contract treaty convention or document by whatever name called to which

Contract treaty convention or document by whatever

This preview shows page 49 - 52 out of 58 pages.

contract, treaty, convention or document by whatever namecalled to which government is a party or in respect of whichgovernment has interest. In our opinion, in such a circumstance,applying the generous and purposive rule of constitutionalinterpretation, the legal opinion of the Attorney General must bebinding on the government and or on public institutions to givethird parties confidence to deal with government and publicinstitutions.Mr. Cheborion Barishaki urged us to apply “purpose and effect”rule of Constitutional interpretation when interpreting Article 119(3) of the Constitution. The principle behind this rule is that eitherthe purpose or effect of an Act of parliament can determine theconstitutionality of the Act.In Attorney General Vs Aboki & Anor;Constitutional Appeal01 of 1998, this Court (Oder JSC, (RIP) applied that principle todetermine the constitutionality of Section 7 of the Witchcraft Actwhich provided for exclusion order. He found that the effect ofexclusion order was inconsistent with Article 22 (1) of theConstitution because it amounted to a threat to the respondent’slivelihood.Page 49of 58510152025
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The effect of interpretation of legal opinion of the AttorneyGeneral as binding may in certain circumstances contravenesome principles of state policy as we shall see herein later.Separation of PowersAs we have pointed out earlier in this judgment, one of theprinciples of state policy which interpreters of the Constitutionamongst others, are enjoined to be guided by when interpretingthis Constitution is democratic principles. One of the keydemocratic principles is “Separation of powers”.In Attorney General Vs Major General David Tinyefuza,SCCA No. 01 of 1997 this Court stated that “ the greatest care must be taken to ensure that asfar as possible the principle of separation of powersis duly observed by the three arms of governmentto avoid unnecessary erosion of each other’sconstitutional functions otherwise good andbalanced governance may be unduly hampered.”We agree that the principle of separation of powers should be dulyobserved to avoid erosion of the Constitutional functions of theother arms of government. In the instant case, the effect ofinterpreting the legal opinion of the Attorney General, a memberof the Executive, relating particularly, to the manner in which theSpeaker of Parliament, the head of the Legislative arm ofGovernment, should carry out his/her constitutional functions, asbinding clearly violates that principle of separation of powers. Inour opinion, in applying the generous and purposive rule ofPage 50of 58510152025
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constitutional interpretation, while the legal opinion of theAttorney General must be accorded the highest respect, it mustbe binding where it relates to contract, agreement or any otherlegal transactions to which government or public institution is aparty or has an interest. This is to give confidence to third partiesto deal with the government.
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