1ST ALL AFRICA RELIGIOUS LIBERTY MOOT COURT COMPETITION

AFRICA NAZARENE UNIVERSITY

25TH TO 26TH NOVEMBER, 2021.

THEME:

PROTECTING RELIGIOUS LIBERTY RIGHTS

MEMORIAL FOR THE RESPONDENT

Team Code: 405D

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Table of Contents
1.0 LIST OF AUTHORITIES..................................................................................................4
1.1 Statutes...............................................................................................................................4
1.2 International Treaties, Conventions and Declarations..............................................................4
1.3 Books and Articles...............................................................................................................4
1.4 Case Laws..........................................................................................................................4
2.0 SUMMARY OF ARGUMENTS.........................................................................................6
3.0 ARGUMENTS...................................................................................................................7
3.1.0 ISSUE 1..........................................................................................................................7
THE REPUBLIC OF SAMUNDA MEASURES TO REGULATE COVID-19 INFECTION
WHILE BALANCING SOCIAL ECONOMIC RIGHTS WERE REASONABLE...................7
3.1.1 The Government met the requirement of reasonableness set in Art 47(1) (2) & Article 24 to
regulate rights...........................................................................................................................7
3.1.2 The decisions of the government met all the requirements set in the Wednesbury case............7
3.1.3 The Government measures were impromptu; essentially, they were needed to urgently put in
place measures to curb a speedily transmitted virus which is highly contagious..............................8
3.1.4 Prayers to the court...........................................................................................................9
3.2.0 Issue 2...........................................................................................................................10
THE GOVERNMENT OF SAMUNDA HAS POWER TO REGULATE THE CONDUCT OF
WORSHIP IN THE CHURCHES ESPECIALLY IN THE FACE OF A PANDEMIC...........10
3.2.1 Freedom of worship is not an absolute right both at local and international levels.................10
3.2.2 The court should be reluctant to overturn an executive decision; to protect the doctrine of
separation of powers................................................................................................................11
3.2.3 In the alternative we invite this court to borrow a leave from the decisions by the United States
Supreme court;.......................................................................................................................12
3.3.0 ISSUE 3........................................................................................................................13
THE GOVERNMENT OF SAMUNDA DID NOT DISCRIMINATE AGAINST THE
CHURCHES; IT SOUGHT TO PROTECT THE CONGREGANTS.....................................13
3.3.1 Freedom of Religion is not an absolute right; the government can limit the right as long as this
is consistent with the law.........................................................................................................13
3.3.2 Church gatherings pose a great risk of transmission; the government targeting the churches is
hence justifiable......................................................................................................................14
3.4.0 ISSUE 4........................................................................................................................17
THE CONSCIENTIOUS OBJECTION “WE WILL RATHER OBEY GOD RATHER THAN
MAN" BY THE CHRISTIAN COMMUNITY IS NOT JUSTIFIED AND THUS UNJUST. . .17
3.4.1 Distinguished Scholars on when to obey God and when to obey man...................................17

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3.4.2 Constitution directives on respect to the constitution..........................................................18
3.4.3 Legal realism view..........................................................................................................18
3.4.4 Prayer............................................................................................................................18
4.0 PRAYERS FOR RELIEF................................................................................................19

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 1.0 LIST OF AUTHORITIES

1.1 Statutes

1. The Constitution of the Republic of Samunda

2. Fair Administrative Action Act
3. The Public Order Act

1.2 International Treaties, Conventions and Declarations

1. International Convention on Civil Political Rights (ICCPR)

2. International Convention on Economic Social and Cultural Rights (ICESCR)
3. ICCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or
Religion)

1.3 Books and Articles

1. Thomas Schetelich, Freedom of Religion and COVID-19: Can State Government Close
Churches? Published on May 14, 2020,
2. Philip Alston and Ryan Goodman, International Human Rights, The Successor to
international Human Rights in context: Law, Politics and Morals,” Oxford Press
3. Saber Yezli, PhD, Anas Khan, MD, COVID-19 pandemic: it is time to temporarily close
places of worship and to suspend religious gatherings, Journal of Travel Medicine,
Volume 28, Issue 2, March 2021, taaa065,
4. World Health Organization, "Safe Ramadan Practices in the Context of the COVID-19"
(2020). Pandemic Response and Religion in the USA: Health. 51.

1.4 Case Laws

1. Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948].

2. Law Society of Kenya v Attorney General [2020] eKLR
3. Friends of Danny Dovito Kathy & Another v Tom Wolf Governor and Rachel Levine
Secretary of PA Department of health no 68 mm 2020.
4. Nasa Kenya v Cabinet Secretary for Interior Coordination National government & 3
others.
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5. Republic v Kenya Revenue Authority ex parte Yaya Towers Ltd [2008] eKLR
6. Suchan Investment Limed v Ministry of National Heritage & Culture [2016] eKLR
7. Jacobson v. Massachusetts, 197 U.S. 11 (1905)
8. First Baptist Church v. Kelly, 455 F. Supp. 3d 1078 (D. Kan. 2020)
9. In Haki na Sheria Initiative v Inspector General of Police and 3 others [2020] eKLR
10. In ReAbbott 1954 F3 d 772- Court of Appeals, 5th Circuit 2020,
11. First Baptist Church v. Kelly, 455 F. Supp. 3d 1078 (D. Kan. 2020)
12. Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others [2014] eKLR
13. Seventh Day Adventist Church (East Africa) Limited v Minister for Education and 8
others [2014] eKLR
14. Jennifer Shamalla v Law Society of Kenya and 12 others, [2016] eKLR
15. Michael Osundwa Sakwa v Chief Justice and the president of the Supreme Court of
Kenya and Another [2016] eKLR

1.

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 2.0 SUMMARY OF ARGUMENTS

I.
The measures taken by the government to curb the spread of COVID-19 were reasonable and
actually meet the reasonability test set in the case of Associated Provincial Pictures House Ltd v
Wednesbury Corporation [1948]. The Said measures were also necessary as they sought to curb
the spread of a deadly virus.
II.
Freedom of worship is not an absolute right both at national and international levels. The state
can interfere with religious activities in case the well-being and security of the members is at
stake.
III.
The freedom of worship can be limited. Churches and religious institutions pose a great threat to
the spread of COVID-19. The measures put in place by the government sought to protect the
lives of the people.

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 3.0 ARGUMENTS

3.1.0 ISSUE 1

THE REPUBLIC OF SAMUNDA MEASURES TO REGULATE COVID-19 INFECTION

WHILE BALANCING SOCIAL ECONOMIC RIGHTS WERE REASONABLE.

3.1.1 The Government met the requirement of reasonableness set in Art 47(1) (2) &
Article 24 to regulate rights

The Principle of Reasonableness is entrenched in the constitution of the republic of Samunda

vide Article 47(1), which states that;
Every person has a right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
Article 24; states when and to what extend can a right be limited. The government made it clear
in an announcement on 14th April 2020, that the reason for the measures-imposed were because
of a contagious disease. One which is so dangerous to contain especially looking into the state of
health care facilities at the Republic of Samunda.
We therefore, urge this court to find the applicants claims of unreasonableness baseless.

3.1.2 The decisions of the government met all the requirements set in the Wednesbury
case

The test for reasonableness was developed for the first time in the house of Lords in the case of
Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948 ]. The three steps
were outline, for an administrative action to meet to be termed unreasonable failure to wit; the
courts would intervene and quash the decision. The following are the key conditions;

(a) Taking into consideration all matters it ought to-the government took into consideration
(i) a ravaging pandemic, which has by the time it was making the public orders claimed
an aggregate seven lives and 156 others infected. (ii) The nature of its medical facilities
per se, Samunda is a third world country whose health care is not yet well developed, it
had put in place a 'big four' agenda to improve this state, but unfortunately COVID 19
struck. It will be overwhelming if the endemic virus continued spreading as containing it

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 with such a deplorable state of health will be near impossible. (iii) The government also
took into consideration, the nature of the virus, it is an airborne disease which spread
quickly from one person to another. Restricting such social activities such as church
services, social gatherings, schools, political events is to the citizen’s best interest.
(b) On whether the government failed to take into consideration factors that it ought to
have; the Respondent respectfully submits that; the government took into consideration
all the factors and most importantly " the lifesaving" factor in the face of this pandemic.
(c) On whether such a decision is so unreasonable, that no authority placed in such a
circumstance would arrive at it- the Respondent invites this court to consider the
following decisions; the United States of America, in Alabama; public order 522;by the
office the governor, Order of the State health officers Suspending Certificate In public
Gatherings Due to risk of Infection by Covid 19 (Applicable to Blount, Saint
Clair,Shelby,Tuscaloosa and Walker Counties) and in South Africa; Disaster
Management Act: Regulation : Alert level 3 during Coronavirus Covid-19 Lock down.
In all these, similar measures were taken and implemented. Our government decisions
cannot therefore be said to be eschewed and unreasonable.

3.1.3 The Government measures were impromptu; essentially, they were needed to
urgently put in place measures to curb a speedily transmitted virus which is highly
contagious

Your honors, fortunately today we are not traversing through an untraveled path. The high court
of Kenya in the Matter of Law Society of Kenya v Attorney General [2020] eKLR addressed
itself to similar facts. In an application to contest against measures put in place by the
government of Kenya, Mrima J had the following to note.
".... Infections were rapidly escalating with more people losing their lives and there was a
need for urgent action to contain the spread of Covid 19. One for which was formulation of
regulations and rules to restrict movement of people in and out of affected zones. Common
knowledge informs that had the government not taken the containment measures uncontrolled
interaction of persons, including those with asymptomatic traits would have accelerated the
community spread across the country. This would have without a doubt jeopardized the effort to
curb the epidemic. The government had in mind necessary precipitate pre-emptive action."

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In the case of Friends of Danny Dovito Kathy & Another v Tom Wolf Governor and Rachel
Levine Secretary of PA Department of health no 68 mm 2020.The court held that in such
circumstances where the government need to act swiftly and quickly prior notification would not
be important (Emphasis mine). As the result would be to delay the process causing untenable
results. Sometimes as held in the case of Nasa Kenya v Cabinet Secretary for Interior
Coordination National government & 3 others. It is not a prerequisite to involve the public in
certain circumstance of decision making.

Your honors, it is the Respondent’s submission that the restrictive mechanisms put in place by
the state were reasonable, justifiable and consistent with the constitution of Samunda, for the
simple reasons of necessity, pre-emptive precipitate action and saving of life.

3.1.4 Prayers to the court

The Respondents urge this court to deal with each case in its peculiar circumstances and as such
find the measures taken by the government of Samunda to be reasonable and necessary at the
face of a pandemic.
It is our prayer to this honorable court that an order of injunction, mandamus and declaration of
violation be denied with expenses of the suit to the applicants.

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 3.2.0 Issue 2

THE GOVERNMENT OF SAMUNDA HAS POWER TO REGULATE THE CONDUCT

OF WORSHIP IN THE CHURCHES ESPECIALLY IN THE FACE OF A PANDEMIC

3.2.1 Freedom of worship is not an absolute right both at local and international levels

The Respondent submits the right to the religion is not an absolute right and can actually be
limited both at local levels (provided the set criteria under Article 24 of the constitution is meet)
and international levels. State governments can make general laws that impact churches and
church buildings. It can require that churches conform to building and fire codes. It can assign
occupancy limits to church buildings, just as it does to movie theaters and restaurants1

Article 47 of the constitution of Samunda states that; Every person has a right to an
administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. (2)
require an administrative body to give a written reason when such rights are adversely affected.
We humbly submit that in a ravaging pandemic, which was threatening the lives of many
Samunda citizens, the government opted to act expeditiously and efficiently to save the
threatened life of its citizens.2

Section 5(2) of the Fair Administrative Action Act; allows an administrator in certain
circumstances like the one which faced our government, to bypass consultation.3

The Respondent also wishes to refer this court to Article 18 of the ICCPR 4 which allows states to
limit this freedom if the measures are prescribed by the law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of other 5. A similar

1
Thomas Schetelich, Freedom of Religion and COVID-19: Can State Government Close Churches? published on
May 14, 2020, available at; https://www.fsb-law.com/freedom-of-religion-and-covid-19-can-state-government-
close-churches/ Accessed on 02 November, 2021
2
Constitution of Republic of Samunda Art 47
3
Fair Administrative Action Act section 5(2)
4
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, Article 18
5
Ibid Article 18(3)

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finding was arrived at by the Human Rights Committee on General Comment No. 22 of 1993 6.
We submit that the Respondent took into consideration all the above as they sought to impose the
said restrictions. They sought to protect public safety, order and health which were all at stake
due to the rampaging disease that was now a threat both nationally and globally and as such, the
Respondent’s actions cannot be said to be unfair and discriminatory. Limitation of rights in
international law is provided for in article 13 of the International Convention on Civil and
Political Rights (ICCPR)7; In the UN-sub commission on prevention of discrimination and
protection of minorities Siracusa principle on the limitation of and derogation of on the rights in
the ICCPR are provided. A tripartite conditional modal as follows was espoused:
(i) The Condition must be provided in law (the legality condition)- It is the respondent case
before this honorable court that the limitation of rights is provided for in the constitution
of Samunda.8
(ii) The limitation must be in pursuance of a legitimate aim (Condition of Legitimacy)-The
reason for the limitation is the Covid 19 Pandemic. The pandemic has ravaged all across
the country killing seven people and infecting 150 others.9
(iii) The interference must be limited to what is necessary for the fulfilment of the
aim-The respondent submit before this court that the measures taken, restriction of
travels, closure of schools and churches are only to curb the pandemic.

3.2.2 The court should be reluctant to overturn an executive decision; to protect the
doctrine of separation of powers

We humbly submit that this court should be hesitant to review administrative decisions not to be
seen as usurping executive powers. This is also to protect the important principle of separation of
powers
In reviewing these decisions by the executive of republic of Samunda. We invite this court to be
guided by the decision of the high court of Kenya in Republic v Kenya Revenue Authority ex
parte Yaya Towers Limited10the court held that the role of the court is to look into the process of

6
ICCPR, General Comment No. 22, (Forty-eighth session 1993), 30th July, 1993
7
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, Article 13
8
Article 24 of the Constitution of Samunda
9
Paragraph 4 of the Statement if facts
10
Republic v Kenya Revenue Authority ex parte Yaya Towers Ltd [2008] eKLR

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making the decision and not the decision itself. We submit, that the process of making the
decision by government were reasonable and in line with the constitution. In another case
decided in the Kenyan court of Appeal Suchan Investment Limited v Ministry of National
heritage and Culture & 3 Others11The court held that the reviewing body has no mandate to
substitute an administrative decision with its own.

3.2.3 In the alternative we invite this court to borrow a leave from the decisions by the
United States Supreme court;

We rely on the case of Jacobson v. Commonwealth of Massachusetts12 where The United State
Supreme Court ruled in 1905 in a case concerning smallpox vaccinations that “under the pressure
of great dangers constitutional rights may be reasonably restricted as the safety of the general
public may demand.”
In First Baptist Church v. Governor Laura Kelly 13, the question before the court was whether
the executive order issued by Kansas Governor Laura Kelly prohibiting gatherings of more than
10 people which affected churches and other religious activities was in violation to the
constitutional guarantee of freedom of religion. The court held that the order was meant to meet
the crises. It also observed that the Order started with general language concerning “all public or
private mass gatherings.” …. then it went on to list 26 exceptions, including airports, childcare
facilities, hotels, shelters, shopping malls, libraries, senior centers, restaurants, bars, office
spaces, and manufacturing sites14 and as such, it did not discriminate against the churches.

It is for this reasons that the Respondent submits that the government of Samunda has absolute
power to limit the conduct of worship in churches especially where the security of the
individuals and nation at large is at stake.

11
Suchan Investment Limed v Ministry of National Heritage & Culture [2016] eKLR
12
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
13
First Baptist Church v. Kelly, 455 F. Supp. 3d 1078 (D. Kan. 2020)
14
Thomas Schetelich, Freedom of Religion and COVID-19: Can State Government Close Churches? published on
May 14, 2020, available at; https://www.fsb-law.com/freedom-of-religion-and-covid-19-can-state-government-
close-churches/ Accessed on 02 November, 2021

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 3.3.0 ISSUE 3

THE GOVERNMENT OF SAMUNDA DID NOT DISCRIMINATE AGAINST THE

CHURCHES; IT SOUGHT TO PROTECT THE CONGREGANTS

3.3.1 Freedom of Religion is not an absolute right; the government can limit the right as
long as this is consistent with the law

The Respondents note that Article 32 of the Constitution of Samuda provides for freedom of
religion and goes ahead to state that persons have the right to manifest this freedom though belief
and worship.

The Respondent also notes that this right can be limited as it has not been outlined under the
fundamental rights and freedoms that cannot be limited under Article 25 of the Constitution of
Samuda provided that the set limits outlined under Article 24 are meet. As already established,
the limitation was reasonable and justifiable not to mention it sought to protect the people whose
health was at stake.
We rely on the Kenyan Court of Appeal decision In Haki na Sheria Initiative v Inspector
General of Police and 3 others [2020] eKLR where the Court found that various rights and
fundamental freedoms that come to play under the public order act are not absolute and as such
can be limited under Article 24 of the Constitution of Kenya.

The Respondent also submits that the measures taken by the government were issued to ensure
safety and peace and order in the attainment of national security. In addition, the Respondent
wishes to align themselves with the principles laid out by the Supreme court of Kenya in
Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others [2014] eKLR as well as the
High court in Jennifer Shamalla v Law Society of Kenya and 12 others, [2016] eKLR the
public interest lies in saving Kenyan lives and protecting their well-being against Covid-19 and
as such, the Respondent’s actions cannot be said to be discriminatory. We also invite this court to
consider the approach took in the case of Michael Osundwa Sakwa v Chief Justice and the
president of the Supreme Court of Kenya and Another [2016] eKLR where the importance of
bowing to public importance was emphasized.

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In Indonesia, the government bans the Jehovah Witness Religion because of its aggressive
manner in propagating its teachings and also its attempt in trying to convert the other adherents
to its faith15. According to the government, misleading cults are banned in order to maintain
peace and harmony between and among the adherents of the various religions16.

3.3.2 Church gatherings pose a great risk of transmission; the government targeting the
churches is hence justifiable

The Respondents clearly understand the important role that churches and places of worship offer
in the society. In most of the times, places of worship help the believers seek comfort, strength
and direction. It is however important to note that gatherings at places of worship pose a risk for
COVID-19 transmission to potentially large numbers of people from a single case. These
gatherings often involve dense mixing of many people in a confined space, sometimes over
significant periods. These factors are the main drivers for the spread of COVID-19 17 Recently,
numerous COVID-19 cases were linked to places of worship and religious gatherings. For
instance, in Malaysia, the Sri Petaling gathering at the end of February 2020 led to hundreds of
COVID-19 cases across Southeast Asia and was directly linked to nearly 35% of cases in
Malaysia18. It is for such reasons that the government sought to have strict measures in places of
worship in an attempt to safeguard the lives and health of its citizens.

Towards the Holy month of Ramadhan, the WHO on 15 th April, 2020 published its interim
guidelines for safe Ramadan practices in the context of the COVID-19 as well as general
recommendations for religious leaders and faith-based communities 19. These measures highly
discouraged physical and social gatherings which are common during this time and should there
be any such meetings, social and physical distancing ought to be maintained. Older and sick
persons were highly discouraged from attending such meetings. It is on this basis that the
15
Philip Alston and Ryan Goodman, International Human Rights, The Successor to international Human
Rights in context: Law, politics and Morals, “Conflict in Culture, Tradition and Practices; Challenges to
Universalism” Oxford Press, Page 588
16
Ibid
17
Saber Yezli, PhD, Anas Khan, MD, COVID-19 pandemic: it is time to temporarily close places of worship and
to suspend religious gatherings, Journal of Travel Medicine, Volume 28, Issue 2, March 2021, taaa065,
Available https://doi.org/10.1093/jtm/taaa065 Accessed on 05/11/2021
18
Ibid
19
World Health Organization, "Safe Ramadan Practices in the Context of the COVID-19" (2020). Pandemic
Response and Religion in the USA: Health. 51. Available at https://scholarworks.wmich.edu/religion-
pandemic-health/51 Accessed on 05/11/2021

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government of Samuda through Executive Order 5 of 2020 sought to lift some protective
measures and as such restricted church attendance to 50 attendees per session. Persons below the
age of 15 years and above the age of 60 were also not allowed to churches.

In this regard, we urge this court to consider the words of Leonida J in Seventh Day Adventist
Church (East Africa) Limited v Minister for Education and 8 others [2014] eKLR where it was
stated:
“… in adjudicating conflicting rights, the court must assess the harm that would result
from limiting a particular right or freedom in relation to the harm that might be caused
to individuals or the community if the petitioners freedom/rights were to be allowed to
take its cause…”

In ReAbbott 1954 F3 d 772- Court of Appeals, 5 th Circuit 2020, …. states have closed schools,
sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches
from holding public worship services and even locked down entire cities. These measures would
be constitutionally intolerable in ordinary times but are recognized as appropriate and even
necessary to the present crisis….
In First Baptist Church v. Governor Laura Kelly 20 (supra) as quoted above the question before
the court was whether the executive order issued by Kansas Governor Laura Kelly prohibiting
gatherings of more than 10 people which affected churches and other religious activities was in
violation to the constitutional guarantee of freedom of religion. The court held that the order was
meant to meet the crises. It also observed that the Order started with general language concerning
“all public or private mass gatherings.” …. then it went on to list 26 exceptions, including
airports, childcare facilities, hotels, shelters, shopping malls, libraries, senior centers, restaurants,
bars, office spaces, and manufacturing sites 21 and as such, it did not discriminate against the
churches.

We humbly submit that these measures are an act of good faith as the government seeks to
protect its people.
20
First Baptist Church v. Kelly, 455 F. Supp. 3d 1078 (D. Kan. 2020)
21
World Health Organization, "Safe Ramadan Practices in the Context of the COVID-19" (2020). Pandemic
Response and Religion in the USA: Health. 51. Available at https://scholarworks.wmich.edu/religion-
pandemic-health/51

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 3.4.0 ISSUE 4

THE CONSCIENTIOUS OBJECTION “WE WILL RATHER OBEY GOD RATHER

THAN MAN" BY THE CHRISTIAN COMMUNITY IS NOT JUSTIFIED AND THUS
UNJUST

3.4.1 Distinguished Scholars on when to obey God and when to obey man.

St. Thomas of Aquinas is of the opinion that laws framed by man are either just or unjust.
He continues to state that laws are just when they are ordained to the common good. This we
note that it is the case in Samunda seeing that the directives put in place by the government of
Samunda sought to safeguard the lives of the people seeing that as at 21 st April, 3 people had
been reported dead and 156 others reported to have been infected22.
The respondent also notes that St. Thomas of Aquinas is of the opinion that a law can be said to
be unjust when:
i. They are contrary to the human/common good e.g., when an authority imposes on his
subject burdensome laws, not to be to the common good. The Respondent notes that the
laws imposed by the government of Samunda on the churches sought to protect the
congregants. It is also important to note that the respondent had it in mind the best for the
Applicants seeing that they allowed partial resumption of worship services and as such
cannot be said to be unjust.
ii. Laws are opposed to the divine good e.g., laws introducing idolatry or anything else to
the divine law.
In conclusion, the Respondent notes that St. Paul the Apostle clearly states that
“Let every soul be subject to the governing authority. For there is no authority expect
from God, and the authorities that exist are appointed by God. Therefore, whoever
resists the authority resists the ordinance of God, and those who resist will bring
judgement on themselves23.

22
Paragraph 16 of the Hypothetical Question
23
The Holy Bible, Romans 13:1-2, New King James Version

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3.4.2 Constitution directives on respect to the constitution

The constitution of the Republic of Samunda makes itself clear in Article 3(1) that every person
has an obligation to respect, uphold and defend the constitution.
In article 1(3) The constitution outlines how its sovereigns (the people) can exercise their power
and it is through delegated state organs, which shall perform their function according to this
constitution. In our present case, it is the delegates who put these measures in order and as such
ought to be respected by all.

3.4.3 Legal realism view

The question which arises here therefore is what constitute unjust law, and whether by practicing
its constitutionally provided mandate the government of Samunda acted unjustly. A legal realist
approach would be very key in such a circumstance. In Legal realism, a jurisprudence
propounded by great American scholars and thinkers such as Roscoe Pound adopts a naturalistic
approach to the law. A view that law should emulate methods of natural science, i.e., rely in
empirical evidence. Hypotheses be tested against the world. The law which Samunda's
government has imposed should also be compared visa-vis the existing circumstance. It cannot
be said to be unjust since it is practical to the existing facts. American jurist believes there is
more to adjudication than mechanical approach of legal principle.

3.4.4 Prayer

It is the respondent’s case therefore, your honors, that the conscientious " respect to God is better
than respect to law" is misplaced, with all due respect and borrowing a leave from Article 32 of
the Samunda's constitution, which guarantees freedom of conscience and religion, it cannot be
allowed to stand in the light of the prevailing circumstances.

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 4.0 PRAYERS FOR RELIEF

1. A declaration that this litigation is an abuse of court process, unmerited and uncalled for
and as such ought to be dismissed with the costs borne by the Applicants
2. A declaration that the measures that the Republic of Samunda used to regulate the
COVID-19 Pandemic while balancing social economic rights were reasonable and as
such the churches and all religious institutions’ in Samunda should comply.
3. A declaration that the government of Samunda has the authority interfering with the
conduct of worship in churches during and/or after the COVID-19 pandemic especially
when the well-being of the congregants is at stake.
4. A declaration that the Government of Samuda has not in any way infringed on the rights
of the churches and as such Executive Order No. 1 and 5 of 2020 are consistent with the
law
5. Any other relief that the court may deem fit to grant.

We humbly submit.

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