Longwe v Intercontinental Hotels ((1993) 4 LRC 221) [1992] ZMHC 106 (4 November 1992)

LAW REPORTS OF THE COMMONWEALTH Volume 4 General Editors I Professor James S Read, LLB of Gray's Inn, Barrister Peter E Slinn, MA, PhD Solicitor, England and Wales \ ! Managing Editor Radhika Edwards, LLB of the Inner Temple, Barrister London Butterworths a b C i e ,f . s :s ,f e is y at :o re :d is 1e ,al ·ct ,d ce of :ct ne lar 1d, are ,r a d e f (I h Longwe v Intercontinental Hotels a Zambia Longwe v Intercontinental Hotels b C d High Court MusumaliJ 4 November 1992 (1) (2) Constitutional law - Fundamental rights - Application - Whether fundamental rights applicable against public authorities only - Freedom from discrimination - H'Jiether constitutional protection against discrimination available against private party-Constitution efZambia, art 113. Constitutional law - Fundamental rights - Freedom from discrimination - Sex discrimination- Policy of hotel to exclude unaccompanied females from bar- Whether unlawful discrimination- Whether justifiable- Constitution ef Zambia, arls 21-23 . The petitioner had been refused entry into a bar of the Intercontinental Hotel, Lusaka, on the ground that she was unaccompanied, the respondent hotel having adopted a policy of excluding women unaccompanied by men from entering the bar. The petitioner sued the hotel for declarations, an injunction and exemplary damages for unlawful discrimination, citing art 11 (fundamental rights and freedoms) and art 23 (freedom from discriminatory laws) of the Constitution of Zambia. For the respondent it was argued that the constitutional provisions applied to public authorities only and not to private persons or companies, and that the petitioner had not been subjected to discrimination on the basis of her sex. HELD: Judgment for the petitioner; token damages and costs awarded. (1) Guarantees of fundamental rights in modem constitutions required both the rulers and the ruled to observe certain standards. While there might be some human rights which could only be accorded by public authorities, some guarantees control the activities of private persons or institutions as well, for example, the rights to life and personal liberty and freedom from slavery, forced labour and torture, the rights to privacy of home and other property and to freedom of conscience. This approach was taken by many, if not all, international treaties and was supported by the definition of 'person' in art 113 of the Constitution of Zambia, which included any company or association, corporate or unincorporated. Although many fundamental rights were also protected by criminal law or by private law, such as the law of torts, an aggrieved person was entitled to choose whether to proceed under the constitutional provisions or under other law (see pp 230-231, post). (2) The petitioner had clearly been discriminated against on the basis of gender, contrary to the Constitution, by the application of the hotel's entry policy. The hotel's entry policy did not constitute a 'law' and so art 23 of the Constitution did not apply. However, the petitioner's rights under art 21 (freedom of assembly and association) and art 22 (freedom of movement) had been violated. Articles 21 (2) and 22(3)-(7) of the Constitution permitted certain derogations from fundamental rights by law; these did not apply to support the hotel's policy because it was not a law within the meaning of that term in the Constitution. 222 Zambia [1993] 4 LRC Le The entry policy therefore contravened the Constitution and could no longer be applied. There was no evidence to support an award of exemplary damages; token ordinary damages were therefore awarded (see pp 231-233, post), Per curiam. In deciding an issue not covered by domestic legislation, a court could take judicial notice of international treaties and conventions, like the African Charter on Human and Peoples' Rights and the Convention on the Elimination of All Forms of Discrimination against Women, when they had been ratified without reservation by a state, indicating its willingness to be bound by their provisions. However, resolutions adopted at meetings ofjurists, like the Bangalore Principles, were not applicable in the same way, although there might be some exceptions (seep 233, post), [Editors' note: Articles 11, 21-23 and 28 of the Constitution of Zambia, so far as material, are set out at pp 226-227, post.] Cases referred to in judgment Browne v Bramot [1902] 1 KB 696 R v Higgins [1947] 2 All ER 619, [1948] 1 KB 165, CA Solomon v Solomon (1877) C 22 Legislation referred to in judgment Constitution of Zambia 1991, arts 11-15, 17-19, 21-24, 26, 28, 62, 78, 80,113 Constitution of Zambia Act 1991, s 2 Interpretation and General Provisions Act (Cap 2) Other sources referred to in judgment African Charter on Human and Peoples' Rights 1980, arts 1-5 Bangalore Principles, 1988 Basu's Commentary on the Constitution eflndia (5th edn), vol 1, pp 34-35 Charlesworth 's Mercantile LAw (12th edn, 1972) Convention on the Elimination of All Forms offiiscrimination against Women, arts 1-3 Henkin 'Rights: Here and There' 1981) 81 Col LR 1582 Petition Sarah Hlupekile Longwe sued the Intercontinental Hotels Corporation Ltd for declarations, an injunction and damages for unlawful discrimination against her. The fact are set out in the judgment. L Mushota for the petitioner. M Malita for the respondent. 4 November 1992, The following judgment was delivered, MUSUMALI J. The petitioner, Sarah Hlupekile Longwe, has sued the Intercontinental Hotels Corp Ltd Intercontinental Hotels Lusaka 'the respondent' seeking the following declarations against the said hotel: (1) That she has been and is likely to continue to be unfairly discriminated against on the grounds of sex, (2) That she and indeed any person, female or male, is entitled to human rights and that it is therefore unlawful for the hotel to refuse admission to public places on the grounds that a person is female or is a female not accompanied by a male, a a (3 b (4 b C C (, (1 (; d e f g h d " tl " e " C ti h II e SI t< f s C V t ( ( ( r g h a b a b C C d d e e f g h Longwe v Intercontinental Hotels (Musumali J) (3) That the ministerial policy position and the Investigator General's ruling marked exhibit SHLS and SHL6 attached to (her) affidavit (in support of the petition) be a pronouncement of the law which should be so observed and enforced by all hotels, motels and other institutions and persons, punishable for contempt if not observed. (4) That all public institutions be open to all people irrespective of sex or other discriminatory attributes, provided they have not breached any written laws or regulations and that all institutions whose policies and regulations result in female harassment are against the law, against public policy or interests, and against intem~tional conventions to which Zambia is a party. (5) That an injunction be issued restraining the respondent hotel whether by itself, its servants or agents, or otherwise from turning away any unaccompanied woman from its hotel or doing any other act which amounts to discrimination of people on the basis of sex or marital status. (6) That ordinary and exemplary damages be awarded to the petitioner for the 'embarrassment and humiliation caused to her; and (7) Costs. The evidence in this case is all agreed: that on 1 February 1992, the petitioner was refused entry into the Luangwa Bar of the respondent hotel on the ground that she was an unaccompanied female, ie that she did not have male company, which was the requisite company for women wanting to go into that bar. In his evidence Mr Malimba Kanyanga, the only witness for the respondent, said that women not accompanied by a male who was patronising that bar before this rule came into force used to fight amongst themselves for men; and that as a result of that behaviour hotel residents and other male patrons were complaining to the hotel management and urging it to do something to bar unaccompanied women in that bar. The saicJ witness did not, however, produce any documents supporting his evidence on this point. But this is not a serious flaw to his testimony given the fact and this was not in dispute at all, that women without male company were allowed in all other places open to the public in that hotel. So I did accept this evidence that there ·were complaints against the behaviour of women without male company who were patronising the bar in question which led to this rule or regulation, now the subject of this case. These are the important facts of this case. In her submission Mrs Mushota, for the petitioner, said that this petition had been brought to this court under the provision of arts 11 and 23 of the Constitution. She then quoted these articles, and argued that under the Constitution human rights are given and guaranteed to everybody irrespective of sex. Those rights, she went on, include the freedom of movement, The respondent's behaviour towards the petitioner on the date and time in issue was a violation of her rights given her by art 23, argued Mrs Mushota, as it was based on her sex and presumed marital status. Next, the learned counsel for the petitioner submitted that a hotel such as the respondent hotel is a public place. This was because the government (1) can regulate them; (2) gives trading licences to the hotels; and (3) has shares in this and some other similarly placed hotels. In addition to these factors, the hotel is bound to receive people who approach it and request it for the use ofits facilities such as beds, food, drink and are willing to pay for them. In support of this "Contention she referred to the English case of Browne v Bramot [1902] I KB 696. 224 Zambia [1993] 4 LAC A hotel, she went on, may only refuse to supply its facilities to people who approach and ask it for them, ifin the case ofbeds itis full and in the case of food and drink they have run out or have been reserved for other customers. The learned counsel also referred this court to R v Higgins [1947] 2AllER 619, [1948] 1 KB 165 and to Charlesworth', Mercantile Law (12th edn, 1972) and submitted that in this case the respondent's bar was not full when the petitioner wanted to patronise it. She then submitted that the hotel's right of admission should only be reserved in respect of indecently dressed or otherwise unfit people regardless of sex, Lastly on this line of argument, Mrs Mushota submitted that even if the respondent hotel is held by this court to be a private premises, it would still be required to observe art 23(2) of our Constitution in the light of the definition of 'person' under art 11 3(1) of the Constitution. Further, she said, there are other laws of this country which adequately provide for the infraction of 'soliciting' which can be used to deal with any person suspected of contravening that law. After these submissions Mrs Mushota moved on to the international instruments. She started off here by stating that Zambia has ratified many international treaties and UN conventions; that it is party to the African Charter on Human and Peoples Rights 'The African Charter' and the Convention on the Elimination of All Forms of Discrimination Against Women 'the Convention'. She then quoted arts 1-5 of the African Charter and arts 1-3 of the Convention. The learned counsel then moved to and quoted the Bangalore Principles of 1988 which were formulated by Commonwealth chief justices and endorsed by a subsequent colloquium of Commonwealth African jurists and judges including the Chief Justice of Zambia. Finally she submitted that the petitioner is entitled to damages for the public embarrassment and injury to her reputation by being treated as a prostitute. The respondent's submissions were (and here the learned counsel repeated the undisputed facts of this case which have already been reproduced in this judgment) that this was the second such refusal to the petitioner, the first one having been in 1984; that this petition has been presented under arts 11 and 23 of the Constitution and that in fact the proper article should have been art 28(1). Mr Mallia next tackled the issue of'discrimination' as defined by art 23(3) of the Constitution. Under this definition, he went on, the discrimination has to be based on one of the eight grounds, namely race, tribe, sex, place of origin, marital status, political opinions, colour or creed. The question is whether the petitioner was discriminated against in the sense mentioned in the definition. It was his view that she was not so discriminated against but merely 'denied access' to the said bar because she was a woman unaccompanied by a man. He went on and said that at no time did the respondent put the petitioner's marital status in issue; that marital status is an irrelevant issue in determining whether or not an unaccompanied woman should be-allowed into the bar in question or not. The policy in issue would catch all unaccompanied women, married or not, he said. The learned counsel went on and submitted that the petitioner was not allowed access into the said bar not because she was a woman but because she was a woman without male company. The petitioner was therefore not discriminated against in the wording of the definition in the Constitution. Mr Malila then argued that should this court find that the petitioner was discriminated against, this court has to intetpret the provision of art 23(3) of the a b a b C C d d e I e f g g h h Le C b) Ill re 1, 2: pr th cit re: of th 1:n of a I au art th( on re< SU( to to to rc,1 sht qu leg pri CO' on LIili sali int, WO lO I r;o1 tO I ·1 of:: 11p1 otli /\rt wit 1m1 a b C d Longwe v Intercontinental Hotels (Musumali J) Constitution properly so that the true meaning of the legislature as evidenced by the language which has been used in that article and not what the legislature may have intended to say but did not say, can come out. In support of this he referred the court to Basu's Commentary on the Constitution if India (5th edn) vol 1, pp 34-35 and to Solomon v Solomon (1877) C 22 at 38. The wording of art 23 of the Constitution is certain, precise and unambiguous, he submitted. The learned counsel went on and said that the petitioner bears the burden of proving that the respondent violated art 23. To do so she has to prove either that (1) the respondent made law that made provision that is discriminatory either itself or in its effect; or (2) she was discriminated against by the respondent's agents acting pursuant to 'any written law or in the performance of the functions of any public office or any public authority'. He then said that the respondent is a limited company which does not have any power to make law, ie an Act of Parliament or a statutory instrument, as per arts 62, 78 and 80 of the Constitution respectively. The respondent thus has only a policy and not a law, submitted the learned counsel. Also, it has not been shown that the respondent's agent acted in the performance of a public office or public authority. In the light of these facts the petitioner has failed to establish that her art 23 right has been violated, he submitted. Next the learned counsel tackled the freedom of movement under art 22 of the Constitution. Afier quoting the relevant parts of the article, Mr Malila went on and submitted that this is not an absolute right as it is limited by the requirements of art 17(1), 23(2) and (3) and the civil 'non-constitutional' rights such as the right to exclude unwanted visitors from one's premises and the right to sue for trespass to mention but two. He then said that the petitioner was free to exercise her freedom of movement wherever she pleased, but if she decided to exercise it on the respondent's premises, she was required to abide by any reasonable conditions obtaining on that premises. One such condition was that she had to be in male company if or when she wanted to patronise the bar in question. It was his contention that it has not been the intention of the legislature through art 22 to give to individuals unrestricted entry into any place, private or public. He then submitted further that constitutions are meant to cover state actions or state agencies. He went on and said that Zambia being a signatory of the UN Convention on the Elimination of All Forms of Discrimination against Women, may unfortunately have failed to pass an implementing statute or to include the salient points in the Constitution and may thereby not be living up to her international commitments. That being the case, went on the learned counsel, women cannot get all their rights provided them by that convention by coming to courts when those rights are not reflected in the Republican Constitution. For these reasons, it was his submission that the petition be dismissed with costs to the respondent. The starting point in my determination of this dispute is to state the provisions .. of arts 11, 21-23 and 28 of the Constitution. Articles 11 and 23 have been relied :: lljlon by the petitioner as being the basis of this petition. Article 28 has, on the ' :Jllher hand, been contended by the defence as being the basis of this petition. -,,irtkle 21 deals with the freedom ofassembly and association. Article 22 deals ,With the freedom of movement and is also in issue in this matter. Leaving out i)lrorlsions not relevant to this case, those articles provide as follows: ;~,:."'' 226 Zambia [1993] 4 LRC Longv , .. the protection of the law. '11. It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is- to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status, but subject to the limitations contained in this Part, to each and all of the following, namely; (a) (b) freedom of .. , assembly, movement and association , , , and the provisions of this Part shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that pr9tection as are contained in this Part, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. a b a b 21. (1) Except with his own consent, no person shall be hindered in the enjoyment ofhis freedom ofassembly and association, that is to say, his right to assemble freely and associate with other persons ... (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision:- that is reasonably required in the interests of ... public morality ... (a) (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons ... and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society. 22. (1) Subject to the other provisions of this Article and except in aCcordance with any other written law, no citizen shall be deprived of his freedom of movement, and for the purposes of this Article freedom of movement means - (a) the right to move freely throughout Zambia ... 23. (1) Subject to clauses (4) (5) and (7) no law shall make any provision that is discriminatory either of itself or in its effect. (2) Subject to clauses (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. (3) In this Article the expression 'discriminatory' means, affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by , .. sex ... marital status .. , whereby persons of one such description are subjected to disabilities or restrictions to which persons of another-such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. (4) Clause (1) shall not apply to any law so far as that law makes provision - (e) whereby persons of any such description as is mentioned in Clause (3) may be subjected to any disability or restriction or may be C C d d e I g h e I The,, g h Al'tkl here, ill thi Longwe v Intercontinental Hotels (Musumali J) a b c d e accorded any privilege or advantage which, having regard to its nature and the special circumstances pertaining to those persons or to persons of any other description, is reasonably justifiable in a democratic society (6) Clause (2) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision or law as is referred to in Clause (4) or (5). (7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision whereby persons of any such description as is mentioned in Clause (3) may be subjected to any restriction on the rights and freedoms guaranteed by Articles ... 21 and 22, being such a restriction as is authorised by Clause ... (2) of Article 21 or Clause (3) of Article 22, as the case may be ... 28 (1) Subject to Clause (5), ifany person alleges that any of the provisions of ,Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall - (a) hear and determine any such application ... and which may, make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of Articles 11 to 26 inclusive (3) No application shall be brought under Clause (1) on the grounds that the provisions of Articles 11 to 26 (inclusive) are likely to be contravened by reason of the proposals contained in any bill which, at the date of the application has not become a law, ' I The African Charter g 'Article 1 The member states of the Organisation of African Unity parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them. Article 2 Every individual shall be entitled to the enjoyment of the rights and freedom recognised and guaranteed in the present Charter without disttibution of any kind or other status ... in the present Charter without distinction of any kind such as ... sex ... or other status. Article 3 1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection before the law.' Article 4 talks about the inviolability of human beings. I will not reproduce it here as that principle is not in issue in this matter. Article 5 is also not in issue in this matter. Zambia The Convention [1993] 4 LRC 'Article 1: Discrimination is distinction, exclusion or restriction made on the basis of sex which has the effect or pmpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, ofhmnan rights and fundamental freedom in the political, economic, social, cultural, civil or any other field. Article 2 Discrimination against women in all its fonns is condemned and the states parties agree to undertake: To ensure that public authorities and institutions shall refrain from engaging in any act or practice of discrimination against women. To ensure that all acts of discrimination against women by persons, organisations or enterprises are eliminated. Article 3 States parties agree to take all appropriate measures including legislation, in all fields in order to guarantee women their basic human rights and fundamental freedoms on the same basis as men.' a a b b C d d Lastly MrsMushota referred to the Bangalore Principles ofl 988 which have been brought into being by Commonwealth jurists and chief justices. That document provides as follows: e e '1. Fundamental human rights and freedoms are inherent in all humankind and find expression in constitutions and legal systems throughout the world and in the international human rights instruments. 2. These international human rights instruments provide important guidance in cases concerning fundamental human rights and freedoms. 4. 3. There is an impressive body or jurisprudence, both international and national, concerning the interpretation of particular human rights and freedoms and their application. This body ofjurisprudence is of practical relevance and value to the judges and lawyers generally. In most countries whose legal systems are based upon the common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation into domestic law. However, there is a growing tendency for national-courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete. 5. This tendency is entirely welcome because it respects the universality of fundamentalhumanrightsandfreedomsandthevitalroleofanindependent judiciary in reconciling the competing claims ofindividuals and groups of persons with the general interests of the community. 6. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and f g ;·. • ii s ':1 f ', g h h n tl h it ·tc p: le tr s, p, T cc ar C th m be •-------- a b C d e f g h Longwe v Intercontinental Hotels (Musumali J) 7. applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs. It is within the proper nature of the judicial process and well established judicial functions for national courts to have regard to international obligations which a country undertakes-whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law, 9. 8. However, where national law is clear and inconsistent with the international Obligations- of the state concerned, in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation which is undertaken by a country. It is essential to redress a situation where, by reason of traditional legal training which has tended to ignore the international dimension, judges and practising lawyers are often unaware of the remarkable and comprehensive developments of statements of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials; provision in libraries of relevant materials; promotion of expert information to judges, lawyers and law enforcement officials; and meetings for exchanges of relevant information and experience. 10. These views are expressed in recognition of the fact that judges and lawyers have a special contribution to make in the administration of justice in fostering universal respect for fundamental human rights and freedoms.' My next task is the resolution of the issues which have been raised in this matter. In that exercise I feel compelled to start with the issue of whether or not this petition is well grounded on arts 11 and 23 of the Constitution on which it has been brought to this court. My answer is in the affirmative. This is because it is my considered view that art 11 (a), as quoted already in this judgment, gives ·to every individual who is resident in this country, citizen or not, a right to be protected by the law. A person who therefore feels that his human right or rights, let alone any other provision of the law, is/are infringed is entitled to come to these courts and seek an appropriate order in his favour, on the basis of this article. Such a person is also in order to seek such redress on the basis of a specific provision of Part III of our Constitution even in the absence of arts 11 and 28. This is because each such article gives jurisdiction to this court to detennine any complaint brought before it alleging a specific breach. Articles 12-24 inclusive and art 26 provide for such breaches, and anybody alleging such a breach or breaches, as the case may be, has locus on the basis of such_· allegation. But in our Constitution, the legislature thought it wise to further provide under art 28 for the different categories of aggrieved persons who have locus in these kind of matters. Those are people whose rights: (1) have already been breached; (2) are being breached and (3) are in danger of being breached in the future. Thus a 230 Zambia [1993] 4 LRC litigant alleging the breach ofhis human rights is able to base his action on either art 11 alone, or art II and any other relevant articles of Part III or indeed art 28 and the relevant other article(s) of Part Ill. This action is therefore properly before this court. Next is the issue that the incident complained ofin this matter was not the first such occurrence in respect of the same person and in respect of the same bar. I got the impression that this issue was canvassed by the learned respondent's advocate to try and suggest that the petitioner should therefore have known better the second time. My view is that the petitioner was entitled to institute these kind of proceedings any time she was treated in the way she was on those two occasions, ie either on the first occasion or indeed on the second time, as she has decided to do this time. As to whether she should have known better the second time or not that is the very core of the case. So the answer will become obvious in the remaining part of this judgment. The next issue is the contention by Mr Malila that constitutional provisions are meant to cover State actions or public bodies or public officers. The necessary amplification of this argument is that human rights observances are necessary only in matter of the State and/or public bodies and/or public officers; that other categories of people or institutions in a country are exempt from such observances altogether. At this juncture we need to know what is meant by human rights. The definition of Professor Louis Henkin in his article in (1981) 81 Columbia LR at 1582 succinctly answers this question. He defined human rights as: ' ... claims which every individual has or should have upon the society in which she or he lives. To call them human rights suggests that they are universal; they are the due of every human being in every human society. They do not differ with geography or history, culture or ideology, political or development. They do not depend on gender or race, class or status. To call them "rights" implies that they are claims "as of right" and not merely appeals to grace or charity or brotherhood or love; they need not be earned or deserved but claims of entitlement and corresponding obligation, in some political order under some applicable law .. .' I totally agree with this definition. At this juncture I would like to explain the evolution of constitutions. This explanation applies to both unwritten and written constitutions in principle. But in practice it is more relevant to a state or states with a written constitution or constitutions. A constitution is a product of the surrender by the citizenry of their individual rights to their rulers (governments) in order for those rulers to distribute and supervise the enjoyment of those rights in an atmosphere of peaceful co-existence by all. Breaches of that enjoyment of the rights attracts certain sanctions so that normalcy is restored. Now the surrender of peoples' rights to the ruler inevitably has made the rulers very powerful vis-a-vis the individual citizenry. Since power corrupts and absolute power corrupts absolutely, there is a danger ofabuse of those powers by the rulers against the very people who have reposed it in them on their behalf. So to try and control such abuse the people through their elected representatives have laid down certain rules of conduct of business by the rulers. With the passage of time it was recognised that those rules needed to apply to all organs of the state and public a b b c d I fl d e f g h I ~c 1er rly rst . I it's Nn 1te >Se ,he he ne ue ,ry uy 1er ::es its. ,R m ,re ty. cal fo oly ed in Longwe v Intercontinental Hotels (Musumali J) a a b b C C d d e e f f institutions or persons. Since those rules come from the collective will of the citizenry, itis felt that they form the basis of all the regulations that are passed to regulate the conduct of the citizenry and that to change them needs an absolute majority of the citizenry in favour. This is how difficult provisions of amending or repealing constitutional provisions have come into being. That majority is sometimes two-thirds or three-quarters of all the members of a given legislature or state if the arrangement is a federation. Thus human rights are almost always written into a country's constitution. This is in order to give them the requisite constitutional powers they deserve, as I have just explained. But what started as regulations to control the powers of the rulers have with the passage of time, in my considered view, c~me to cover the activities of even private individuals or institutions. This has come about, in my view, upon a realisation that there are certain activities by the individual citizens which would offend against the peaceful co-existential tenets of today's civilised living standards of man unless they are controlled by the supreme law of the land. And so present day provisions ofl)uman rights in constitutions command both the rulers and the ruled alike to observe certain standards. This feature is very easily noticed in our constitutions, ie the past and present ones. For example the right to life under art 12(1) and (2) of our Constitution is a command to everybody, ruler or ruled, to respect it. So are the rights: of personal liberty (art 13(1)); to freedom from slavery and forced labour (arts 14(1) and (2)); to freedom from torture (art 15); to privacy of home and other property (art 17(1)); and to freedom of conscience (art 19(1)- (4)). I could go on but these will support what I have just said. This is the same approach taken by even many, if not all international treaties. There may, of course be some human rights which can only be accorded to the citizenry by a government department or some such public institution or a public servant. It is only ordinary common sense that in the wording of such a right, the appeal should be to the publi, institution(s) or public person. This is the category where the right to protection of the law under art 18 ofour present Constitution falls. Whilst still on this issue it is pertinent also to say that under our Constitution the word 'person' has been defined under art 113 as including: g h his lut or eir to of cts es' he pts :ry ch 1in vas ,lie 'any company or association or body of persons, corporate or unincorporate.' This shows that the constitutional provisions in this country are intended to apply to everybody: public or private persons unless the context otherwise dictates. I must also state that it is true that most, if not all the rights, which have been provided for by the Bill ofRights are also covered by personal or private law such as the law of torts or criminal law. But that state of affairs does not deprive an aggrieved person of his choice of whether to proceed under the Bill of Rights or under another branch of the law. The golden choice in this regard is the aggrieved person's. I then move on to the detenn.ination of the petitioner's right which was infringed by the respondent hotel, ifanywasso infringed at all. The starting point here is the determination of the issue whether or not the petitioner was discriminated against in her pursuit of life by being refused entry into the Luangwa Bar on the basis of her sex. I must here say that it was quite amusing reading the arguments put forth by Mr Malila for the respondent hotel, to try and persuade me to find in the respondent's favour that the petitioner was not so 232 Zambia [1993] 4 LRC discriminated against. I have to say, on this question, that I have been more than satisfied that the petitioner was discriminated against in the manner she was treated in 1984 and this year (1992) when she tried to enter the Luangwa Bar. The reason for the discrimination was because she was a female who did not have male company at the material times. Now ifthatis not discrimination on the basis of sex or gender, what else is it, looking at the matter in a reasonable, ordinary person_', perspective? I have not been able to find any reasonable argument to persuade me into holding that this was not based on the fact that at the material time this female (the petitioner) because she was a female, and nothing else, was commanded by the hotel to be accompanied by another human being, but who must be a male, in order for her to be allowed by the hotel to patronise this bar. On the other hand, an unaccompanied male ie a male who was not in the company of a female, was free to patronise the same bar. This was very naked discrimination against the females on the basis of their gender or sex, by the respondent hotel. Now was this discrimination allowed by the Constitution? Starting with the contentions by the respondent, this discrimination came into being because patrons of that bar, mostly male I think, had been complaining to the hotel management about the behaviour of unaccompanied women who used to patronise the bar in issue. Those women used to fight over men in that bar. Now reading the derogations allowed for under the Constitution they are in respect ofacts authorised by an Act or Acts of Parliament or principles oflaw·or delegated legislation. This is what arts 21(2), 22(3) and 23(4)-(7), to mention only these provi.sions, say. Now was this discriminatory rule by the respondent hotel a law in the context of the constitutional provisions that are in place in this country? The starting point in this regard is the definition of the word 'law' which is in the Constitution itself. Browsing through it I found the definition of the term 'existing law' under s 2 of the Constitution of Zambia Act 1991. It reads as follows: ' "existing Law" means all law, whether a rule of law or a provision of an Act of Parliament of any other enactment or instrument whatsoever (including any Act of Parliament of the United Kingdom or Order of Her Majesty in Council). Having effect as part of the Law of Zambia or part thereof immediately before the commencement of this Act, and includes any Act of Parliament or statutory instrument made before such commencement and coming into force, on such commencement or thereafter.' The Interpretation and General Provisions Act (Cap 2) of the Laws of Zambia does not define the word 'law'. So the foregoing definition must rule. My understanding of the· word 'law' as used in the context of your Bill of Rights is that it means an Act of Parliament or statutory instrument or a rule of law, The discriminatory regulation which is the subject of this litigation was thus not a law in the meaning of 'law' in our Constitution. This is because only Parliament has power to make such laws. This means that (1) none of the permitted derogations of our Constitution applies now and applied at the material time to the regulation in question; and (2) the discrimination in question does not and did not fall under the provisions of art 23. But that regulation did ' ! l t I < :½ t a b ll b C d d e f g (J h Ii Lorigw, brl.'.at:11 lllOVt'II bcc11 n This " asstH:ia bchavi not cal ()f'Riµ The ·1 the pl l\di a11d n Afric;1 COllSli rcscn, tht~ p· COIIIC woul of lh; As do rn is 111y thin~ whil such Wl'OI lht'II tlic exn WOI do 1 \J\ h1111 dire ~ d:111 tVI< is II ( ,kf ("t)I hr1 :1rt So M, ( ,'/ Longwe v Intercontinental Hotels (Musumali J) a b breach arts 21 (freedom of assembly and association) and 22 (freedom of movement) in respect of the petitioner, and indeed all those women who have been refused entry into the Luangwa Bar of the respondent hotel over the years. This is because they were denied their choices of where to go and who to associate with by that regulation. The complaints by the patrons against the behaviour of women who were not being accompanied by men in that bar did not call for the putting in force of a rule or regulation which contravened the Bill of Rights, without the peanission of, or authority from, the legislature to do so. The 'fights over men' problem ought to have been taken care ofby the use of the public law and order laws of this country. Before I end, I have to say some-thing about the effect of international treaties and conventions which the Republic of Zambia enters into and ratifies: The O African Charter and the Convention, supra, are two such examples. It is my considered view that ratification of such documents by a nation state without reservations is a clear testimony of the willingness by that state to be bound by the provisions of such a document. Since there is that willingness, if an issue comes before 'this court which would not be covered by local legislation but would be covered by such international document, I would take judicial notice of that treaty or convention in my resolution of the dispute. As for documents such as the Bangalore Principles, I am of the view that they do not enjoy the same status as the treaties and conventions. This is because it is my very considered view that in the separation of powers principle, I do not n: -_· .think that a meeting of jurists in an international forum can make resolutions ._,._ which are binding on their respective states in law. I am of the strong view that :. Such powers are entrusted in the executive wing of the State. So whilst it is not · -:·Wrong to take note of such resolutions I think it is a misdirection in law to treat ·".them as standing at par with treaties and conventions entered into and ratified by ·the executive wing. This is the general principle. There may be some -· e,Xceptions, as is generally the case with general principles. But those exceptions puld have to be decided upon if or when they occur. The Bangalore Principles 11pt appear to be exceptions to this general rule. hen all is said, therefore, since the regulation or rule in issue contravened the an rights provisions of our Constitution, as already explained, I order and ¢ct that it be scrapped forthwith. rs Mushota asked this court to grant her client ordinary and exemplary )ages against the respondent hotel. I have to say that I did not receive any 4•mce which would support an award of exemplary damages. So that prayer ' tgranted. oming to ordinary damages, I also did not receive any evidence to show the ree of ordinary damages the petitioner suffered. I am therefore of the g~rcd view that I can only award her a token amount. I accordingly award !1!111 offive hundred kwacha (KS00.00). I also award her the costs of this tors: )a,&Assodates for the petitioner. !Cl Russel Cook & Co for the respondent.