By Evarist Baimu Nyaga Mawalla - Home

The more difficult question is whether Section 6 is saved by articles 30 or 31 ofthe Constitution which permit derogation from basic human rights in certaincircumstances Article 31 Which relates to measures taken during the period ofemergency is obviously inapplicable here. And as far as Article 30 in concernedonly sub-article (2) is relevant it provides that:30 (2) it is hereby declared that no provision contained in this part of thisconstitution which stipulated the basic human rights freedoms and duties, shallbe construed as invalidating any existing law or prohibiting the enactment of anylaw or the doing of any lawful Act under such law, making provision for:(a) Ensuring that the rights and freedoms of others or the public interest arenot prejudiced by the misuse of the individual rights and freedoms;(b) Ensuring the interests of defense, public safety, public morality, publichealth, rural and urban development planning the development planningthe development and utilization of mineral resources or the developmentor utilization of any other property in such manner as to promote the publicbenefits.(c) Ensuring the execution of the judgment or order of a court given or madein any civil or criminal proceedings;(d) The protection of the reputation rights and freedom of theirs or the privatelives of persons involved in any court proceedings, prohibiting thedisclosure of confidential information, or the safeguarding of the dignityauthority and independence of the courts;(e) Imposing restrictions, supervision and control over the establishment,management and operation of societies and private companies in thecountry; or(f) Enabling any other thing to be done which promotes enhances or protectsthe national interest generally.”This Court had occasion to deal with a similar situation in the case of D.P.P.v.DaudI Pete where it considered the validity of Section 148 (5) (e) of the Criminalprocedure Act, 1985 68 which denied bail the accused in a criminal case in certaincircumstances. In that case it was recognized that because of the co-existencebetween the basic rights of the individual and the collective rights of the society itis common nowadays to find in practically every society limitation to the basicrights of the individual So that the real concern today is how the legal systemharmonizes the two sets of rights, In trying to achieve this harmony, the view hasbeen that in considering any act which restricts fundamental rights of theindividual such as the right of free access to the court of law in this case thecourt has to take into account and strike a balance between the interests of theindividual and those of the society of which the individual is a member.289