RIGHTS
WHICH CANNOT BE LIMITED WHATSOEVER
Further,
the applicant has, in my view, an unassailable case to obtain the
declaratur
he seeks by the fact that his rights to dignity and access to the
courts are not subject to the test of proportionality.
As
a matter of both fact and law, any encroachment of those rights is a
constitutional ...
RIGHTS
WHICH CANNOT BE LIMITED WHATSOEVER
Further,
the applicant has, in my view, an unassailable case to obtain the
declaratur
he seeks by the fact that his rights to dignity and access to the
courts are not subject to the test of proportionality.
As
a matter of both fact and law, any encroachment of those rights is a
constitutional infringement without the need for an enquiry into the
degree to which the applicant's right may have been affected.
The
applicant contends that contrary to the provisions of section 86(3)
of the Constitution, the respondents' actions, and their reliance
on the immunity from execution afforded to them by virtue of section
5(2) of the State Liabilities Act [Chapter
8:14],
have caused him to be denied justice and that his access to the
courts has been overstepped.
Section
86(3) of the Constitution provides as follows:
Section
86(3):
“No
law may limit the following rights enshrined in this Chapter, and no
person may violate them
-
(a)
The right to life, except to the extent specified in section 48;
(b)
The
right to human dignity;
(c)
The right not to be tortured or subjected to cruel, inhuman or
degrading treatment or punishment;
(d)
The right not to be placed in slavery or servitude;
(e)
The
right to a fair trial;
(f)
The right to obtain an order of habeas corpus as provided in section
50(7)(a).”…,.
There
can be no application of the exceptions to the right to dignity and
the right to a fair trial. These are iron clad. Any competing
legislation or contradictory legislation is rendered unconstitutional
so far as these rights have been encroached upon - as has been
complained of in the current case.
Thus,
on that basis alone, and speaking of the present matter, the
respondents actions are unconstitutional….,.
Thus,
even in circumstances where in a particular case the rights which
cannot be limited, per
section 86(3) of the Constitution, have not been cited by a party and
are therefore not under determination in that particular case, they
are still unconstitutional because the exemption from limitation is
law….,.
Because
it is a factual reality that section 5(2) of the State Liabilities
Act will never withstand a contest between its justifiability and the
strictly guarded rights which are wholly not negotiable (per section
86(3) of the Constitution; then section 5(2) of the State Liabilities
Act [Chapter
8:14]
is unconstitutional.
