By Evarist Baimu Nyaga Mawalla - Home

in that court, and in the course of arguing the application by theparties or their representative, the issue of constitutionality ofsection 148 (5) (a) of the Criminal Procedure Act arose. Then thepoint is that once the resident magistrate court had takencognizance that a constitutional question has thus arisen, it had aduty to refer such question to the High Court for decision because,as has been demonstrated above, the conditions specified under s.9 (1) for displacing that duty were non-existent.In yet another attempt to show that section 9 (1) had noapplication here, Mr. Mgwai contended that in any case thatprovision sought to derogate from Article 30m(3) of theConstitution. The unofficial English version of that provision saysthat:-“3 (3) Any person alleging that any provision in this Partof this Chapter or in any law concerning his right orduty owned to him has been, is being or is likely to beviolated by any person any where in the UnitedRepublic, may institute proceedings for redress in theHigh Court.”Counsel reiterated the contention that the word “may” as used inthe provision meant that the aggrieved person had the option ordiscretion whether to go to the High Court or to the district courtfor redress, and consistent therewith his client opted to go to thedistrict court. Therefore, in his view, section 9 (1) of the Act cannotnow be invoked to defeat or derogate from Article 30 (3) of theConstitution, the supreme law of the land.The answer to this is that sub-article (3) of Article 30 of theConstitution must not be read in isolation. It has to be readtogether with sub-article 4 (a) of the same Article, again theunofficial English version of which reads:-“30 (4) subject to the other provisions of thisConstitution, the High Court shall have originaljurisdiction to hear and determine any matter broughtbefore it pursuant to this Article; and the state authoritymany enact legislation for the purpose of –111