Attorney-General v William Muzala Chipango (Appeal No. 2 of 1971) [1971] ZMCA 2 (18 May 1971)

I ATTORNEY-GENERAL v WILLIAM MUZALA CHIPANGO (1971) ZR 1 (CA) COURT OF APPEAL DOYLE CJ , PICKETT JP AND GARDNER JA 18TH MAY 1971 (Appeal No. 2 of 1971) Flynote Constitutional 5law - Constitution of Zambia s. 26A (1) (a) and (b) - Conditions required to be complied with in case of detention of a person - Whether merely procedural steps not going vitally to the fact of detention. Administrative law - Order of detention against the detainee under reg. 31(A) of the Preservation of Public Security Regulations - Grounds of 10 detention not supplied within the mandatory period of fourteen days under s. 26A (1) (a) of the Constitution - Effect of. Administrative law - Order of detention under req. 31(A) of the Preservation of Public Security Regulations - Non - compliance with the mandatory condition I under s. 26A 1 (b) to Gazette the detention - Effect of. 15 Headnote Respondent was detained by an order of the President made under reg. 31(A) of the Preservation of Public Security Regulations. The grounds for his detention which should have been furnished not more than fourteen days after the commencement of detention were furnished sixteen days after such commencement. Publication in the Gazette of 20 the detention order, required to be published not more than one month after the commencement of the detention, was published seven weeks after such commencement. On respondent's petition the High Court ordered his release holding that the detention had become illegal after the non-compliance with the mandatory conditions subsequent to the 25 detention. The Attorney-General appealed on the ground that the non- compliance with the conditions subsequent to the detention order could not affect its validity, though failure to obey would open the way to other remedies, such I as mandamus. Held: 30 • • • The conditions prescribed in para. (b) of s. 26A (1) of the Constitution is not a mere procedural step in the furtherance of consideration of a detainee's case but it goes vitally to the fact of detention; the provisions must be adhered to strictly and failure to do so causes further imprisonment under the detention order to be invalid and 35 that non- compliance with the condition in s. 26A (1) (a) to publish in the Gazette within one month has the same effect. Cases cited: • (1) Hadhibandhu Das v District Magistrate of Cuttack & Anor AIR 1969 SC 63. 40 I (2) Mohamed Shafi & Anor v State of Jammu & Kashmir AIR 1970 SC 688. (3) Greene v Home Secretary [1941] 3 All ER 388. (4) Uganda v Commissioner of Prisons, ex parte Matovu [1966] EA 514. 1971 ZR p2 DOYLE CJ (5) Pope v Clark [1953] 2 All ER 704. (6) Liversidge v Anderson [1941] 3 All ER 338. Legislation referred to: I Constitution of Zambia, 1965 (App. 3), s. 26A (1) (a) and (b). Preservation 5 of Public Security Regulations (Cap. 106), reg. 31A Judgment Doyle CJ: delivered the judgment of the court: This is an appeal by the Attorney- General against a finding by a High Court judge that the consequence of a failure to furnish the grounds of detention or to publish a notification of such detention pursuant to and within the periods 10 specified in paras (a) and (b) of sub-s. (1) of s. 26A of the Constitution was that the respondent became entitled to be discharged from detention. • Section 26A reads as follows: "26A (1) Where a person's freedom of movement is restricted, or he is detained, under the authority of any such law as is referred to 15 in section 24 or 26 of this Constitution as the case may be the following provisions shall apply: ■ (a) he shall, as soon as is reasonably practicable and in any case not more than fourteen days after the commencement of his detention or restriction, be furnished with a statement in 20 writing in a language that he ■ understands specifying in detail the grounds upon which he is restricted or detained; (b) not more than one month after the commencement of his restriction or detention a notification shall be published in the Gazette stating that he has been restricted or detained and 25 giving particulars of the provision of law under which his restriction or detention is authorised; ■ (c) if he so requests at any time during the period of such restriction or detention not earlier than one year after the commencement thereof or after he last made such a request 30 during that period, as the case may be, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person, appointed by the Chief Justice, who is or is qualified to be a Judge of the High Court; ■ (d) he 35 shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be ■ permitted to make representations to the authority by which the restriction or detention was ordered or to any tribunal established for the review of his case; 40 ■ (e) at the hearing of his case by such tribunal he shall be permitted to appear in person or by a legal representative of his own choice." The facts of the matter are that the respondent was detained by an order of the President made under reg. 31A of the Preservation of Public 45 Security Regulations, which order was executed on 12th February 1970. ■ 1971 ZR p3 I DOYLE CJ The grounds for his detention which should have been furnished not more than fourteen days after the commencement of the detention were furnished on 28th February, namely sixteen days after such commencement. Publication in the Gazette of the detention order, required to be published not more than one month after the commencement of the 5 detention, took place on 2nd April, 1970, namely some seven weeks after such commencement. The petition of the respondent was dated 16th July, 1970. The learned Attorney-General made the point without taking it, as it has not been taken in the court below, that the petitioner had not 10 adopted the correct remedy. He was, however, content that the matter should be dealt with on its merits but contended that it should be treated as if it were a habeas corpus application. As I understood his argument he contended that the provisions of s. 26A were all conditions subsequent to the detention order and could not affect its validity, though failure to 15 comply would open the way to other remedies, such as mandamus. Even if, however, it could be held that the failure to comply did invalidate the detention whether ab initio or from the date of the failure, this was cured by the fact that the conditions had been complied with prior I to the lodging of the petition. 20 ■ ■ He submitted that conditions relating generally to imprisonment fell into three classes: (a) conditions which are essential prerequisites to the validity of the original arrest; (b) conditions which are essential prerequisites to valid 25 imprisonment beyond a certain ■ point; (c) conditions the breach of which does not invalidate either the initial or the continued detention but compliance with which the courts will enforce and which may relate to: I (i) process which may result in the release of the individuals, 30 or (ii) the incidents of the imprisonment only. As to the conditions referred to in his category (a), I am fully satisfied that the original I detention was valid and no question arises in relation to any preconditions. 35 An instance of conditions under category (b), is the requirement to bring an arrested person before a court within a stated period. Where this condition is not fulfilled, further detention becomes unlawful though the original arrest was valid. The Attorney-General submitted that the failure to give grounds and publish in the Gazette within the required times were 40 not events which terminated the validity of the detention. They were merely procedural matters which fell within his third category (b) and which could be remedied by mandamus. He suggested that if mandamus were disobeyed, this might I lead to the courts holding that further detention was unlawful. 45 ■ 1971 ZR p4 I DOYLE CJ He has further submitted that s. 26A must be taken as a whole, and that the effect of non-compliance with any one of its paragraphs must have the same effect. He pointed out the absurdity of, for instance, holding that failure to comply with condition (e), which relates to representation 5 before a tribunal, should invalidate the originally valid detention. A number of cases were cited to us of the way in which courts in other parts of the world have approached somewhat similar provisions. Under certain Indian enactments there is provision for an order of preventive detention with safeguarding requirements that the grounds for 10 detention must be given to the detainee within five days, that the order should be referred to an advisory tribunal within twenty - eight days, and that the advice of the tribunal was binding as to whether or not the detention should be continued. In dealing with these provisions, the Supreme Court of India in the cases of Hadhibandhu Das v District Magistrate 15 of Cuttack and Anor (1) and Mohamed Shafi and Anor v State of Jammu and Kashmir (2) held that a failure to furnish the grounds for detention within the specified period rendered further detention under the order invalid. The Supreme Court did not give any detailed reasons why the failure should have this effect, but merely stated that the provisions were 20 mandatory and that failure to comply with ■ them strictly was fatal to the continued validity of the order. The following passage from Hadhibandhu Das' case perhaps gives the reasons underlying their decisions: ■ ■ ■ ■ "12. Negligence or inaptitude of the detaining authority in making a defective order or in failing to comply with the mandatory 25 provisions of the Act may in some cases ensure for the benefit of the detenu to which he is not entitled. But it must be remembered that the Act confers power to make serious invasion upon the liberty of the citizen by the subjective determination of facts by an executive authority, and the Parliament has provided several safeguards 30 against misuse of the power. The very fact that a defective order has been passed, or that an order has become invalid because of default in strictly complying with the mandatory provisions of the law bespeaks negligence on the part of the detaining authority, and the principle underlying Section 13 (2) is, in our view, the 35 outcome of insistence by the Parliament that the detaining authority shall fully apply its mind to and comply with the requirements of the statute and of insistence upon refusal to countenance slipshod exercise of power." It must be borne in mind that the Indian safeguards are effective - indeed 40 very much more effective than those provided in s. 26A - and this might influence the Indian courts in ensuring that they should be speedily and effectively used to mitigate a stringent statute. In Greene v Home Secretary (3), the appellant had been detained under the United Kingdom Defence (General) Regulations, 1939. The 45 advisory committee to whom the appellant made objection was required by para. (5) of reg. 18B to give to the appellant the correct reasons for this ■ ■ ■ DOYLE CJ detention. 5 This by mistake the committee failed to do. The House of Lords held that the mistake did not invalidate the order for detention. Lord Macmillan dealt at great length with the matter when he said: I 1971 ZR p5 I "The Secretary of State believed that the appellant was a person of hostile associations and that by reason of this it was necessary 5 to exercise control over him. The advisory committee, on the other hand, investigated the appellant's case on the footing that it was something else and something much graver than the Secretary of State believed against him. No explanation is forthcoming of this very serious error. Nothing could be more unfortunate than that 10 in a matter in which scrupulous accuracy is imperative the impression should be created that the safeguards prescribed for the protection of detained persons are carelessly observed and administered. The Court of Appeal has found that the appellant has not suffered any material prejudice by reason of the error, but this 15 does not condone it, nor does the Court of Appeal in any way condone it. I have, however, to point out that what is before your Lordships is an application for a writ of habeas corpus and that the appellant's complaint is that he has been and is being detained without any legal warrant. The mistake, the occurrence of which 20 your Lordships deplore, does not in any way affect the validity of the ■ ■ ■ ■ detention order which is the answer to the appellant's application. It affects the due observance of the procedure prescribed for the further consideration of the case of a person who is ex hypothesi under lawful detention. Consequently the mistake affords no 25 ground for invalidating the detention order and does not help the appellant in his present application. The error is fortunately not irremediable, and your Lordships have the consolation of an assurance from the Attorney-General that an opportunity will be given to the appellant, if he so desires, to lay his objections afresh 30 before another advisory committee which will have before it the true reason for his detention." A number of the other law lords and the judges in the Court of Appeal agreed with this I though lack of prejudice to the appellant also formed a basis for their decision. 35 The Uganda case of Uganda v Commissioner of Prisons, ex parte Matovu (4) dealt with a person who had been detained under Uganda Emergency legislation. Section 13 (1) (a) of the Uganda Constitution required that such a person should be served with a statement of the grounds for his detention. The High Court of Uganda held that he had not 40 been furnished with such grounds but that the failure did not invalidate the detention. They said at p. 546: ■ ■ "Insufficiency of the statement of the grounds of detention served on the applicant is a mere matter of ■ procedure. It is not condition precedent but condition subsequent. We hold therefore that it is 45 not fatal to the order of detention made by the Minister. It is curable because the High Court under Art. 32 (2) of the Constitution, has the power to give such directions as it may consider 1971 ZR p6 DOYLE CJ proper for the purpose of enforcing or securing the enforcement of any of the provisions of Arts. 17 to 29 inclusive, or cl. (1) of Art. 31 of the Constitution." The Constitution of Zambia contains a similar provision to that 5 contained in s. 32 (2) of the Uganda Constitution. It is to be found in our s. 28 (2). The Uganda decision is therefore directly in point as regards the consequence of non-compliance with the provisions of s. 28A (1 ) (a) of our Constitution, though it does not, of course, deal with I provisions similar to our s. 28A (1) (b). 10 There is therefore high authority tending both for and against the submissions of the learned Attorney-General. It seems to me that the proper way to approach the problem is to be found in a passage I on pp. 314 and 315 of the 12th Ed. of Maxwell's Interpretation of Statutes. 15 I "The first such question is: when a statute requires that something shall be done, or done a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases, 20 the ■ conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." It is impossible to lay down any general rule for determining whether a provision is imperative or directory. "No universal rule", said Lord 30 Campbell, L C , "can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed." 35 And Lord Penzance said: "I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject - matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect 40 decide whether the matter is what is called imperative or only directory." Without impugning in any way the correctness of the decisions of courts of other countries in relation to their own statutes and their own particular circumstances, I would approach s. 26A in the way pointed out in particular by Lord Penzance. I I 45 would at this stage express my opinion that I would not agree with the contention of the learned Attorney-General that each of the conditions set out in paras (a) to (e) of s. 25A (1) are in the same position and that ■ ■ ■ DOYLE CJ failure to comply has the same result in each case. The courts have in the past held that where a provision laid down a number of requirements, some might be held to be 1971 ZR p7 I mandatory while others might merely be directory. See for example, Pope v Clarke (5) where provision requiring service of a notice of intended prosecution specifying the nature, time and 5 place of the alleged offence was held to be mandatory except as respects the statement of time. Section 26A appears in a part of the Constitution which has formally and deliberately set out to enshrine the rights and freedoms of the people of Zambia. It is a section introduced to provide for the protection of those 10 rights and freedoms and where possible it should be interpreted effectively to protect the rights and freedoms. That the protection given is a limited protection is no reason for cutting down what is given. The Attorney-General in the course of his able argument referred to para. (b) of sub-s. I (1 ) of s. 26A in the following terms: 15 ■ ■ "The object of this provision is, clearly, to ensure that the public is made aware of who has been detained or restricted and why. There are countries in both Africa and other parts of the world where people have been whisked away in secret and never heard of again; the legislature, by inserting this provision in section 26A, 20 wished to make it abundantly clear that this could not and would not happen in Zambia." With this statement I entirely agree and I approach the interpretation of the paragraph with this in mind. The Attorney-General went on to add: "But publication does not in any way advance the ability of a detained or 25 restricted person to secure his release." With ■ this I cannot agree, or perhaps I should say that I cannot agree with its converse. Failure to publish in the Gazette does detract from the ability of a detained person to secure his release. While one does not expect that a person will be held incommunicado, one has in looking at these provisions to bear in mind the 30 possibility. It is this provision in para. (b) of s. 26A (1) which gives the protection against this possibility. If the learned Attorney-General's submission is correct, the paragraph gives little or no protection. A man is, in the Attorney-General's own words, "whisked away in secret". Can it be that if he is detained without any publication in the Gazette that his 35 detention continues lawful indefinitely, or can it be that after a period, even a long period, when perhaps news of his detention leaks out, that the State can remedy the matter by a tardy publication provided that such publication takes place before the detainee, or his friends, manages to institute legal proceedings. In my opinion it cannot. If it were, the 40 supposed safeguard given by para. (b) would be worthless. This being so it does not seem to me incumbent on the courts to say what period of delay invalidates. I consider that the condition is not a mere procedural step in the furtherance of consideration of a detainee's case, but that it goes vitally to the fact of detention. In my opinion the provision must be 45 adhered to strictly and failure to do so causes further imprisonment under the detention order to be invalid. It is not strictly necessary for me to determine whether the same considerations apply to a failure to comply ■ ■ ■ ■ 1971 ZR p8 DOYLE CJ with para. (a) The argument is not so strong. The provision does however appear before the safeguard in para. (b). The conditions appear to be in some order of descending importance. A person is entitled to know within a short period why he is detained. I would be prepared to hold that failure 5 to comply with this paragraph also has the same result. The learned Attorney-General at the end of his argument reminded the court of the words of Lord Macmillan in Liversidge v Anderson (6): I "I yield to no one in my recognition of the value of the jealous scrutiny which our courts have always rightly exercised in considering any invasion of the liberty of the subject, but I remind myself that, in the words of Lord Atkinson in R v Halliday, ex parte Zadig (1917) AC 260, at p. 271: "'However precious the personal liberty of the subject may be, there is something for which it may well be, to some ■ extent 15 sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement.' " Those words ring a little faint when compared with the vigorous, and in my opinion correct, dissenting judgment of Lord Atkin in the same case. However, in any event, no danger to the security of the State can 20 arise from this decision. It is open to the ■ detaining authority, in this case the President, if he is still satisfied that it is necessary for the purpose of preserving public security to detain the respondent, to make another order and ensure that the provisions of s. 26A are observed. ■ The only way in which the State suffers by reason of this judgment is 25 that it follows from it that the State has, by reason of its failure to comply with the section, laid itself open to an action for damages. I think that that is a very small consequence compared to the necessity to safeguard the rights and liberty of the common man. I would dismiss this appeal and hold that the learned High Court 30 judge was correct in his determination. Judgment Gardner JA: To the judgment of the Chief Justice, added: The learned Attorney-General has argued that by delivering a notice in terms of the Constitution of Zambia, s. 26A (1) (a) and by publishing a notice in the Gazette in terms of sub-s. (b) of that section, albeit out of 35 time, the State has remedied the omission. I do not agree that there is any provision for an extension of time for carrying out either of these obligations and the purported service of a notice and issuing a publication out of time could not be valid. As soon as the Executive discovered that the time for service of notice or issuing a publication had expired the remedy 40 was entirely in its hands, that is to say, a new order for detention could have been made and thereafter the terms of s. 26A could very well have been observed. Order accordingly ■ ■ ■