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Detention Without Trial and Constitutional Safeguards in Zimbabwe
Published online by Cambridge University Press: 28 July 2009
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There comes a time during the life of almost every nation when situations arise which threaten its peace and security. At such a time the government may need to acquire certain additional powers to help it combat the danger and this is frequently achieved by the declaration of a state of emergency. This enables it to utilise wide-ranging emergency powers and in this situation national security and public order considerations are placed above the constitution. As a result, among the first casualties of an emergency proclamation are the guarantees of personal liberty and protection of the law which are often abrogated or at least severely curtailed.
The use of detention without trial during periods of emergency has now become commonplace, particularly in developing countries, a point which is defended by President Nyerere of Tanzania on the grounds that:
“Our Union has neither the long tradition of nationhood, nor the strong physical means of national security, which older countries take for granted. While the vast mass of people give full and active support to their country and its government, a handful of individuals can still put our nation in jeopardy, and reduce to ashes the efforts of millions.”
The need for a nation to protect itself in this way cannot be denied and this is widely recognised. For example, Article 4 of the International Covenant on Civil and Political Rights (1966) recognises the rights of governments
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References
1 See generally, Ebiasah, J., “Protection of Political Detainees” (1979) 22Google ScholarJ., Howard L.249Google Scholar.
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4 Similar provisions exist in the European Convention on Human Rights (article 15) and the American Convention on Human Rights, 1969 (article 27).
5 For example, under the 1948 Indian Constitution, the authorities were required to disclose to a detained person the grounds for his detention, but could withhold facts upon which the decision to detain was made if such disclosure was considered to be against the public interest. See Gledhill, A., Fundamental Rights in India, London, 1956, p. 90Google Scholar. In Tanzania, the Preventive Detention Act (Cap 490) provides that “no order made under this Act shall be questioned in any court” (section 3). This has been held not to exclude courts from inquiring into the genuineness and procedural aspects of such orders. See Dhirani's case 1979 L.T.R. n.I.Google Scholar (High Court).
6 Chapter 74 of the Laws of Southern Rhodesia.
7 Other related Acts included the Subversive Activities Act 1950, Public Order Act 1955 and the Protected Places and Areas Act 1959. Much of this legislation was then consolidated into the infamous Law and Order (Maintenance) Act 1960.
8 Section 3. The power was then used against persons who were a) concerned in any of the activities which led to the declaration of the state of emergency (e.g. civil disorder concerning demands for one-man vote elections); and (b) involved in any activity which was potentially dangerous to public safety or order. Section 3(2).
9 Preventive Detention (Temporary Provisions) Amendment Act 1964.
10 [1964] R.L.R. 520.
11 Chapter 33 of the Laws of Southern Rhodesia.
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13 R.G.N. No. 736 of 1965. The regulations were issued in response to increased threats to internal security from African nationalists and not in anticipation of U.D.I.: see Young, Rhodesia and Independence, London. 1969Google Scholar.
14 This phrase was not defined and its constant presence in all the later regulations has continued to give the Minister wide and ill-defined powers.
15 Act 14 of 1966.
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19 Section 78A. This was added by virtue of section 6 of the Constitutional Amendment Act 1966, Act 49 of 1966.
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24 As the House was completely white dominated this was, in practice, hardly an important limitation.
25 See section 69 subsections (2) and (3). Prior to this, such a declaration had required renewal every three months: Emergency Powers Act section 3(2). The need for a new declaration at the expiry of the old was also removed since Parliament now had the power to resolve that it was “expedient] that an existing state of emergency should continue in force: section 61(4).
26 The first chairman was Sir Hugh Beadle.
27 A detainee could appear personally before the tribunal and, although not specified in the regulations, it was customary to allow legal representation.
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30 S.I. 458 of 1983.
31 HC-H-167–82.
32 Schedule 2 paragraph 1.
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37 The “Protecting Authority] is a commissioned police officer appointed by the Commissioner of Police to be in charge of a specified area of Zimbabwe: see section 3(1) (a) of the regulations.
38 That is on April 18, 1985.
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