76. In view of the above, the Court restates its position that measures restricting rights
must be in the form of a general law; must be proportionate29; must not undermine
the essential content of rights30; must not derogate the rights provided for in
Articles 6, 7, 8 (1) and (2), 11, 15, 16, and 18 of the ICCPR31; and must not
constitute a form of discrimination against persons.
77. With regard to the aim pursued, the Court considers that the restrictions imposed
to protect the health and life of persons in the context of elections conducted
during a public health emergency or a pandemic must pursue a legitimate aim,
which is the satisfaction of the collective interest, as required by Article 27(2) of
the Charter.
78. As regards proportionality, the Court emphasizes that the restrictions must be
appropriate to the intended purpose, including their territorial extent and duration
in time; they must be necessary in a democratic society32, in the sense that there
are no alternative measures less burdensome for the rights of individuals and
peoples; and they are not abusive (proportionality stricto sensu), in the sense that
they are surrounded by safeguards so as to avoid their abusive application.
79. The Court further considers that measures restricting rights may not negate the
essential content of the restricted rights. That is, the practical effect of the
restrictions may not imply the annulment of the essential features of the restricted
rights.33
29
Tanganyika Law Society, Legal and Human Rights Centre and Reverend Christopher R Mtikila v
Tanzania (merits), § 107.1.
30 Ibidem.
31 ACHPR, Communication 275/03, Article 19 v. Eritrea (30 May 2007), § 98.
32 ACHPR, Kenneth Good v. Republic of Botswana, Communication No. 313/05, Decision of 26 March
2010, § 187.
33 ACHPR, Media Rights Agenda and Others v. Nigeria, African Commission on Human and Peoples'
Rights, n.º 105/93, 128/94, 130/94 and 152/96, of 31 October 1998, in which the Commission held that: 67.
In contrast to other international human rights instruments, the African Charter does not contain a
derogation clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be
justified by emergencies or special circumstances.68. The only legitimate reasons for limitations to the
23