hon attorney general vs lesinoi ndeinai joseph laizer and 2 others 1980 tzca 20 23 july 1980

IN THE COURT OP APPEAL OP TANZANIA AT ARUSHA (CORAM: NYALALI, C.J., MWAKASENDO, J.A. AND KISANGA, J.A.) CRIMINAL APPEAL NO. 52 OP 1979 and CRIMINAL APPEAL NO. 53 OP 1979 BETWEEN THE HON. THE ATTORNEY GENERAL..... ........ APPELLANT AND 1. LESINOI NDEINAI 0 JOSEPH SALEYO LAIZER ) 2. MASAI ZEKASIO @ LAIZER SAMOHA ) RESPONDENTS .3. OMAR JAMALUDDIN UICAYE ) IN CRIMINAL APPLICATION NO. 22 OP 1979 and CRIMINAL APPLICATION NO, 23 OP 1979 Tin — ^ JUDGMENT OP MWAKAS3ND0, J.A. MAKASEKDO. J.A. I have reached same conclusion as the learned Chief Justice. Needless to remark that ordinarily it would be sufficient for me in a criminal appeal to do no more than express my concurrenco with hie judgment but as the learned Chief Justice feels that the present case raises important legal issues on which it would be desirable for each member of the Court to express his views separately I have prepared the following judgement. In this case the Attorney-General appeals from a ruling of the High Court of Tanzania at Arusha, ordering the release from prison of the three respondents, namely: (i) LESINOI NDEINAI alias JOSEPH SALEYO IAIZER (ii) MASAI ZEKASIO alias IAIZER SAMORA and (iii) OMAR JAMAJIiraiN UKAYE - vide Arusha High Court Criminal Applications Nos. 22 and 23 of 1979. As the legal issues raised by the ruling in the two oases are the same, this Court has directed, as the trial court also did, that the two appeals be consolidated and they are so considered in this judgement. «. 2 - 2# The bare facts of the case can be stated quite simply. Each of the respondents was arrested and detained in prison between 7th and the 13th day of August, 19?9f under an order made by the Honourable , the Vice-President of the United Republic of Tanzania, the Honourable Mr. Aboud Jumbo, then allegedly performing the functions of the office of President pursuant to the provisions of sub-section (1) of Section 8 of the Constitution of the United Republic of Tanzania of 1977f otherwise cited in Kiswahili as "Katiba ya Jamhuri ya Mirungano wa Tanzania ya Mwaka 1977", and hereinafter referred to as "the Constitution". The order directing the detention of the respondents was made under powers conferred on the President by section 2 of the Preventive Tietentioi\ Act, 1962, Cap. 490 hereinafter cef-erred to as "the Detention Act" or simply as "the Act". The order is dated the 1st day of August,, 1979. 3. The respondents who challenged the validity of their detention applied to the High Court of Tanzania at Arusha for an order of Habeas Corpus supported by affidavits sworn by them and their counsel, deposing to facts which, if accepted, would make their detention utterly A misconceived and illegal. 4. At the hearing of the chamber application, facts were elicited indicating beyond doubt that the three respondents were detained under the authority of orders issued under section 2 of the Preventive Detention Act, 1962; that the orders in question were made by Honourable Vice-President of the United Republic of Tanzania; that Honourable the Vice-President in making the said orders, was purporting to act pursuant to powers conferred on him by sub-section (1) of section A n-f t-ha f that at the time these detention orders were made His Excellency the President of 4J\e United Republic of Tanzania was absent from Tanzania attending a Conference of the Head* of State and Governments \ of the Commonwealth of Nations at Lusaka and, that although the detention orders made by Honourable the Vice-Presidentvwere undaj^hifi hand (that is, bore his signature), they were not sealed with the Public Seal as required undrtr the provisions of section 2 of the Preventive Detention Act, 1962. 3 - 5. Messrs Mirambo and Mwale, learned counsel representing the three respondents at the hearing of the chamber application, submitted that the detention of the respondents were illegal because at the time when Honourable the Vice-President made the orders directing their detention under section 2 of the Preventive Detention Act, 1962, he was not the President of the United Republic of Tanzania, in terms of the provisions of the Constitution of the United Republic. Elaborating on this point at great length, counsel for the respondents argued that while the Constitution, in sub-section (1) of section 8 thereof, provided for the machinery for an orderly transmission or devolution of the powc?rs and duties of the President when the office of President is vacant or the President is suffering from mental or physical incapacity or the President is merely absent from the United Republic, this provision of the Constitution, the respondents’ counsel contended, did not provide for automatic assumption of the political capacity and suthority of the President, in as much as the provision does not say so in clear and unambiguous terms. The two counsel went on to submit that according to their understanding of the true construction of section 8 of the Constitution, particularly with reference to sub-sections (3) and (4) thereof, the only way the Vice-President could have assumed the functions of the office of President in the circumstances then prevailing was under the provisions of sub-section (3) ^ s u b - p c ^ o r ^ p ) of section 8 of the Constitution reads in Kiswahili as follows "(3) Iwapo itatokea kuwa — (a) Rais hayupo katika mji wa Makao Makruu ya Serikali; (b) Rais hayupo Tinznni-i kwa mutla ambno Rais nnnfikirin utakuwa si mrefu; au (c) Rais ni mgonjwa na anatumaini kuwa atapata nafuu baada ya muda si mrefu, nfl Rais akionn kuwa inafaa kuwakilisha kwa muda huo madaraka yake, basi anawez.a kutoa maagizo kwa maandishi ya kumteua Makamu wa Rais, au akiona kwa ®ababu yo yote ile kwamba inafaa zaidi kumteua Waziri, basi atamteua Waziri kwa ajili ya kutekeleza kazi na shughuli za Rais wakati Rais hayupo, na Makamu wa Rais au Waziri anayehusika, kadri itakavyokuwa atatekeleza madaraka hayo ya Rais kwa kufuata masharti yo yote yatakayowekwa na Rais: Isipokuwa kwamba masharti yaliyomo katika ibara hii ndogo yafahimike kuwa hayapunguzi wala kuathiri uwezo wa Rais alionao kwa mujibu wa sherla nying.tne yo yote w« kuwakilisha madaraka yake lewa mtu mwingine ye yo*o„ - 4 - 6. An unauthorized English version of sub-section (3) reads as follows: "(3) Whenever the President — (a) is absent from the city which is the seat of the Government; (b) is absent from Tanzania for a period which he believes will be of short'duration; or (c) bv reason of illness that he has reason to believe will be of short duration, considers it desirable so to do, he may, directions in writing,.appoint the Vice-President, ©?, if for any reason he considers it expedient so to do, some other Minister, to discharge, subject to such restrictions and exceptions as he may specify, the functions of the office of President during such absence or illness: Provided that nothing in this sub— section shall be construed as derogating from the power of the President contained in any other law to delegate any function to any other person-". 7. To revert to counsel's submissions on the issues of delegation and validity of the detention order made by Honourable the Vice-President, counsel for the respondents urged the High Court judge to hold that since the public officials detaining the three respondents had failed to produce before the HighCourt any instrument made by the President under sub-section (3) of section 0 of the Constitution delegating his functions generally or specifically relating to his powers under the Detention Act, the detention order produced on behalf of the State purporting to have been made under the provisions of section 2 of the Act, were null and void, and, accordingly, the three respondents were entitlted to an immediate release from prionn. That was mainly the submission advanced before the High Court by the three respondents in support of their application for an order for directions in the nature of Hebeas Corpus - see Section 348 of the Criminal Procedure Code, Cap. 20. J. The other point that could have been taken up on behalf of the respondents but was not seriously pursued in argument by their counsel or satisfactorily dealt with by the learned High Court judge, relates to the question: whether the failure to affix the Public Seal to the detention order as required by section 2 of the Act had any effect on the validity of the order or not. This question has been canvassed before this Court and has been fully and ably argued before us by counsel of both sides. .../5 9. The learned High Court judge, in a wide ranging ruling touching on our country’s political ethos, beliefs, the independence of the Judiciary and personal liberties, upheld the respondents* submission and _r accordingly directed the immediate dis«harge of the three rcsporvdents from prison. The respondents' victory however, was to be a very short one, a pyrrhic victory, as It were, for as soon as the learned judge had deliev-ered his ruling the respondents learnt to their utter *onsternation that an order for their deportation from Arusha Region, kad been made by the President the previous day, that is, the 21st day of August, 1979. lu. He that as it m&y, these then are the facts which form the basis of the appeal before us by theAttomey-General. 11. The learned Attorney—General in his Memorandum of Appeal sets out five grounds of appeal which road as follows: (1) The learned trial judge etred in law in holding that "Katiba ya Jamhuri ya Muungano wa Tanzania, ya Mwaka 1977, hereinafter referred to as 'the Constitution' did not, under the circumstances of this case, provide for the automatic exeicise of the Presidential powers by the Hon. Vice=president in absence of His Excellency the President of the United Republic of Tanzania from the country. (2) The learned trial judtje erred in Law in failing to appreciate the fact that when the President does not delegate, his powers to the Vice-President in writing as per section £>(3) of the said Constitution, then in his absence, the provisions of section 8(1) of the Constitution applies automatically. (3) The learned trial judge err^d in law in failing to appreciate the fact that the provisions of section 8(1) a«fl b(3) of the Constitution are two distin«t provisions that is section 8(1) providing for automatic exercise of Presidential powers under the circumstances stipulated therein; and section ft(5) giving the President option of Vhen to delegate his powers and further that he erred in folding that interpretation of each of these sections $hould be done i« the context of the other, (4) The learned trial judge erred in law in holding that the applicable section in the case was section 8(3) of the gild Constitution. (5) The learned trial Judge erred in fact in holding that thePresident's one week absence from the country during the material time was a short one as contemplated in section 6(3) of the Constitution and hence the necessity of invoking the provisions of that section so as to give Presidential powers to the Vice-President. 12. In support of these grounds of appeal the Hon, the Attorney-General who appeared in person assisted by Messr* Huka and Mlawa, State Attorneys, started >ri_3 long and learned submission by giving what he said was a short historical oriqin of sectiorv 9 Attorney*-. Gen«'iMl in His t i t i - . i i ivhtl-.iti ve Biid th it auction 8 of the Constitution la deri-yect from the Tanganyika (•ConetitutionX Order in Council, 1961 fstrr^ufcory TnstmxBerrfcc. 19^1 No* 2274), the Second Schedule thereof, which contained the details of the Independence Constitution of Tanganyika* hereinafter referred to as "the 1961 Constitution". Under the 1961 Constitution Her Majesty the Queen became the Head of State of Tanganyika exorcising her executive functions through her reprasen-tativ-e, the Governor-pGeneral. Besides being the- -eomm!mdej~*in—Chief of the Apnod Forces, the Governor-General also carried out many or the executive functions which are now conferred on the President. Segtionfc 13 and 45 of the 1961 Constitution provided for the'"c3evolution of the powers and functions conferred on the Governor—General and Prime Minister respectively, when either the office of Governor—General or that of the Prime Minister was vacant or the holder of either office was absent, trex* Tanganyika sjr was ft>r any reason unable to perform £h<a functions conferred on him by the 1961 Constitution. Interesting as I found the Attorney^Gonenl's historical exposition on the origins of section 8, I do not think we need dwell any further on itj since I am satisfied that his assertion thatthe text of section 8 of the Constitution has its roots in the 1961 Constitution is incorrect. One has in fact to look to Ghana to find the structural roots of section 8 as well as that of o number of the important provisions of the 1962 Republican- Constitution which were subsequently re-encated with necessary modifications in the Interim Constitution of 1965 and further re-enacted in the present Constitution in 1977. Tracing the origins of section 8, for example, one discovers that the text of this section was inspired and modelled on the provisions of Article 18 of theGhana Republican Constitution of I960. It appears under our 1963 Republican Constitutian->rflr Section 7 and und*rv~theHnfc4rln~Constitution of 1965 as-sectionn9. So m««h for the historical origins ~f section 8 of the' C nctituticn. 1 :Howev<ar, -to -und~sr3"tand the gen^iraJt :scftfeme •©# 'our preaejit v.^n Cpn*bifcutl^n it Us important to a-pproCi-te t:l*G "peril t la a 1 sdjrtj«merrfc£.'-which prompted '•tKeitTANU Party -anti- Government -to ’op* f vr a Republican-dyst am r.; of Goverijmerjt cr.ly one ;year rafter independence* Ihe ■Government's "views *£ t>»* %<uiw, •rtiioii tl>« garuat-al feeling of tha poou^'cTT-ic* .■» whole, uras that tn« 19€l Constitution 1-a^t the. ardent desires of the people of Tanganyika for real independent and sovereign existence unfulfilled. By and large, informed opinion of most people i4 Tanganyika then was that the 1961 Constitution was an artificial, and uiidekirabM British autonhthonal creation, which was incapable of toeing -understood by the ordinary people of Tanganyika^ Tiwiy of whom could hardly distinguish between the role of the Govemorj-Generai and that of the Cabinet headed by the Prime Minister. To <<=move such doubts and confusion in the minds of the people it was important that Tanganyika should have an executive President. "The honour and respect accorded to a Chief or a King or, under a Republic, to a President, is for us indistinguishable from the power he wields," so stated the Government in its proposals for a republic - vide Proposals of the Tanganyika Government for a Republic (Govt* Pap. No. 1 - 1962, 2) and The New Commonwealth and Its Constitutions by S. Al de Smithj 1964, at p* 248. JJ.4» it was in order to satisfy th^ genuine and universal desire of the peo^ile, that the framers of the 1962 Corvstitution decided to devise a Republic \n Constitution which would be aft effective scheme for i Governing the country. ThQ results of th-Qir labours is fciye 1962 Constitution which, although textually and structurally follows the Ghana, precedent, may be said without any equivocation to be essentially home-grown or autochthonous. 15. A notable feature of the 1962 Constitution, which is also to b© seen in the Interim and the present Constitution, is the dominant role of the President under the Constitution. T*ve President in ali tlie thre« Constitutions is the national leader in every s^nse of the word — he is fche Head of State, Head of the Executive, Commander—irv-Chief of the Armed Forces and the Fountain of honour. In view of this dominating and elevated role of the President it became necessary for the framers of the 1962 Republican Constitution to bear in mind that Tanganyika as a Republic had to have a machinery of devolution of executive authority different from that which operated under the Monarchical 1961 ■ ' Independence Constitution. Under a Republican type of Government unlike, i RonafcK?^, there is no natural successor as «uch to the Presidency. Indeed, there is no heir apparent or heir presumptive to the Presidency who could take over the executive functions of the State xf the holder of the office dies or is absent or is suffering from mental or physical infirmity. It therefore follows that undar the residential system of Government it is necessary that the Constitution should provide for a special scheme or machinery whereby the executive functions of the President are to be exercised in the event of the President dying or becoming incapacitated by reason of serious mental or physical illness or be in/* absent, from I,he country. The general scheme of devolution devised by the framers of the 1962 Republican Constitution was enacted as section 7 of that Constitution and subsequently re-enacted with modifications as section 9 of the Interim Constitution of the United Republic of Tanraaru-a of 1966* The substance of section 9 of the Interim Constitution it? what now uppearB as unction 8 of the Constitution of 1977. 16. Since the Attorney-General1s submissions before us hinge on the construction of the provisions of section 8 of the Constitution it will be convenient here to set out in full the provisions of section 8 of the Constitution. The section reads in Kiswahili as follows "8.-(l) Endapo Barza la Hav/aziri litaona kuwa Rais hawezi kumudu kazi zalce kwa sababu ya maradhi, basi Baraza, hilo laweza kuwasilisha kwa Jaji Kkuu azimio la kumwomba Jaji Mkuu nthibitishe lcwnmba R^is hamudu kazi zalce kwa sababu ya maradhi. Baada ya kupokea azimio kama hilo na baada ya kufikiria maelezo ya daktari? Jaji Mkuu atawasilisha kwa Halmashauri Kuu ya T;,ifa ya Chnma taarifa ya kuthibitisha kwamba Rais hamudu kazi zak<! kwa sababu ya maradhi. Kila itakapopokea taarifa ya namra hiyo, Halmashauri Kuu ya Haifa itatoa tamko kwamba Rais hanudu kazi zake kwa sababu ya maradhi, na iwapo Halmashauri Kuu ya Taifa haitabatilisha tamko hilo kutokana na Rais hipata nafuu na kurjea kazini, hasi i.tahefi ibiwa kwamba Rain hayupo. Katika hali hiyo na pla ikitolci-i kuwa kiti cha Rjia ki wa'zi, au kwamba Rais hayupo Tanzania, basi wakati wrte Rais atakapokuwa hayupo kazi na shughuli za Rais zifcvteteleEwa na mmojawapo wa watu wafuatao, kwa kufuata orodha krunt. ilivyopangwa, yaani - (a) Makamu wa Rais, au Iruna naye l^yupo, basi (b) V/aziri aliyeteulivv re- Rais kwa a^iii hiyo, au kama nayc ■ lyupo, basi (c) V.’aziri aliyech.'culiwa kvn ajili hiyo re Bnraza la Mawaziri. (2 ) .Sndapo itatokea icuuu kiti cha Rais ki \r.zi kutokana na Rais kujiuzulu a u lcufariki, au hwciiibn Raia hayupo Tfcnauni''., cu kuwa Rais hamudu kaci zake le v a sababu ya maradhi, m Jr.Ji i'-^au baada y:. kufikiria maelezo ya daktari, o.tavicisiliski kwa Haliftashaurl Kua ya Taifa taarifo -j ya kuthibitisha kwanba H-,is hamudu kazi zako, wakati amfcao h'.yupo Makamu wa 1ois wala ”'azirj fimycwem lattekolcsa Jc..ai .., w'9- na shughuli za Rnis kwa reujitru wa masharti ya ibara ndogo ya rx,y» "na Tkiwa hawapo Mawaziri wengine katika Baraza la Mawaziri wanaowezs kukutana kwa shughuli yoyote, basi katika hali hiyo rtnmbo yatakuwa ifuatavyo - V (a) taarlfa ya uthibitisho ltakayowastlishwa na Jaji Mkuu kwa Halmashauxi Kuu ya Taifa itaheaabiwa kuwa ni ^i*lali kama kwamba imetolewa naye baada ya kupokea azimio la Baraza la Mawaziri la kumwomba atoe tsarifa hiyo, na haitachunguzwn katika mahakama yo yote japokuwa imetolewa bija va Jaji Mkuu kupokea 'kwanza azimio la Baraza la Mawaziri; na (b) H^lmashauri Kuu ya Taifa ya Chama itamch&gua mtu atakayeonekana anafaa, kutekeleza kazi na shughuli za Rais waknti wote Rais atakapokuwa hayupo kazini au mpaka atakapopatikana Makamu wa Rais au Waz^ri atakayetekeleza kazi na shughuli hizo kwa mujibu wa masharti ya ibara ndogo ya (1), (3) (This provision has already been set out above),. (4) Rais awoza,aklbna inafaa ku/anya hivyo, kumwagiza kwa maandishi Waziri ya yote kutekeleza kazi na shughuli zozote za Rais ambazo Rais atazitaja katika maagizo yake, na Waziri aliyeagizwa hivyo kwa mujibu wa masharti ya ibara hii ndogo, atakuwa na mamlaka--- - ya 4 - kutekeleza kasli .---- ------- na - --- shughuli - j--- hizo - ---kwa- kufuata masharti rti yo yote yaliyowekws na Rais* ]^kini.bil.a ya kujali ‘•itia^hiairti ’" yaTSheria riyinginp ,'ye Y°*-e f tsipolcDwa'kwantb'a^— ... . " 4 (a) Rais hata.kuwa.. na .mamlak^. ya [cuv^kilisha ,kwa Waziri .kwa tnujibu .wa .masharti ,ye> ifiara hii ndogo •k a z ^ ^ o yote ya Rais iliyptajwa katika Sheric yo yotevyq Jumuiya-.ya ' Afrika MasharVki ikiwa .kisheria Rais hkifytiusiwi kuw<?Tcllisha k^zi hiyo kwa mtu mwlngine 'ye.'ycjfcf}; ' ■■ ; • nxa (b) Iwapo Rais.amemwaqiza Waziri ye jote kutekeleza kszi na shuhguli zo aote za Rais kwa mujibu wa masharti ya ibara hii„ndggo, basi ifahamike, kuwa hayo hayatamzuia Rais kutekeleza kazi na .sljugjhuii, fri^y. .yeye mwenyewe.’,.. v/u: o k V' (5) Kanuni ^ifqatazQ ;zitaturnik^ l^wa mAd'hurgupii'ya, iC" ' 1 ufafanuzi wa ibi^a ndogo ya (l) na ya (2J,- ' (a) ,Kwa madhumuni ya ibara ndogo^.ya .(1) ,.i\a j.^qis hatahesabiva kuwa hayupo Tanzania kwa sababu t u ’ya , .kupltia nje ya. .T,an^ania-wakati y^kOj.sa^rip^^u^ipk^ . ^sehernu nyinqjL'no'^.au'Jcwa aababu kw^mt^ai an^-tQa maagiz.o ,kwa' mu jibu vja. rnqshart’^ ya i'S’ ara ndqgQ.y^.Jl) na maagizo hayo bado Hnyajabatilishwa; ..-i -i 7 -i j.bar- ■ \L a-- r ; iv a .- :h u !i (b) kwa madhynjuni ya ('ibara ndogo.,ya .(1), j g e t f e m k u t a n o ■ wa .Baraza l.a -Mdw^zi^jj u^ic^riW.i-J^wa. a j.ili ya ^uwasWisKa' kwa Jaji Mkuu' azimi<3 kuHtfsu ^hali ya Rais iutahe.sabi^a- kuwa ■ni mkutano- halaii' hata k a m a rojumbe mmojawnp? waBaraza hilo hayupb- au kiti chake ki wcizi, no it-ihusabiw.i kuw \ Baraza azimi.Q hilo. _ .. ikiw.a ^taungwa mkono,. icwa Jckul^ya, ’w^j\inibe.fwa.lio wengi wa.li.ohudhuria mkutariq r(£ Jcl^lga.Ku^a.'’j., .. (6) Bila ya kujall, masnarti yaixyoex«isw<i uwuxx . itaara hi, mtu atakayetekeleza kazi na shughuli za Rais kwa mujihu wa ibara hii hatakuwa na mamlaka ya kumwondoa Makamu wa Rais katika madaraka yake. (7) Waziri, Mbunqe au mtu mwingine ye yote atakayetekeleza kazi na shughuli za Rais kwa inujibu wa masharti ya ibara hii hatapoteza kiti chake katika Bunge wala hatapoteza sifa zake za kuchaguliwa kuwa Mbunge kwa sababu tu ya kutekeleza kazi na shughuli aa Rais 'kwa mujibu wa masharti ya ibara hii". An unauthorized English version of Section 8 reads as follows: »f.-(l) whenever the Cabinet considers that the President is, by renson of physical or mental incapacity, unable to discharge the functions of his office, it may by resolution passed in that behalf, request the Chief Justice to certify that the President is, by reason of physical or mental incapacity, unable to discharge the functions of his office. The Chief Justice after receiving such resolution from the Cabinet and acting in his discretion, after considering medical evidence, certify to the National Executive Committee of the Party that the President is, by reason of physical or mental incapacity, unable to discharge the functions of his office. When the Certificate of the Chief Justice made as aforesaid is received by the National Executive Committee of the Party, the Nntiortnl Executive Committee of the Party shall declare that the President is, by reason of physical or metnal incapacity, unable to discharge the functions of his office and if the National Executive Committee has not subsequently withdrawn auch declaration on the ground that the President his recovered his capacity and resumed the functions of his office, then in any such event, the President shall be deemed to be absent. In such event and in the event of the office of President falling vacant or when the President is absent from Tanzania, the functions of the office of President shall be discharged by the first of the following Ministers who is present and able to act - (a) the Vice—President.; (b) .some other Minister appointed by the President in that behalf; (c) some other Minister appointed by thcCabinet in that behalf. (2) If the President dies or resigns office, or is absent from Tanzania, or is, by reason of physical or mental incapacity, uneble to discharge the functions of his office, and the Chief Justice acting in his discretion after considering medical evidence certifies to the National r Bxecutive Committee that the President is, by reason of physical or mental incapacity, unable to discharge the functions of his office, at any time when, due to vacancy in any office, absence or inability to' act, there is no Vice-President and no Minister is empowered by subsection (1) to discharge the functions of the office of President and there are no other Ministers in theCnbinet present and able* to r\ct — (a) the certificate of the Ci.ief Justice to the National Executive Coinmitte shall have effect as if .it had been by a resolution of the cabinet requesting b:m to his- powers, in that behalf ch-'U iv-fe ''v questioned in anycoutffc notwithstanding that it was not preceded by such resolution? ■and.. " - U - 4t>) iha National Executive Committee of the; Bm-ti; appoint a suitable person who appi.i''«r ''■> it able to discharge the functions of off Leo of Prosi'’ont during the; vararnry In Vfle office, vr the absi.-nco or ij»c«t7orclty, as t‘ie case may be, of the Presidon% or, i,f such an appointments Is made during the absence or inability to act of the Vice-President or any Minister •tmpoweiEvd 'by subsf^c-tiofi (t) to' dtscitarge the functions of t_ -e _o#£ic&tpf-.^refltldent, until the V&ea-^E’residti.nt or iruch -Minister is present and able to act, (3) (Tbt$ provision has -i\ready been set otrt aUov«)- (4) The President may, ii in his opinion it is desirable so to-do'j by c^itwctions i,t\ writing, authorize a Minister to <ti®c*r»ri3e , subject to such ^indta-fcicrns and restrictions as he may direct.., such of the functions .of- -the office of President as he may specify, and where directions under this sub— section are given the Minister specified therein shall be entitled to so discharge such functions notwithstanding the provisions of. any other written law: Pr6vided that » th.e President shall not, by directions given under tKls a«*tioiv, authorize a Minister to discharge any function conferred upon the office of President by any Act of tneCommunity where such function cannot otherwise be lawfully deleqated by the President; (b) where by directions under t lis sub-^secteion the President has..authorised a Minister to discharge any function of the office of President, such directions shall not be construed as precluding the President from discharging such function himself. (5) (a) For the purposes of sub-aeftion (1) and (2) the. President shall not be regarded as absent from Tanzania by reason only of the fact that he is in passage from one part of Tanzania to another or where he his given a direction under sub­ section (3) and that direction is in forced ■ For the purpose of sub-section (1), the Cabinet shall be ..deemed to be duly constituted notwithstanding any to-acancy absence of any member, and, a resolution of the majority of'the members of the Cabinet who are present and voting shall be deemed to be a resolution of tho Cabinet. (6) Notwithstanding the foregoing provisions of this section,, a porson.dischirginq the functions of the office of President under this section shall not have the power to remove th1? Vice-President from office. (7) A ml n 1.r, t•t , a member of the National Assembly or otlv;ir person shall not, by reason of his exercising the functions of the office of President under this section^ vacate his seat in, or bo disqualified fo* g^£*cT ion a constituency member of th£. Assembly*." 12 IB. As properlyf -amd, witH coz-re^etly- submitted by -fctya learned Attorney-General, the framers of our Constitution of 1977, realising the grave dangers that are likely to befall the body politic when there is a Vacancy in the office of President or the President is absent from the country or is Incapable of exercising the functions of his office for any cause whatsoever, wisely provided for an effertive and convenient constitutional arrangement whereby in the event of any of the situations mentioned above arises., -tlvs functions of the office of President would automatically be- exercised by another fit and -prxJpejf person. Section 0 of the Constitution there#o«<i»- as rightly pointed out by the iearned Attomey-*General, provides for an effective constitutional machinery for preventing the dissolution and entire dLsiirfeeg'^aftfckn" of society whenev®* there Is a vacancy in the office of President or the President is a^ci-calsJ-Y inc-.-tpaoifc.ated or the President haA Left the--country without deljegntiog his functions to the Vice-President or any other Minister who is present and able to direct the machinery of Government, This section, as it will no doubt be noted from a proper reading of its provisions, provides for two distinct methods of devolution of the functions of the office of President. The first scheme of devolution j.s automatic and is only dependent upon the happening of one or the oth>>r of the situations or circumstances which are outlined in great detail ip subsectioni (1 )"«?■'■ and (2); whereas the second scheme of devolution depends entirely1 on the discretion ot the President and only comes into operation when the President considers it desirable to delegate and in fact delegates all or any of ihe functions of the office of President to the Vice-President, or a Minister - See the provisions of sub-section (3) and (4) of section •V*'■ 8 of the Constitution, supra. 19. In answer to the Attcum^y^-General’s formidable submission, Mr. Mahatane, learned -counsel, o appeared before us on behalf of all three respondents, assisted by Mr. Mwale, learned counsel, has put up an .equally strong argument urging us to reject the Attorney-General1s •.submissions on this paint as an untenable and unnatural construction at section 8 of the Cpnstituion. And, if I understood Mr. Mahatane's argument correctly, J think; what he is contending amountc to this, that'; V *' ' i ■ the circumstances as disclosed in this ease could by no streteh of the* v r il j.n-.u y rkiani n n of t-.h > w o k * u s ' - i in s ection V amount to a entitling tho Vlc«—t'wsldenL oj tho w«.,. to '"»n automatic exercise of the functions of the office of Presid--.t m d e r sub-scction (1) of section 8 of theCCntstitution. kr* Mahateie, c-'7 course, concedes the fact that the intention of the framers of se tion 8 of our Constitution was to devise a convenient and eff tive rcheme of devolr.L...^i of the office of President. He his no quarrel whatsoever with the intention of the framers of our Constitution. What however, he vigorcual disputes is the contention of the Attorney-General that sub-section O of section 8 deals with a scheme of automatic assumption of I resideritin.1 functions at all. In any case, Mr. Mahatane contends-, in the scl.ome outlined in section 8 o f •the Constitution there car be no room for automatic devolution of Presir' mtial functions when the President har merely left the country for a dhort period, such a- the one week's absence of the President in Lusaka, ia July/August 1979, In such a situation, Mr. Mahatane subm'.tsj the oAly coutse of devolution ope-‘ is by way of delegation as contemplated by the provisions of sub-section (3) of si.-ctior. 8 of the Constitution. 20. Although at first I f;und it difficult to resist Mr. Mahata:.e;s overwhelming and exceedingly f->rsuasive and fa£ ;inating argument. 1 ha’-o however) after considerable vacillation, come to a firm opin&or. that has eonst£udtion of the prov.isi ms of sectioA 8 of the Constitution is untenable and must be rejected. To hold, as the learned High Gc art Jtaddj didj that on the facts found established „ifc this casef the Honou'able the Vice-President, in 'he absence of the President in Lusaka for a week attending the Commonwealth Heads of- Government Conference, could not exercise the functions of the office of Pfesident pursuant to the powers conferred upon him under the provisions of sub— section (1) o section 0 of the Constitution, would, as it seems to me, defeat the vhol object of the provisions of sub-section (1) of Section 8 of the Constitution* Indeed, if the learned High Court judge is right in 1 ic l| construction of section Li of the Constitution, it means that in tne circumstances of the present case the nation would have found itseli *■' without anybody present and able to ex^r«ise the functions of the of. .dj of President. As already stated earlier in this judgement, s_rh ~ ^ vaccum of executive authority in the State was clearly the kind of - 14 - * framair4 of the ■Conatituti.oa wanted to avoid by p»ov>ddiJig. axiomatic devolution of power* and -functiotvs. of th* offio- of President \m v iet -sii>-vaction (1) of section 8 of the Constitution. In =u*y <■»««, it seems to me thfm the learned High Court, judge has fallen int a common, though unf orgi of trying to construe the; provisions of sub— sections(1)t (2), (S) and (4Y of section 8 of the Constitution in isolation and out of context of the reat gf c-. * the section. ' . 21. In this connection suffice here to refer to the provisions of Sub- Section (5)(a) of section 8, which provides, inter alias r. "(5_)(a) For the purpose of sub-sections (1) and (2) the President shall not be regarded as absent from Tanzania by Reason only of the fact that he is in passage from one part of Tanzania to another or where he has given a direction under sub— section (3) and that direction is in force;". The words I haye underlined 1 For the purpose of sub-sectioA (1) and (2) • a the President jhal^i not be regarded as absent from T nzania where he his given a direction under sub-.«ection (^) and that direction is in force, show* clearly the futility of respondents' argument. Conceding, as they have uridoUbtedly done in this case) that at the time when the President left for Lusaka he had given no directions under sub-section (3) — an Important condition fot the devolution scheme prescribed under sub— Section (3) to operitej 1 cannot see how he can now be heard to contend that in the citcumstarteefl the Honourable Vice*»President was not empowered to exercise the functions of the office of President under the provisions of subsection (1). With respect, to accede to respondents' Construction of section 0 of theConstitution would, in my consideredview, be to overlook a long established prineipi-e of interpretation of constitutional provisions. This salutary rule of interpretation was stated by Chief Justice Marshall more than a hundred years ago in these memorable ter§u "A constitutional provision should not-be- construed so ‘ as to defeat its evident purpose, but rather so as to give it effy^tiv^ operation Speaking on th ame subject, tf'r. Justice Frankfurter the United 1 States Supreme Court, reminds us in BEIyL versus ’J f 349 U.’S* 81, 83 (1955), to read all enactments "with ttie §££jpfgiC’omnjp# sf/nse, " 22. To conclude this part of my judgement, I think, I have sufficiently shown in the preceding paragraphs that the concerted attack by the Honourable the Attorney— General on tho ruling of loam-ad ■Hloti judqe in so far as it is based on the judge's erranous construction of section 8 of the Constituion, is fully justified and, as it appears to me, if that was all there was to this appeal, I would have had no heaitfeticn in granting the Attorney—General's prayer and allowing this appeal in tofco. But, in my opinion, the matter goes further than merely finding fault with the learned j^idgets reasoning on the construction of section 8 of the Constitution. That this is in fact the position in this c-ise;. is evidenced by the animated arguments and counterarguments that we have heard in this case on the issue of the Public Seal and what, if any., is the consequence of omitting to affix it to a detention order as required under section 2 of the Detention Act. 2 3. Now then, since I have held in favour of the AttorneyOGaneral that during the one week absence of the President from the United Republic in July/August, 1979, the Honourable the Vice-President properly assumed the functions of the office of President under the provisions cf sub­ section (1) of section 8 of the Constitution} the question that immediately presents itself is thisi whether in those circumstances, the Vice-Predident could properly make an order under the provisions of sectioh 2 of the Preventive Detention Act, 1962> directing the detention of the three respondents^ I think the answer to this question must bej Yes, he could properly do so, because in terms of the provisions of the Constitution, the Vice-Presidont at the material time, was a person performing the functions of the-office. of President and as such person, in terms of section 3 of the Interpretation of Laws and General Clauses Act, 1972, and sub— section (2) of section 94 of the Constitution, he was empowered not only to exercise the executive power of theUnited Republic but also to exercise any other powers and duties conferred or imposed on tho President by theConstituion or any other law, that is, including powers and duties of the President conferred or imposed on him by the Preventive Detention Act, 1962.. For ease of reference the relevant part of section 3 of the interpretation of Laws and General Clauses Act. 1972. and subsection (2) of section 94 of the Constitution are set out below: Sub-section (2) of Section 94 of the Constitution reads in Kltwahili as follows: "(2) KanunI aJLfuatazo eitatumika kwa madhumuni ya ufafanuzi wa masharti ya Kati>>a hii, yaani - (a) Kila yanapota^wa madaraka ya Rais, ifahamike kuwa madaraka ya <>■<»» ohughuli na kasi mbali na vile vile w - » w a - krutekeil-exa ohughuli na kazi mbali mbali kama Mkuu wa Serikali ya Jamhuri ya Muunqano, na pia mamlaka mengine kama hayo au wajibu mwingine kama huo ikiwa imeelezwa katika Katiba hii au katika Sheria nyingine yo yote kwamb? mamlaka hayo mengine ni ya Rais au kwamba wajibu huo mwingine ni wa Rais." (ii) An unauthorized English version of this provision reads as follows: "(2) In this Constitution, references — (a) to the functions of the office of President shall be construed as references to his powers and duties in the exercise of the executive powers of the United Republic and to any other powers and duties conferred or imposed on the President by this Constitution or by any other law;". (iii) The relevant parts of section 3 of the Interpretation of Laws and General Clauses Act. 1972, Act No. 30 of 1972, reads! "3.-(l) In this Act and in every other Act, and in all public documents enacted, made or issued before or after the commencement of thisAct, the following words and expressions shall have the meanings assigned thereto respectively in this section, unless it is therein expressly or by necessary implication otherwise provided - 'President' means the President of the United Republic, and includes any nerson perforring the functions of the President under section 9 of the Constitution." It should be noted here that section 9 of the Interim Constitution has been re-enacted, with necessary modifications, not affecting substance, as section 8 of the Constitution of I9?7. 24. Thna* in. o£ ttx> foregoing conclusions, the only major question raeo-lvcd Jj> -this case is whether the order made by Honourable i Vi.oo-President directing the detention of the three repondents is ^ l i d or not. But before deciding this issue, I propose first to deal ^ i t h the question of jurisdiction. This Court has to decide whether ^ o u r t s have jurisdiction to examine and determine the propriety af the t order made by the Vice-President pursuant to the provisions of section 2 of the Preventive Detention Act in view of the provisions of section 3 of the Act saying: "No order made under thisAct shall be questioned in any court." - 17 - 25.. The provisions of section 3 of the Preventive Detention Act, 1962, are a classic example of an ouster of jurisdiction clause. This type of provision excluding the right of an individual to challenge executive action in the courts has regretably become a common feature of a number of our recent statutes. Be that as it may, does the provision of section 3 of the Act mean that courts of law in this country are completely powerless to inquire into an executive order made under the Preventive Detention Act, the authenticity of which has been impugned. Although the learned trial judge did not deal with this question in his ruling, I do not think that there can be any doubt in my mind that a court of law can inquire into the authenticity of an order under the Preventive Detention Act, 1962T That courts of law should have such power is, I think, a well established fundamental principle of law which cannot now be jettisoned except by clear and explicit statutory provision in that behalf. A number of eminent judges have spoken about this matter with a clear and firm voice. Lord Simonds in PYX GRANITE CO. LTD. v. MINISTRY OF HOUSING AND LOCAL GOVERNMENT (1960) A.C. 26u at p. 286 has said of this principle:- "It’ is a principle which is not by any means to be whittled down that the subjects recourse to ...... courts fot the determination of his rights is not to be excluded except by'-clear words." J And Lord Denning in his usual lively style has spoken of this fundamental principle in these terms: "It is a serious matter for the courts to declare that a minister .... has exceeded his powers. So serious that we think hard before doing it. But there comes a point when it has to be done. These courts have the authority - and I would add, the duty - in a proper case, when called upon to inquire into the exercise of a discretionary power by a minister or his department. If it is found that the power by a minister has been exercised improperly or mistakenly so as to impinge unjustly on the legitimate rights or interssts of the subject, then these courts must so declare. They stand, as ever, between the executive and the subject, alert, as Lord Atfcin said in a famour passage - "alert to see that any ccsercive action is justified in law: See Liversldqe v. Anderso* (1942) A.C. 206, 244. To which I would add, alert to se e t h a t a discretionary power is not exceeded or misused." See LAKER AIRWAYS versus DEPARTMENT OF TRADE (1977) Q.B. C4S.' ' " 26. The attitude of the courts on this matter may perhaps be best highlighted by Lord Reid's apt illustration in the case of ANISMINIC LTD. • v. FOREIGN COMPENSATION COMMISSION AND ANOTHER (1969) 2 W.L.R. 163,- at page 169. ./18 -«>». nvat»air tzf supposing. a simple case. A. «ta.tute provides that a Certain order may be made by a person who holds a specified qualification or appointment and contains a provision i... that such an order made by such p«rrso«v shall not be galled In question In any court of law. A person aggrieved by an order alleges that it is a forgery or that a person who made the order did not hold that qualification or appointment. Does such a provision requite the court to treat that ofcdar as a valid order? It is a well established principle that a provision ousting tKe ordinary jurisdiction of the court must be construed • $trirtly ** meaning, I thiWc, -that, If a provision is reasonably capable of having two meanings^ that meaning shall be taken which preserves, the ordinary Jurisdication of the *ourt.” I^ord Raid then concludes his statement of the principle involved in these ■"If the or Parliament ha* Intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document, felled on was a forgery, I would have expected to find something much more specific •fch-an the bald statement that a determination shall not be railed la question in any icourt. ” 27. It is quite cl-ear from cases decided on tihi* very important matter that courts of law have power and a duty to see that the powers of detention conferred by statute on any person are rightly exercised . »** ' 'iT' the statute and to ensure that the powers so conferred have been exercised honestly and bona fide, and not merely under some pretence of using the statutory power for the purpose of detaining a person on ■gjromvis other titan those laid down under the statute. Further, according to these authorities, it seems that the courts would have power to inquire whether the detaining authority has detained the right person, that is, the person aimed at by the order; and the courts may also properly inquire whether the detaining authority has adhered to the procedure and all necessary requirements laid down by the Statute which governs the executive authority’s powers on the matter. In the light of the correct principle enunciated in decided cases it appears to me that the High Court properly examined the propriety of the order which directed the detention of the three respondents. I now turn to deal with the respondents' contention that the order /nade by the Vice- President on 1st Augustt 19-79* directing their detention la. a nullity t and therefor^, illegal. .../19 ~ 19 - 28. As already indicated horein^bove, the three respondents allege that the ord<§r for their detention made by Honourable the Vice-President is a nullity because, as they allege, a valid order under the Act must not only be under the hand of the President but it must also have affixed to it the Public Seal, which, as conceded by th« learned Attorney-General, the order directing the detention of the three respondents did not have. The learned Attorney-General in reply to the respondents’ cohtentinn has argued that while it is desirable that an order under the Act should both be under the hand of the President and be affixed with the Public Seal, failure to seal such an order is not fatal - it does not invalidate the order, so long as the President has signified his intention that the person named in the order should be detained by appending his signature to the document, With respect, I am unable to accept the contention by the learned Attorney-General. From immemmorial times sealing a document has been accepted as a solemn mode of expressing assent to a written instrument and when done with that intention the instrument becomes a deed. Although the practice of expressing assent to written ins^rtmonts by the formal affixing of a seal has been greatly curtailed in recent times, the law may still require certain documents relating to matters of great consequence to the State such as the declaration of war, entering into treaties, making certain appointments of State or authorising certain executive action to be taken, to be executed by signature of theChief Executive and Head of State and the Public Seal. Under our law, for example, both the appointment and revocation of appointment to Ministerial office is required to be by instrument under the Public Seal, the emblem of Sovereignty. See sections 12(3) and 15(a) of theConstitution, respectively. In view of the importance that the law attaches to the PublicSeal, I find it difficult to accept the contention by the learned Attorney-General that when the law says that an executive action shall be authorized by an instrument under the hand or siqnature of the Chief Executive and Head of S^ate and shall be affixed with the Public Seal, failure to affix the Public Seal to such an instrument does not affect th-i nature and legal consequences flowing from such a defective instrument, if I may so term it. Surely, Parliament would not trouble itself in enacting a law requiring the'use ..../20 - 20 - of a Public Seal to authorize executive action if, in fact, its intention was that failure to comply with this requirement would not affect the validity of any executive action taken without such authority or imprimatur. I cannot accept that, :'nat could have been the intention of Parliament when it decided to enact the Preventive Detention Act, 1962, and prescribed conditions undel: which the preventive justice which it sanctions, would be invoked by the Executive Authority of the United Republic. The proposition now advance by the learned Attorney-General was clearly reiected by the Court of King's Bench ■ 4* ' nearly three hundred years aqo in the Case.>of REX versus BROWNE; CORBET, etc. (1S86), 2 SHOW. 484; 16 Digest 25?, 497. In that case the defendants appeared on an habeas corpus: Corbet being an attorney, had. on Browne's suit arrested a soldier without leave and had him committed to a messenger1s custody. The law then appears to have required that a warrant of arrest had to be under the sign manual or the King's own hand and Seal or the hand of any Secretary of State or officer of State or Justice. The Court of King1s Bench found the warrant of arrest to be bad because it was under the King's own hand, without Seal, and it was not under the hand of any Secretary of.^State or of f iccr 3ta ce r-o.:.- justice and the soldier was accordingly discharged. The point of this case is that it underscores the fact that an order or warrant which is bad on its face, can give no legal justification for imprisonment of a person. See GREENE versus SECRETARY OF STATE FOR HOME AFFAIRS ''1942) A.C. 284 at page 307, per Lord Wright. 29. The requirement that those who procure the imprisonment of others must strictly abide by every form and every step prescribed; for procuring such imprisonment was described by Brett, L.J. in the case of THE REVEREND THOMAS PELHAM DALE, (1886) 6 Q.B.D. 376 pages 461 - 463, to be "a general rule which has always been acted upon by the courts of England." Brett, L.J., then continued:- "that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue." And concluding the matter, Brett, L.J. , said:- "I desire to state that, although in this case I consider that irregularity a matter of substance, I should r-f the same opinion if it were only a matter of form- - '21 - because, as I said before, I take it to be a generalrule that the dourts at Westminister will not allow -any individual in this Kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every i'orm and every step in the process which if, to procure that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of Her Majesty's subjects." 30. In the instant case, it cannot with respect, be gainsaid that the failure by thei-Exeautive to affix the Public Seal to the instrument directing the detention of the three respondents is a matter of mere form and not one of substance. Incarceration of a person without trial c.imiijt by any distortion of Lanquaqe be said to be i matter of mere form. The liberty of the individual is so preaious and fundamental to the concept of the Rule of Law that the Courts are duty bound to see that it is not taken away except under express provisions of the law of the land. In this case the making of the order purporting to detain the three respondents under the provisions of section 2 of the Preventive Detention Act, 1962, did not,, as conceded by the learned Attorney General, strictly comply with all the requirements that are laid down undet the Act - the Act clearly says that whei^e grounds, which are described in the Act, exist for the preventive detention of a person: "the President may, by order under his hand and the Public Seal, direct the detention of that person," and then goes on to provide that an order made as aforesaid, "shall constitute an authority to any police officer to arrest the person in respect of whom it is made and for any police officer or prison officer to detain such person." It seems to me obviously to follow from these provisions, as night follows day, that an order for detention wh.* is not affixed with the Public Seal is a; complete nullity and therefore illegal. It cannot found any authority: for the arrest of any person by the police and his subsequent detention by them or by the prison authorities. This is what the learned trial judge found, though as indicated supra, he arrived .,t this conclusion on the basis of the construction of theprovisions of the constitution which we have found to be erroneous. That error apart, there can be no doubt that the result t;iat he reached, that the order made by : onourable the Vice— . President was bad on its face is correct. The learned trlgl judge accordingly allowed the respondents' application for an order of - 22 habeas corpus and ordered their immediate release from prison. I entirely agree with him. Accordingly the prayer by the learned Attorney-General that "the order of issuing the writ of habeas corpus against them together with that of ordering the release of the respondents be set aside and the respondents be detained accordingly", should, in my view, be? denied. This conclusion is, of course, without any prejudice to any steps that may have been taken or are contemplated to be taken by the Executive to put right the defective detention ordo.-, 31. I cannot leave this matter without referring briefly to Mr, Mahilame's final ingenious, if misconceived, submission. Mr. Mahatane has at ta eked the Preventive Detention Act, 1962, as a serious violation of the inalienable rights declared in the Preamble to the Constitution and has invited this Court^to say that this Act which gives extensive powers to the Execut Lve to imprison people wihhout trial in time of is imooneititnrtioiviL. In support of his contentionv Mr. Mahatane refea us to the Preamble to the Constitution which affirms and specifies the inalienab/le rights of all members of the human family, spells out their aspirations, objectives and moral abligations and, declares that these directive principle:- -ire bent protected in <a defivoc* Tt ic •&n<S'5'fcty'-whv>'c-v Government is responsible to a freely elected representative Parvliatnc’-... and where the courts of lav* are independent and impartial. With respe c to Mr. Mahatane, I do not think the directive principles contained in ’ .'••• Preamble to the Constitution creata any legal obligations enforceable- through the medium of the courts. They are mere moral obligations w h !■ \ as observed by Chief Justice Korsah of the Supreme Court of Ghana ii. Re AKOTO AND SEVEN OTHERS, 1961, Vol. Ill JOURNAL OF THE INTERNATIONA^ COMMISSION OF JURISTS, 86 at p. 99, provide a political yardstick by which the conduct of statecraft can be measured by the electorate T» - people's remedy for any departure from these directive principles 1 'r' il»■ ■-".ill Iin: I’-il 1■'* !'ox, •iiv1 n-'h ihrnii'jh the courts. And while I aqree with Mb. Mahatane t h it ideally it is desirable th;\t fundamental rim. especially the right to personal liberty should be written and §rv£r§.-i_- - in the C institution ^nd that such personfii libfrty should not in perc : time "be rastricted without trial in a court or law, it seems, tc :o me, - ii - quite un»r9uable that everY sovereign nation has the right, an absolute in its wisdom to choose either to entrench such rights in its on«> A * constitution or not. Our Government rejected suggestions for a constitutional Bill of Rights a early as 1962, and explained the omission of any Justiciable quarantees from the 1962 Republican Constitution in these wordst "A Bill of Rights merely invites conflict between the executive (sic) and the judiciary; that is the kind of luxury which we could hardly afford to entertain." See S.A. de Smith: The New Commonwealth and Its Constitutions, 1964 at pages 213 and 250; and Proposals of the Tanganyika Government for a Republic (Govt. Pap. No. 1 - 1962, 6). 32. One may, of course, with quite understandable justification find the Government's stand on this matter unsatisfactory but that, with respect, is another issue altogether, a discussion into, which I fihd *T'M it unnecessary to enter. Finally, a brief comment on the l a s t issue raised by Mr. Mahatane, This issue relates to the validity of the Preventive Detention Act, 1962, in the light of the directive principles contained in the Preamble to the Constitution. I find Mr. Mahatane's arguments in this connection completely untenable and accordingly. I have no hesitation in rejecting them. There is perhaps no better answer to his contentions on this matter than the following apt comment made by the Supreme Court of Ghana when rejecting a similar contention advanced before it with regard to the Ghana Preventive Detention Act, 1958. The Court said, in Re. AKOTO, Op. Cit., Supra: "We do not accept the view that Parliament is competent to pass Preventive Detention Act in war time only and not in time of peace. The authority of Parliament to pass laws is derived from the same source, the Constitution, and if by it, Parliament can pass laws to detain persons in war time there is no reason why the same Parliament Cannot exercise the same powers to enact laws to prevent any person from acting in a manner prejudicial to the security of the State in peace time". To conclude, I think it will not make my judgement unduly long, if 1 refer very briefly to one other matter which has caused us a great deal of concern. This matter is the question whether the person for whom a detention order is made under the Preventive Detention Act, 1962, is entitled to be shown before his arrest, the original of the detention order or not. The learned Chief Justice and my learned brother ..../24. - 24 - KISANGA, J.A., have dealt with this matter at some length in their Judgements and I think properly so. There should, I think, be no doubt in anybody’s mind that our law requires that where an arrest proceeds on a warrant, the warrant should state the reason why the arrest is made. And since preventive detention under the Preventive Detention Act, 1962, proceeds on the authority of a detention order made under the Act, there can, in my opinion, be no valid ground whatsoever for incarcerating any person in prison when such an order is on existent or when in existence, it is not in the actual possession of the prison authorities If, as suggested by my learned brothers, the law enforcement officer ensured that before proceeding to arrest anyone under the Preventive Detention Act, they had lawful authority to do so, it seems to me that a situation such as occurred in connection with the respondents in this case> would never arise. The reason for insisting that law 6nforcement officers should follow the procedure which my learned brothers have outlined in.detail in their judgements, is not far to seek. The procedure we approve is designed to secure nothing less than the liberty of the individual against any form of arbitrariness. For the foregoing reasons X agree that the Writ of Habeas Corpus must retnain undisturbed and I would accordingly dismiss this appeal. DATED at DAR ES SALAAM this 2 3rd day of July, 1980. ¥ * M. M. M W A K A S E N D O J U S T I C E OF A P P E A L L. A t. A. K Y A N D O DEPUTY REGISTRAR