Individual Freedoms & State Security in the African Context: The Case of Zimbabwe

By John Hatchard | Go to book overview

6 Detention Without Trial
& the Right to
Personal Liberty

General Features of Detention Without Trial

Preventive detention (or detention without trial) enables the executive or its agents to detain an individual without recourse to the judicial process. This action is usually justified on the ground that the person poses a threat to 'public safety or public security'. Detention powers are used in two ways. Firstly for investigative detention. Here the security forces may detain a person for a specified period without bringing him/her before a court. Secondly, for indefinite detention. Here an executive order provides for the detention of any person for an indeterminate period. Despite the serious consequences associated with it, the ICCPR recognises that a State may utilise preventive detention during a period of public emergency, 1 and there are also several arguments to support this approach:

1. The State has the right and duty to employ its best efforts to protect society against those who threaten its security. This is especially so in times of emergency when the people of the nation join together as one 'community' to protect it against internal or external enemies. As the former President of Tanzania, Julius Nyerere, points out:

Our Union has neither the long tradition of nationhood, nor the strong physical means of national security which older countries take for granted. While the vast mass of people give full and active support to their country and its government, a handful of individuals can still put our nation in jeopardy and reduce to ashes the efforts of millions. 2

2. The criminal law is not always a suitable vehicle for the detention of individuals because its objective is to punish convicted offenders. The objective of preventive detention is to permit the executive to hold a person on suspicion of being a potential threat to State security. As a former Minister of Home Affairs in Zimbabwe, Herbert Ushewokunze has noted:

The technique of preventive detention involves trying to identify those with a propensity to act so as to threaten state security, and to put them away until the danger dissipates. I would mis-use preventive detention if I used it to punish a person for an act already committed. Only the criminal law serves that purpose. I do not and will not use preventive detention to substitute for a criminal conviction. To imprison a person because we suspect his propensity to endanger security constitutes the very limit of imprisonment for suspicion alone. I must — and I do — constantly remind myself of this, and of the fallibility of all human suspicions, none more so

-46-

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