Kapwepwe v Kaenga (HP307; HP308 of 1972) [1972] ZMHC 1 (7 July 1972)

IN THE MATTER OF SIMON KAPWEPWE and IN THE MATTER OF ELIAS MWAMBA KAENGA IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM (1972) ZR 181 (HC) HIGH COURT SCOTT J 7th JULY 1972 (Case Nos HP307 and HP308 of 1972) Flynote Constitutional law - Detention - Grounds of detention - Particularisation of grounds - Meaning of detail. 1972 ZR p182 SCOTT J Headnote The applicants were detained under regulation 33 of the Preservation of Public Security Regulations made under Chapter 106 of the Laws of Zambia. Section 26(A) (1)(a) of the Constitution of Zambia requires that such persons be furnished with a statement in writing specifying in detail the grounds upon which they are detained. The applicants applied for a writ of habeas corpus ad subjiciendum on the grounds that the statements did not contain sufficient detail to facilitate legal representation and that the President exercised his powers to detain improperly and not entirely in good faith. Held: Grounds are simply reasons and what must be provided are the reasons for the exercise of the executive discretion to detain. They are not statements in a summary form of the material facts on which reliance is made. Cases cited: (1) Chipango v Attorney-General 1970 SJZ No. 179. (2) Naresh Chanda v State of West Bengal AIR 46. SC. (3) Uganda v Commissioner of Prisons (1966) EA 514. Legislation referred to: (1) Constitution of Zambia, Appendix 3 of the Laws of Zambia ss. 26A (1)(a), 29 (1)(b), 28. (2) Preservation of Public Security Regulations, Cap. 106, ss. 33, 3. A Annfield, of Peter Cobbett - Tribe and Co, for the applicants. RM Ukefe, State Advocate, for the respondent. Judgment Scott J These are two applications for a writ of habeas corpus ad subjiciendum, the applicants having been detained under regulation 33 of the Preservation of Public Security Regulations made under Chapter 106 of the Laws. Section 26A (1)(a) of the Constitution requires such persons to be furnished with a statement in writing specifying in detail the grounds upon which they are detained. The statement in respect of Simon Kapwepwe (Ex. SKI) alleges that during the months of December, 1971, January and February, 1972, he 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 eighteen named persons were assaulted and threatened with death and the properties of twenty - three named persons were damaged or destroyed, on given dates, and also that during those months he likewise 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. The statement in respect of Elias Mwamba Kaenga (Ex. EMK 1) alleges that between August, 1970, and 19th September, 1971, he and other persons conspired to publish circulars which were subversive and among other things claimed that duly elected members of the Government including His Excellency the President were not Zambian Nationals; secondly that he had been during the same period actively engaged in organising the United Progressive Party in a manner designed to create tribal conflict and thirdly that he conspired and assisted others, or that his 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. All these activities were alleged to be prejudicial to the security of the Republic. The first contention of the applicants is that they are unable by reasons of the lack of detail thereon to make sufficient or any representations either by themselves or through their legal representative to the President or any other authority regarding their detention. It has been argued that the grounds have not been supplied in detail, and only very general allegations of conspiracy have been made. Dictionary definitions of 'detail' have been referred to but one must take the ordinary meaning as applied to these Regulations and my attention has also been drawn to the opinion of Magnus, J in Chipango's case in which he said he thought the grounds must be at least as particularised as they would have to be in a pleading in an ordinary action. It seems to me however that what we are here concerned with are the grounds upon which the applicants have been detained and not the facts which might or might not support those grounds. For this reason, I respectfully do not agree with Magnus, J as the contents of a pleading should contain a statement in a summary form of the material facts on which reliance is made. Grounds are simply reasons and what must be provided are the reasons for the exercise of the executive discretion to detain. While some factual basis for those reasons must be shown I cannot accept that the detaining authority is under the same obligations as a civil litigant. As was said in Naresh - Chanda v State of West Bengal, page 1335: 35 ' ' 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 40 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 construction which I place on the words 'specifying in detail the grounds' is that a distinction is being drawn with the general ground or reason for the detention. That general ground would be that it is necessary for the purpose of preserving public security as defined in the Act, or one or more of the constituents of that definition, or that the detained person's activities had been prejudicial to the security of the Republic, without more. Such a ground would not comply with the requirements of the regulation and would be vague and inadequate. See Uganda v Commissioner of Prisons at page 546 where a similar view was taken. In my opinion the grounds in detail, the detailed reasons have been clearly specified in the two exhibited statements although the full facts and evidence to support these grounds have not, and accordingly there has been no default in compliance with the mandatory terms of the regulation and it cannot therefore be said that the continued detention of the applicants is unlawful. The second contention of the applicants is that the discretion of the President to detain them under regulation 33(1) was improperly exercised and not entirely in good faith. I will say, quite shortly, that there is no evidence before me to indicate that the President was acting other than in good faith, and that whether this court has the power to review the exercise of the President's discretion must be viewed in the light of the fact that this legislation is designed to cover the existence of a situation which, if it is allowed to continue, may lead to a state of public emergency (section 29 (1)(b) of the Constitution) and which is so grave that it is necessary to provide for the detention of persons (section 3 of the Preservation of Public Security Act). These are emergency measures and obviously drawn on the footing that there may be certain persons against whom no offence can successfully be proved or against whom it is not in the public interest to bring a charge, but as regards whom it is expedient to authorise the Head of State to make an order for detention. It is a matter for executive discretion and nothing else; if the President is satisfied, he may detain. This court is not seized of the full facts, has no knowledge of what evidence there is to support those facts and is in no position to judge or even to recommend (and certainly not to substitute its discretion for that of the President). That is the function of the special tribunal for which provision is made under section 26A of the Constitution. Under section 28 of the Constitution an application can be made to the High Court for redress if a protective provision is contravened. This is not such an application but if it were, and on the basis of the serious allegations in the two exhibits, it certainly cannot be said to have been shown that the measures taken were unreasonable and so bring the applicants within the protection of section 26 of the Constitution. The applications before me are therefore refused. Applications refused