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SECTION 3 OF THE CONSTITUTION

MUZILA v THE ATTORNEY-GENERAL 2003 (1) BLR 471 (HC) p479 MARUMO J Section 3 also makes reference to fundamental rights (including equality before the law) which accrue to all persons in Botswana. The guarantees are however made 'subject to respect for the rights and freedoms of others and for the public interest . . .' (My emphasis). It too recognizes that the public interest may dictate that persons be treated differently by the law or those who perform public functions and duties

ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA) p133 AMISSAH P From the wording of section 3, it seems to me that the section is not only a substantive provision, but that it is the key or umbrella provision in Chapter II under which all rights and freedoms protected F under that Chapter must be subsumed. Under the section, every person is entitled to the stated fundamental rights and freedoms. Those rights and freedoms are subject to limitations only on two grounds, that is to say, in the first place, "limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others", and secondly on the ground of "public interest". Those limitations are provided in the provisions of G Chapter II itself, which is constituted by sections 3 (but effectively, section 4) to 19, of the Constitution.

ATTORNEY-GENERAL v OTLHOMILE 2004 (1) BLR 21 (CA) p28 TEBBUTT JP

Section 3 has two aspects. Firstly, it constitutionally guarantees the rights and freedoms set out in ss 4 to 17 of H the Constitution; and, secondly it states the justificatory criteria upon which any limitation of those rights and freedoms must be based viz those contained in the provisions such as s 10(12) cited

above and limitations reasonably necessary to protect the rights and freedoms of others and the public interest. PG 29 The stringent standards required for any limitation of them must therefore be respected and maintained and such limitation should be confined to those circumstances where their exercise would be inimical to the realisation of collective goals of fundamental importance

In an assessment of the reasonableness of any limitation the question of proportionality must accordingly also be considered