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Published online by Cambridge University Press: 28 July 2009
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
1 See generally, Ebiasah, J., “Protection of Political Detainees” (1979) 22Google ScholarJ., Howard L.249Google Scholar.
2 SeeDuchacek, I., Rights and Liberties in the World Today: Constitutional Promise and Reality, Santa Barbara, 1973Google Scholar.
3 Freedom and Unity, London, 1969, pp. 312–13Google ScholarPubMed.
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.
12 Proclamation 51 of 1965.
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.
16 An “essential service” had been given a wide interpretation. R.G.N. No. 798A of 1965 promulgated the Emergency Powers (Declaration of Essential Service) Order which declared that “finance, commerce and industry” were to be included in the phrase “essential service” for the purposes of the Exchange Control Act, Chapter 170. This declaration is still operative being expressly saved by section 66 of the Emergency Powers (Maintenance of Law and Order) Regulations 1980 (now section 72 of the 1983 regulations). In Stubbs v. Minister of Home Affairs 1982 (I) S.A. 383Google Scholar, it was held in the High Court of Zimbabwe that an exchange control offence was covered by the regulations as foreign currency reserves were an “essential service” under the regulations.
17 A state of emergency has continued to exist in the country ever since, the latest renewal being made in 07 1985Google Scholar.
18 R.G.N. No. 71 of 1966.
19 Section 78A. This was added by virtue of section 6 of the Constitutional Amendment Act 1966, Act 49 of 1966.
20 The word “defence” was not defined. The provision was severely criticised as being a guarantee against the protection of liberty, being frighteningly wide in its scope for arbitrariness. See Austin, R., The Character and Legislation of the Rhodesia Front since U.D.I., unpublished, (1968)Google Scholar.
21 [1966] R.L.R. 756 (G.D.)Google Scholar; [1968] R.L.R. 203 (A.D.)Google Scholar.
22 The case provoked much academic comment and was termed “manna for jurisprudes] by Palley, (1967) 30 M.L.R. 262Google Scholar. See also, Dias, 1967 C.LJ. 5Google Scholar; de Smith, (1968) 7 Western Ontario Law Review 93Google Scholar; Hahlo, (1969) 86 S.A.L.J. 419Google Scholar.
23 On the facts, the particular regulations which purported to authorise the continued detention was held to be ultra vires the Emergency Powers Act, ironically a point which would have applied with equal force had there been no revolution. See in particular the judgment of Beadle, C. J., at p. 297Google Scholar. The Act was later amended to rectify the point. See Emergency Powers (Amendment) Act, Act 4 of the 1968 and the Indemnity Act, Act 48 of 1968.
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.
28 The value of the tribunal was dubious and Feltoe refers to it as “little more than a rubber stamp agency for Ministerial action]. See Feltoe, G., Law. Ideology and Coercion in Southern Rhodesia. Unpublished M.Phil thesis, (1979)Google Scholar.
29 Section 68(1) of the Constitution of Zimbabwe. The state of emergency in force prior to independence was deemed to continue to have effect on and after Independence Day as if were a declaration made under section 68: Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order 1980, section 14.
30 S.I. 458 of 1983.
31 HC-H-167–82.
32 Schedule 2 paragraph 1.
33 A similar provision also appears in section 41 of the regulations.
34 See McNally, J. in York v. The Minister of Home Affairs and Others, HC-H-264–82Google Scholar.
35 HC-H-180–82 (H.C.); 1982 (4) S.A. 301 (S.C.).Google Scholar
36 Dumiso Dabengwa and Lookout Masuku were the two leading military aides of ZAPU leader Joshua Nkomo, Masuku being appointed deputy Army Commander in the new Zimbabwe Army. Both were detained following the discovery of some 70 arms caches by government forces in Matabeleland.
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.
39 1982 (4) S.A. 301 (S.C.), at 306.Google Scholar
40 For example, section 24 of the Constitution permits a person to apply direct to the Supreme Court if he alleges that the Declaration of Rights has been, is being or likely to be contravened in relation to him. However, if the allegation relates to rights found in the schedule he must apply to the High Court in the first instance.
41 [1979] 3 All E.R. 21. See also Sigaba v. Minister of Defence and Police and Another, 1980 (3) S.A. 535 at 541Google Scholar.
42 Op. cit. at 26. See also Maximea and Others v. Attorney-General 21 W.I.R. 548.Google Scholar
43 HC-H-264–82.
44 HC-H-218–82.
45 1982 (4) S.A. 496.Google Scholar
46 See Woodv. Minister of Home Affairs HC-H-247–82.
47 Above, note 43.
48 See also Sharma v. Attorney-General [1978] Z.R. 163 at 168Google Scholar.
49 See schedule 2. paragraph 2(1).
50 For example, the Standard O.U.P. dictionary defines the word as meaning “make due preparation for] and it may be argued that this could encompass the preparatory act of detention.
51 7th edition, 65.
52 Op. cit., 65–66.
53 C.A.Z. Judgment No. 16 of 1972.
54 At 6.
55 [1957] 1 All E.R. 49.Google Scholar
56 At 53.
57 [1985] L.R.C. (Const.) 612.Google Scholar
58 A.I.R. 1951 S.C. 157.Google Scholar
59 (1967) 10 W.I.R. 435.Google Scholar
60 At 452.
61 [1972] Z.R. 248.Google Scholar
62 At 262.
63 See for example, Puta v. Attorney–General S.C.Z. Judgment No. 25 of 1983Google Scholar and Musakana v. Attorney–General S.C.Z. Judgment No. 35 of 1980Google Scholar. As Becker points out, poor illiterate persons often conduct their own defence against intelligent, well-trained and experienced government attorneys. Becker, T., Political Trials, Indianapolis, 1971, at 85Google Scholar.
64 See State of Bombay v. Atma Ram 1951 S.C.R. 167Google Scholar and Sasthi v. State of W.B.A. 1974 S.C.R. 525Google Scholar. It should be noted that it has been held that the concept of alibi is essentially separate and distinct from that of vagueness and is capable of succeeding even where a ground is free from vagueness: Chisata and Lombe v. Attorney–General S.C.Z. Judgment No. 6 of 1981Google Scholar.
65 loc. cit., at 622Google Scholar.
66 See the study prepared by the Commission States of Emergency (1983)Google Scholar.
67 HC-H-160–82.
68 At 3.
69 HC-H-119–83.
70 See for example, Hudson v. Hill (1874) 43 L.J.C.P. 273Google Scholar; R v. Ely J.J. (1855) 5 E. & B. 489Google Scholar.
71 [1967] 2 All E.R. 361 at 363.Google Scholar
72 15 Q.B.D. 667.
73 At 679.
74 Sec Drymalik v. Feldman 1966 S.A.S.R. 231Google Scholar and Adams v.Rogers [1907] V.L.R. 245Google Scholar. See also Paweni v. Chairman, Detention Review Tribunal HC-H-293–84.
75 1953 (2) S.A. 675.Google Scholar
76 At 678. See also the judgment of Lord Coleridge in Ex. parte Lowe (1846) 3 Dow & L. 737Google Scholar and Willes, J. in King v. Chamberlain (1871) 40 L.J.C.P. 273Google Scholar.
77 See n. 31.
78 In Zambia the case must be reviewed not more than one month after the commencement of the detention. Preservation of Public Security Regulations, section 33(8).
79 HC-H-418–83.
80 1984 (2) S.A. 345Google Scholar; [1985] L.R.C. (Const.) 581Google Scholar.
81 Ibid., at 598.
82 See York v. The Minister of Home Affairs and the Director of Prisons. HC-H-218–82 at 16.Google Scholar
83 HC-H-228–82.
84 See also Moll v. Commissioner of the Zimbabwe Republic Police and Others HC-B-46–83 and the comments of Beck, J. A., in Minister of Home Affairs and Another v. Dabenqwa [1985] L.R.C. (Const.) 581 at 597Google Scholar.
85 Above, n. 44.
86 (1971) 19 W.I.R. 136.Google Scholar
87 At 146.
88 1982 (4) S.A. 496.Google Scholar
89 1984 (2) S.A. 345;Google Scholar[1985] L.R.C. (Const.) 581.Google Scholar
90 Ibid., 596.
91 [1941] 3 All E.R. 388.Google Scholar
92 [1941] 3 All E.R. 338;Google Scholar[1942] A.C. 206.Google Scholar
93 per Lord Reid in Ridge v. Baldwin [1964] A.C. 40 at 73Google Scholar.
94 See for example, Lord Scarman's judgment in R. v. I.R.C. ex. parte Rossminster [1980] A.C. 952 at 1025Google Scholar.
95 [1960] I.R. 93.Google Scholar
96 (1976) 23 W.I.R. 136.Google Scholar The name of the applicant and citation are incorrectly given in the judgment.
97 [1966]E.A. 514.Google Scholar
98 [1970] Z.R. 31 (H.C.);Google Scholar [19711 Z.R. I (S.C).
99 (1881)6. Q.B.D. 376.Google Scholar
100 Ibid., at 463.
101 [1941] 3 All E.R. at 349.Google Scholar
102 See n. 94 and also R. v. Home Secretary ex parte Khawaja [1983] 2 W.L.R. 321 at 343 and 354Google Scholar.
103 [1970] Z.R. at 37.Google Scholar
104 e.g. State of Bombay v. Almaram (1951) A.l.R. S.C.R. 167Google Scholar.
105 [1971] Z.R. 1.Google Scholar
106 At page 7.
107 Support for this view may also be found in the judgment of Malone, J. in Kelsall v. Pill (above, n. 86) where he stated at 140Google Scholar:” in construing an emergency it is necessary to ensure that there has been strict compliance with the terms of the enactment and that the enactment conforms to the Constitution”.
108 It may be that not all procedural defects will inexorably lead to release. See Doyle, C. J. in Chipango (above, n. 98) at 7–8Google Scholar and Silungwe, C. J., in Attorney-General v. Juma [1985] L.R.C. (Const.) 635 at 640Google Scholar.
109 Above, n. 43.
110 See Dumbutshena, J., in York v. Minister of Home Affairs and the Director of Prisons HC-H-218–82 at 28Google Scholar. Also Hadhibandhu Das v. District Magistrate of Cuttack and Another 1969 A.I.R. S. G. 63Google Scholar.
111 [1973] Z.R. at 260.Google Scholar
112 House of Assembly, Debates, 07 13, 1983, 395Google Scholar. See also Gledhill, A., Fundamental Rights in India (1956) at 126Google Scholar.
113 See above p. 38. The United States passed the Emergency Detention Act 1950 and in the United Kingdom similar legislation was passed during the Second World War for example, the notorious Regulation 18B.
114 General Report on “Government Action, State Security and Human Rights” given to the 10th African Conference on the Rule of Law, Lagos 1961, 42–55Google ScholarPubMed.
115 Elias, ibid., 44, contends that this is the fundamental difference between totalitarian regimes such as Hitler's Germany and Franco's Spain and the liberal democracies of the western world.
116 For example, in Zambia, Proclamation 5 of 1964 (G.N. 376 of 1964) declared a state of emergency, being based on the existence of serious internal strife as a result of the Lumpa uprising. The state of emergency remains in force and since 1969 has not needed express renewal. See Puta v. Attorney-General, above n. 63Google Scholar.
117 Above, n. 56.
118 [1978] Z.R. 233.Google Scholar See also Haruperi v. Minister of Home Affairs HC-H-242–84.
119 Ibid., at 240. Paweni was later tried and convicted of fraud in the High Court and sentenced to 16 years imprisonment.
120 Civil Appeal 42/61.
121 See e.g. States of Emergency, I.C.J. (1983) at 107Google ScholarPubMed.
122 (1971) I U.I.L.R. 210.Google Scholar See also 20 I.C.L.Q. 117.
123 See also Dhirani (1979) referred to above, n. 5Google Scholar.
124 See the Universal Declaration on the Independence of Justice 1983, article 2. 06(d)(ii).
125 “The State must be allowed an opportunity to put right its mistakes unless the court is satisfied that the ‘mistakes’ are mala fide, either in the sense that they are deliberate infringernents of the human rights of the detainees, or that, while not actually deliberate, they arise out of contemptuous disregard or lack of concern for those rights.” per McNally, J., in Moyo and Others v. The Minister of Home AffairsGoogle Scholar HC-H-478–83.
126 See generally the Report of Committee IV of the International Congress of Jurists, New Delhi, 1959Google Scholar.