By Evarist Baimu Nyaga Mawalla - Home

This provision, in my view, caters for both personal and public interest litigation for attimes the two may prove inseparable. A person who sues because he desires to be anindependent parliamentary candidate where the system does not so allow necessarilyshoulders the burden for the public. It is also important to not that under this provisionaction lies where a person’s has been, is being or is likely to be contravened.” These areplain and clear words which admit of no controversy. Standing is therefore availableunder the Constitution even where contravention of a basic right is reasonablyapprehended.The case of Thomas, and in as much as it was decided in deference to the much criticizeddecision in Adesanya, has no relevance in the context of our Constitution. In the upshot itis not correct to say, as Mr. Mussa suggested, that the petitioner has no locus standibecause he cannot show that his rights have already been infringed. In my view he iswithin the purview of Art. 30 (3) if there is in existence a law the operation of which islikely to contravene his basic rights.Standing is additionally conferred by Art. 26 (2), and this states:(2) Every person is entitled, subject to the procedure provided for by thelaw, to institute proceedings for the protection of the Constitution and legality.Mr. Mussa suggested that this provision has to be read with Art.30(3) and cannot be usedin lieu of the latter. With respect, I cannot agree. It is a cardinal rule of statutory andconstitutional interpretation that every provision stands independent of the other and hasspecial function to perform unless the contrary insention appears. There is nothing inArt. 26(2) or elsewhere to link it to Art. 30(3). The only linkage is to Art. 30(4) and thisis one of procedure rather than substance Clause (4) empowers Parliament to makeprovision for the procedure relating to institution of proceedings under the article. It hasnot done so todate but that does not mean that the court is hamstrung. In D.P.P. v. DaudiPete, Criminal Appeal No. 28 of 1990 ( unreported).The Court of Appeal stated in that ….until the Parliament legislates under sub-article (4)the enforcement of the Basic Rights, Freedoms and Duties may be effected under theprocedure and practice that is available in the High Court in the exercise of its originaljurisdiction, depending on the nature of the remedy sought, “ I hold Art. 26 (2) to be anindependent and additional source of standing which can be invoked by a litigantdepending on the nature of his claim.Under this provision, too, and having regard to the objective thereof – the protection ofthe Constitution and legality – a proceeding may be instituted to challenge either thevalidity of a law which appears to be inconsistent with the Constitution or the legality ofdecision or action that appears to be contrary to the Constitution or the law of the lard.Personal interest is not an ingredient in this provision it is tailored for the community andfalls under the sub-title “Duties to the Society.” It cocurs to me, therefore, that Art. 26205