Is the Immunity of the State absolute?With special reference to the State Proceedings Act
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Date
2013-05-13
Authors
Nyirongo, Samuel
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Abstract
"In the course of administering certain legislation, public officers are bound to abuse or well intended legislation. It is therefore important that the manner of administering certain legislation is guided by acceptable standards or tools designed to check against such abuse. Especially, when such legislation is being administered in relation to the constitution provisions. Increased participation of the State in the provision of public services, also increased interaction with the individuals, resulting in frequent violation of the individual human rights by the State. It was necessary that the hitherto immunity from court enjoyed by the State was eliminated, in order that the State is made answerable for the violation of the human rights., Thus, the object of the State Proceedings Act (the Act) is to reduce the status of the State in litigation, to equal that of other ordinary citizens. Section 16 of the Act prohibits court from issuing coercive orders against the State. The rationale for immunity of the State under s.l6 is meant to ensure that the functions of the State are not unnecessarily impeded or jeopardized. However, the public officers charged with administration of this Act insist that the immunity under s.l6, is absolute. The courts have upheld this contention and held that coercive reliefs, including interim injunction, cannot lie against the State. Thus, the courts continue to apply the immunity in a wholesale fashion. Should this immunity of the State from coercive orders under the Act be absolute even when the issue is a proper constitutional case brought in terms of Art.28 of the Constitution? And if not, in what form should it be retained? Since the purpose of s.l6 is to immunize the State against unwarranted coercive orders, the immunity of the State must not be absolute when the issue is a proper constitutional case brought under Art.28. The rationale being that applying the immunity under s.l6 in absolute terms is tantamount to subordinating Art.28 to s.l6, contrary to Art.l (3). In order to harmonize the immunity imported under s.l6 of the Act vis-a-vis Art.28 of the Constitution the immunity of the State under s.l6 must, and only in relation to a proper constitution case brought under Art.28, be narrowly construed or frozen. This will allow an applicant in a deserving constitutional case to be able to obtain any relief including the prohibited reliefs, as against the State. So that the full immunity also, may only be invoked in appropriate cases. In order to harmonize the two provisions, there is need to adopt a proportional test approach when interpreting the interface between s.l6 vis-a-vis Art.28. So that the immunity is interpreted on case by case basis. In this way, the immunity under the Act is restricted to serving its intended purpose, and the supremacy of the Constitution is not antagonized."
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Nyirongo , Samuel