By Evarist Baimu Nyaga Mawalla - Home

which he appealed by special leave. In the result his appeal was allowed and hisconviction set aside on two substantive grounds, the first of which is not, and the secondof which is, relevant of the present appeal. The first, of great importance to the appellant,but no longer relevant, was that, as I understand it, on a correct analysis of the facts, thehad not in fact committed the contempt of which he was charged. The second which is atthe heart of the present appeal was, in effect, that he had been deprived of his libertywithout due process of law. This was because the judge never explained to him withsufficient clarity or in sufficient detail the nature and substance of the contempt of whichhe stood accused. We are clearly bound by the decision in the earlier appeal, the purposefor which orders etc., could be made. An order for payment of compensation, it wassubmitted, did not amount to the enforcement of the rights that had been contravened. Intheir Lordships’ an order for payment of compensation when a right protected undersection 1 “has been” contravened is clearly a form of “redress” which a person is entitledto claim under section 6 (1) and may well be the only practicable form of redress; as bynow it is in the instant case. The jurisdiction to make such an order is conferred upon theHigh Court by section 6 (2) (a), viz, jurisdiction “to hear and determine any applicationmade by wide powers to make orders, issue writs and give directions are ancillary to this,it has been urged upon their Lordships on behalf of the Attorney-General that so todecide would be to subvert the long established rule of public policy that a judge cannotbe make personally or purported exercise of his judicial functions. It was thisconsideration which weighed heavily with Hyatali C.J. and Corbin J. A. in reaching theirconclusion that the appellant’s claim to redress should fail. Their Lordships, however,think that these fears are exaggerated.In the first place, no human right or fundamental freedoms recognized by Chapter I of theConstitution is contravened by a judgment or order that is wrong and liable to be set asideon appeal for an error of fact or substantive law, even where the error has resulted in aperson’s serving a sentence of imprisonment. The remedy for errors of these kinds is toappeal to a higher court. Where there is no higher court to appeal to then none can saythat there was error. The fundamental human right is not to a legal system that is41