Shaban Khamis Mloo and Others v. The Superintendent of Zanzibar Prisons and Another Civ no 19 of 1991 (preventive detention)

Shaban Khamis Mloo and Others v. The Superintendent of Zanzibar Prisons and Another

High Court (Hamid C.J.): February 19, 1991

Constitutional Law-Union Constitution 1977-preventive detention- whether a Union matter-Preventive Detention Act of 1962 and Preventive Detention Amendment Act of 1985- extension of application of law to Zanzibar-defence and security Union matters - provision for defence and security in Zanzibar Constitution contravenes Union Constitution- detention order under Zanzibar Preventive Detention Decree 1964 on grounds of security illegal

The five applicants filed an application for issue of directions in the nature of habeas corpus, section 361(b) of the Criminal Procedure Decree. In their supporting affidavit, they alleged that they had been detained without warrant, without being shown a detention order, and without being informed of the reasons for their detention.

The applicants asked for summons to be issued to the Commissioner for the Institutions of Rehabilitation of Offenders (Prisons) and the Attorney General to show cause why a writ of habeas corpus should not issue directed to them to produce the bodies of the applicants and to show cause why they should not be released forthwith. 

Counsel for the applicants argued that the detention of the applicants was illegal because the detention order was issued under a defunct Zanzibar Preventive detention Decree no. 3 of 1964 which was no longer applicable on matters relating to the security of Zanzibar, which was part of the United Republic of Tanzania.  He argued further that security matters were Union matters between Tanzania Zanzibar and Tanzania Mainland listed in the First Schedule to the 1977 Constitution of the United Republic and governed by the National Defence Act No. 3 of 1970. He finally argued that the detention was illegal as the proper procedure for detaining persons under the Preventive Detention Act no. 60 of 1962 as amended by Preventive Detention (Amendment) Act No. 2 of 1985 was not followed. 

It was argued on behalf of the State that the applicants detention was legal as the Preventive Detention Decree No. 3 of 1964 was still in force and that maintenance of peace and good order were non-Union matters, and that the provisions of the Union Constitution did not oust the powers of the President of Zanzibar under the Preventive Detention Decree 1964.

The Court framed the following issues:-

(i)   Whether the effect of extending the application of the Mainland Preventive Detention Act of 1962 conferring powers of preventive detention on the Union President, to the whole of Tanzania legally precluded the President of Zanzibar from exercising similar powers conferred on him in relation to non-Union matters by the Zanzibar legislature.

(ii) Whether the detention of the applicants was not valid merely because it had been carried out under the Preventive Detention Decree of 1964 instead of the Union Preventive Detention Act of 1962 as amended by the Preventive Detention Act of 1985.

Held:

1. The Zanzibar Preventive Detention Decree of 1964 deals with matters relating to defence and security.  At the same time the Union Parliament Preventive Detention Amendment Act of 1985 extended the application of the Tanzania Mainland Detention Act of 1962 to Zanzibar as well as the Mainland. However, preventive detention is not a non-Union matter, which is exercisable, only by the Union President as the exercise of such power may be necessitated by incidents or activities relating to defence and security as well as other non-Union matters.

2. Matters surrendered to the Union Government do not include “peace and good order”, “preventive detention” or “detention power”.  Preventive detention may be ordered in cases other than those related to defence and security and which may not necessarily involve the application of National defence or security.  It may be carried out to prevent breaches of peace and maintenance of good government.  It was not the intention of the Union Parliament to deprive the President of Zanzibar of powers to take preventive measures towards those who disturb the peace in Zanzibar in relation to purely non-Union matters.

3. In light of Articles 64(4) and 65(3) of the Union Constitution, the Zanzibar Preventive Detention Decree of 1964 in as far as it provides for matters of defence and security is inconsistent with the Union Constitution.  The President of Zanzibar cannot therefore detain any person under that law on the grounds of defence and security.

4. The detention of the applicants in this case had been ordered on security grounds, and it being a matter reserved for the Union should have been left for the President of the United Republic under the Preventive Detention Act of 1962 as amended by the Preventive Detention Amendment Act of 1985.  Consequently, the detention of the applicants was illegal.

Application granted.  As the applicants were already released, no order for their release made.

Lipiki for applicants

Mtembei for the respondents

Legislation considered:

1.    Constitution 1977 Articles 37(3), 64(2), (3) and (5), 106(3), First Schedule

2.    National Defence Act No.3 of 1970

3.    Preventive Detention Act No. 60 of 1962 S. 2

4.    Preventive Detention Amendment Act No. 2 of 1985

5.    Preventive Detention Decree of Zanzibar No. 3 of 1964 S.2

Cases referred to:

1.    H. Das v. District Magistrate, Cuttak [1969] A.I.R. 43, S.C.

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