be more than is reasonably necessary to achieve the legitimate object.
This is what is also known as the principle of proportionality. The
principle requires that such law must not be drafted too widely so as
to net everyone including even the untargeted members of the
society".
They added that, a similar position was reached in the case of Kukutia
Ole Pumbun and another v. Attorney General and another [1993]
T.L.R 159. Regarding limitation to some rights, the learned counsel referred
us to the decision of the Supreme Court of Canada in the case of R v. Oakes
[1986] 1SCR 103 which had the following in deliberation:
"The onus of proving that a limitation on any Charter right is
reasonable and demonstrably justified in a free and democratic society
rests upon the party seeking to uphold the limitation. Limits on
constitutionally guaranteed rights are clearly exceptions to the general
guarantee. The presumption is that Charter rights are guaranteed
unless the party invoking s. 1 can bring itself within the exceptional
criteria justifying their being limited".
With regard to burden of proof, they cited a Ugandan case of Charles
Onyango Obbo and another vs. Attorney General, (Constitutional
Petition No. 15 of 1997) [2000] UGCC 4 where the Court underscored:
"It is important to determine who bears the burden to prove the
constitutionality or unconstitutionality of an Act or law complained of.
In other Commonwealth jurisdictions which have operated' written
Constitutions for much longer period than us, it has been determined
that it is the duty of a person who complains that his rights and
freedoms have been violated to prove that indeed the State or any
other authority has taken an action under the authority of a law or
that there is an act or omission by the State which has infringed on
any of the rights or freedoms of the petitioner enshrined on any of the
rights or freedoms of the petitioner enshrined in the Constitution.
Once that is established, it is the duty of the State or that other
authority which seeks to restrict a guaranteed right or freedom to
prove that the freedom to prove that the restriction is necessary within
the limits prescribed by the Constitution".
Page 5 of 37
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