category or class of employers and employees from the mandatory
occupational pension scheme is reasonable and constitutional.
99. In order to govern effectively, legislatures must treat different individuals and
groups in different ways. To achieve true equality, it will frequently be
necessary to make distinctions: see Andrews v Law Society of British
Columbia (1989) 2 WWR 289. We opine that the differentiation brought
about under the exemption Order does not violate equality, it merely considers
the realities of the informal working sector without specifically targeting the
1st Claimant or domestic workers, generally.
100. The Court is aware that it is trite that the limitation should not negate the
essential content of the right in question. ‘Essential content’ could mean the
most important components of the right in question. In the case of Dr Bakili
Muluzi v The Attorney General MSCA Constitutional Case Number 25 of
2018, Dr. Muluzi challenged the constitutionality of section 32 of the Corrupt
Practices Act which provides on unexplained wealth. He argued that the
provision reverses the legal burden of proof, the right to silence and the right
of an accused person to be presumed innocent in section 42(2)(f)(iii) of the
Constitution. The issue for determination was whether the provision which
required a public officer who is found to be in possession of unexplained
wealth, to give a satisfactory explanation to the Court how the wealth came
under his control or possession negated the essential content of the right to
remain silent and to be presumed innocent.1
1
In Friday A. Jumbe & Humphrey C. Mvula v Attorney General, Constitutional Case No. 1 & 2 of 2005,
Katsala J. (as he then was) rejected the contention that the reverse onus created by the Corrupt Practices
Act was a justifiable limitation on the right to be presumed innocent, arguing that the reverse onus provision
at hand seriously impaired ‘the very essence of the right’.
Page 36 of 45