By Evarist Baimu Nyaga Mawalla - Home

The position as I see it, is now this; By virtue of Art. 21 (1) every citizen isentitled to participate in the government of the country, and by virtue of the provisions ofArt. 20 (4) such citizen does not have to be a member of any political party; yet by virtueof Art.39( c ) and others to that effect, no citizen can run or office unless he is a member of andsponsored by a political party. This is intriguing, I am aware that the exercise of the rightunder Art. 21 (1) has to be “in accordance with procedure provided by or under the law, “but I think that while participation through a political party is a procedure, the exercise ofthe right of participation through a political party only is not a procedure but an issue ofsubstance.The message is: either you belong to a political party or you have no right to participate.There is additionally the dimension of free elections alluded to in Art. 21().A citizen may participate in the government “either directly or through freely chosenrepresentatives. “ It is contrary to every notion of free elections if non – party citizens arecompelled to vote for party candidates. In the midst of this unusual dilemma I had to turnto the canons of statutory and constitutional interpretation.When the framers of the Constitution declared the fundamental rights in Part IIIof Chapter one thereof, they did not do so in vain, it must have been with the intentionthat these rights should be exercisable. It is therefore established that the provisions ofthe Constitution should always be given a generous and purposive construction. In A.Gof Gambia v. Jobe (1985) LRC (Const) 556, 565, Lord Diplock said:A constitution and in particular that part of it which protects and entrenches fundamentalrights and freedoms to which all persons in the State are to be entitled, is to be given agenerous and purposive construction.This echoes what was said earlier in British Coal Corporation v. The King (1935) AC500, 518, to the effect that in interpreting a constituent or organic state of the constructionmost beneficial to widest possible amplitude of its power want be adopted. And not muchlater, in James v. Commonwealth of Australia ( 195) AC 578, 614 Lord Wright, M.Rsaid:It is true that a Constitution must not be construed in any narrow and pedantio sense. Thewords used are necessarily general, and their full import and true meaning can often beappreciated when considered, as the years go on, in relative to the vicissitudes of factwhich from time to time emerge. It is not that the meaning of the word changes, but thechanging circumstances illustrate and illuminate the full import of the meaning.This approach is directed principally at resolving difficulties which may beinherent in a single provision. The strategy, according to these authorities, is to approachthe provision generously and liberally particularly where it enacts a fundamental right.The case before me takes us a stage further. What happens when a provision of theconstitution enacting a fundamental right appears to be in conflict with another provision224