46

Article 46 1. A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this Article, apply to the Constitutional Court for redress. 2. An application under clause (1) may, where the Constitutional Court is satisfied that the person whose right or freedom has been or is likely to be contravened is unable to do so, be made by another person acting on behalf of that person, with or without that person's authority. 3. The Constitutional Court may decline to entertain an application under clause (1) where the court is satisfied that the applicant has obtained redress for the contravention under any law and where the applicant has obtained redress in the Constitutional Court for any matter for which an application may be made under clause (1), a court shall not entertain any application for redress for such matter except on appeal from a decision of such court. 4. Where the Constitutional Court on an application under clause (1) is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate court for grant of redress in accordance with law. 5. Upon hearing of an application under clause (1) the Constitutional Court may - a. declare any act or Omission which is the subject of the application to be a contravention of the Charter; b. declare any law or the provision of any law which contravenes the Charter void; c. make such declaration or order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the application; d. award any damages for the purpose of compensating the person concerned for any damages suffered; e. make such additional order under this Constitution or as may be prescribed by law. 6. Where the Constitutional Court makes a declaration under clause (5)(b) the Court shall, subject to any decision in appeal therefrom, send a copy of the declaration to the President and the Speaker. 7. Where in the course of any proceedings in any court, other than the Constitutional Court or the Court of Appeal, a question arises with regard to whether there has been or is likely to be a contravention of the Charter, the court shall, if it is satisfied that the question is not frivolous or vexatious or has already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court. 8. Where in an application under clause (1) or where a matter is referred to the Constitutional Court under clause (7), the person alleging the contravention o r risk of contravention establishes a prima facie case, the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State. 9. The court in which the question referred to in clause (7) arose shall dispose of the case in accordance with the decision of the Constitutional Court, or if that decision is the subject of an appeal to the Court of Appeal, in accordance with the decision of the Court of Appeal. 10. The Chief Justice may make rules for the purpose of this Article with respect to the practice and procedure of the Constitutional Court in relation to the jurisdiction and power conferred upon it by or under this Article , including rules with respect to the time within which an application or a reference may be made or brought. PRINCIPLES OF INTERPRETATION