purposes listed under
Article 27(2) of the Charter.32
102.
Focusing
on
the
position
of the
Respondent
State
in this Application,
especially in relation to the purported restriction of the right to have one’s cause
heard, the Court notes that there is nothing in the submissions of the Respondent
State which establishes any of the conditions in Article 27(2) of the Charter to justify
a
limitation
of the
right
to
have
one’s
constitutional provision — article 41(7)
which
cause
heard.
Admittedly,
of the Respondent
prescribes the limitation at issue here. However,
there
is a
State’s Constitution —
it is trite law that a State
cannot invoke its domestic laws to justify a breach of its international obligations.
Resultantly, therefore, if a State relies on a provision of its domestic law to justify
restriction of a right, such a State must be able to demonstrate that the provision(s)
in its domestic law do not infringe the Charter.
103.
In the context of the present Application,
disputes,
even
those
related
to
the
election
the Court
notes that electoral
of a president,
implicate
rights
guaranteed in the Charter. Considering that decisions of the Electoral Commission
in relation to the election of a president may have an effect on the rights to be
enjoyed by citizens of the Respondent State, the Court finds it anomalous that
citizens have not
decisions
been provided with an avenue for invoking judicial scrutiny of
of the Electoral Commission.
It is the lack of opportunity given to
82 Cf. Article 19 v. Eritrea, (2007) AHRLR 73 (ACHPR 2007) § 92.
28