Mvunga (1991)

STATE OF EMERGENCY

1. STATE OF PUBLIC EMERGENCY

While it was generally agreed that the provision to declare a state of emergency be retained, safeguards against possible abuse should be entrenched in The Constitution.

Consequently, the commission observed that there was a need:

1. To specify and indicate the limits of the power of the Executive in the declaration and continuation of the state of emergency;

2. To balance the necessity of the requirement for the state of emergency against the needs of individual liberties; and

3. For grounds for declaring a state of emergency ti be specifically stated in The Constitution;

This is noted.

The commission recommends that:

1. The President should continue to be the authority to declare a state of emergency;

2. A two-thirds majority of Members of the National Assembly would be required to ratify, endorse and extend further a state of emergency;

   These are accepted.

3. The President’s power to declare a state of emergency be checked by obliging the President to give reason for the state of emergency, and that the courts be competent to enquire into the validity of a declaration of a state of emergency;

   This is accepted. However, the courts should not be empowered to inquire into the validity or otherwise of the grounds for declaring a State of Emergency.

    

4. That there should be separate provisions for a state of emergency and a threatened state of emergency. But in all cases the safeguards should remain the same; and

   This is accepted.

    

5. That consequently Article 30 (3) of the current constitution which empowers the president, in combination with the Cabinet, to declare by proclamation s state of public emergency, should be appropriately amended.

This is not accepted because there are adequate safeguards under Article 26 of the present constitution and under both the State Security Act (CAP.110) and the Preservation of Public Security Act (CAP.106), which make exhaustive and specific reference in their application. Administrative arrangements such as visits to prisons by relatives, friends, lawyers etc are covered under Prisons Act (CAP. 134). Article 30(3) does not deal with the empowerment of the President to act alone in the declaration of a State of Public Emergency.

1. AUTHORITY TO DETAIN

The commission recommends that:

1. The authority to detain should continue to be vested in the President;

   This is accepted but should not be included in The Constitution because it is already provided for under the Preservation of Public Security Act.

2. The rights and safeguards of detained and restricted persons should be spelt out in The Constitution; and

This is not accepted for reasons advanced at 10.2.(a)

1. THE RIGHT TI BE INFORMED OF THE GROUNDS OF DETENTION

   The commission recommends that any detained person should be furnished with reasons for his detention within seven days.

   This is not accepted as the period of 14 days currently provided for under Article 26(1)(a) of The Constitution within 14 days should be released without having to petition is accepted. Thereafter he/she is at liberty to sue for damages.

2. THE RIGHT OF A DETAINED PERSON’S NEXT OF KIN TO BE INFORMED OF HIS/ HER DETENTION PROMPTLY.

   The commission recommends that an adult family member of the detainee or his or her friend should be promptly notified of the detention.

   This is not accepted because the provisions of Article 26 of the present constitution are adequate.

    

3. OFFICIAL PUBLICATION OF DETENTION

   The commission recommends that a detainee should have the right to notification published in the gazette within seven days giving particulars of the place of detention and the provision of the law under which detention was authorised.

   This is not accepted because the provisions of Article 26(1)(b) of the present constitution are adequate.

    

4. ADDITIONAL SAFEGUARDS – AUTOMATIC PERIODIC REVIEW OF DETENTION.

   The commission recommends that the current three months period in which a detainee is entitled to a review of his detention be reduced to one month and automatic periodic reviews to be held monthly thereafter.

   This is not accepted. Three (3) months should be reasonable for both initial and periodic reviews of the detention.

    

5. THE RIGHT OF THE DETAINEE TO APPEAR BEFORE A TRIBUNAL IN PERSON OR THROUGH A LEGAL REPRESENTATIVE OF A DETAINEE’S OWN CHOICE.

   The commission recommends that it should be a constitutional right to be given legal aid where a detainee or restricted person cannot afford services to challenge his/her detention at any time in a court.

   This is not accepted because the provisions of Article 26(1)(e) of the present constitution are adequate.

    

6. THE RIGHT TO BE TREATED IN A HUMANE AND DIGNIFIED MANNER

   The commission recommends that the concept of the right to be treated in a humane and dignified manner entitled a detained/ restricted person to be given adequate and nutritious food, reading materials and medical treatment. It was, however, doubtful whether decent bedding qualified under this head.

   This is not accepted because the provisions of Article 15 of the present Constitution are adequate.

    

7. THE RIGHT TO CHALLENGE THE LAWFULNESS OF A DETENTION AND TO BE RELEASED WITH COMPENSATION IT THE DETENTION IS FOUND TO BE UNLAWFUL.

   The commission recommends that a person should have a right to challenge the lawfulness of a detention and seek damages if that detention is found to be unlawful.

   This is not accepted because of the reasons advanced at 7.4(c).

    

8. RE-DETENTION ON SIMILAR GROUNDS

It was the commission’s view that if a court of law finds the grounds of a detainees to be unjustified and orders his or her release, such a person shall not be detained again on the same grounds unless the state shows good grounds for re-detention. The commission views this as a safeguard against the order of double jeopardy and recommends that this right be incorporated in The Constitution.

This is not accepted because this right is provided for under Article 19 of the present constitution and under the Criminal Procedure Code (CAP.160).

N.B. Having examined the Bill of Rights Part III of the current constitution and having studied the proposed Bill of Rights in the Draft constitution, it is the view of the government that it is unnecessary to alter the existing Bill of Rights. The government does not, therefore, find justification for invoking Article 79(3)(4) of The Constitution necessitating a national referendum in altering Part III of the present constitution merely to replace it with a rephrased version of the same thing.