By Evarist Baimu Nyaga Mawalla - Home

ministerial fiat is taken away;. He also argued that the requirement of aministerial fiat is out of touch with the newly acquired multi-party democracy,which stands for openness and transparency on the part of government.Naturally the first question to be answered by this court s as to whether the rightof tree access to the courts for a remedy is recognized by our Constitution. It ismy finding that the right of an individual for free access to the courts is resignedby our Constitution. First we have Article 13 (3) of our Constitution whichprovides:The civil rights, obligations and interests of every person shall be protected anddetermined by competent courts of law.And Article 30 (3) of our Constitution proved that if one feels that hisconstitutional rights have been violated, he has the right to institute proceedingsfor relief in the High Court,” Not only that we have Article 13 (1) of ourConstitution which provides that all persons are entitled to the protection of thelaw which envisaged that any person will have a free access to the courts for aremedy. And finally we have Article 13 (6) (a) of our Constitution which providesfor a right is a fir hearing by the court of law, which ones rights and obligationsare being determined. The right to be heard includes the right to have freeaccess to the courts to file a suit for a remedy. That was the interpretation by theEuropean Court of Human Rights in the case of Golder v. U.K 30 in respect ofArticle 6 (1) of the European Convention for the protection of human Rights andFundamental Freedoms, 1950 which is worded in similar terms like our Article 13(6) (a) of our Constitution. That Court invoked a purposeful construction insteadof a literal construction of the constitution. A distinguished English jurist Mr.Anthony Lester, Q.C in the commonwealth law Bulletin I his article titled“Preparing and Presenting a Human Rights Brief “31 I adopt that persuasiveauthority by the European Human Rights Court. The above account amplydemonstrated that our Constitution recognizes the right of an individual to have afree access to the courts for a remedy.The next question is as to whether the right to have a free access to the courtsfor a remedy is infringed by the mere fact that Section 6 of the GovernmentProceeding Act, 1967 requires a ministerial fiat before one files a suit in court.Counsel for the Republic Mr. Ndunguru argued strongly to the effect that theconstitutional right to have a free access to the courts for a remedy is notinfringed by the requirement of a ministerial fiat, because he said that was amere procedural matter while the right to file a suit is left intact. That problemcan only be answered by looking at the international human rights instrumentsand other comparative jurisprudence. It is a general principle of law that theinterpretation of our provisions in the Constitution have to be make in the light ofjurisprudence which has developed on similar provisions in other internationaland regions statements of the law. That was the view taken by Nyalali, C.L. In270