SHABAN KHAMIS MLOO AND OTHERS v THE SUPERINTENDENT OF ZANZIBAR PRISONS AND ANOTHER 1991 TLR 21 (HC)

SHABAN KHAMIS MLOO AND OTHERS v THE SUPERINTENDENT OF ZANZIBAR PRISONS AND ANOTHER 1991 TLR 21 (HC)

Court High Court of Tanzania - Zanzibar

Judge Hamid CJ

19 February, 1991

Flynote

Constitutional law - Preventive Detention - On grounds of peace and security - Whether Union matter.

Constitutional law - Preventive Detention - Whether the Zanzibar Preventive Detention Decree No. 3 of 1964 is valid in view of the Preventive Detention Act, No. 60 of 1962 as amended by Act No. 2 of 1985 whose application has been extended to Zanzibar. 

-Headnote

This was an application for the issue of direction in the nature of habeas corpus made on behalf of the 5 applicants who were detained under the provisions of the Zanzibar Preventive Detention Decree No. 3 of 1964. The applicants were detained so that they would not disrupt peace and security. It was argued for the applicants that detaining a person on grounds of security could only be ordered under the Preventive Detention Act. No. 60 of 1962 as amended by Act, No. 2 of 1985 by the President of the United Republic of Tanzania because peace and security are matters reserved for the Union.

Held: (i) Since the list of Union matters in the constitution of the United Republic of Tanzania, 1977, does not include preventive detention power or preventive detention per se as a Union matter it means the President of Zanzibar is empowered to order preventive detention in relation to non-Union matters pertaining to Zanzibar.

(ii) the position of the Zanzibar Preventive Detention Decree No. 30, 1964 in the light of Articles 65(4) and 64(3) of the Union Constitution is that that legislation is inconsistent with the Union Constitution in so far as matters E of defence and security are concerned and therefore it stands null and void to that extent alone;

(iii) since preventive detention on matters not related to defence and security is a non-Union matter only legislation passed by the Union Parliament legislating for Zanzibar on that subject would be inconsistent with F Articles 106(3) and 64(2) of the Union Constitution, 1977 as well as Article 7(1) of the Zanzibar Constitution, 1984, hence the extension to Zanzibar of the Union Preventive Detention Act No. 60 of 1962, as amended by Act No. 2 of 1985 is valid to the extent it relates to Union matters of defence and security only whereas the non-Union G aspect of it relating to Zanzibar is exercisable by the President of Zanzibar under the relevant Zanzibar legislation;

(iv) the mere fact that the Union Preventive Detention Act confers powers on the Union President and extends its applicability to Zanzibar as well as mainland Tanzania does not preclude the President of Zanzibar from H exercising similar powers on non-Union matters relating to Zanzibar;

(v) since the detention of the applicants was grounded on security matters which are Union matters it should have been carried out under the orders of the President of the United Republic of Tanzania pursuant to the I Preventive Detention Act. No. 60 of 1962 as amended by Act No. 2 of 1985;

(vi) the detention of the applicants as carried out under the orders of the President of Zanzibar pursuant to A the Zanzibar Detention Decree No. 3 of 1964 is illegal.

Case Information

Application granted.

Lipiki, for applicants.

Mtembei, for the respondents.

[zJDz]Judgment

Hamid CJ: This is a chamber application for the issue of directions in the nature of habeas corpus as provided for under section 361(b) of the Criminal Procedure Decree, Cap. 14, the Laws of Zanzibar, Revised Edition. The C application in this case which is supported by an affidavit has been filed in this court by J.L.P. Lipiki Esq., advocate, on behalf of five applicants namely, Shaban Khamis Mloo, Ali Haji Pandu, Soud Yussuf Mgeni, Mchano Khamis Ali and Juma Othman Juma whom it is alleged that between 23rd and 30th of June, 1990 have been D detained either without warrant and without being shown any detention order or without being informed the reasons for their detention. The applicants through their advocate, Mr Lipiki, have asked this Court to order Summons to be issued to the Commissioner for the Institutions for the Rehabilitation of Offenders (Prisons) and the Attorney-General to be called upon to show cause why a writ of habeas corpus should not issue directed to them to have the bodies of the applicants be produced before this court and to show cause why they should not be forthwith released.

In support of his application, Mr Lipiki, the Counsel for the applicants has advanced the following arguments:

(i)That the applicants were detained under the provisions of section 2 of the Zanzibar Preventive Detention Decree, No. 3 of G 1964 which is no longer operative on matters relating to security of Zanzibar which is part of the United Republic of Tanzania.

(ii)On the Union day, that is on 26th day of April, 11964, the Zanzibar Revolutionary Government surrendered some of its H affairs to what is now known as the Government of the United Republic of Tanzania and therefore those matters surrendered to the Union Government ceased to operate in Zanzibar and that the laws promulgated or adopted by the Parliament of the United Republic of Tanzania took their place. The affairs surrendered by the Revolutionary Government are listed in the First Schedule to the Constitution of the United Republic of Tanzania, 1977, which includes matters of defence and security.

(iii)That the reason given in the order for the detention of the applicants which was signed by the President of Zanzibar and Chairman of the Revolutionary Council, is that the detention was intended to prevent the applicants from endangering peace and security of Zanzibar by their acts of inciting the citizens of Zanzibar to disrupt the general elections of 1990.

(iv)That matters of Defence and Security are Union matters (in accordance with 1977 Union Constitution) and are governed by the National Defence Act, No. 3 of 1970 respectively both of which have expressly stated that they shall apply to Tanzania Zanzibar as well as mainland Tanzania rendering the Zanzibar Preventive Detention Decree inapplicable.

(v)That the detention of the applicants is illegal because the order for their detention was issued under the defunct Zanzibar Preventive Detention Decree, No. 3 of 1964 instead of the operative Preventive Detention Act, No. 60 of 1962 as amended by the Preventive Detention (Amendment) Act, No. 2 of 1985 of the Union Government.

(vi)That the detention of the applicants is illegal because the purported detention order was not directed and signed by the G President of the United Republic of Tanzania or by any of the persons named in section 37(3) of the Constitution of the United Republic of Tanzania.

(viii)The detention of the applicants is illegal because the applicants were not informed in writing the grounds on which they were being detained nor have their detention been gazetted as required under the provisions of the Preventive Detention Act, 1962 as amended by Act No. 2 of 1985.

In countering the arguments advance by Mr. Lipiki on behalf of the applicants, Mr Mtembei an Attorney of the State appearing on behalf of both respondents argued that the detention of all applicants is legal on the following grounds:

(i)That the applicants are detained vide a valid detention order signed by the President of Zanzibar and Chairman of the Revolutionary Council acting under the powers conferred upon him under section 2 of the Preventive Detention Decree, No. B 3 of 1964 which is still in force because it has neither been repealed by the Preventive Detention Act of the Union nor by any other law.

(ii)That the reason behind the detention of the applicants is the maintenance of peace and good order of Zanzibar which is C non-Union matter and therefore falls within the powers of the President of Zanzibar; and

(iii)That the provisions of the Constitution of the United Republic of Tanzania 1977, do not oust the powers of the President D of Zanzibar of detaining persons under the Preventive Detention legislation of Zanzibar on non-Union matters.

The arguments brought forward by Mr. Lipiki on behalf of the applicants can be summarized as follows:

That the detention of the applicants is illegal because the detention order was issued under a defunct  Zanzibar Preventive Detention Decree, no. 3 of 1964 which is no longer operative on matters relating to Security of Zanzibar since Security matters are among Union matters listed in the First Schedule to the 1977 Constitution of United Republic; and finally the proper procedure for detaining persons under the Preventive G Detention Act (No. 60 of 1962 as amended by Act.

No. 2 of 1985) was not followed as a result of which render the detention to be illegal. It has been brought to the notice of this Court that two piece of legislation exist in Tanzania dealing with preventive detention namely Preventive Detention Decree, No. 3 of 1964 of Zanzibar and Preventive Detention Act, No. 60 of 1962 amended by the Preventive Detention (Amendment) Act, No. 2 of 1985. While the Counsel for the applicants contends that the detention of the  applicants having been carried out under the Zanzibar Preventive Detention Legislation is illegal on the grounds that the Zanzibar Preventive Detention legislation is defunct and that such detention should have properly been carried out under the orders of President of the United Republic pursuant to the procedure laid down under the valid Union Preventive Detention Act, No. 60 of 1962, Mr. Mtembei, appearing on behalf of the Respondents contends that the applicants have been detained under the orders of President of Zanzibar acting under powers conferred upon him under section 2 of the Preventive Detention, No. 3 of 1964 and that the provisions of the Constitution of the United Republic in no way oust the Powers of the President of Zanzibar of detaining persons under the Preventive Detention legislation of Zanzibar on non-Union matters. Therefore the arguments put forward (by both parties) call upon this Court to examine the following issues:

(i) Whether the effect of extending the application of the (mainland) Preventive Detention Cat, No. 60 of 1962 (so as to make it applicable throughout the United Republic of Tanzania and upon such legislation conferring powers of preventive detention to the Union President) is to legally preclude the President of Zanzibar from exercising similar E powers in relation to non-Union matters pertaining to Zanzibar under the powers conferred upon him by the by the Zanzibar legislature.

(ii) Whether the detention of applicants is not valid merely because it has been carried out under the 1964 Zanzibar legislation instead of the Preventive Detention Act, No. 60 of 1962 of the union as amended by Act No. 2 of 1985.

Since the main arguments in this application are centered around the validity of the law empowering the President of Zanzibar to order preventive detention, and whereas it is a notable fact that all legislation find their validity from the Constitution, a quick postmortem of the 1977 Constitution of the United Republic and the 1984 H Constitution of Zanzibar is likely to present us with a possible solution to the problem at hand.

It has been emphasized by the Union Constitution in Articles 64(2) and 106(30 that legislative powers in respect of I all non-Union matters for Zanzibar are exclusively vested in the Zanzibar legislature. The two Articles are reproduced in their original Swahili version as follows:

Article 64(2): A

Mamlaka yote ya kutunga Sheria katika Tanzania Zanzibar juu ya mambo yote yasiyo Mambo ya Muungano yatakua mikononi mwa Baraza la Wawakilishi.

Article 106(3): B

Madaraka yote ya kutunga Sheria katika Zanzibar juu ya mambo yote yasiyo Mambo ya Muungano yatakua mikononi mwa Baraza la Wawakilishi la Zanzibar.

It is worth also to note Article 64(1) which states: C

Mamlaka yote ya kutunga sheria juu ya mambo yote ya Muungano na pia juu ya mambo mengine yote yahusuyo Tanzania Bara, yatakua mikononi mwa Bunge.

Translated in English this Article would read that:

Legislative powers in respect of all Union matters and all matters relating to Mainland Tanzania shall vest in the Union Parliament.

We might as well be wise to further look into Article 64(3) which reads:

Article 64(3)

Endapo sheria yoyote iliyotungwa na Baraza la Wawakilishi inahusu jambo lolote katika Tanzania Zanzibar ambalo liko F chini ya mamlaka ya Bunge, Sheria hiyo itakua batili na itatenguka na pia endapo sheria yoyote iliyotungwa na Bunge inahusu jambo lolote ambalo liko chini ya mamlaka ya Baraza la Wawakilishi, sheria hiyo itakua batili na itatenguka.

Put in English it would read that :

Any law enacted by the Zanzibar legislature in relation to Union matters which are reserved for the Union Parliament shall be null and void, so also any enacted by the Union Parliament on non-Union matters reserved for the Zanzibar legislature H shall likewise be of on effect.

Having gone through the above articles of the Union Constitution it is then upon us to see what is the position of the I Union Preventive Detention Act in relation to the Union Constitution and then see what is the position of the Zanzibar's Preventive Detention Decree, No. 3 of 1964 vis-à-vis the same Constitution. In this view it is worth to go through Article 64(5) of the Union Constitution which states: Articles 64(5):

Bila ya kuathiri kutumika kwa katiba ya Zanzibar kwa mujibu wa Katiba hii kuhusu mambo yote ya Tanzania Zanzibar C yasiyo mambo ya Muungano, Katiba hii itakuwa na nguvu ya Sheria katika Jamhuri nzima ya Muungano na endapo Sheria nyingine yoyote itakiuka masharti yaliyomo katika Katiba hii, Katiba ndio itakuwa na nguvu, na Sheria hiyo nyingine, kwa kiasi inayokiuka Katiba, itakua batili.

Put in English this provision would read that:

Without prejudice to the application of Zanzibar Constitution in relation to non-Union matters pertaining to Zanzibar, this Constitution shall have the force of law throughout the United Republic and if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void.

The question before us now is are the two Preventive Detention legislation prevailing in the two parties to the Union or any one of these legislation inconsistent with the Constitution? If so how could they or any of them be viewed in terms of the provisions of Article 64(5) of the Union Constitution" In other words could any of them be void in toto or to what extent could they or any of them be held to be valid?

There is no doubt that prior to the Union between Zanzibar and Tanganyika Zanzibar had its own Preventive Detention Decree, No. 3 of 1964.

Section 2 of the said Preventive Detention Decree, No. 3 of 1964 stipulates:

Section 2. Where: (a) the President of Zanzibar is satisfied that any person is conducting himself so as to be dangerous to peace and good order in any part of Zanzibar or is acting in a manner prejudicial to the defence of Zanzibar or the Security of the A Republic; or

(b) the President is satisfied that an order under this section is necessary to prevent any person acting in a manner prejudicialy to peace and good order in any part of Zanzibar, or to the defence of Zanzibar or the security of the Republic, the President may, by order under his hand direct the detention of that person.

Section 1(2) - This act shall apply throughout the United Republic. Section 2(1) stipulates:

Section 2(1): Where:

(a) it is shown to the satisfaction of the President that any person is conducting himself so as to be dangerous to peace and good order in any part of the United Republic or is acting in a manner prejudicial to the defence of the United Republic or the security of the State; or

(b) the President is satisfied that an order under this section is necessary to prevent any person acting in a manner prejudicial to peace and good order in any part of the United Republic, or to defence of the United Republic or F security of the State, the President may by order under his hand and the Public Seal, direct the detention of that person.

The two sections quoted are similar save for the fact that section 2 of Preventive Decree No. 3 of 1964 viewed as it presently stands, empowers the President of Zanzibar to exercise preventive detention in Zanzibar when he is satisfied that a person conducts himself in such a way that he is likely to endanger peace and good order of Zanzibar, or behaving in a manner prejudicial to the defence of Zanzibar or the security of the Republic (Zanzibar), H while section 2 of the Union Preventive Detention Act. No. 60 of 1962 empowers the Union President to exercise similar powers for the purposes of maintenance of peace and good order in any part of the United Republic and also for the purpose of preventing any person from acting in a manner prejudicial to the defence of I the United Republic or security of the State. It will be seen therefore, that whereas the President of Zanzibar under section 2 of the Zanzibar Preventive Detention Decree, 1964, can exercise preventive detention in relation to those persons who are in Zanzibar and whose behaviour is likely to compel the application of the said provisions. Section 2 of the Union President to exercise similar powers throughout the United Republic.

Influenced by the notion that both Preventive Detention legislation are related to matters of defence and security, C which matters Zanzibar has surrendered to the Union Government after the April 26, 1964 Union of Zanzibar and Tanganyika to form the United Republic of Tanzania coupled with the amendment of the 1962 Preventive Detention Action of the mainland Tanzania by Act. No. 2 of 1985 making it also applicable to Zanzibar as well as D mainland Tanzania, the Counsel for the applicants, Mr. Lipiki contends that the Zanzibar Preventive Detention Decree is not applicable firstly because it relates to matters of defence and security which are Union matters and secondly because Act. No. 2 of 1985 extends the application of Preventive Detention Act. No. 60 of 1962 to E Zanzibar and since the Zanzibar legislation is an earlier one and was later followed by the 1985 legislation on the same matter, according to a legal maxim "leges posteriores priores contrarias abrogant" which means later laws abrogate prior contrary laws, then the Zanzibar Preventive Detention Decree, 1964 by implication is repealed by the Preventive Detention Act of the Union. In support of is contention Mr. Lipiki also cited the case of F Smith v Benabo [1937] 1 K.B.518 which states that it is a well settled rule of construction that if a later statute again describes an offence created by a previous one and imposes a different punishment, or varies the procedure, the earlier one is repealed by later statute.

This Court agree with Mr. Lipiki, the counsel for applicants that the Preventive Detention Decree, No. 3 of 1964 of Zanzibar comprises matters relating to defence and security which at the same time the Parliament of the United Republic passed the Preventive Detention (Amendment) Act, No. 2 of 1985 extending the application of the mainland Preventive Detention Act. No. 60 of 1962 to Zanzibar as well as mainland. The immediate question that comes up is that with the extension of the application of the Union Preventive Detention Act. to Zanzibar without specifically providing for the repeal of the Zanzibar Preventive Detention legislation, and with the act of I conferring power, by the Union Preventive Detention Act, to the President of the Unite Republic, does this state of affairs necessarily preclude the President of Zanzibar from exercising similar powers conferred A by a legislation passed by the Zanzibar legislature on non-Union matters?

It is the view of this Court that by precluding the President of Zanzibar from exercising the preventive detention power under section 2 of the Preventive Detention Decree of Zanzibar on the grounds that such powers are B exercisable only by the President of the Unite Republic of Tanzania under the Union Preventive Detention Act would be tantamount to suggesting that Preventive Detection is a Union matter simply because as was contended by Mr. Lipiki, counsel of the applicants, defence and security are matters which are governed by the National Security Act, No. 3 of 1970 and National Defence Act, No. 24 of 1966 both of which are Union legislation. I am of the strong view that it is erroneous to hold that both Preventive Detention legislation are solely related to matters pertaining to defence as security and that preventive detention is governed only by the National Security Act. (No. D 3 of 1970) and the National Defence Act (No. 24 of 1966) because an Indian case of H. Das v District Magistrate, Cuttak (1969) A.I.R.43, S.C. does to some extent provide a view contrary to the one put forward by the learned counsel for appellants.

The facts of that case in so far as they are relevant to the present application appear in the judgment of the Supreme Court given by Shah, J. at S.C. 43 where it is stated:

On December 15, 1967, the District Magistrate, Cuttak, served an order made in exercise of power under s.81(I)(a)(ii) of the F Preventive Detention Act (4 of 1950) directing the appellant to be detained on grounds that the appellant was acting in a manner prejudicial to the maintenance of public order by committing breach of public peace, indulging in illicit business in opium, Ganja, Bhang, Country liquor, rioutous conduct, criminal intimidation and assault either by himself or through his relations, agents and associates as set out in the order. On December 19, 1967, the appellant filed a petition in the High Court of Orissa challenging the validity of the order of detention on the grounds, inter alia, that the order and the grounds in support thereof served upon the appellant were written in English language which the appellant did not understand.

It is to be noted that the main grounds advanced by the appellant to challenge the detention related not to the reasons that led to his detention but rather related to lack of knowledge of the reasons for his detention since the order was in the English language which the appellant did not understand. The relevance of this case in the present matter is that it endeavours to show that there is a wider range of activities that can prompt the exercise of the powers of preventive detention than mere matters related to defence and security. It means therefore it is not correct to hold that preventive detention power is a Union matter which is exercisable only by the Union President, because as has been shown above, the exercise of such power may be promoted by incidents or activities related to defence and security as well as matters outside the scope of defence and security which may include non-Union matters.

It is true as contended by the learned counsel for the applications that the Preventive Detention Decree, No. 3 of 1964 of Zanzibar was passed prior to the Union of Tanzania which event marked the surrender of certain governmental functions by the Zanzibar Government to the Union Government. However the matters surrendered in accordance with the First Schedule to the Constitution are:

(i) The Constitution and the Government of the United Republic;

(ii) External Affairs:

(iii) Defence;

(iv) Police;

(v) Emergency Powers:

(vi) Citizenship;

(vii) Immigration;

(viii) External trade and borrowing;

(ix) the Public Service of the United Republic;

(x) Income Tax, Corporation tax, Customs and exercise duties;

(xi) Harbours, Civil aviation and Posts and Telegraphs;

(xii) Currency, coinage and legal tender (including paper money, banks including savings banks) and banking; foreign H exchange and exchange control;

(xiii) Industrial licensing, statistics;

(xiv) Higher education;

(xv) Mineral oil resources including petroleum, its hydrocarbons and natural gas;

(xvi) National Examination Board;

(xvii) Research;

(xviii) Meteorology;

(xix) Statistics;

(xx) Court of Appeal of the United Republic of Tanzania.

Nowhere in this list of the Union matters is mentioned "peace and good order", "preventive detention" or B "detention power" as among the Union matters. Therefore to hold that preventive detention power is a Union matters, is to endevour to over stretch the list of the Union matters, hence there is no valid legal basis for such a holding. This court therefore dissociates itself from such a view, particularly when the word "power" in so far as the Union matters are concerned has been used only in relation to the proclamation of emergency and such power has been bestowed on the President of the United Republic.

These arguments influence this Court to move away from the view held by the counsel for the applicants when he asked this Court to hold that the Zanzibar Preventive Detention Decree has ceased to be of any effect firstly because it relates to matters of defence and security which are Union matters and secondly because by implication that legislation has been repealed by the Union Preventive Detention (Amendment) Act, No. 2 of 1985. With E regard to the relationship between the preventive detention and matters related to defence and security it has been made quite clear that preventive detention may also be ordered in cases other than those related to defence and security and which may not necessarily involve the application of the National Defence or and national Security F Acts at all. Indeed preventive detention may be carried out to prevent breaches of the peace and maintenance of good Government which is the main concern of every head of the executive, and this Court is of the view that it was never the intention of the Union Parliament to deprive the President of Zanzibar of the powers 'to clean his house' on matters of non-Union application relating to Zanzibar. It would be ridiculous therefore to deprive the President of Zanzibar of the powers to take preventive measures towards those who disturb the peace in Zanzibar in relation to purely non- Union matters. I cannot and I am not prepared to hold that the Zanzibar President should fold his arms and do nothing when peace is likely to be disturbed until such time the Union Presidential approval is obtained for detaining a person even on non-Union matters relating to Zanzibar.

Given the unique nature of the Union between Zanzibar and Tanganyika, the draftsmen of both the Zanzibar Constitution, 1984 as well as the Union Constitution, 1977, did realize the possibility having either two inconsistent legislation on the same matter or a legislation which is partly either inconsistent with another legislation with either of the two Constitutions. It is with this view that Article 64(5) of the Union Constitution, 1977 provides:

Without prejudice to the application of Zanzibar Constitution in relation to non-Union matters pertaining to Zanzibar, this C Constitution shall have the force of law throughout the United Republic and if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void.

Article 4 of the Zanzibar Constitution, 1984, carries a similar provision which states:

This Constitution is the Constitution of Zanzibar and shall have the force of law throughout Zanzibar and subject to Article E 80, if any other law is inconsistent with this. Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void.

Having seen that preventive detention may be prompted by matters relating to defence and security as well as matters outside the purview of defence and security, what then are the positions of the Preventive Detention Decree, No. 3 of 1964 of Zanzibar and the Union Preventive Detention Act, No. 60 of 1962 taking into account Articles 64(5) and 4 of the Union and Zanzibar Constitutions respectively. In encompassing Union matters, surely G the Zanzibar Preventive Detention Decree, No. 3 of 1964 is inconsistent with the Union Constitution in accordance with Article

64(5). It is important to note that Article 64(3) of the Union Constitution stipulates that any law enacted by the Zanzibar legislature in relation to the Union matters which are reserved for the Union Parliament shall be null and void, so also any law enacted by the Union Parliament on non-Union matters reserved for the Zanzibar legislature shall likewise be of no effect. The First Schedule to the Union Constitution, 1977, I provides us with the list of the Union matters. It means therefore, all matters which are not included in that list, are non-Union matters. And since that list does not include preventive detention power or preventive detention per se as a Union matter, it means the President of Zanzibar is A empowered to order preventive detention in relation to non-Union matters pertaining to Zanzibar and therefore the position of the Zanzibar Preventive Detention Decree. No. 3 of 1964 in the light of Articles 65(4) and 64(3) of the Union Constitution is that, that legislation is inconsistent with the Union Constitution in so far as matters of defence and security are concerned and it therefore stands null and void to that extent alone. The Zanzibar Preventive Detention Decree, No. 3 of 1964 remain a good law in all other non-Union matters relating to Zanzibar. It means therefore the President of Zanzibar is precluded from detaining any person under the Zanzibar Preventive C Detention Decree on the grounds of defence and security, but he may detain any person under that law on the grounds other than those of defence and security. This is so because the Parliament of the United Republic has no power to legislate for Zanzibar on non-Union matters and that only the Zanzibar legislature can legislate for D Zanzibar on non-Union matters as it has been emphasized in Articles 106(3) and 64(2) of the Union Constitution, 1977, and reiterated in Article 78(1) of the Zanzibar Constitution, 1984, all of which stipulate:

Legislative powers in respect of all non-Union matters for Zanzibar shall exclusively rest in the Zanzibar legislature. Since preventive detention on matters not related to defence and security is non- Union matter any legislation F passed by the Union Parliament legislating for Zanzibar on that subject would be inconsistent with Articles 106(3) and 64(2) of the Union Constitution 1977 as well as Article 78(I) of the Zanzibar Constitution, 1984, hence the extension to Zanzibar of the Union Preventive Detention Act, No. 60 of 1962, as amended by Act No. 2 of 1985, G is valid to the extent it relates to the Union matters of defence and security only whereas the non-Union aspect of it relating to Zanzibar is exercisable by the President of Zanzibar under the relevant Zanzibar legislation.

In the final analysis all this means in mattes related to internal affairs of Zanzibar not only that the President of Zanzibar is empowered to detain a person on the grounds other than those of defence and security but it is also the view of this court that only the President of Zanzibar is empowered to detain a person in Zanzibar in relation to non-Union matters pertaining to Zanzibar pursuant to the Preventive Detention Decree, No. 3 of 1964 of Zanzibar, while the Union President under the powers conferred upon him under the Union Preventive Detention Act, No. 60 of 1962 as amended by Act. No. 2 of 1985, may detain any person for the maintenance of peace and good order in relation to non-

Union matters B pertaining to mainland Tanzania as well as detaining any person throughout Tanzania (Zanzibar included) for the purpose of maintaining and preserving defence and security of United Republic. It is for this reason that I am inclined to hold the more fact that the Union Preventive Detention Act confers powers to the Union President and C extends its applicability to Zanzibar as well as mainland Tanzania does not oust the President of Zanzibar from exercising similar powers on non-Union matters relating to Zanzibar.

Having come to the conclusion that the President of Zanzibar can exercise powers of preventive detention on non-Union matters in relation to Zanzibar only and that the Zanzibar Preventive Detention Decree No. 3 of 1964 is valid in so far as it relates to non-Union matters, could it be proper to hold that the detention of the applicant is legal under the law? This question could only get a proper answer if we examine the detention order as signed by E the then President of Zanzibar Idris Abdulwakil which is reproduced in full below:

HATI YA AMRI SHERIA YA KUWEKA WATU KIZUIZINI, NM.3 YA 1964 (KIFUNGU CHA 2)

Kwa vile nimeridhika kuwa kwa mujibu wa kifungu cha 2 cha sheria ya kuweka watu kizuizini ya 1964 ni lazima itolewe Amri ili Kuzuia vitendo vya watu nitaowataja hapa chini, vya Kuvuruga Usalama na Amani ya Nchi ya Zanzibar vya Kushiriki katika kuwachochea wananchi wavuruge Uchaguzi Mkuu wa Zanzibar wa 1990:

KWA HIYO BASI, kwa mujibu wa mamlaka niliyopewa na Kifungu cha 2 cha Sheria ya Kuweka Watu Kizuizini ya 1964, MIMI IDRIS ABDUL WAKIL, RAIS WA ZANZIBAR na Mwenyekiti wa Baraza la Mapinduzi naamuru kuwa watu waliotajwa hapa chini:-

(i) Ali Haji Pandu;

(ii) Shaaban Khamis Mloo;

(iii) Soud Yussuf Mgeni;

(iv) Juma Othman Juma; A

(v) Machano Khamis Ali.

Wawekwe kizuizini katika Chuo cha Mafunzo kuanzia siku ya tarehe 3 June, 1990 hadi itakapoamuriwa vinginevyo.

Imetolewa chini ya mkono wangu tarehe 2 Julai, 1990, Zanzibar. 

Sg. (IDRISA ABDUL WAKILI)

RAIS WA ZANZIBAR NA

MWENYEKITI WA BARAZA LA MAPINDUZI. C

Kwa:

KAMISHNA

CHUO CHA MAFUNZO D

ZANZIBAR

Paragraph one reads "... Lazima itolewe Amri ili kuzuia vitendo vya watu niliowataja hapa chini vya kuvuruga Usalama na Amani........".

Translated in English this passage would read:.. it is necessary to make an order for the purpose of preventing the persons mentioned below from disrupting peace and security ...... (emphasis is added).

Under the circumstances, there is no doubt that the detentions of the applicants in this case has 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 to make such orders. It is therefore held that such detention having been made by a person other than the President of the United by a person other than the President of the United Republic and having been prompted by security related matters should have been carried out under the orders of the President of the United H Republic pursuant to Preventive Detention Act, No. 60 of 1962 as amended by Act. No. 2 of 1985. Consequently I declare that the detention of the applicants as carried out under the orders of President of Zanzibar pursuant to the Zanzibar Preventive Detention Decree, No. 3 of 1964 as illegal. 

Order: Since the applicants are already in the enjoyment of their freedom no order for their release is made.

Order accordingly.

1991 TLR p38

C