By Evarist Baimu Nyaga Mawalla - Home

unlawful under existing law and therefore the appellant is entitled to redress under theconstitution. The fact that under existing law he had no remedy is irrelevant because hehas a right to redress under section 6 as to jurisdiction are clear and unambiguous:“redress”is very wide and means redress of a kind known to the law. For loss of libertywhich has already been regain the only redress is damages: the Appellant is not seekingpunitive damages but compensation for the loss of his liberty only. This claim should notbe confused with a personal claim against the judge for damages. In assessing damagesthere is no difficult about special damages. General damages in case such as the presentare analogous to those for the tort of wrongful imprisonment and should be assessed on asimilar basis and reflect the injury to the complainant’s self-respect that wrongfuldeprivation of liberty is a bridge of the constitution is also to be taken into account.It is difficult to see how some of the fundamental rights and freedoms guaranteed byWestminster modern constitutions could have existed at common law: see Oliver v.Buttigieg [1967] 1 A.C. 115. the court has ample powers to deal with any abused ofprocess. Section 6 has provided that the High Court is the proper forum to seekenforcement of the subject’s constitutional rights and he could apple there even forinfringement of them by the Court of Appeal.Public policy does not require that the state should be immune in respect of acts of thejudicature. The respondent’s arguments on public policy equate this type of action withan action against the judge personal were as entered different consideration arise wherethe state is defendant. It is against the tenor of the policy of the constitution that theyshould be differentiation between one arm of the state and another. Once want to dueprocess and infringements of liberty are established section 6 of the constitution gives theCourt jurisdiction to order “redress”. Section 6 (2) does not cut down section 6 (1): theintention was to make the available relief as wide as possible. “Enforcement” in section6 (2) is not used as a term of art, remedies are emulative. There would be a lacuna in theavailable remedies if damages were not included in “redress” Where enforcement is theprescribed remedy in something done, the only way to “enforce” is to make an orderwhich recognizes the existence of the right.54