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“Taking the jurisdiction of the Court under Article 137 as a whole, I would
state thus: it embraces references and petitions whose resolution depend
either on the interpretation of a provision of the Constitution or on
determination of a question on inconsistence with, or contravention of, a
provision of the Constitution. ”
There is also the view that it is within the jurisdiction of all courts in
the land to give meaning to the provisions of the Constitution and to
enforce its provisions. In Attorney General v Tinyefuza (supra)
Kanyeihamba, JSC, expressed it in the following terms:
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“The marginal note to Article 137 states that it is an Article which deals
with questions relating to the interpretation of the Constitution. In my
opinion, there is a big difference between applying and enforcing the
provisions of the Constitution and interpreting it. Whereas any court of
law and tribunals with competent jurisdiction may be moved by litigants
in ordinary suits, applications or motions to hear complaints and
determine the rights and freedoms enshrined in the Constitution and
other laws, under Article 137 only the Court of Appeal sitting as the
Constitutional Court may be moved to interpret the Constitution with a
right of appeal to this Court as the appellate court of last resort.”
If that is the meaning of Article 137 (1) what then is the meaning of
clause 3 (b) thereof? Mulenga, JSC, in the same case gave it the
following meaning:
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“By giving the ordinary and natural meaning to the wording in the two
clauses it is evident that under clause (3) the Constitutional Court is
empowered to, and may “interpret” provisions of an Act of Parliament or
any other law in order to determine whether such Act or other law is
inconsistent with some provision of the Constitution even if the latter is
so clear that there is “no question as to its interpretation. ” Similarly under
paragraph (b) the court is empowered and may access, analyse or
evaluate the import of an Act or omission by any person in order to
determine whether such act or omission is in contravention of a provision
of the constitution, without having to interpret or give meaning to that
provision. In my considered opinion therefore, the jurisdiction of the
Constitutional Court to be exercised over causes of action under Clause
(3) is broader than interpretation ofprovisions of the Constitution in the
narrow sense of “giving meaning to words and expressions” in the
Constitution.”
{Emphasis in bold characters was supplied}
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