Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR freedom. It was in this regard held as follows in Robert Alai v The Hon Attorney General & another (supra) as regards the application of Article 24(1): “50. The principle enunciated above is that constitutionally guaranteed rights should not be limited except where the limitation is reasonable, justifiable and the objective of that limitation is intended to serve the society. The standard required to justify limitation, is high enough to discourage any limitation that does not meet a constitutional test. And that limitation to a right is an exception rather than a rule. 913. In the Canadian case of R v. Oakes (supra), the Court considered the question whether section 8 of the Narcotic Control Act, which had been found to be unconstitutional for violating section 11 of the Canadian Charter of Rights and Freedom, was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society. In reaching the conclusion that it was not, the Court enunciated the criteria to be followed in answering the question as follows: “69.To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. 70. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". 914. Further, in Geoffrey Andare vs Attorney General, (supra) the Court held as follows in this regard: “90. The questions that beg, bearing in mind the express provisions of Article 24 and the criteria in R vs Oakes are: what is the purpose of the limitation, and how important is it" What is the relationship between the limitation and its purpose" Are there less restrictive means to achieve the purpose intended"” 915. Therefore, in the context of this Petition, the stated purpose of the impugned amendments of identification of persons should be based upon the rule of law, the means used to reach this purpose should not only be relevant and necessary, but also not lead to disproportionate harm and burdens for the citizens. As was held in the Julian J Robinson Case (supra), the proportionality test used to determine whether a law can be justified in a free and democratic society is a two-stage test. The first stage is that the law must be passed for a proper purpose. The second stage has three components, namely: a) the measure must be carefully designed to achieve the objective, http://www.kenyalaw.org - Page 151/174