By Evarist Baimu Nyaga Mawalla - Home

However, he pointed out that it is not a requirement once leave has been granted as wasthe case in this application. Mr. Luoga submitted further that the respondent was both aproper and a necessary party and that some of the relief contained in the appellant’sprayer can only be respondent to by this respondent. Lastly, he argued that s. 9(2) of theGovernment Proceedings Act, 1967 does not preclude the respondent from initiatingproceedings as the provision is subject to the provision of any other written law. Mr.Luoga submitted that GN 306 of 1961 in such other written law which allows therespondent to initiate proceedings.The crux of the matter here is whether or not proceedings for prerogative rights areGovernment Proceedings. This depends entirely on the interpretation of s. 17A of theLaw Reform (Fatal Accidents and Miscellaneous Provision) Ordinance. Sub – section (1)of that section provides:-“where leave for application for an order of mandamus, prohibition or certiorari issought in any civil matter against the Government, the court shall order that the Attorney– General be summoned to appear as a party to those proceedings; save that if theAttorney – General does not appear before the court on the date specified in thesummons, the court may direct that the application be heard ex-parte.” (emhasis is ours).From the clear and unambiguous words of that sub – section the requirement tosummon the Attorney – General as a Party in proceedings for prerogative orders is whenleave for application to institute those proceedings is sought. Thus after leave has beengranted to institute those proceedings, then there is no requirement of summoning theAttorney – General as a Party.It may be necessary to point out here that as the Chief Justice has not made rulesto govern these proceedings, the High Court has been following the procedure obtained inEngland. A party first makes an application for leave to apply for prerogative orders.After leave has been granted, the party then proceeds to file an application for theprerogative orders. The requirement of summoning the Attorney – General as a Party as aparty is for the first stage of seeking leave. That requirement is absent in the second stageof application for prerogative orders.We get support in this construction when we look at sub – section (2) of this samesection 17A dealing with proceedings involving the interpretation of the constitution. Sub– section (2) provides:-“In any proceedings involving the interpretation of the constitution with regard tothe basic freedoms, rights and duties specified in Part III of Chapter I of the Constitution,no hearing shall be commenced or continued unless the Attorney – General or hisrepresentatives designated by him or that purpose is summoned to appeal as a party tothose proceedings ….(emphasis is ours).The sub- section is very category that proceedings involving the interpretation ofthe Constitution shall not commence or continue without the Attorney – General. Of245