By Evarist Baimu Nyaga Mawalla - Home

espect, after all is said, and written, I am sure that legal minded Thomases, now knowthat even under the constitutional proceedings, this court has jurisdiction to issue interimrelief, appropriate for the enforcement of constitutional human rights provisions for theprotection of which the parties petitioning, are entitled, so that not only my learnedbrother CHIPETA, J had jurisdiction to order the way he did, but to, it is an uncontestablejurisdictional legal reality. My learned brother Chipeta J’s exparte interim order does nottherefore in law attract vacation as prayed.Where assumptions, have taken dominion, they introduce they are blind effect, and hencea disability not looking beyond ones nose. But implied in the application, floated by Mr.Warema and his submission thereon had the import that the Injuction could not issueagainst Government, does raise the question whether the Government, is immune from anInjuction order regardless the source of power I suppose as the issue of source of powerhas above been disposed of. I shall quickly answer this, in the negative, for two reasons.Firs, it is the provisions of ORDER XXXVII, rule (2) that promulgate, that the court shallonly issue a declarato4ry order but not issue an Injuction order against the Government,and I think Mr. Warema’s submission was a spillover effect of the above rule, whosehangover, would, notwithstanding, wish to go beyond its prescribed boundaries. But asabove pointed out, such provision apply to private suits, and not to constitutionalproceedings, and will not pursue it further. Second Mr. Warema reminds me, of HenryBrocton a Thirteen country celebrated lawyer, who said that Government, Kings, are notabove the law, but under Gods the law, since the law makes the king, Therefore, let theKing render to the law. What the law has rendered to the king namely, dominion andpower, for there is not king where will prevails, and not the law.In my view the ideal of Government under the law, that inspiredBracton, is still true and even stronger, and hence now axiomatic,that the Supremacy of the law – Rules of Law, is the cornerstone ofdemocracy and nobody should set himself above theinstrumentalities, appointed by the Constitution, for theadministration of law. While it is conceded, that, while performingthe essential functions of maintaining public order, and security ofthe nation, the state is different from other person, whether naturalor artificial, that excepted, the law applies to citizens as well as theState, a construction that in my view is consistent, with thePhilosophy of equality enshrinent in our Constitution. Of course,this is without prejudice, to passing a law expressly, or bynecessary implication, exempting the State, from its operation,provided is does not infringe, or trespass, upon fundamental rightsbut after any legislative process, the Government should not beheard to be bound by the law as a matter of grace, or option, butobey it upon dominion of expediency. And when we Governmentleaders mount the restrum and take oath to guard the Constitutionand the Laws made thereunder it is not a ritual, it is a dutiful and97