By Evarist Baimu Nyaga Mawalla - Home

The petition originally raised very diverse issues, many of them rather political inlavour and substance, and this prompted Mr. Mussa to raise a litary of preliminaryobjections which the Court resolved in the early stages of the proceedings. The objectionswere grounded in questions of the petitioner’s licus standi, cause of action andjusticiability of some of the issues.At the end of the day a number of matters were struck out and issues were then framedfor the survivours. In view of the character of the petition which had to be amendedseveral times it is better to paraphrase these issues rather then merely list them.The first issue is a general one and is tied up with the second and fifth issues. Itseeks to establish generally whether the fundamental rights guaranteed in Part III,Chapter One of the Constitution of the of the United Republic, 1977 are immutable. Theinquiry is prompted by a set of amendments to the Constitution vide the EighthConstitutional Amendment Act, 1992 (No. 4).The Act amends Articles 39, 67 and 77 in a manner, which appears to infringe the rightof participation in national public affairs, which is guaranteed by Art. 21 (1): it alsoamends Art. 20 in a manner, which appears to infringe the freedom of association, whichis guaranteed in sub-art, (1) thereof. To put it differently, the problem posed in the firstissue is whether the amendments to the Constitution were validly made and, if not,whether they can be declared void pursuant to the provisions of Art. 64 (5).The second issue turns on the provisions of ss. 8, 9, 10 and 15 of the PoliticalParties Act, 1992 (No. 5) which was enacted pursuant to the amendment to Art, 20. Theseprovisions are alleged to inhibit the formation of political parties and therefore to infringethe freedom of association. I am called upon to declare them unconstitutional and void.The fifth issue arises from the amendment to Articles 39, 67 and 77 as well as s. 39 of theLocal Authorities (Elections) Act, 1979. These amendments renders it impossible forindependent candidates to contest presidential, parliamentary or local council elections. Iam again called upon to remedy the situation.In the third issue the petition takes on ss. 5 (2), 13, 25, and 35 – 47 of theNewspapers Act, 1976 ( No. 3.). Section 5 (2) empowers to exclude any newspaper fromthe operation of any of the provisions relating to the registration of newspapers.Section 13 empowers the Minister to require any publisher of a newspaper to execute andregister a bond in the office of the Registrar of Newspapers. Section 25 empowers theMinister to order cessation of publication of any newspaper. Sections 37 – 47 areconcerned with defamation and the punishment for libel.Finally, the petition takes on para 12 (1) of Government Notice No. 166 of 1977, whichempowers the Registrar to refuse registration of a newspaper. It is contended that all197