By Evarist Baimu Nyaga Mawalla - Home

It follows from the foregoing that there are certain matters in the petition whichmust be dealt with at this stage and these are matters the presence of which I considerunnecessary and scandalous and which may prejudice the fair trial of the suit.These matters are to be found in pars. 4,5,6,7,8,17 and 18 of the petition and the attendantrelief in para. 19 (o), 19 (a) 19 (d) and (e), 19 (b) , 19(o), 19(k) and 19 (1) respectively.The petition makes no pretence to an orderly formulation and but for the assistance oflearned counsel for the petitioner.Mr. Dominic Mbezi, it is not generally easy to match a paragraph with its prayer. I willproceed to consider each paragraph in turn but-before doing so it is desirable albeitbriefly to proper some general remarks.The function of courts of law is to settle legal questions. We therefore have thedoctrine of separation of powers under which the executive, the legislature and thejudiciary are as far as possible assigned different duties and enjoined not to trespass intoeach other’s field.In contemporary times executive activities has tended to blur this separation and this hasin turn made it imperative for the courts to stand more resolutely between the governmentand the governed. Not infrequently, therefore. Court will interfere in execute action orinaction to protect and promote the rights of the individual citizen; they will alsointervene for similar purposes in legislative action. In doing so they will not beinterfering in lawful policy but for the purpose of ensuring the rule of law. Beyond that,the courts will not go.They cannot formulate governmental policy, for that is a political matter, nor will theycompel legislation for that is a legislative matter. The courts are only credited with lawmaking either through the doctrine of precedent or in the exercise of the power to makerules of court. The matter that are dealt with below either arose out of confusion or failureto appreciate the distinction between legal and political questions.In paras 4 and 19 (o) of the petition the petitioner claims that the 1977Constitution and its subsequent amendments were passed by an incompetent body andtherefore prays for a declaration that the said Constitution is void. I do not have to say allthat can be said on this matter.It is sufficient, for the purpose of this ruling, to say that the claim and prayer, if admitted,would render nugatory the rest, of the petitioner’s prayers, but I do not believe that he isprepared for such an eventuality. It is therefore misconceived and must be removed topave the way for a legitimate and unprejudiced trial of other issues. Accordingly para 4and 19 © are struck out of the petition.193