By Evarist Baimu Nyaga Mawalla - Home

“………no person should be punished for contempt of court, which is a criminal offence,unless the specific offence charged against him distinctly stated, and an opportunity ofanswering it given to him …” In re Pollard (1868) L.R. 2 P.C 106, 120.That the order of Maharaj J. was unlawful on this ground has already been determined inthe previous appeal; and in their Lordships’ view it clearly amounted to a contraventionby the state of the appellant’s rights under section 1 (a) not to be deprived of his libertyexcept by due process of law.It is true that under the law in force at the coming into effect to the constitution the onlyremedy available to the appellant against an order for committal that was unlawful on thisor any other ground, would have been an appeal to the Judicial Committee of the PrivyCouncil, by special leave, to have the order set aside. No action in tort would have lainagainst the police or prison officers who had arrested or detained him since they wouldhave acted in execution of judicial process that was valid on its face; nor would anyaction have lain against the judge himself for anything he had done unlawfully whilepurporting to discharge it could plausibly be argued contravened one or other of therights or freedoms recognized and declared by section 1. section 3 eliminates thepossibility or any arguments on these line. As was said by the Judicial Committee in deFreitas V. Benny [1976] A.C 239, 244;“Section 3 debars the individual from asserting that anything done to him that isauthorized by a law in force immediately before August 31, 1962, abrogates, abridges orinfringes any of the rights of freedoms recognized and declared in section ofparticularized in section 2”But section 3 does not legitimize for the purposes of section 1 conducts which infringesany of the rights or freedoms there described and was not lawful under the pre-existinglaw. There was no pre-existing law which authorized that of which complaints is made inthis case: section 3 (1) therefore does not over-ride the constitutional rights of theappellant under section 1. True, he had no remedy, other that appeal for infringement of45