Bwalya v Attorney General (Appeal 24 of 1988) [1988] ZMSC 75 (21 September 1988)

IN THE SUPREME COURT OF ZAMBIA^ I^Appeal No;■ 24^0f 19& HOLDEN AT LUSAKA = wrt dip# Ms appeal and grant (Civil Jurisdiction) t of corpus. oOPETER1 CHIKOBWALYA l^ri^ Appellantin and 5 Advocate is not the detaining ' THE ATTORNEY-GENERAL Respondent55 tribunals or indeed We SUto. CORAM: Ngulube, O. C. J., Gardner, J. S., and Chaila, Ag.j.s. 13th September and 21st Setpanber, 1988 . .. •»»* • z towMd । - Appellant in person . ■■ which . by, appellant ^niid wibh the court tw rehear his Professor M. P. Mvunga,. Solidtor-General, for therespondent^) jy^ j'j g- D ^'6 tillogoi abfiut Gardner,., J. S., delivered the judgment-of the'court.'--1 ■ ;a ,4u ExcelIwy the President,’ This is an appeal from.a judgment of*tb^High^Cpui^ an application for the issue of. a,rWfi$iot; hab^^^ It is The history of the case is that the appellant was detained by order of the President and thereafter^hejpetitioned under the provisions of the Constitution to have the detention order set aside. His petition was not successful and the appellant later applied for the Issue of a writ of habeas corpus on the grounds that he had fresh evidence to put b^oi;e the court.-•-This evidence ■ consisted of the fact, as alleged;by the appellant, that when he appeared before the Detainees. Tribunal for a review of his detention order the State Advocate informed the tribunal that the State did not support the continued detention of the appellant. At the trial of the application for the tissue of a writ of habeas corpus the learned trial judge ruled that the evidence was not the type of fresh evidence which would enable the court to reopen the case which had already had been decided on the hearing Of the petition. For this reason the application for the issue of a writ of habeas corpus was refused, and it is against that decision that the „ . , appellant now appeals. ’ACHNC SUPREME COUR! JUDGE . Before us today the appellant has argued that in view of the fact that the State Advocate has indicated that the State did not support his continued detention, he does not know how he can bring /J2 his - J2 - his mind to boar on the,reasons for his continued detention,? He" asks therefore that this court should allow his appeal and grant hie the issue of,a writ of habeas corpus. In the course of his judgpnent .the learned trial Judge Jn the court below remarked that a State Advocate is not the detaining authority, and, therefore, whatever the State Advocate says is not binding on courts, tribunals or indeed the State, cr.? . ^rdn^r. 4. S . M Aa.js We have to say that we agree with that finding of the learned trial judge. The evidence which has been adduced by the appellant is not frosh evidence that would entitle the court to rehear his ' application for release. Again wo agree with the'learned trial judge that the proper recourse for the appellant is to the detaining authority. Wo would remark that if what the appellant alleges about the statement of the State Advocate before the tribunal.is true, - — then no doubt he should .address, his.representations .direct to the detaining authority, that is, His Excellency the President * informing that authority of what the ' State'Advocato had sald. For the reasons we have given this appeal cannot succeed and it is dismissed. c ■ The his’ n / of ths case Is that the appellant was detained by There wilt be no order as'-to costs^ under the dorr. 'f the* Constitution to have the detention'order set^. . y.'. C1 His ; ititicr. not successful ano the appellant Jeter ' . .. . ,.-. A ■ .. id fn;- t >h issue of a writ of habeas corpus pn the grounds that > . * ' .......-J6™'5 w P«» ..<! the f <, as ill?DEPUTy CHIEHNUSTICE, that when he. ippnirtv! the uetairoew Tribunal for a review of his ■ detention th-? St a rr* Advocate Informed the tribunal that the’ did not support the continued detention of the appellant. • ••••••••••••••••••••■•••■'•• ••••••••• M cu ; vf th applicatitB.fTv Gardnerue of a writ of habeas j-vd Aii j-4/. f.m5o (.nav uni wviConvw h?s not tne . . . , JUDGE . OF THE. SUPREME COURT nn. , tvpe of s-’t evidence which would enable the court to reopen the which: had already had been decided on the hearing of the petition. For t^f reason the application for the issue of a writ of habeas : -w..c; ■ '.h it is MjiiSasChaila decision that the i'r-u < <■ I . ACTING SUPREME COURT JUDGE , » z .?* aef-ore. us today the appellant has argued that in view of the J er-'H: tu- State Advocate has indicated that the State did riot support uh; onllnued detention, he does not know haw he can bring ... /J2 his