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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(
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Second
Seminar for Liaison Officers from Highest Courts
of the Southern African Region (SADC) ( SUBMITTED SUMMARIES |
Contents:
GENERAL
WORKERS’ FEDERATION & ORS
v/s THE COMMISSIONER OF POLICE
HURNAM
v/s Ww AH FOON CHUI YEW CHEONG & ORS
BASSET-ROUGE
Mrs M.C. v/s THE STATE OF MAURITIUS
POLICE
v/s JEAN PASCAL RUDY MARIE JOSEPH
Philip Amukhobe Imbumi v. The
Republic
The Seychelles National Party
v. The Government of Seychelles & The Attorney General
National Union of Metal Workers of
South Africa and Others
v. Bader Bop (Pty) Ltd and Another
Ismail Serugo v Kampala City
Council, Attorney General
Fredrick
Jacob Titus Chiluba v. Attorney General - Respondent
Malawi
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
HELD
1. that the
contempt of court of which plaintiffs were convicted was a crime involving
dishonesty and moral turpitude.
2.
that the expulsion of the plaintiffs from the National assembly was not an
infringement of either S.40 of the
CIVIL CAUSE NO. 1861 OF 2003
HIGH COURT OF
BETWEEN:
THE REGISTERED TRUSTEES OF THE PUBLIC AFFAIRS
COMMITTEE ………………………………………PLAINTIFF
THE ATTORNEY GENERAL ……………………………………1ST
DEFENDANT
THE SPEAKER OF THE
NATIONAL ASSEMBLY …………………………………………2ND
DEFENDANT
THE
COMMISSION…………………………………………………….AMICUS CURIAE
CORAM:
Kasambala, of Counsel for the Plaintiff
Ngwira, of Counsel for the Plaintiff
Matenje, Solicitor General, for the Defendants
Nyirenda, Assistant Chief Parliamentary Draftsman,
For
the Defendants
Tembenu, of Counsel for the Amicus Curiae
Kapindu, of Counsel for the Amicus Curiae
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 Republic of Malawi. The court heard arguments by the plaintiff,
defendants and Amicus Curiae.
HELD!
1
That
the plaintiff had locus standi as a group of persons
having interest in the protection and enforcement of rights conferred by the
Republic of Malawi Constitution in terms of Section 15 and Section 46 (2) of
the Constitution.
2
That
Parliament followed the right procedure in amending Section 65 (1) of the
Constitution since Section 196 and 197 of the Constitution do not prescribe a
referendum before an amendment can be effected to Section 65 of the
Constitution.
3
That
the amendment of Section 65(1) of the Constitution by Constitution (Amendment)
(No. 2) Act of 2001 was inconsistent with the constitution and was therefore
invalid in terms of Section 5 of the Constitution to the extent that it deemed
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 warranting the declaration of a vacancy in his or her
seat in the National Assembly.
CASES CITED
-
Civil Cause Number 1839 (A) of 1996
(Unreported)
-
Amalgamated
Society of Railway Servants v
-
[1909] 1 Ch 163
- Attorney General v
Attorney
General v Morgan [1985] L.R.C. 770
-
Attorney
General of the
-
Attorney General of Trindad and Tobago and
others v Mcleod [1985] L.R.C. (Const) 81
-
Blackburn v Attorney General [1971] 1 W.L.R. 1037
-
Chakuamba and Others v Attorney General
-
Chissagnou and Others v France 7 BHRC 151
-
-
Minerva Mills Ltd and Others v Union of India and Others
Air 1980 Sc 1789
-
Minister of Justice v Borowsk
1[1981] 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 [1971]
1 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
-
Richards and Walker v governor General and Attorney General [1990] Vol. 16 No. 2 Commonwealth Law
-
Sidiropolous and Others v Greece 57/1997/841/1047
-
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
133/1996/752/951
Mauritius
GENERAL WORKERS’ FEDERATION & ORS v/s THE
COMMISSIONER OF POLICE
2003 SCJ 3
(a)
(b)
Supreme
Court
(c)
(d)
Supreme
Court Judgment 2003
(e)
English
General Principle - Freedom of Assembly
KEYWORDS
Freedom of expression
Freedom of Assembly and Association
Public gathering
Non compliance of the law
SUMMARY
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.
HURNAM v/s Ww AH FOON CHUI YEW CHEONG
& ORS
2003 SCJ 26
(a)
(b)
Supreme
Court
(c)
(d)
Supreme
Court Judgment 2003
(e)
English
General Principle - Powers of DPP
KEYWORDS
Immunity,
Powers of the DPP,
Lawful discharge of DPP’s duties,
Limits
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). Held that though the Constitution does not specifically confer immunity on the DPP from Criminal Prosecution, the Constitutional Powers of the DPP to institute and discontinue criminal proceedings and the protection afforded to him under Section 72, leaves no doubt that he would not be amenable to prosecution in respect of a decision taken in the lawful discharge of his duties.
BASSET-ROUGE Mrs M.C. MAURITIUS
2003 SCJ 143
(a)
(b)
Supreme
Court
(c)
(d)
Supreme
Court Judgment 2003
(e)
English
General Principle - Protection of Law
KEYWORDS
Leave to appeal,
Drug Trafficker,
Visible, measurable and palpable,
Right to the protection of the law and due process
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.
POLICE v/s JEAN PASCAL MARIE JOSEPH
2003 SCJ 195
(a)
(b)
Supreme
Court
(c)
(d)
Supreme
Court Judgment 2003
(e)
English
General Principle - Constitutionality of Section 47 of
the District and
Intermediate
Courts (Criminal Jurisdiction) Act
KEYWORDS
Fair hearing,
Bench must hear all evidence,
Infringement of law
SUMMARY
The Intermediate Court referred this matter to the supreme Court for a decision as to whether Section 47 of the District and Intermediate Courts (Criminal Jurisdiction) Act was not in breach of Section 10(1) and (2)(e) of the Constitution.
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.
Seychelles
Mr. Abdool Rashid Kaidoo Mrs Gisele Sarah Poris Khaidoo Seychelles
SEY-2002-D-002
a)
Headnotes:
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. Held -
that 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.
Summary:
[A.
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:
Abdulaziz, Cabales and Balkandani v U.K 7
ECHR 471;
Gul v
Languages:
English.
Philip Amukhobe Imbumi
SEY-2002-D-001
a)
Keywords of the alphabetical index:
Rebuttable presumption of
intent / Reverse burden on accused / Constitutional matter.
Headnotes:
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."
Constitutional challenge of Section 14(d) of the
Misuse of Drugs Act as violating Article 19(2)(g) of the Constitution.
Held - Both Articles 19(2)(g)
and 19(2)(a) have to be considered together. Accordingly Article 19(2)(g) in
particular and Article 19(2)(a) in general, do not fetter the powers of the
legislature to impose a reverse burden on the accused to rebut the presumption
contained in Section 14(d) of the Misuse of Drugs Act on a balance of
probabilities.
Summary:
[Per
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 14(d) 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."
Perera J also held that Section 14(d)
gives an opportunity to the accused to exculpate himself and not to inculpate
himself and hence there was no violation of either Article 19(2)(g) in
particular or the presumption of innocence in general.
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:
A.G. of Hong-Kong v
Languages:
English.
The Seychelles Seychelles
SEY-2001-D-002
a)
Keywords of the alphabetical index:
Media, television.
Headnotes:
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. Hence 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:
[A.
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 doe 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:
Authukorale & Ors v The Attorney General
(1999) CHRLD 221 (Supreme Court of Sri Lanka);
R v Camborne Justices, Exparte Pearce (1954) ALLER 850 - Court of Appeal of
Languages:
English.
South Africa
National Union of Metal Workers of South Africa
RSA-2002-3-021
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
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.
Uganda
Ismail Serugo v Kampala City
Council, Attorney General
UGA-1998-D-001
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:
1.3 Constitutional
Justice - Jurisdiction.
1.4.1 Constitutional
Justice - Procedure - General characteristics.
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
Although the
Summary:
The appellant was arrested by officials of
Kampala City Council on
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
When the petition was heard in the
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
Secondly, the
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
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
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.
Zambia
Fredrick Jacob Titus Chiluba
a.)
b.) Supreme Court of
c.) N/A
d.)
APPEAL No. 125 OF 2002
“IT+ “ The appeal from judgment of the High
Court for Judicial Review. The events were
that on
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
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. The function of the 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.
Grounds 2 and 3 also failed as
stated below. The decision was biased on
the three grounds, i.e. of illegality, nationality, and procedural impropriety.
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.
The Supreme Court agreed that
these were the three grounds on reviewability of
decisions of public bodies.
43.3 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
“IT-“
(f.)
(g.) N/A
(h.) N/A