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

By John Hatchard | Go to book overview

4 Implementing
Emergency Powers

Operation of the Emergency Powers Act

Following the declaration of a state of emergency, the Emergency Powers Act comes into operation. Its purpose is:

... to prevent a state of emergency degenerating into a state of anarchy and to do this by conferring extraordinary powers on the President to deal with it, and, for the same purpose, it is permissible during a state of emergency ... to make laws which derogate from certain of the fundamental rights contained in the [constitution]. When a state of emergency exists, the Government is obliged to do everything in its power to bring it to an end and to avoid the ultimate step of introducing martial law. 1

During a period of public emergency the President may make emergency regulations having nationwide or local effect which appear to him necessary or expedient for, amongst other things, public safety; the maintenance of public order; the maintenance of any essential services; and the preservation of the peace. 2 The only term which is defined is 'essential service'. This includes, hospital services; transport and distribution services; electricity, water and sanitary services; communications and 'any other service declared by the President, by notice in the Gazette to be an essential service for the purposes of the Act'. 3 This means that in practice an essential service is any 'service' if the President so determines. For example, a person detained under a thirty day detention order 4 on the grounds that he was suspected of violating the exchange control laws applied for a writ of habeas corpus. 5 In the Supreme Court, Justice Beck agreed that his first impression was that the reasons for the detention order did not fall within any of the areas detailed in the Emergency Powers Act. 6 He added that the concept of exchange control laws seemed entirely remote from the wording of any of the various purposes enumerated in the Act. But he continued:

[Counsel] has drawn our attention to the Emergency Powers (Declaration of Essential Service) 7 which declared that 'finance, commerce and industry' are to be included within the phrase 'an essential service' for the purposes of the Exchange Control Act. That declaration is still extant ... Clearly, the effect of that declaration is to bring the concept of the nation's finance, and hence the protection of its foreign currency reserves for which, in turn, Exchange Control laws are designed, within the ambit of ... the Act, which both refer to 'the maintenance of any essential service'.

It was also contended that the investigation of a criminal complaint is something very different from the purposes contemplated in the Emergency Powers Act. Thus it was improper to detain an individual merely to facilitate the investigation of a criminal charge

-28-

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