Kapwepwe v Kaenga (Appeal No. 7 of 1972) [1972] ZMCA 1 (3 October 1972)

IN THE MATTER OF KAPWEPWE and IN THE MATTER OF KAENGA and AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM (1972) ZR 248 (CA) COURT OF APPEAL 15 DOYLE CJ, BARON JP AND GARDNER JA 3rd OCTOBER 1972 (Appeal No.7 of 1972) Flynote Constitutional law - Detention - Grounds of detention - Whether grounds must be given in such a form as enables the detainee to make adequate representation against his detention on such grounds. Constitutional law - Detention - Where grounds alleged amount to criminal offence - Whether State has duty to prosecute. Judgment - Court of Appeal - Majority opinions on individual issues - Method of arriving at decision of the court. Headnote The appellants were detained under regulation 33 of the Preservation of Public Security Regulations made under Cap. 106 of the Laws of Zambia. Section 26A (1) of the Constitution of Zambia required that such persons be furnished with a statement in writing specifying in detail the grounds upon which they are detained. The applicants contended that the grounds of detention were not specified in sufficient detail to enable them to make adequate representations and that in any event detention exceeded anything which might reasonably have been thought to be necessary. The actions were dismissed in the High Court. Held: (i) It is a matter of fact in the particular circumstances of each case what and how much detail must be given. (ii) The matter must be looked at from the point of view of the detainee himself (iii) (Per Doyle, CJ) The ground must be given with sufficient particularity in the circumstances of the case to enable an adequate representation to be made. (Per Baron, JP) The detainee must be furnished with sufficient information to enable him to know what is alleged against him and to make a meaningful representation. (iv) Where the matter falls within regulation 33 (1) of the Preservation of Public Security Regulations (' ... for the purposes of preserving public security ...') even if a person is believed to have committed a criminal offence there is no legal obligation on the executive to prosecute in the criminal courts. On the facts, the judges were unanimous in finding that the grounds furnished to the first appellant were stated with the necessary detail. In relation to the three grounds furnished to the second appellant (i) all three judges found that the first ground complied with the Constitution, (ii) Doyle, CJ, and Baron, JP, found that the second ground complied with the Constitution, Gardner, JA, dissenting; (iii) Baron, JP, and Gardner, JA, found that the third ground complied with the Constitution, Doyle, CJ, dissenting. Held: (i) Although the ordinary way of deciding an appeal is to count final decisions and not the decisions on the individual issues in the case, this approach is not necessarily appropriate where a majority of the judges find against the appellant on each of the individual issues of fact. (ii) Hence, although two of the three judges, if sitting alone at first instance, would have been in favour of issuing the writ of habeas corpus, since the basis on which each of them would have done so had been held on the facts to be wrong by a majority of the court, the court had by a majority in each case found that the two grounds in question complied with the Constitution. (iii) The result of these findings of fact was that the appeal of the second appellant failed. Cases cited: (1) Chipango v Attorney-General 1970 SJZ 179. 35 (2) State of Bombay v Atam Ram Vaidya AIR 1951 SC 157. (3) Naresh Chanda v State of West Bengal AIR (46) 1959, SC 1335. (4) Herbert v Phillips 1967 10 WIR 435. (5) Padfleld v Minister of Agriculture, Fisheries and Food (1968) AC 997. (6) Employment Security v Aslaf (No.2) (1972) 2 WLR 1370. (7) Sinkamba v Doyle (Chief Justice) CAZ No. 16 of 1972. (8) Attorney-General v H. RH. Prince Augustus (1957) 1 All ER 49. (9) Bradlaugh v Clarke (1883) 8 AC 354, 372. Legislation referred to: Constitution of Zambia, ss. 26A (1)(a), 29 (1) (b), 28. Preservation of Public Security Regulations, Cap. 106, ss. 33, 3. AP Annfield, of Peter Cobbett - Tribe and Co, for the appellants. The Hon. Fitzpatrick Chuula SC, Attorney-General, for the respondent. Judgment Doyle CJ: These are in fact two appeals from the refusal by the High Court to issue writs of habeas corpus ad subjiciendum. Before dealing with the substance of the appeals, I will make a brief comment on the form in which the appeals are before this court. Both applications have come before the court as a single appeal. The two applications refer to different persons and are based on different facts and were separately made to the High Court. They were argued together in the High Court and were dealt with in a single judgment by that court. It does not, however, appear that the applications were consolidated, and indeed the only linking feature, namely that the applicable law was the same, is not a ground for consolidation. I do not consider that the matters are before us in the proper form. No objection has been taken and no doubt the Court of Appeal would have heard the argument in both cases at the same time. I merely draw attention to the matter so that this procedure will not be adopted in the future. Both applicants were detained by an order made under regulation 33 (1) of the Preservation of Public Security Regulations which reads as follows: ' 33. (1) Whenever the President is satisfied that for the purpose of preserving public security it is necessary to exercise control over any person, the President may make an order against such person, directing that such person be detained and thereupon such person shall be arrested, whether in or outside the prescribed area, and detained.' Section 26A (1) (a) of the Constitution provides as follows: 26A (1) Where a person's freedom of movement is restricted or he is detained, under the authority of such law as is referred to 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 writing in a language that he understands specifying in detail the grounds upon which he is restricted or detained;'. Regulation 33 (1) is a law referred to in section 26 of the Constitution. Mr Kapwepwe was detained under an order dated 4th February, 1972. On 12th February, 1972, he was served with the document Ex. S. K.1 purportedly in compliance with the provisions of section 26A (1) (a) of the Constitution. This document reads as follows: That during the months of December, 1971, January and February, 1972, you and other members of the United Progressive Party conspired to engage in activities to endanger the safety of persons and property in consequence of which inter alia resulted in M. Pachiliso, S. Sinkala, P. S. Chishimba, S. Bwalya, P. Chishima, M. Mulimba, L. Nkula, A. Chikwanda, V. Mulenga, G. Mangolwa, F. Bwalya, L. Chishima, E. Lubla, P. Manyimba, F. Mubanga, A. Chifundwa, G. Nyoni, and F. Chisenga, being assaulted and threatened with death; and the properties of J. Banda, P. Mulenga, J. Ngenda, C. Mwamba, P. Banda, B. Chunda, J. Namulkoko, L. Mwamba, B. Chileshe, A. Simbule, C. Chipolabantu, C. Chipasha, J. Chibungo, K. Mwamba, G. Mukuba, A. Welwina, V. Chilekwa, W. Zimba, A. Ngosa, E. Kasoma, G. Kasonde and C. Katete, being damaged or destroyed, which activities are prejudicial to the security of the Republic. That during the months of December, 1971, January and 20 February, 1972, you and other members of the United Progressive Party conspired to be defiant of and disobedient to the law and lawful authority and to publish by word of mouth and by way of circulars, statements, defamatory and contemptuous of the Head of State and the Government, conduct likely to prejudice the securities of the Republic. The first question which arises is whether this document complies with the requirement of the section to give grounds 'in detail'. Mr Annfield for the applicant argued that the dictionary meaning of the term 'in detail' meant an itemised set of grounds. He relied on the obiter dictum of Magnus, J, in Chipango v Attorney-General of Zambia, that the grounds must be as particularised as they would have to be in a pleading in an ordinary action. He also relied on a number of Indian cases decided in relation to the Indian Preventive Detention Act. Under that Act where a preventive detention order was made the detaining authority was obliged 'to communicate to the detainee as soon as may be but not later than five days from the date of detention the grounds of the detention and to afford him the earliest opportunity to make a representation'. Under the Indian legislation a tribunal was set up to consider representations and if its decision was averse to the order, its recommendation led to the mandatory vacation of the order. The Indian legislation differs from the Zambian both in its wording and in its effectiveness. The Indian courts have held that the meaning of the words 'to communicate to the detainee the grounds of the detention and to afford him the earliest opportunity to make a representation' is that the detainee must be given grounds which are sufficient to enable him to make an adequate representation to the detaining authority and tribunal. Grounds which are so vague as not to enable such representation do not comply with the section. Both counsel for the applicant and the Attorney-General agreed that the grounds given to a detainee under the Zambian Constitution must be sufficiently detailed to enable such a representation to be made. Clearly a ground which was so vague as not to permit such representation would not comply with the constitutional requirement. In State of Bombay v Atuna Ram Vaidya, Kania, CJ, delivering the majority judgment of this court had this to say: ' What is meant by vague? Vague can be considered as the antonym of 'definite'. If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague.' In Naresh Chanda v State of West Bengal, referred to by Scott, J, in the court below, the Supreme Court of India said at page 1335: 'The grounds for making an order for detention are conclusions of facts and are not a complete recital of all the relevant facts.' and at page 1341: 'Vagueness is a relative term. Its meaning must vary with the facts and circumstances of each case. What may be said to be vague in one case may not be so in another and it could not be asserted as a general rule that a ground is necessarily vague if the only answer of the detained person can be to deny it. If the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained person to make his representation, it cannot be said that it is vague.' The West Indian case of Herbert v Phillips and Sealey is a case decided by the Court of Appeal of West Indies Associated States. Section 15 (1) (a) of the St Christopher, Nevis and Anguilla Constitution Order, 1967, reads as follows: ' 15. (1) When a person is detained by virtue of any such law as is referred to in section 14 of this Constitution the following provisions shall apply, that is to say: (a) he shall, as soon as reasonably practicable and in any case not more than seven days after the commencement of his detention, be furnished with a statement in writing in a language that he understands specifying in detail the grounds upon which he is detained;'. It can be seen that except for a variation in time the section is on all fours with the Zambian section 26A (1) (a). A detention order had been made and the grounds of detention were given as follows: ' That you Dr William V. Herbert, on several occasions during the year 1967, both within and outside of the state, encouraged certain residents in the state and other persons to use unlawful, felonious and murderous means to overthrow the lawful government of her Majesty in the state, and that you were concerned in armed rebellion against the said lawful government, thereby endangering the peace, public safety and public order of the state.' The case was decided on other grounds but A M. Lewis, CJ, dealt with the point that these grounds were not in detail in the following terms: ' At the hearing of this appeal learned counsel for the Crown readily conceded that the first ground, which alleges the encouraging of residents and other persons to overthrow the state, is too vague to comply with the requirements of the section. He contended, however, that the allegation in the second ground that the detainee was concerned in armed rebellion against the lawful government of the state was sufficient. The fact of armed rebellion, he stated, was notorious.' ' The object of requiring a detainee to be furnished with a statement specifying in detail the grounds upon which he is detained is to enable him to make adequate representations to the independent and impartial tribunal which the same section of the Constitution requires to be set up for the review of his case. The statement is not required to contain the evidence which has come to the knowledge of the Governor and which it may be against the public interest to disclose. But it must, in detailing the grounds for detention, furnish sufficient information to enable the detainee to know what is being alleged against him and to bring his mind to bear upon it. A ground which is vague, roving or exploratory is insufficient to enable a detainee to bring his own mind to bear upon any acts or words of his which may possibly have attracted the attention of the authorities and from which the Government has drawn conclusions adverse to him which satisfy the Governor that it is necessary to exercise control over him. With such a ground an innocent person would not know where to begin with the representation of his case to the tribunal. ' In the second ground in the statement in this case the crucial word is "concerned". There could hardly be a less informative word. It may be a notorious fact that a rebellion has occurred but how or where had the detainee exhibited his concern or implicated himself? It is the detainee against whom action has been taken, it is his acts and words which have been the subject of investigation by the executive, and he is entitled to be told sufficient to enable him to explain them or to refute the conclusion before the tribunal, if he is able to do so. In my opinion both grounds set out in the statement; are vague and exploratory, and are insufficient to comply with the requirements of section 15 (1) (a) of the Constitution. Had I held that the detention of the appellant was ordered under the authority of a law enacted by the legislature this ground of appeal would also have succeeded for the furnishing of a statement in compliance with section 15 (1) (a) is a condition upon which the continued validity of the detention under such a law demands.' ' I do not consider that it is possible to determine the meaning of the words 'in detail' in vacuo by a simple reference to a dictionary definition or by any rigid yardstick. I accept that the meaning is that the grounds must be given in such form as enables the detainee to make an adequate representation against his detention on such grounds. If the words 'not in detail' were substituted for the word 'vague' in the passage I have cited from Kania, CJ's judgment in Atmaran's case, those words are in my opinion fully applicable to the provision of section 26A (1) (a) of the Constitution of Zambia. It is a matter of fact in the particular circumstances of each case what and how much detail must be given. Where facts are notorious or the detainee must himself know them, it cannot be said that a failure to refer in the ground to these facts causes the ground to fail to be in detail. It may well be that in some cases it is necessary that the grounds should, as Magnus, J, said, be as particularised as they would have to be in an ordinary pleading. I do not accept that this is a rule which applies generally. The matter must be looked at from the point of view of the detainee himself. Provided the ground is given with sufficient particularity to him in the circumstances of the case to enable an adequate representation to be made by him there is in my view compliance with the requirement to give grounds in detail. In the case of Mr Kapwepwe the grounds given are two conspiracies. Both state the period and that the other conspirators are members of the United Progressive Party. The first ground is a conspiracy to injure certain persons and those persons are named. The second is a conspiracy to publish material and circulars defamatory and contemptuous of the Head of State. The material and circulars made on behalf of the Party are within the knowledge of the detainee. I am satisfied that applying the criterion mentioned, Mr Kapwepwe was in a position to make an adequate representation in respect of the grounds alleged and therefore that these grounds complied with the requirements. A further point was urged in favour of the appellant. Without impugning the bona fides of the detaining authority it was argued that the discretion was wrongly exercised (a) because no proper grounds were given; and (b) because the matters alleged were criminal offences for which a criminal prosecution could have been instituted. The first of these reasons is really the same point as was taken in relation to the detail required. In Padfield v Minister of Agriculture, Fisheries and Food and Employment Security v Aslaf it has been held that where an authority which has a discretion to act gives no reason for such action, it is open to a court to infer that he has no good reason. I would agree with this as a general proposition. It does not, however, apply here because, as I have already held, reasons complying with the Constitution have been given. In support of the second argument on this point the following passage from Jain Indian Constitutional Law is cited: ' Can an order of detention be made against a person on the very grounds on which he has been prosecuted in ordinary courts and acquitted? Against this it can be contended that by such order of detention the ordinary laws are circumvented and court's orders defeated. The minority (Mahajan and Mukherjea, JJ.) in Ashutosh v Delhi observed, "There could be no better proof of mala fides on the part of the executive authorities than a use of the extraordinary provisions contained in the Act for purposes for which ordinary law is quite sufficient." But the order was not quashed on the ground of mala fides. In Thaku Prasas Bania v Bihar, the Supreme Court left the question open whether, in case the grounds on which a detention order was based were also the subject matter of criminal prosecution, the order of detention might amount to abuse of the statutory powers. In no case yet has an order been held to be "mala fide" on this ground.' I do not accept this contention in so far as it may be taken to be upholding the proposition put forward by counsel. The grounds for a detention order and for a criminal prosecution are entirely different. The first may be mainly precautionary and based on suspicion. The second must be proved beyond reasonable doubt. It is commonplace for a person to be acquitted in circumstances which show that there is very strong suspicion that he committed the crime but the reasonable doubt remains. It may well be, in a particular criminal case, that a man is shown so clearly to be innocent, that the use of that charge against him for the purpose of a detention order would be held to be unreasonable. That however cannot be a general rule and it is certainly not per se a proof of unreasonableness that the detaining authority has chosen to detain in preference to laying a criminal charge. I would dismiss the appeal in the case of Mr Kapwepwe. The reasons given in the case of Mr Kaenga are as follows: 1. That between August, 1970, and 19th September, 1971, you and other persons conspired to publish circulars which were highly prejudicial to the security of the Republic in that the subversive circulars among other things claimed that duly elected members of the Government, including His Excellency the President were not Zambian nationals. 2. That between the aforementioned period you were actively engaged in organising the United Progressive Party in a manner designed to create tribal conflict in the country when you well knew that such activity was prejudicial to the security of the Republic. 3. That you conspired and assisted others or that your activities in furthering the aims of the United Progressive Party, knowingly or unknowingly, assisted in obtaining from Governments hostile to Zambia, materials including firearms and the training of Zambian nationals with the intention to dislodge by unlawful means the legally constituted Government, an act or acts prejudicial to the security of the Republic. As to the first of these grounds, I consider it to be sufficiently particularised. As to the second, I consider that it is a notorious fact that the United Progressive Party is largely based on support from the Bemba and allied tribes and that the party is in the popular image a Bemba party. In this context it seems clear to me that this ground is an allegation that the detainee has been organising the party as a tribal party which in the results is likely to cause conflict with other tribes and prejudice security. I consider that the ground is sufficiently particularised to enable the detained to make adequate representation. The third ground is not framed in the most felicitous of language but it sets out in fact what I will refer to for clarity as three sub-grounds as follows: (1) that the detainees conspired and assisted others in obtaining from Governments hostile to Zambia materials including firearms and the training of Zambian nationals with the intention to dislodge by unlawful means the legally constituted Government, an act or acts prejudicial to the security of the Republic; (2) that the detainee's activities in furthering the aims of the United Progressive Party knowingly assisted in obtaining from Governments hostile to Zambia, etc.; (3) that the detainee's activities in furthering the aims of the United Progressive Party ... unknowingly assisted in obtaining from Governments hostile to Zambia, etc. As regards the first of these sub-grounds, it is a conspiracy unlimited in time. Indeed, as a matter of English it is also a conspiracy unlimited in persons. The other conspirators are not limited to members of the U. P. P. It may be that this is what is intended but it is not what is said and I do not consider that a detainee would necessarily think that the conspiracy was confined to members of the U. P. P. The alleged other Governments are not mentioned. This is, perhaps understandable as it would be unfortunate if the detaining authority was required to give grounds which might cause an international incident. As regards the second of these sub-grounds, I find difficulty in the words 'your activities in furthering the aims of the United Progressive Party'. The United Progressive Party, is, or at least was, a registered society and its objects must have been set out in its constitution. It can be assumed by virtue of its registration that these objects were lawful objects. It is hardly likely that the detainee has been detained for activities furthering lawful aims but any unlawful aim is not specified. Furthermore, even if the unknown aims were specified, what are the activities? No doubt it is possible to detain on the ground of mere support of the U. P. P. if the detaining authority is of opinion that this endangers the security of the State. I cannot conceive, however, that this is an allegation against any activity, for example, canvassing for membership at a time when the party was lawful, with a knowledge that the party was obtaining arms from hostile governments. If every activity were to be included, it would have been simple to say that Mr Kaenga remained a member of the party with knowledge that arms were being obtained. Furthermore, if it were so, it is likely that a very large number of the U. P. P. would have been detained which is manifestly not the case. I consider that the ordinary person given these grounds would consider that the activities had some real relation to the obtaining of arms, etc. Without some reference to the nature of the activities, I do not consider that such person, or Mr Kaenga in this case, could make an adequate representation. This ground, in my opinion, is not in detail and does not comply with the constitutional requirement. The third sub-ground is the same as the second except that it alleges that the activities unknowingly assisted in obtaining arms, etc., from hostile governments. Whatever chance one would have had of recognising the activities referred to where one is aware of the effect, there can hardly be anywhere one is not so aware. In such circumstances the innocent detainee would have to rack his brains to elucidate what he might have done to this result, what act, what journey, what statement so resulted. In these circumstances he might well say, what am I supposed to have done which could possibly have the result alleged, or which could have been in the mind of the detaining authority. A fortiori I consider that this sub-ground is vague, is not in detail and does not comply with the constitutional requirement. The third ground given to Mr Kaenga is a substantial ground and must have weighed materially with the detaining authority. It is not, therefore, necessary for me to consider what would be the result in circumstances where a minor ground is concerned. In Chipango's case, the Court of Appeal held that failing to give grounds within the required time was a failure to comply with a mandatory provision and resulted in the detention being unlawful. For the reasons given in Chipango's case, I consider that the same result must follow when, though grounds are given, there has been a material failure in specifying those grounds. Judgment by BARON JP This is an appeal from a decision of the High Court dismissing the applications of the appellants for writs of habeas corpus ad subjiciendum. The appellants were detained on the authority of detention orders made by the President under regulation 33 of the Preservation of Public Security Regulations (to which I will refer hereafter as regulation 33). Subsection (1) (a) of section 26A of the Constitution (I will refer to sections of the Constitution only by their numbers) provides that a person restricted or detained under the authority of any such law as is referred to in section 24 or section 26 (and regulation 33 is such a law) 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 writing in a language that he understands specifying in detail the grounds upon which he is restricted or detained.' It is common cause that the grounds in question were furnished within fourteen days after the commencement of the detention and that all other procedural requirements were fulfilled; the only issue raised under the first ground of appeal is that the grounds furnished were not specified in detail within the meaning of section 26A (1) (a). The appellants' second ground of appeal turns on section 26 which reads: ' ' 26. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of sections 15, 18, 19, 21, 22, 23, 24 or 25 of this Constitution to the extent that the law in question authorises the taking, during any period when the Republic is at war or when a declaration under section 29 of this Constitution is in force, of measures for the purpose of dealing with any situation existing or arising during that period; and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions unless it is shown that the measures taken exceeded anything which, having due regard to the circumstances prevailing at the time, could reasonably have been thought to be required for the purpose of dealing with the situation in question.' The appellants contend that the measures taken 'exceeded anything which could reasonably have been thought to be required’ I should perhaps comment at the outset on the form in which the matter comes before this court. The applications were consolidated and in consequence this appeal embraces both; it is manifest however that the two applications, being based on detention orders the grounds for which are quite different, are unconnected. Even if the legal issues were the same in each case (which might or might not be so, depending on the view taken of the facts), this is no basis for consolidating two applications the facts of which are quite distinct. The applications could - and no doubt from considerations of expense should - have been heard together, but the cases are distinct and there should have been two separate records throughout. That this is so emerges very clearly from the way in which the argument in this court proceeded; in the final analysis the decisions turn on the particular facts of each case, the issues being whether the actual grounds furnished complied with section 26A (1) (a), and whether in any event on those grounds’ detention exceeded anything which might reasonably have been thought to be necessary. Mr Annfield's first ground of appeal is based on the meaning which he submits should be given to the expression 'grounds in detail'. He cites the Concise Oxford Dictionary, where the first meaning of 'detail' is given as 'item by item'. It is relevant to observe that the first meaning of 'in detail' is 'give the items separately', and it might well be argued on this basis that the section is satisfied if each of the grounds is given separately. But I wish to stress that I regard it as unrealistic and unprofitable to engage in an exercise in semantics; this same point was considered by this court in the recent case of Sinkamba v Doyle (Chief Justice) and I propose to do little more here than quote from what I said in that case at page 6: 'however strongly the words themselves might suggest (any particular) meaning, the context might dictate another, which must prevail.' 'Context' was there used in the sense in which it was used by Viscount Simonds in Attorney- General v H. RH. Prince Augustus as including ‘not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy'. The matter was put in this way by Lord Blackburn in Bradlaugh v Clarke, in a passage cited to us by Mr Annfield: ' All statutes are to be construed by the courts so as to give effect to the intention which is expressed by the words used in the statute. But that is not to be discovered by considering those words in the abstract, but by inquiring what is the intention expressed by those words used in a statute with reference to the subject matter and for the object with which that statute was made, it being a question to be determined by the court, and a very important one, what was the object for which it appears that the statute was made.' Mr Annfield urged the court also to adopt the dictum of Magnus, J, in Chipango v Attorney- General: ' As the paragraph required detailed particulars, a general statement of the grounds would not, in my opinion, suffice, and I should have thought that the grounds must be at least as particularised as they would have to be in a pleading in an ordinary action.' This opinion was expressed obiter; indeed, the point had not been argued. But more importantly, perhaps, Magnus, J, appears to have equated 'grounds in detail' with 'detailed particulars of the grounds', a view which, even if one were to go no further than the plain meaning of the two phrases, I would have some difficulty in accepting. But in fact, one must go further, and construe 'grounds in detail' in the context, using that word in the wide sense as explained by Viscount Simonds. In considering what amount of detail, and detail of what, will be sufficient in any given case to comply with section 26A (1) (a) we must consider first the character of this provision and the object it is designed to achieve. The machinery of detention or restriction without trial (I will hereafter use 'detention' and cognate expressions 'to include restriction' and cognate expressions) is, by definition, intended for circumstances where the ordinary criminal law or the ordinary criminal procedure is regarded by the detaining authority as inadequate to meet the particular situation. There may be various reasons for the inadequacy, there may be insufficient evidence to secure a conviction; or it may not be possible to secure a conviction without disclosing sources of information which it would be contrary to the national interest to disclose, or the information available may raise no more than a suspicion, but one which someone charged with the security of the nation dare not ignore, or the activity in which the person concerned is believed to have engaged may not be a criminal offence; or the detaining authority may simply believe that the pursuit concerned, if not detained, is likely to engage in activities prejudicial to public security. And one must not lose sight of the fact that there is no onus on the detaining authority to prove any allegation beyond reasonable doubt, or indeed to any other standard, or to support any suspicion. The question is one purely for his subjective satisfaction. These are far - reaching powers. In particular it must be stressed that the President has been given power by Parliament to detain persons who are not even thought to have committed any offence or to have engaged in activities prejudicial to security or public order, but who, perhaps because of their known associates or for some other reason, the President believes it would be dangerous not to detain. As the learned author of Jain Indian Constitutional Law, says at page 459: 'by its very nature the subject of preventive detention implies detention on the judgment of an executive authority. It would be very difficult to lay down objective rules of conduct, failure to conform to which should lead to detention. As the very term implies, detention in such cases is affected with a view to prevent the person concerned from acting prejudicially to certain objects which the legislation providing for such detention has in view. Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial. The responsibility for the security of the State and the maintenance of public order Is on the executive and it must therefore be left free to exercise the power of preventive detention whenever it thinks the occasion demands it.' Section 26A stands in this context. The whole of subsection (1) is directed to providing machinery to enable a detainee to make representations to the detaining authority and to the tribunal established by regulation 33 (7) for the purpose of obtaining relief; it is to this end that 'grounds in detail' must be furnished. Such grounds must enable the detainee to make representations not only on the basis of mistaken identity, alibi and the like, but also on the merits; the detainee must be put in a position where he can dispute the truth of the allegations against him. This is not, however, to say that the allegations must be particularised in the same way as criminal charges; the procedure of preventive detention is, a fortiori, different from criminal procedure, and there is no warrant for the proposition that the allegations must be made in similar manner. Grounds are not charges; they are the reasons for the detention. As Kania, CJ, said in State of Bombay v Alma Ram Vaidya: ' By their very nature the grounds are conclusions of fact and not a complete detailed recital of all the facts.' Then, on the question of particularity, Kania, CJ, said in the same case: ' The contention that the grounds are vague requires some clarification If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is, however, improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act as generally suggested It cannot be disputed that the representation must be one which on being considered may give relief to the detained person.' The Indian legislation is not in the same terms as ours but the differences are not such as to invalidate the relevance of the foregoing dicta to the case before us. The West Indian case of Herbert v Phillips and Sealey turned on legislation identical, for the present purpose, with ours; Lewis, CJ, said at page 452: 'The object of requiring a detainee to be furnished with a statement specifying in detail the grounds upon which he is detained is to enable him to make adequate representations. The statement is not required to contain the evidence which has come to the knowledge of the Governor and which it may be against the public interest to disclose. But it must, in detailing the grounds for detention, furnish sufficient information to enable the detainee to know what is being alleged against him and to bring his mind to bear upon it. A ground which is vague, roving or exploratory is insufficient to enable a detainee to bring his own mind to bear upon any acts or words of his which may possibly have attracted the attention of the authorities and from which the Governor has drawn conclusions adverse to him which satisfy the Governor that it is necessary to exercise control over him. With such a ground an innocent person would not know where to begin with the representation of his case to the tribunal.' The tests suggested in these cases seem to me to amount to the same thing. A detainee must be given sufficient to enable him to know what is alleged against him; if he is not given that amount of information it follows that he will not be able to make 'a representation which on being considered, may give relief' - an expression which could, perhaps be shortened to 'a meaningful representation'. The State cannot, of course, be required to divulge information the nature or sources of which it would be contrary to the public interest to reveal; but the nature of the information on which the allegations against a detained person are based is quite different from the nature of the allegation itself, which a detainee is entitled to be told. I would state the test in this way: the detainee must be furnished with sufficient information to enable him to know what is alleged against him and to make a meaningful representation. I can illustrate the application of this test by reference to possible ways in which the grounds of detention might be set out. If, for instance the grounds were merely a recitation of the relevant legislation, as for instance - 'a belief that you have engaged or are likely to engage in activities prejudicial to the preservation of public security' it is clearly impossible for the detained person to do more than deny that he has ever engaged, or would ever engage, in such activities. Such a representation would obviously have no chance whatever of success; it would, in the words of Kania, CJ, be no more than a statement that the detained person had not acted and would not act 'as generally suggested'. But if the grounds were - 'a belief that during the months of January and February, 1972, you addressed meetings in Lusaka at which you advocated the use of violence against persons of different political or tribal affinations' This would enable the detainee to make representations on the basis of alibi or mistaken identity and also on the merits. For instance, he could say 'I have never addressed meetings in that place' or 'During the months in question I was engaged in a course of study in Dar Es Salaam', when the detaining authority would no doubt initiate the most urgent inquiries as to the truth of these statements which, if true, must mean that a mistake had been made. Or the detainee might say 'It is true that I addressed meetings in Lusaka during the months in question, but I deny that I advocated violence of any kind'. This representation is no more than a denial, but the information given cannot be held to be inadequate only for that reason. I particularly adopt and stress the words of Kania, C. J., already quoted above - 'It is however improper to contend that a ground is necessarily vague if the only answer of the detained person could be to deny it. No doubt when the matter comes before the tribunal, the evidence on the basis of which the detaining authority reached its conclusion will be presented, and at that stage the detainee will have more particularised information to which to offer specific replies than is contained in the statement of grounds; but it must be stressed that the grounds are reasons, not detailed statements of the facts or the evidence, and the grounds cannot be said to be insufficiently detailed simply because they do not recite the words the detainee is alleged to have used. The detainee himself knows, at least in broad terms, what he said at the meetings in question, and thus has had his attention directed, as Lewis, CJ, put it in Herbert v Phillips and Sealey, to 'the acts or words which may possibly have attracted the attention of the authorities and from which the (detaining authority) has drawn conclusions adverse to him which satisfy the (detaining authority) that it is necessary to exercise control over him.' Once he has this information the detainee is able to bring his mind to bear upon what he knows he said and to make meaningful representations. In approaching the statement of grounds, one cannot look for language as precise as that which one requires in legislation. This is not to say, of course, that the detaining authority can use obscure language which the detainee might find ambiguous or indefinite; but if the test postulated above, namely that a detainee must be given sufficient information 'to enable him to know what is alleged against him ' is to be properly applied, the statement of grounds must be looked at from the point of view of the recipient. Thus, it is that a court is entitled to have regard to matters which are notorious in the country. And if, approaching the matter in this way, the ground furnished is, in the words of Kania, CJ 'capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation' section 26A (1) (a) has been complied with. Before considering the facts in the two cases before us it is convenient to deal with the second ground of appeal. It is not open to the courts to debate whether it is reasonable for there to be in existence a declaration under section 29 (which I will call for convenience a state of emergency) a challenge of the detention on the ground that it exceeded anything which could 'reasonably have been thought to be required' to meet the situation amounts to the contention that, assuming the state of emergency and assuming the truth of the allegations against the detainee, it was unreasonable to resort to detention - in other words, that the situation could and should have been met by some lesser measure. Mr Annfield's argument was, first, that it was unreasonable to detain on grounds of which insufficient detail had been given, and second, that it was unreasonable to detain rather than prefer criminal charges. The first argument takes the case no further than the first ground of appeal, because it must fail if the first ground of appeal fails. The second argument cannot be sustained. Where the matter falls within the expression 'for the purpose of preserving public security' (regulation 33 (1)) there is no legal obligation on the executive to prosecute in the criminal courts indeed, as I have pointed out, it is not necessary that the detainee is believed to have been guilty of a criminal offence. I turn now to apply the foregoing tests to the facts. I will deal first with the case of Mr Kapwepwe, to whom I will refer as the first appellant. The grounds on which he was detained are set out in the judgment just delivered by the learned Chief Justice and I do not propose to set them out again. The first ground alleges a conspiracy during stated months with other members of the United Progressive Party to endanger the safety of persons and property and alleges that, in consequence of that conspiracy, a number of people were assaulted and threatened with death and the property of a number of people was damaged or destroyed. It is argued that there is insufficient detail here in that the persons with whom the detainee is alleged to have conspired are not named, and that the precise nature of the conspiracy is not stated. I am unable to accept this argument; the detainee has been told the nature of the conspiracy, the period, and that the conspiracy was with other members of the United Progressive Party, and it is relevant to observe also that the results of an alleged conspiracy are material in proving the conspiracy itself. It may well be that in the face of an allegation such as this the only representation the first appellant could make on the merits would be a denial but it cannot possibly be said that he does not know what is alleged against him. The second ground is attacked on the basis that it does not disclose in what way the first appellant conspired to be defiant of and disobedient to the law and lawful authority, it being argued that the passage beginning 'and to publish by word of mouth.' is a separate allegation. I agree with the Attorney-General that there is only one allegation in this ground and that the words 'and to publish' are to read conjunctively. I am satisfied that this ground also is specified in sufficient detail to enable the first appellant to know what is alleged against him and to make a meaningful representation. The representation could take one of several lines. The first appellant's position might be that he had no knowledge of the circulars and statements referred to; or that they had been published without his knowledge; or that their content was not defamatory and contemptuous as alleged; and so on. In my judgment the specification of both grounds complies with the provisions of section 26A (1) (a). I would dismiss the first appellant's appeal. The grounds upon which Mr Kaenga, to whom I will refer as the second appellant, was detained have also been set out by the learned Chief Justice. The first ground states the nature of the allegation clearly; the information supplied includes the period during which the circulars were alleged to have been published and the manner in which they are alleged to be subversive. I am satisfied that the information supplied enables the second appellant to make a meaningful representation; here again the representation could take one of several forms, as for instance those indicated above. The second ground is said to be defective because the manner in which the United Progressive Party is alleged to have been organised is not stated. This amounts to a contention that the facts and evidence from which the conclusion was drawn should be detailed; but the detaining authority is not required to do this. There are no doubt numerous aspects of the organisation of a political party, and indeed in the nature of things it could well be that the detaining authority would not know the precise details of the manner in which the party had been organised. These details do not seem to me to go to the root of the matter; the essence of the allegation here is the alleged objective of the second appellant, namely the creation of tribal hostility. Reduced to its simplest terms, the allegation is that the party was being organised on tribal lines with the intention of concentrating on the advancement of the interests of the members of a particular tribe or group of tribes; this information is sufficient to enable the detainee to know what is alleged against him and to make a meaningful representation. Once again, the representation could take one of several forms. The second appellant could say that he was not actively engaged in the organisation of the party; or that, although the party was composed predominantly of members of one group of tribes, it did not concentrate on the interests of that group; or that he did not intend the party to function in this way, and that if in fact it did so, he would have nothing more to do with it; and so on. The third ground is framed in the alternative. The first allegation is that the second appellant conspired and assisted others to obtain from governments hostile to Zambia materials including firearms and the training of Zambian nationals with the intention to dislodge the legally constitute government by unlawful means. There can be no doubt that the second appellant knows from this statement what is being alleged against him; read by itself this part of the ground gives no indication of who the 'others' are, but the whole ground as framed makes it clear that these others are alleged to be supporters of the United Progressive Party. The alternative allegation is that, even if the second appellant did not know it, the United Progressive Party was engaged in obtaining firearms, etc., and that in furthering the aims of the party he was assisting in doing these things. It is argued that this cannot be the allegation because in that event any member or supporter of the United Progressive Party could be detained notwithstanding that he might be unaware of the party's activities. I was at one stage, and so expressed myself during the hearing, troubled by the words ' knowingly or unknowingly'. But, on analysis, I am conscious of the fact that what troubled me was not the meaning of those words, and more particularly the ground as a whole containing those words, but the thought of depriving of his liberty a person who it is recognised may well be entirely innocent of any intention to prejudice the security of the State. I cannot escape the conclusion that this is indeed the law. No doubt the President would be very slow to detain a person who only unwittingly was contributing to activities which prejudiced the security of the State; but that he has the power to do so cannot be questioned. I am unable, with respect, to agree with the learned Chief Justice in his approach to the words 'activities in furthering the aims of the United Progressive Party'. It seems to me that the activities alleged are clearly stated, namely the furthering of the aims of the United Progressive Party; in my view the expression means simply by' furthering the aims' Nor am I able to agree that the aims of the United Progressive Party, or whether such aims are lawful or unlawful, is material. I understand 'furthering' to mean 'promoting' or 'supporting' or 'helping'; the allegation is that simply by promoting or supporting the party, by helping to keep it going, the second appellant was helping to do all the things the party was doing notwithstanding that he did not know the party was doing some of those things. As I have said it cannot be questioned that the detaining authority has power to detain in such circumstances. I am satisfied that the second appellant can be in no doubt as to what is alleged against him. His representations could, once again, take several forms. His position might be, for instance, that there was no conspiracy to obtain arms or do the other things alleged, and that the information the detaining authority had been given which led to this conclusion was false; or that, if the party was doing these things, the second appellant did not know it, and that in those circumstances he would have nothing further to do with the party; and so on. Such representations could not be said to be nothing more than a denial that the detainee acted ' as generally suggested'; they are directed to allegations the substance of which is clear. In my view the statement of grounds furnished to the second appellant complies with the requirements of section 26A (1)(a). I would dismiss his appeal also. Judgment Gardner JA: I respectfully agree with the statements of the law as set out by the learned Chief Justice and the learned Judge President, that is to say, I find that the grounds for detention furnished to a detainee under the provisions of section 26A (1) (a) and (d) of the Constitution must be sufficiently detailed to enable the detainee to make meaningful representations to the detaining authority or to a properly constituted tribunal. I further agree with the comments of my learned brothers with regard to the second ground of appeal and I find there is no merit in that ground of appeal in respect of either of the appellants. Applying the test of the sufficiency of the grounds for detention as outlined above which must be a question of fact in respect of each particular case, I find that the grounds for detention furnished to Mr Kapwepwe complied with the requirements of the Constitution and that his detention is therefore lawful. I would dismiss the appeal of Mr Kapwepwe. With regard to the grounds for detention furnished to Mr Kaenga I find that ground one is sufficiently detailed for the purposes of the Constitution. I find that the word ' activities' used in ground three of the grounds for detention are qualified and explained by the following words 'in furthering the aims of the United Progressive Party' and are therefore not so vague as to make it impossible for the detainee to make meaningful representations thereon. It may well be that as a result of this any member of the United Progressive Party, by virtue of the fact that by being a member he furthers the aims of that party, would be liable to detention under this ground. It is not however for this court to decide whether such a ground is unfair or not or may result in innocent persons being detained, because it is for the detaining authority alone to be subjectively satisfied that the ground is one which makes it necessary to make a detention order. With regard to the rest of that ground relating to obtaining from unspecified governments materials including firearms for unlawful purposes I find as a matter of fact that these allegations are sufficiently detailed to enable the detainee to make meaningful representations. In dealing with ground two however I note that the wording amounts to an allegation that the detainee was engaged in organising the United Progressive Party in a manner designed to create tribal conflict. It may well be, although there is no specific evidence in this case, that the United Progressive Party is organised on tribal lines. The allegation in this case is that Mr Kaenga personally organised the party in a manner designed (that is to say intended) to create tribal conflict. It is therefore his manner of organising the United Progressive Party which is alleged to be at fault. There are of course numerous ways in which a political party may be organised and numerous innocent duties which have to be carried out by any organisers, for instance, the issuing of party cards, collecting subscriptions and generally running the domestic affairs of the party. There are also numerous ways in which a party could be organised in a manner designed to create tribal conflict. This could be by making speeches, exhorting members of one tribe to act against people of other tribes, by issuing pamphlets to this end, by conducting a whispering campaign amongst the general public and many other ways which could have the effect of creating tribal conflict. On being furnished with the grounds for detention as set out in ground two it is my view that the detainee could not possibly know in what particular physical manner, he himself acted to bring about the alleged intention to create tribal conduct. If he were to put forward a case to show that in all the speeches, he had ever made on behalf of the party he had never put forward any suggestion remotely connected with the creation of tribal conflict he might find that this representation would avail him not at all because the detaining authority might be relying on other allegations such as the publishing of pamphlets designed to that end. In the result therefore I find that ground two is vague and does not afford Mr Kaenga an opportunity to make meaningful representations as required by section 26A (1) of the Constitution. Judgment Doyle CJ: The judgment of the court is that Mr Kapwepwe's appeal is dismissed. In respect of the appeal of Mr Kaenga, a complication arises. It is this, that had each of the judges of the Court of Appeal been the judge of first instance, two of them, myself and Gardner, JA, would have been in favour of issuing the writ. Each of our final decisions would have been that the writ should issue. The ordinary way of deciding an appeal in Zambia, which follows the procedure in England, is to count final decisions and not the particular issues in the case. An interesting discussion on this topic is to be found in (1959) Vol. 75 of the LQR at page 36. Also as Lord Simmonds observed in an article at (1949) 23 Austerr LJ 355 it is not infrequent that a claim would succeed although on each individual proposition there was a majority against it. He gave the example of an appellant coming to a court of five judges and saying that the cause of action was wrong for five reasons. Where each judge held that the appellant was right on a different point but wrong on the other four, the appellant would finish with five judges in his favour, although there was a majority of four to one against him on each individual point. These comments, however, relate to propositions of law. In the instant case all three judges agree what the law is. Where we disagree is on the facts. It has somewhat unusually fallen to this court to decide the facts. On examination of the judgments, it appears that in relation to the three grounds given to Mr Kaenga - (1) all three judges find as a fact that the first ground complies with the Constitution; (2) the Chief Justice and the Judge President find as a fact that the second ground complies with the Constitution, Gardner, JA, dissenting; (3) the Judge President and Gardner, JA, find as a fact that the third ground complies with the Constitution, the Chief Justice dissenting. It is clear therefore, that the court has held as a fact that the notification of the grounds is valid and complies with the Constitution. In my opinion the result of this finding of fact is that Mr Kaenga's appeal must be dismissed. Although in the result the court has not found great difficulty in the point of law in issue, it was a constitutional point of very general importance being raised for the first time. The judgment of the court will be of assistance both to the detaining authority and to any persons subject to detention or restriction orders in the future. The appellants are detained without trial under exceptional powers. It would not be in the interests of justice that such persons should be deterred from raising reasonable legal points as to the validity of their detention by fear of the costs that might be incurred. While the question of costs is a matter for the judicial discretion of the court in each case, and clearly an unsuccessful appellant is less likely to escape an award of costs than an unsuccessful party at first instance, we consider that in all the circumstances of this case, justice will be served by each party bearing his own costs both here and below. Applications refused