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

By John Hatchard | Go to book overview

7 Protecting the Rights
of Detainees

The experiences of those held in detention without trial are often traumatic. There are frequently few legal protections available, whilst conditions in detention are nowhere pleasant and frequently atrocious. Torture, both mental and physical is common and some do not survive their indefinite ordeal. Detainees also suffer the same problems faced by convicted offenders, such as loss of employment and family breakdowns. All this without ever having been convicted of (or often even accused of) any offence. 1 If, as remains the case in many African countries, detention without trial is a fact of life, then it is vital that safeguards are provided which offer some practical protection to detainees. This chapter examines the question of the practical application of the legal rights for detainees in the Zimbabwean context.


Judicial Review

The Supreme Court has consistently reiterated that ministerial decision-making in this area remains subject to judicial review. As Chief Justice Dumbutshena stated in PF-ZAPU v Minister of Justice: 2

In my view, the arbitrary exercise by the executive of a prerogative, regardless of its effects on those who may be deprived of their rights and interests or who have legitimate expectations, is nowadays subject to judicial review. The reason for reviewing such executive action is that it would be unfair to deprive a citizen of his rights, interests or legitimate expectations without hearing what he has to say or to deny him the opportunity to find out whether the decision emanating from the exercise of an executive prerogative is legal or not, or, for that matter, irrational or unfair.

He continued:

Once the President or the Executive exercises delegated powers embodied in a Statutory Instrument (or a Statutory Instrument, to borrow the phrase used by the learned judge a quo, 'made in exercise of State Executive powers') the courts, in the exercise of their judicial review powers, have a duty to test the validity of those Statutory Instruments if they have 'consequences on the private rights or legitimate expectations of other persons...' See Council of Civil Service Unions v Minister for the Civil Service. 3 Further, I am of the opinion that if the maker of the Statutory Instrument derives his power from a statute the courts can subject it to judicial review... The tests for condemning subordinate legislation laid down in Kruse v Johnston4 by Lord Russell of Killowen LCJ have stood the test of time ... More recently the House of

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