Identification: MAW-2003-D-001
Identification: MAW-2003-D-002
Identification: MRI-2003-D-001
Identification: MRI-2003-D-002
Identification: MRI-2003-D-005
Identification: MRI-2003-D-007
Identification: SEY-2002-D-002
Identification: SEY-2002-D-001
Identification: SEY-2001-D-002
Identification: RSA-2002-3-021
Identification: UGA-1998-D-001
Identification: ZAM-2002-D-001
a)
Keywords
of the systematic thesaurus:
4.5.3.4.3 Institutions
- Legislative bodies - Composition - Term of office of members - End.
4.5.11 Institutions
- Legislative bodies - Status of members of legislative bodies.
5.3.28.1 Fundamental
Rights - Civil and political rights - Right to participate in public
affairs - Right to participate in political activity.
5.3.40.2 Fundamental
Rights - Civil and political rights - Electoral rights - Right to stand for
election.
Keywords
of the alphabetical index:
Parliament,
seat, declaration of vacancy / Contempt of court, member of parliament / Crime,
involving dishonesty and moral turpitude.
Headnotes:
The
contempt of court of which two members of Parliament were convicted was a crime
involving dishonesty and moral turpitude and consequently, their from the
National assembly was not an infringement of either S. 40 of the Republic of
Malawi Constitution that guarantees political rights or Article 21.1 of
the Universal Declaration of Human rights as it was compliant with S. 44.2 of
the Constitution on limitation of rights.
Summary:
The two
plaintiffs, who were members of the National Assembly disobeyed a court order
of injunction and were subsequently convicted of contempt of Court. They were
each sentenced to pay a fine or in default to a term of imprisonment. They both
did not appeal against the conviction or the sentence.
On
And S.
63.1.e of the same constitution provides that a seat of a member of the
National Assembly shall become vacant if any circumstances arose that, if he or
she were not a member of the National Assembly, would cause that person to be
disqualified for election under the constitution or any Act of Parliament.
The High
Court considered the question whether contempt of court was a crime involving
dishonesty and moral turpitude warranting the declaration of a vacancy in seats
of the two plaintiffs in the National Assembly. And whether such a declaration
was a violation of the plaintiffs’ right to engage in political activity as
guaranteed by S. 40 of the
Supplementary information:
The
plaintiffs are also barred to stand for the next Parliamentary election to take
place a year after the current judgment.
Languages:
English.
a)
Keywords
of the systematic thesaurus:
1.2.2.3 Constitutional
Justice - Types of claim - Claim by a private body or individual -
Profit-making corporate body.
1.3.4.1 Constitutional
Justice - Jurisdiction - Types of litigation - Litigation in respect of
fundamental rights and freedoms.
1.3.5.1 Constitutional
Justice - Jurisdiction - The subject of review - International treaties.
1.4.9.1 Constitutional
Justice - Procedure - Parties - Locus
standi.
Keywords
of the alphabetical index:
Parliament,
member, party affiliation, charge, loss of seat.
Headnotes:
Section 196
and 197 of the Constitution do not prescribe a referendum before an amendment
can be effected to Section 65 of the Constitution.
An
amendment to the Constitution providing that the joining of any other political
party, or the joining of any association or organization whose objectives are
political in nature by a member of the National Assembly conduct warrant the
declaration of a vacancy in his or her seat in the National Assembly is
inconsistent with the Constitution and therefore invalid in terms of
Section 5 of the Constitution.
Summary:
The
Republic of Malawi Constitution, that came into force in May 1995, by its
Section 65.1 empowered the Speaker of the National Assembly to declare
vacant the seat of any member of that Assembly, if, on election, he was a
member of a political party represented in that Assembly upon his voluntarily
ceasing to be a member of that party and joining another political party also
represented in the same Assembly.
In the
year 2001 by Constitution (Amendment) (no. 2) Act, 2001, the section was
amended by Parliament empowering the Speaker of the National Assembly to
declare vacant the seat of any member of the National Assembly who was, at the
time of his or her election, a member of a political party represented in the
National Assembly, other than by that member alone but who has voluntarily
ceased to be a member of that party or has joined another political party
represented in the National Assembly or has joined any other political party or
association or organization whose objectives or activities are political in
nature. The plaintiff, a non-governmental organization concerned with the
protection and enforcement of human rights, challenged the constitutionality of
this amendment at two levels.
Firstly,
that Parliament did not follow the proper procedure in effecting this amendment
since no referendum was held before the amendment was effected contrary to the
provisions of Section 196 and 197 of the Malawi Constitution. And
secondly, that the amendment directly abridged the right to freedom of
association under Section 32 of the Malawi Constitution and the right to
freely participate in political activities under Section 40 of the same
constitution by unduly limiting members of the National Assembly in their
exercise of those rights. The defendants took up a preliminary issue that the
plaintiff had no locus standi in the matter in terms of
Section 15.2 and Section 46.2 of the Constitution which grant locus
standi to any person or group of persons with sufficient interest in the
protection and enforcement of the rights conferred by the Constitution of the
As to the locus
standi of the plaintiff, the Court held, that the plaintiff had locus
standi as a group of persons having interest in the protection and
enforcement of rights conferred by the
Cross-references:
Administrator
of the Estate of
Amalgamated
Society of Railway Servants v.
Attorney
General v. Malawi Congress Party and Others,
Attorney
General v.
Attorney
General of the
Attorney
General of Trindad and
Chakuamba
and Others v. Attorney General;
Chissagnou
and Others v.
Minerva
Mills Ltd and Others v.
Minister
of Justice v. Borowsk 11981 2
New
Patriotic Party v. Attorney General 1999 2 LRC;
Nseula v.
Attorney General and Others,
O
Keke v. Minister of Home Affairs and controller of Immigration
President
of
R. v.
Foreign Secretary, ex parte World Movement Ltd 19711
W.L.R. 386;
R.
v. Inland Revenue Commissioners ex parte National Federation of
Self-Employment and small Businesses Ltd 1982 AC 617;
Republic
v.
Sidiropolous
and Others v.
State v.
Makwanyane and Mchunu Case Number CCT/3/94;
State v.
Registrar General and Minister of Justice, ex parte;
Civil
Liberties Committee Civil Cause no. 55 of 1998 (unreported)
Tembo
and Kainja v. Attorney General, Civil cause no. 50 of 2003 (unreported);
Tuffour
v. Attorney General 1980
United
Democratic Front v. Attorney General, Civil Cause no. 11 of 1994
(unreported);
United
Communist Party of
Languages:
English.
a) Mauritius
/ b) Supreme Court / c) / d) 10.01.2003 / e) 2003 SCJ 3 /
f) General Workers’ Federation & ORS v/s The Commissioner of Police
/ g) / h) CODICES (English).
Keywords
of the systematic thesaurus:
5.3.20 Fundamental
Rights - Civil and political rights - Freedom of expression.
5.3.27 Fundamental
Rights - Civil and political rights - Freedom of assembly.
Keywords
of the alphabetical index:
Public
gathering.
Headnotes
(to be reviewed):
Applicants
feeling aggrieved with the decision of the Commissioner of Police to prohibit a
gathering have under Section 4.4 of the Public Gatherings Act, referred
the matter to a Judge in Chambers. Conclusion has been reached that the
decision of the Commissioner of Police was made in violation of the provisions
of Section 4 of the Public Gatherings Act and of the spirit of Sections 12
and 13 of the Constitution.
Languages:
English.
a) Mauritius
/ b) Supreme Court / c) / d) 06.02.2003 / e) 2003 SCJ 26 /
f) Hurnam v/s Ww Ah Foon Chui Yew Cheong & Ors / g) / h) CODICES
(English).
Keywords
of the systematic thesaurus:
4.7.4.3.6 Institutions
- Judicial bodies - Organisation - Prosecutors / State counsel - Status.
Keywords
of the alphabetical index:
Prosecutor,
powers / Prosecutor, duty, discharge, lawful / Prosecutor, immunity.
Headnotes:
Prosecutors
are not amenable to prosecution in respect of action take in discharge of his
or her lawful duties.
While the
Constitution does not specifically confer immunity on the Director of Public
Prosecutions from Criminal Prosecution, the constitutional powers of the
Director to institute and discontinue criminal proceedings and the protection
afforded to him under Section 72 of the Constitution, leave no doubt that
he would not be amenable to prosecution in respect of a decision taken in the
lawful discharge of his duties.
Summary:
The
District Court has referred this matter to the Supreme Court for its opinion as
to whether the Director of Public Prosecutions could be constituted an accused
party (albeit in a private prosecution).
Languages:
English.
a) Mauritius
/ b) Supreme Court / c) / d) 22.05.2003 / e) 2003
SCJ 143 / f) Basset-Rouge Mrs M.C. v/s The State of Mauritius / g) /
h) CODICES (English).
Keywords
of the systematic thesaurus:
1.1.4.4 Constitutional
Justice - Constitutional jurisdiction - Relations with other institutions -
Courts.
5.3.13.6 Fundamental
Rights - Civil and political rights - Procedural safeguards, rights of the
defence and fair trial - Right to a hearing.
Keywords
of the alphabetical index:
Leave to
appeal, Privy Council / Privy Council, leave to appeal.
Headnotes:
The lower
court having addressed its mind to the issues raised and as no appeal has been
made on that point, an appeal to the Judicial Committee of the Privy Council
claiming the lock of a fair hearing is not admissible.
Summary:
Applicant
has sought leave to appeal to the Judicial Committee of the Privy Council on
the ground that under Section 10 of the Constitution he has not been
afforded a fair hearing. It was held that Section 10 of the Constitution
in so far as the applicant’s right to the protection of the law and due process
is concerned, should not be submitted to the Judicial Committee since the lower
Court did address its mind to the issues raised and the finding of that Court
has not been the subject of the applicant’s appeal to the superior Court.
Languages:
English.
a) Mauritius
/ b) Supreme Court / c) / d) 11.07.2003 / e) 2003
SCJ 195 / f) Police v/s Jean Pascal Rudy Marie Joseph / g) /
h) CODICES (English).
Keywords
of the systematic thesaurus:
5.3.13.17 Fundamental
Rights - Civil and political rights - Procedural safeguards, rights of the
defence and fair trial - Rules of evidence.
Keywords
of the alphabetical index:
Cross-examination,
opportunity / Evidence, bench must hear all evidence.
Headnotes
(to be reviewed):
The
Held that
the sort of evidence taken under the provisions of Section 47 of the
D.I.C.A could be produced in evidence and that such a course of action did not
infringe Sections 10.1 nor 10.2.e of the Constitution.
Languages:
English.
a) Seychelles
/ b) Constitutional Court / c) A. R. Perera J (Presiding) with N.
Juddoo & D. Karunakaran JJ, concurring / d) 21.05.2002 / e) 11/2001
/ f) Mr Abdool Rashid Kaidoo & Mrs Gisele Sarah Poris Khaidoo v. The
Director of Immigration, The Government of
Keywords
of the systematic thesaurus:
5.1.1.3 Fundamental
Rights - General questions - Entitlement to rights - Foreigners.
5.1.3 Fundamental
Rights - General questions - Limits and restrictions.
5.3.9 Fundamental
Rights - Civil and political rights - Right of residence.
5.3.10 Fundamental
Rights - Civil and political rights - Rights of domicile and establishment.
5.3.32 Fundamental
Rights - Civil and political rights - Right to family life.
Keywords
of the alphabetical index:
Immigration,
prohibited, immigrant status / Foreigner, prohibited, immigrant, marriage to a
national.
Headnotes:
The
decision not to revoke the 'prohibited immigrant status' of a person who
married a Seychelles citizen knowing that his entry into the country was
prohibited is within the ambit of the restrictions prescribed under
Article 32.2 of the Constitution and as is strictly necessary in the
circumstances of the present case.
Summary:
The first
Petitioner is a Mauritian national whilst the second Petitioner is a
Seychellois national. On
On
The
Petitioners' claim is that the refusal of the Director General of Immigration
to revoke the prohibitant immigrant status of the first Petitioner contravenes
their rights to be protected as a family as enshrined under Article 32 of
the Constitution.
Article 32
of the Constitution (which forms part of what is referred to as “The Charter')
reads as follows:-
“32. (1)
The State recognizes that the family is the natural and fundamental element of
society and the right of everyone to form a family and undertakes to promote
the legal, economic and social protection of the family.
The right
contained in clause (1) may be subject to such restrictions as may be
prescribed by law and necessary in a democratic society including the
prevention of marriage between persons of the same sex or persons within
certain family degrees.”
The Court
observed that the right to 'family life' also involves a consideration of the
safeguard of the right of the state to control the entry of non-nationals into
the country.
On the
facts of the present case, the first Petitioner made five visits to
The first
Petitioner was declared a prohibited immigrant under Section 20.1 as read
with Section 19.1.e.iii of the Immigration Decree (Cap 93). There is no
claim that the decision of the first Respondent to declare the first Petitioner
a prohibited immigrant was without merit and neither can it be said that the
facts and circumstances which led to the decision became non-existent merely by
virtue of the fact that the first Petitioner is now married to the second
Petitioner. The decision not to revoke the 'prohibited immigrant status' of the
first Petitioner is within the ambit of the restrictions prescribed under
Article 32.2 of the Constitution and as is strictly necessary in the
circumstances of the present case. The petitioners were aware that the first
petitioner was a prohibited immigrant when they entered into matrimony and that
he would not be allowed to enter the
In
conclusion, Juddoo, J, with Judges A. R. Perera and D. Karunakaran (concurring)
held that the decision of the first respondent not to revoke the prohibited
immigrant status of the first Petitioner subsequent to his marriage with the
second Petitioner does not constitute a contravention of the Petitioners right
to a 'family life' as envisaged under Article 32.1 of the Constitution.
Cross-references:
European
Court of Human Rights, Abdulaziz, Cabales and Balkandani v. U.K 7 ECHR 471;
European
Court of Human Rights, Gul v.
Languages:
English.
a) Seychelles
/ b) Constitutional Court / c) Per A. R. Perera J (Presiding) with
N. Juddoo & D. Karunakaran JJ, concurring / d) 07.05.2002 / e) 8/2001
/ f) Philip Amukhobe Imbumi v. The Republic / g) / h) CODICES
(English).
Keywords
of the systematic thesaurus:
3.16 General
Principles - Proportionality.
5.1.3 Fundamental
Rights - General questions - Limits and restrictions.
5.3.13.22 Fundamental
Rights - Civil and political rights - Procedural safeguards, rights of the
defence and fair trial - Presumption of innocence.
5.3.13.23.1 Fundamental
Rights - Civil and political rights - Procedural safeguards, rights of the
defence and fair trial - Right to remain silent - Right not to incriminate
oneself.
Keywords
of the alphabetical index:
Intent,
rebuttable presumption / Burden of proof, reversed / Drugs, possession,
quantity, threshold, presumption of trafficking.
Headnotes:
The
presumption of innocence is not an absolute right according to the Constitution
and the shifting of the burden of proof on an accused who has been found in
possession of a certain amount of drugs exceeding a limit is constitutional.
Summary:
Section 14.d
of the Misuse of Drugs Act (Cap. 133) contains a rebuttable presumption that “a
person who is proved or presumed to have had in his possession more than 25
grammes of cannabis, or cannabis resin, shall until he proves the contrary, be
presumed to have had the controlled drug in his possession for the purpose of
trafficking in the controlled drug contrary to Section 5.”
Article 19.2.g of the Constitution of Seychelles provides that - “Every
person who is charged with an offence shall not be compelled to testify at the
trial, or confess guilt.”
Article 19.1.g
of the Constitution provides that - “Anything contained in or done under the
authority of any law necessary in a democratic society shall not be held to be
inconsistent with or in contravention of Clause 2.a (Presumption of Innocence)
to the extent that the law in question imposes the burden of proving particular
facts or declares that the proof of certain facts shall be prima facie proof of
the offence or of any element thereof.”
In the
Misuse of Drugs Act of Seychelles, “trafficking” in a controlled drug
(Section 5) and “possession” of a controlled drug (Section 6) are two
distinct offences. Section 14.d contains only a presumption of
“trafficking” where the accused is proved or presumed to have had in his
possession more than 25 grams of cannabis or cannabis resin. Section 38.1
of the Act gives a wide discretion to the Court to “make a finding whether the
accused person is a trafficker in drugs.” In this respect the Court can
consider all the circumstances of the case and determine whether it could
reasonably be inferred that the accused was engaged in trafficking.
Section 14d specifies the quality that attracts the presumption, and
covers both commercial and non commercial transactions. In that respect the
Mauritian case of
Perera J
also considered in that respect the Hong-Kong case of A.G. of Hong-Kong v Lee
Kwong-Kut (1993) 3 A.E.R. 939 where the Privy Council held that the placing of
the onus on the accused to give an explanation as to his innocent possession of
the property, was the most significant element of the offence and that it
reduced the burden on the prosecution to proving possession by the accused and
facts from which a reasonable suspicion could be inferred that the property had
been stolen or unlawfully obtained, and that was a violation of the right to a
presumption of innocence.
Considering
whether Section 14.d of the Misuse of Drugs Act violated the right against
self incrimination, that is, the “right to remain silent,” and the general
presumption of innocence until proven guilty, Perera J held that what is
relevant is not the various judicial pronouncements but the nature of the
constitutional provisions in each country, and the approach to the right of
equal protection of the law. He expressed the view that presumptions against
accused persons should pass the test of proportionality by being reasonable and
justifiable, and also that the relation between the limitation and the object
should be proportional.
Examining
the provisions of the Criminal Procedure Code, Perera J came to the conclusion
that there was no compelling of the accused to testify, either directly or
indirectly as at the end of the prosecution case, the Court rules whether the
prosecution has established a prima facie case against the accused, and the
accused is then informed of his right to give evidence on oath, or to make a
statement from the dock, or to call witnesses on his behalf. Hence as the
indictment would contain the presumption against him, and he is given the
choice of defence, it was held that a constitutional challenge under
Article 19.2.g was not maintainable. In that respect the Court cited the
case of Bombay v Kathi Kalu Ogad (1962) S.C.R. 10, where the Indian Supreme
Court held that “In order that a testimony of an accused person may be said to
have been self-incriminatory, the compulsion of which comes within the
prohibition of the constitutional provisions, it must be of such character that
by itself, it should have a tendancy of incriminating the accused, if not also
of actually doing so. In other words, it should be a statement which makes the
case against the accused person at least probable, considered by itself.”
Considering
whether the legal burden on the accused was violative of the presumption of
innocence,
Judges N.
Juddoo and D. Karunakaran concurred with the determination of the presiding
Cross-references:
Privy
Council,
Privy
Council,
Privy
Council,
Supreme
Court of
Languages:
English.
a) Seychelles
/ b) Constitutional Court / c) A. R. Perera J (Presiding) with N.
Juddoo & D. Karunakaran JJ, concurring / d) 29.05.2001 / e) 6/1999
/ f) The Seychelles National Party v. The Government of
Keywords
of the systematic thesaurus:
4.13 Institutions
- Independent administrative authorities.
5.3.22 Fundamental
Rights - Civil and political rights - Rights in respect of the audiovisual
media and other means of mass communication.
Keywords
of the alphabetical index:
Media,
television / Media, broadcasting board, independence.
Headnotes:
Appointment
of persons who happen to be public officers or even the wife of the President
as members of the Board only provides an appearance of impropriety and does not
violate the spirit of Article 168 as regards the need for independence and
impartiality.
Summary:
Appointments
to the Seychelles Broadcasting Corporation Board made by the Executive
President of the Republic in terms of Section 4.1 of the Act. Of the 10
members appointed, 7 were public officers, and 1, the wife of the President.
Article 168 of the Constitution of Seychelles enjoins the State to ensure
that all Broadcasting Media Boards are so constituted and managed in a way that
they operate independently of the State, political or other influences of other
bodies, persons or political parties. Held - that the “independence” required
in Article 168 would be the impartiality in presenting or discussing
public issues, and the dissemination of news, news features, current affairs
and other programmes, impartially, accurately and with due regard to public
interest.
Section 4.2
of the Seychelles Broadcasting Act provides that any person is qualified to be
a member of the Broadcasting Corporation Board if he is not an office holder or
a member of the executive committee of a political party. Article 168.1 of
the Constitution of Seychelles provides that “the State shall ensure that all
broadcasting media are so constituted and managed in a way that they may
operate independently of the State and of the political or other influences of
other bodies, persons or political parties.”
The
Petitioner, a political party, challenged the appointments of the Seychelles
Broadcasting Board on the ground that, in appointing members overwhelmingly
made up of public officers paid by the State and answerable to the State, and
containing the President's spouse as vice-chairperson, as well as three members
employed in the President's office, the State represented in the appointments
by the person of the President, had failed to ensure that the Board can operate
independently of the State or the influence of the President in that there can
be no guarantee that public officers will remain outside the influence of the
State which employs them or that of the President who is head of the executive,
the husband of one of them, and the Minister effectively in charge of three of
them.
Held by
Perera J
distinguished the case of Atukorale and Others v The Attorney General (1999) 2
CHRLD 221, where the Sri Lanka Broadcasting Authority Board consisted of 5 ex-officio
principal secretaries of Government Ministries and the Chairman of the National
Film Corporation, the Supreme Court of Sri Lanka held that the possibility of
interference by the Minister who appoints them was “real and not a merely
speculative possibility or likelihood”, and held that in the Seychelles
Broadcasting Corporation Board, the appointment of persons who happen to be
public servants or even the wife of the President “only provides an appearance
of impropriety, but do not violate the spirit of Article 168 of the
Constitution as regards the need for independence and impartiality.” In
Judges N.
Juddoo and D. Karunakaran agreed with
Cross-references:
Supreme
Court of
Court of
Appeal of
Languages:
English.
a)
South Africa / b) Constitutional Court / c)
/ d) 13.12.2002 / e) CCT 14/2002 / f) National Union of Metal
Workers of South Africa and Others v. Bader Bop (Pty) Ltd and Another / g) /
h) CODICES (English).
Keywords
of the systematic thesaurus:
5.4.10 Fundamental
Rights - Economic, social and cultural rights - Right to strike.
Keywords
of the alphabetical index:
Labour law
/ Worker, collective bargaining /
Headnotes:
An Act
regulating labour organisational rights, which confers certain organisational
rights on majority unions, should not be interpreted so as to preclude minority
unions from striking to acquire such rights, where the right to strike is
constitutionally protected and there is no express limitation of the right to
strike in the Act.
Summary:
In this
judgment, the
The Act
does not explicitly regulate the manner, if any, in which unions which are not
sufficiently representative to obtain the organisational rights mentioned, are
able to obtain these rights. The issue which the Constitutional Court had to
determine whether the Act should be interpreted to preclude non-representative
unions from obtaining organisational rights, either through agreement with the
employer, or through industrial action.
In
reversing the order of the Court a quo, O'Regan J, in a unanimous judgment,
emphasised the importance of the right to strike in achieving a successful
collective bargaining system. The Act seeks to achieve four purposes: first, to
give effect to the constitutional right to fair labour practices, including the
right to strike; second, to give effect to South Africa's international law
obligations; third, to provide a framework for collective bargaining; and
lastly, to bring about an effective resolution of labour disputes.
After
examining the International Labour Organisation's jurisprudence and the
constitutional right to fair labour practices, O'Regan J concluded that a
reading of the Act which allowed strike action by minority unions to secure
organisational rights is in line with South Africa's international law
obligations and avoids a limitation on the constitutionally entrenched right to
strike, a limitation which neither the State, nor the respondent, sought in
argument to justify. In practice, the interpretation adopted by the Court
should have a limited impact on industrial relations, since it is only a union
which has reached a certain threshold of representivity which will be able to
launch an effective strike against the employer to secure the organisational
rights in question.
In a
separate concurring judgment, Ngcobo J - differing slightly in his reasoning
but concurring in the order proposed - sought to classify the true nature of
the dispute between the parties as the question whether the applicant was
entitled to obtain organisational rights outside the ambit of the Act. He went
on to conclude that the Act does not preclude an unrepresentative union from
obtaining organisational rights and that such a union has a right to strike to
secure these rights.
Cross-references:
National Education Health and
Allied Workers
Languages:
English.
a) Uganda
/ b) Supreme Court / c) / d) 30.04.1998 / e) C.A 2/1998 /
f) Ismail Serugo v. Kampala City Council, Attorney General / g) / h) CODICES
(English).
Keywords
of the systematic thesaurus:
1.1.4.4 Constitutional
Justice - Constitutional jurisdiction - Relations with other institutions -
Courts.
1.3.4.1 Constitutional
Justice - Jurisdiction - Types of litigation - Litigation in respect of
fundamental rights and freedoms.
1.4.1 Constitutional
Justice - Procedure - General characteristics.
4.7.1 Institutions
- Judicial bodies - Jurisdiction.
Keywords
of the alphabetical index:
Constitutional complaint, contents / Constitution,
interpretation / Right, enforcement.
Headnotes:
A cause of
action in a constitutional petition is not the same as a cause of action in an
ordinary suit because a petitioner need not prove liability. However, it must
be shown on the face of the petition that parts of the Constitution have been
infringed.
The
jurisdiction of the Constitutional Court, which is to interpret the
Constitution, is exclusively derived from Article 137 of the Constitution.
Although
the Constitutional Court is a competent court for the enforcement of the Bill
of Rights, it may only exercise its jurisdiction after a petitioner has
established that there is a question requiring the interpretation of the
Constitution. In all other cases, a petitioner wishing to enforce the Bill of
Rights must petition other competent courts under Article 50 of the
Constitution.
Summary:
The
appellant was arrested by officials of Kampala City Council on 5 September
1997 and was arraigned before a lay magistrate on two counts. On the first
count, he was charged with the offence of dishonesty and vagrancy under Section
163 of the Criminal Code. He pleaded not guilty. On the second count, he was
charged under section 106 of the Criminal Code with the offence of obstructing
officers on duty. He pleaded guilty to that charge and was sentenced to four
months’ imprisonment.
The
appellant brought an appeal against that conviction to the Chief Magistrate.
The appellant’s main ground for appeal was that even though Section 106 of
the Criminal Code made it a criminal offence to obstruct or resist a person
“lawfully charged with execution of an order or a warrant of any court”, the
facts on which the appellant had been convicted, namely, obstructing a local
law enforcement officer in carrying out his “duties of checking stickers of
taxi motor vehicles”, did not constitute a criminal offence under that section.
The Chief Magistrate heard the appeal and allowed it with an order quashing the
conviction and the sentence.
The
appellant then filed a petition with the Constitutional Court challenging the
acts of the officials of Kampala City Council (the “first respondent”) on the
ground that charging him with a non-existent offence, which led to his subsequent
conviction and imprisonment, had infringed his constitutional rights. The
appellant also alleged in his petition that the Attorney General (the “second
respondent”) was vicariously responsible for the acts of the judicial officers
who tried and sentenced him.
When the
petition was heard in the Constitutional Court, the respondents raised
preliminary objections. The first respondent pleaded that the petition was
inadmissible because the appellant’s arrest was justifiable under the
Constitution. The first respondent also argued that the cause of action in
respect of the appellant’s arrest was barred by the Statute of Limitations.
The second
respondent argued that he was not responsible for the acts of the first
respondent because the first respondent could be sued in its own right. The
second respondent also argued that it could not be liable for acts of the
judicial officers because judicial officers are protected by immunity while
acting in the course of their duties. Lastly, the second respondent argued that
the petition did not raise any questions requiring an interpretation of the
Constitution and that the petition was, therefore, bad in law.
Firstly,
the Constitutional Court ruled that the petition did not disclose a cause of
action calling for the interpretation of the Constitution because the appellant
was asking the Court to enforce the Bill of Rights.
Secondly,
the Constitutional Court held that the second respondent was not liable for the
acts of the judicial officers because they were protected by judicial immunity
under the provision of Section 4.5 of the Government Proceedings Act. Lastly,
the Constitutional Court held that the appellant’s claim for wrongful arrest
was time-barred.
The
appellant then filed the present appeal with the Supreme Court, relying on ten
grounds of appeal. However, in reference to this particular case, the appellant
contended that the Constitutional Court had erred in law when it held that the
petition did not disclose a cause of action and that the petitioner’s action
did not involve the interpretation of the Constitution so as to bring it within
jurisdictional powers of the Constitutional Court under Article 137.3 of
the Constitution.
Mulenga
JSC, who wrote the leading judgment for the court, held that (i) in order to
determine whether the petition disclosed a cause of action, it had to be read
in its proper perspective in that the right to petition the Constitutional
Court, in so far as it was relevant to the appeal, was derived from
Article 137.3 of the Constitution providing:
“(3) A
person who alleges that:
(a)
…………………………….
(b) any
act or omission by any person or authority is inconsistent with or in
contravention of a provision of this Constitution, may petition the
Constitutional Court for a declaration to that effect and for redress where
appropriate.”
A petition
brought under that provision, in his opinion, sufficiently disclosed a cause of
action if it described the act or omission complained of; showed the provisions
of the Constitution with which the act or omission was alleged to be
inconsistent or which was alleged to have been contravened by the act or
omission; and prayed for a declaration to that effect.
Mulenga
JSC further held that a cause of action in a constitutional petition did not
fall on all fours with the definition of an ordinary cause of action in which a
plaintiff was required to prove that he enjoyed a right, that that right had
been violated and that the defendant was liable. Mulenga JSC reasoned that that
did not apply to a constitutional petition because Legal Notice no. 4/96,
governing the proceedings for the enforcement of the Constitution, did not
require a petitioner to show that his rights had been violated by the alleged
inconsistency or contravention. He stated that Article 137.3 of the
Constitution gave the right to petition not only to a person aggrieved by, but
also to any other person who alleged, an inconsistency with or contravention of
the Constitution. Moreover, he reasoned that it was unnecessary under Article 137
of the Constitution to prove liability of a respondent except where redress was
to be granted against any other person; in such a case, that person would have
to be made a party.
As to the
issue of jurisdiction, the Supreme Court held that the jurisdiction of the
Constitutional Court was exclusively derived from Article 137 of the
Constitution. The Constitutional Court was empowered under that provision only
to interpret the Constitution. Although the Constitutional Court was a
competent court for the purpose of enforcing the Bill of Rights, it could only
exercise that power after the petitioner had succeeded in establishing a cause
of action under Article 137 of the Constitution, that is to say, that the
petition required the interpretation of the Constitution before the Court could
grant a remedy to enforce the claim.
The
Supreme Court ruled that in all other cases where a petitioner sought to
enforce the Bill of Rights, he or she had to petition the competent courts
other than the Constitutional Court.
Lastly,
the Supreme Court held that if a petitioner only sought a declaration without
redress, his or her petition could be ex parte. However, if a petitioner
sought redress, then the petition had to be inter partes because redress
could only be sought against a party.
Languages:
English.
a)
Zambia / b) Supreme Court / c) / d) ??? / e) 125/2002
/ f) Fredrick Jacob Titus Chiluba v. Attorney General / g) / h).
Keywords
of the systematic thesaurus:
4.4.4.1.1.1 Institutions
- Head of State - Status - Liability - Legal liability - Immunity.
4.5.4.1 Institutions
- Legislative bodies - Organisation - Rules of procedure.
Keywords
of the alphabetical index:
High
Court, function / Affidavit, evidence / Irrationality, definition /
Impropriety, procedural, definition.
Headnotes:
The
function of the High Court is not to act as “a court of appeal” in Judicial
review applications but to see that lawful authority is not abused by the
unfair.
The basic
power of High Court is to review discussion of the inferior courts or public
bodies of tribunals is that it can make such bodies do their duties and stop
them doing things which they have no powers to do.
The other
is to control the jurisdiction of the public bodies by ensuring that they
comply with their duties or by keeping them with the limits of their powers.
The
principal source of evidence in Judicial Review is from affidavit. Only Writs
that may give viva voce evidence on applications for Judicial Review are the
deponent of the Affidavits on record.
Irrationality
is explained as a decision, which is so outrageous in its defiance of logic or
of, accepted moral standards that no sensible person who had applied his mind
to the question to be decided could have arrived at it. Plus procedural
impropriety is failure to observe basic rules of natural justice or failure to
act with procedural fairness towards the person who will be affected by the
decision.
Summary:
The appeal
from judgment of the High Court for Judicial Review. The events were that on
the 11th of July 2002 the president of the Republic of Zambia Mr.
Levy Patrick Mwanawasa S. C. addressed the national Assembly and made
allegations against the appellant as former President so that the National
Assembly could lift his immunity. Article 43 of the Constitution of Zambia
states “The National Assembly may, in its absolute discretion remove from the
Head of State, the veil or the protection shield placed on him by the Articles
for purposes of facilitating investigations into his activities while he held
the position of the President and subsequent prosecution for the same if such
investigations establish the Prima facie case against him.” The grounds for
appeal are as listed.
1. That the
learned trial Judge misdirected himself in Law by determining the motion
without a hearing and without considering Affidavit evidence and submission and
filled in support of the motion
2. The learned trial Judge erred in law when he held the Article 43.3 of the Constitution of Zambia is meant to empower the National Assembly to remove the immunity of a for Head of State for purposes of facilitating investigations into his activities while he held the office of the President.
3. The learned
Judge in the court below erred in law when he held that there was no procedural
impropriety in lifting the Apparent immunity based on allegations made against
him by President Levy Mwanawasa during a special address to the National
Assembly and that the President acted as complaint on behalf of the people of
Zambia.
4. The Learned
Judge erred in Law when he held there was no requirement for Appellant to be
given an opportunity to be heard by the National Assembly to rebut allegations
made against him by the President Mwanawasa because he will be afforded a
hearing during interrogations by the Police or Anti - Corruption Commission and
later by the courts of law when he will be expected to defend himself.
5. The Learned
judge in the court below erred in law when he held that there was no procedural
impropriety in tabling and circulating the motion for the removal of the
Appellant’s immunity at less than 24 hours notice since the Appellant is not
required to be heard by the National Assembly and therefore suffered no
prejudice.
Both
parties filed written heads of arguments by oral submissions based on these
Five grounds of appeal. The first ground
of appeal alleged misdirection in law on the part of the court below allegedly.
The first
failed because the application of Judicial Review starts with notice of
application for leave to apply for Judicial Review accompanied by an affidavit
verifying the facts relied upon. Thus, the affidavit must contain all the basic
factual material on which reliance will evidently be placed.
Grounds 2
and 3 also failed as stated below. The decision was biased on the three
grounds, i.e. of illegality, irrationality, and procedural impropriety.
The
Supreme Court agreed that these were the three grounds on reviewability of
decisions of public bodies.
Article 43.3
of the Constitution states:
“A person
who has held, but no longer holds, the office of President shall not be charged
with criminal offence or be amendable to the criminal Jurisdiction of any
court, in respect of any act done or omitted to be done by him in his personal
capacity while he held office of President, unless the National assembly has,
by resolution, determined that such proceedings could not be contrary to the
interest of the state.”
The head
of state should have committed Acts while in office, which amounts to criminal
offence.
The
National Assembly properly exercised its powers with legality. There was noting
irrational in the manner the resolution was passed. On procedural impropriety
the articles does provide or the procedure For lifting immunity and thus the
National Assembly debated the procedure to be followed.
Ground
four and five also failed as the provisions of Article 43.3 should not be
read in isolation but together with other relevant provision, in the
Constitution. The provision is that constitutional provisions cannot contradict
each other. It is not correct, as argued that the National Assembly is obliged
too religiously follow it’s own rules of procedure.
The whole
appeal was dismissed although the application for Judicial Review was not
frivolous nor vexations.
Languages:
English.