Judgment No. CCZ 10 /2015 8
Const. Application No. 8/2014
constitutional mandate. It is evident that s 176 confers inherent powers on the court to do the
various acts listed therein. However what the section does not do is vest the court with the
power to arrogate to itself jurisdictional authority that reaches outside and beyond the limits
imposed in the Constitution. In other words the court, in the exercise of the powers conferred
on it in this section, is restricted to the ambit of its constitutionally mandated jurisdiction. The
words “taking into account the provisions of this Constitution” in my view put this fact
beyond any doubt. This is thus not a section that can be read together with s 167(1)(a) in order
to avail to litigants the right of direct access to the Constitutional Court.
The applicant’s papers therefore, did not demonstrate a constitutional basis for
the direct approach that he sought to adopt in bringing the application before this court. To that
extent, the concession made for him that the application ‘had no leg to stand on’ was validly
made.
1. Neither a referral nor an appeal
In relation to the referral to this court that the applicant concedes was not
requested from the court a quo, the relevant provision is s 175 which deals with the powers of
courts in constitutional matters. It specifically provides in s 175(4) that;
“if a constitutional matter arises in any proceedings before a court, the person presiding
over that court may, and if so requested by any party to the proceedings, must refer the
matter to the Constitutional Court unless he or she considers the request merely
frivolous or vexatious.”
Because no constitutional matter was raised in the Supreme Court, and none
was referred, this provision is not relevant to the matter at hand.