The reference question in human rights cases

Abstract

The so-called Reference question refers to the power a court, which is not of constitutional jurisdiction, has to refer a human rights issue which is raised before it to the competent court dealing with constitutional matters. A number of important legal issues have cropped up since Independence regarding this matter. So, what happens when a human rights issue arises in a court other than one of constitutional jurisdiction? The answer is found in Article 46(3) of the Constitution, although, as we shall see, this provision gives rise to a number of legal issues and problems. [excerpt]