By Evarist Baimu Nyaga Mawalla - Home

Thus consistent with that approach. The Court in Pete’s case laid down that alaw which seeks to limit or derogate from the basic right of the individual ongrounds of public interest will be saved by Article 30 (2) of the constitution only ifit satisfies two essential requirement First, such a law must e lawful in the sensethat t it is not arbitrary It should make adequate safeguards against arbitrarydecisions and provide effective controls against abuse by those in authority whenusing the law. Secondly the limitation imposed by such law must not be morethan is reasonably necessary to achieve the legitimate object. This is what is alsoknown as the principle of proportionality. The principle requires that such lawmust not be drafted too widely so as to catch everyone including even theuntargeted members of the society. If the law which infringes a basic right doesnot meet both requirements such law is not saved by Article 30 (2) of theConstitution, it is null and void And any law that seeks to limit fundamental rightsof the individual must be construed strictly to make sure that it conforms withthese requirements otherwise the guaranteed rights under the Constitution mayeasily be rendered meaningless by the use of the derogative of claw-backclauses of that very same ConstitutionWe shall now apply the two tests to Section 6 to see if it is saved by Article 30(2) of the Constitution. Section 6 provides that:6. Notwithstanding any other provision of this Act no civil proceedings may beinstituted against the Government without the previous consent in writing ofthe minister;The Section carries a proviso which is not relevant to the facts of the presentcase68 Act No. of 1085.,Right of Access to JusticeIt is most apparent that the law is arbitrary. It does not provide for any procedurefoe exercise of the Minister’s power to refuse to give consent to sue theGovernment. For instance, it does not provide any time limit within which theMinister is to give his decision., which means that consent may be withheld for anunduly long time. The Section makes no provision for any safeguards againstabuse of the powers conferred by it. There are no checks or controls whatsoeverin the exercise of that power, and the decision depends on the minister’s whims.And to make it worse, there is no provision for appeal against the refusal by theministry go give consent. Such law is certainly capable of being used wrongly tothe detriment of the individual.290