Sheikh Mohammad Nassor Abdulla vs Regional Police Commander, Dar Es Salaam Region & Others () [1983]

Mapigano, J.:  

This is a chamber application for the issue of directions in the nature of I habeas corpus as provided for under section 348(1) (a) of the Criminal Procedure Code, Cap. 20 of the Revised Laws of Tanganyika.  The application has been made under the provisions of the Habeas corpus A Rules and is supported by an affidavit sworn by one Zainabu Muhammad Nassor Abdulla.  She has deposed that the applicant Sheikh Muhammad Nassor Abdulla, her husband, was arrested at their home, taken away and B detained by the police.  She averred that the arrest and the detention was without justification and illegal.  She also stated that it will be proper that the applicant be discharged on habeas corpus.   The remedy sought for, as shown above, is the issue of directions in the nature of habeas corpus.  

This remedy  has its roots in England.   At common law the prerogative writ of habeas corpus is directed to a person who detains another in custody and commands him to produce or have the body of that person before the court for a specified purpose.   The most important specie of habeas corpus is that which is called habeas corpus ad  D subjiciendum.  This commands the person to whom it is directed to produce the body of a person detained, with the day and cause of his caption and detention, to do, submit to and receive whatsoever the court shall direct.  We are told that this writ was formerly much used for testing the legality of imprisonment for political reasons, E especially during the reigns of the Stuarts.

  Besides the efficacy of the writ in liberating the subject from illegal confinement in a public prison, it also extends its influence to remove every unlawful restraint of personal freedom in private life, availing, for example, to release a person from a place where he has been unlawfully banished.  It is F part of the law of this country.  But, it may be stressed, to invoke the remedy of habeas corpus it must be shown that the detention is improper or illegal: See Zabrovsky v Palestine General Officer Commanding (1947) AC 246.  That, of course, is trite law.  So much for the writ of habeas corpus.

The salient facts of this application are not in dispute and need to be stated in the barest outline only.  The G applicant is a citizen of Tanzania.  He was born at Makunduchi in Zanzibar in 1929.  He is practising polygamy.  He is married to four wives, Zainabu, the deponent herein, being one of them.  As a Moslem he is allowed to take that number of wives.  No surprise, therefore, that he has begotten twenty-eight issues.  He has been in the H public service for the long period of thirty three years and has held various posts here and abroad.  He retired in February, 1980 and settled down in Dar es Salaam at Mabibo, where he felt for and took up the vocation of a religious leader.  At about 10 a.m. on the 9th October, 1983, he was arrested at his house at Mabibo and I whisked away in a landrover to police custody.  The three respondents were on the detail that arrested him.  We do not know where exactly he was confined, but we were informed by counsel for the respondents Mr. Shio, that he has since been deported to Zanzibar.  However, in no way did the learned counsel reveal when he was A deported and whether he is still being held in confinement.

On behalf of the respondents it has been said that they were doing the bidding of their superior.  It has been contended that the actions of the respondents and the deportation of the applicant from Dar es Salaam to B Zanzibar has legal validity.  An Order made under the hand of His Excellency the President and the Public Seal has been produced for the perusal of this Court and the opposite party.  The Order in question purports to have been made under sections 2 and 5 of the Deportation Ordinance, Cap. 38 of the Revised Laws of Tanganyika, C which came into operation on the 1st May, 1921.  The Order is dated the 7th October, 1983.

Paraphrased, the Order reads that in the exercise of the powers vested in him by section 2 of the Deportation D Ordinance, the President ordered the deportation of the applicant from Dar es Salaam Region to Zanzibar, upon being satisfied that the applicant was conducting himself so as to constitute his continued residence in the Dar es Dar es Salaam Region and the neighbouring regions dangerous to peace and good order.  And that the Order constituted a warrant under section 5 of the Ordinance for the detention of the subject, until a suitable opportunity E occurred for his deportation.

It was the argument of counsel for the respondents that the Order of deportation is a lawful one and cannot be questioned or impeached.  He has referred this Court to the provision of section 3 of the Deportation Ordinance, F which says that an appeal cannot lie from any order of deportation under the Ordinance.  Councel has also argued, if only uneasily, that the President enjoys executive powers under the Constitution of the United Republic to deport a person from any part of the United Republic to any other part of the United Republic.  His authorities for that are section 11 (1) and 94 (1) of the Constitution.  Section 11 (1) provides that: 

The executive authority of the Government of the United Republic with respect to the United Republic and to all Union matters shall vest in the President. 

"Union matters" is defined under section 94 (1) of the same Constitution as the matters that are specified in Part II of the Schedule to the Constitution. 

Counsel has pointed out that among the matters so specified is (in Kiswahili): "Mamlaka juu ya mambo yanayohusika na Hali ya  Hatari".  

It was his opinion that the matter at hand falls squarely within the purview of these provisions of the  Constitution. It was on those grounds that the respondents, through their counsel, contested this application and urged that it be refused. In his reply, counsel for the applicant, Mr. Mwale, first made a remark about a deportation being a serious B matter.  He said that it is a painful thing to the deportee, physically and mentally.  No sane man can disagree with that observation.  Under the Deportation Ordinance the President has been given powers to deport a person C from one part of the Territory to any other part.  The exercise of these powers, surely, affects the subject and others. It serves to abridge his fundamental right.  It is notable that one of the most singular features of the Ordinance is the indefiniteness of the operation of the Order of deportation.  No term is fixed for the operation of such Order and no review machinery or procedures have been set down.  The agony is, perhaps, in the D uncertainty, the nightmare of unending speculation, and that applies to the subject and to the family and other associates.  I share the view that the question as to whether a person is conducting himself so as to be dangerous to peace and good order in any part of the Territory is entirely subjective.  And subject to what I am going to say E below, the decision to deport a person from one part of the Territory to any other part of the Territory in pursuance thereof cannot be impugned in any court.  However, as demonstrated, deportation is a very weighty matter and Orders of deportation should, therefore, be prudently and sparingly made.

Mr. Mwale argued that the President has no power under the Deportation Ordinance to deport a person from F any part of Tanganyika to Zanzibar.  He has referred this Court to the very provision of section 2 of the Ordinance and section 3 of the Interpretation of Laws and General Clauses Act, 1972.  Section 2 of the G Ordinance provides that if the President is satisfied that the circumstances stipulated therein do exist he may order the deportation of the person concerned "from any part of the Territory to any other part of the Territory".  By section 3 above, the word "Territory" is assigned the meaning "Tanganyika" "the territory formerly comprising the Republic of Tanganyika".  On that basis learned counsel charged, and this is where the thrust of the application H lies, the President manifestly exceeded his powers under the Ordinance in purporting to deport the applicant from Dar es Salaam Region to Zanzibar which is not part of Tanganyika, thereby extending, in effect, the operation of the Ordinance to  Zanzibar.  In his opinion, the Order of deportation was illegal and void ab initio.

With regard to the powers of the President under the Constitution of the United Republic, Mr. Mwale submitted that there is no provision that empowers the President to deport a person from Tanganyika to Zanzibar or to extend, as it were, the A operation of the Tanganyika Deportation Ordinance to Zanzibar.  He argued that there was no occasion to operate sections 11 (1) and 94 (1) of the Constitution simply because he said, the matter at hand did not fall B within the scope of "mambo yanayohusika na Hali ya Hatari" which is one of the matters specified in Part II of the Schedule.  "Mambo yanayohusika na Hali ya Hatari", he argued means emergency matters.

Mr. Mwale concluded his speech by submitting that since the Order of deportation is at law illegal, then what was occasioned by the Order i.e. the arrest, detention and deportation of the applicant to Zanzibar, were also C illegal and that, therefore, the order should be declared null and void and the applicant set at liberty.

I will now proceed to consider the merit or demerits of the application and pronounce on the issues that have been raised.  The point has been boldly made that the Order of deportation is not challengeable in Court.  As we D have seen, counsel for the respondents is relying on section 3 of the Deportation Ordinance which, as already shown, reads that an appeal shall not lie from any order of deportation under the Ordinance.

This point is easily disposable.  I think Mr. Shio has gone wrong in construing section 3 of the Ordinance that E way and the authorities militate against his proposition.  This is not an appeal.  It is an application under section 348 (1) (a) of the Criminal Procedure Code for habeas corpus.  No doubt that the writ of habeas corpus can be used to challenge even the act of the Executive if that act unjustifiably infringes upon the liberty of the subject. F In being seized of the matter a court is not sitting in appeal as such.  It is merely concerned to find out for certain whether or not the act of the Executive is in line with the law of the land.  Where a person has been detained by the Executive the test, as stated above, is whether the detention is illegal or not.  And over the years G many decisions have been pronounced that it is illegal if the order in respect thereof is ex facie bad, or where the Executive has acted in excess of its powers or failed to comply with the requirements thereof, or where the Executive has acted in bad faith or has committed a breach of natural justice.  In short, therefore, the competence of this application cannot be impeached on the ground that this court lacks jurisdiction. 

The next point does not, likewise, present any difficulty and must be decided by reference to the language of the statute, which tends itself to easy interpretation.  On behalf of the applicant it has been contended, in fine, that the order of deportation is on the face of it bad and that it is ultra vires the powers conferred on the President by the Deportation Ordinance.  There, as remarked, is where the main punch of this application rests. Section 2 of the Ordinance where under the applicant was deported provides, in language clear and plain, that the President can deport a person from one part of the Territory to any other part of the Territory.  I set down part of that section hereunder: 

 Where it is shown by evidence on oath, to the satisfaction of the President that any person is conducting himself so as to C be dangerous to peace and good order in any part of the Territory, or... the President may, if he thinks fit by order under his hand and official seal, order that person to be deported from any part of the Territory to any other part of the Territory.

We must refer to the meaning given the word "Territory" by section 3 of the Interpretation of Laws and General D Clauses Act, 1972.  Under that provision "Territory" means Tanganyika.  Section 2 of the Ordinance does not say, and I should find some difficulty in understanding it if it did, that the President is empowered to deport a E person from any part of Tanganyika to Zanzibar.  It may be noted that there has been for over forty years a comparable law on the statute books of Zanzibar providing for deportations and restrictions.  It is the Deportation Decree, Cap. 41 of the Laws of Zanzibar, which came into force on 11th June, 1940.  Under F section 4 of the Decree, the Executive there may, if it thinks fit, make a restriction order in respect of any person who is either (a) a convicted person, or (b) an undesirable person.  An undesirable person is, by section 2, a person who is or has been conducting himself so as to be dangerous to peace, good order, good government, or public morals.  By the same section, a restriction order means an order prohibiting the person in respect of whom G it is made from entering or from leaving an area within Zanzibar without the consent of the officer specified in the order.  That said, I am compelled to pronounce, with the greatest respect and humility, that the order of deportation in respect of the applicant in the instant matter is, for the reasons I have given, gravely flawed.

Finally, as regards the point about the President having been granted powers by the Constitution of the United H Republic to make orders of deportation such as the one here, I am at one with Mr. Mwale that it is hardly possible to derive out of the terms of sections 11(1) and 94 (1) of the Constitution and Part II of the Schedule I thereto any such powers.  "Mamlaka juu ya mambo yanayohusika na Hali ya Hatari" in the Schedule are, in my opinion, quite different affairs.  Under the previous Constitution, the Interim Constitution of Tanzania, 1965, Cap. 596 of the J Revised Laws of Tanganyika, they were called emergency powers and I see nothing in the 1977 Constitution that A can reasonably lead me to say that they are now known otherwise.  In any event, it is quite obvious that the President did not purport to invoke his powers under those sections.  He expressly stated that he was exercising his powers given to him by section 2 of the Deportation Ordinance.  In sum, there is no force in the argument put forth by Mr. Shio relating to the Constitution. 

In the result I am satisfied that there are merits in this application and compelling grounds for granting it.  I hold that the order of deportation against the applicant be set aside and the applicant be released  unless he is otherwise lawfully held or restricted. 

Order accordingly.

D