By Evarist Baimu Nyaga Mawalla - Home

the charge had already been entered on behalf of the Director ofPublic Prosecutions, and that this appeal was now intended only toset the record right.The memorandum of appeal contained the following grounds:-1. That the leaned Judge erred in assuming jurisdictionover a matter falling within the provisions of articles 12to 29 of the constitution without complying with theprovisions of the Basic Rights Duties Enforcement Act.2. That the Learned judge erred in law in granting bailcontrary to section 148 (5) (a) of the Criminal ProcedureAct.3. That the learned Judge erred in holding that section148 (5) (a) of the Criminal Procedure Act violates articles13 (6) (b) and 15 (2) (c) of the Constitution and that thesame cannot be applied and enforced by the courts.4. IN THE ALTERNATIVE to ground 2 hereinabove thelearned Judge non-directed himself on the position ofthe law as it existed before the enactment of section 148(5) (a) before upholding and affirming the decision of thesubordinate court.“9 – (1) where in nay proceedings in subordinate courtany question arises as to the contravention of any of theprovisions of a section 12 to 29 of the Constitution, thepresiding magistrate shall, unless the parties to theproceedings agree to the contrary or the Magistrate is ofthe opinion that the raising of the question is merelyfrivolous or vexatious, refer the question to the HighCourt for decision; save that if the question arisesbefore a Primary Court the magistrate shall refer thequestion to the court of a resident magistrate whichshall determine whether or not there exists a matter forreference to the High Court”The learned judge, however, rejected the submission, proceeded toconsider the constitutionality of section 148 (a) and eventuallyupheld the decision of the trial magistrate which had granted bail107