Judgment No. CCZ 10/2018
Const. Application No. CCZ 80/2016
(iv) to provide for the searching of persons and, where appropriate, the
refusal of entry to Parliament or the removal of any person from
Parliament;
but those measures must be fair, reasonable and justifiable in a democratic society
based on openness, justice, human dignity, equality and freedom.”
Section 152 of the Constitution governs the formation, composition and
functions of the PLC. In terms of s 152(3)(a):
“The Parliamentary Legal Committee must examine …. every Bill, other than a
Constitutional Bill, before it receives its final vote in the Senate or the National
Assembly …. and must report to Parliament …. whether it considers any
provision in the Bill …. contravenes or, if enacted, would contravene any
provision of this Constitution.”
Having regard to the decisions in King’s case (supra) and the Doctors for
Life case (supra), I have no doubt that the obligation of Parliament to secure public
access to and involvement in its legislative and other processes, as enjoined by s 141 of
the Constitution, is not merely a procedural prerequisite pertaining to form and manner.
Rather, it is a substantive constitutional obligation, within the contemplation of s
167(2)(d), which is fundamental to the lawful passage of every legislative enactment. It is
a constitutional duty that must be complied with by Parliament in a fair, reasonable and
justifiable manner.
By the same token, the duty vested in the PLC by the peremptory
provisions of s 152(3) to examine every Bill, for the purpose of considering whether it
contravenes or would, if enacted, contravene any provision of the Constitution, is not a
mere procedural prerequisite. In my view, it is a critical substantive obligation imposed
upon the PLC to ensure that Parliament is fully apprised of any constitutional defect in
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