In 1962, less than a year after independence, Tanzania adopted a Preventive Detention Act giving the President power to detain indefinitely and without trial persons acting in a manner threatening the security of the state. In the fragile post-independence period of the early 60’s many African states, including Ghana, Kenya and Zambia, passed similar laws. But now, 20 years after independence, members of Tanzania’s judiciary have been calling for the repeal of the Preventive Detention Act.
At a Faculty of law symposium in January, Mr. Kalunga, Principal State Attorney in the Ministry of Justice, presented a paper calling for the repeal of the Preventive Detention Act. This is the latest such public appeal. Several months ago a small book entitled ‘Honest to my Country’ (see TA Issue 14, p.16), written anonymously by a Tanzanian lawyer, called for doing away with the detention law. Then in December a court of appeals judge, R.H. Kissanga, said that the time had come seriously to consider repealing the law. Over the past two years a number of judges have heard cases involving detainees and some have written opinions very critical of the way the law is implemented. In this latest critique Attorney Kalunga called the detention law ‘a menace to everyone in the country’. The Act, he wrote, was a horrific piece of legislation, difficult to defend, and its utility was certainly zero. To the ordinary citizen, whose heart is full of love for freedom in his motherland, the act is a nightmare. It creates fear, unhealthy and unnecessary submissiveness.
Kalunga’s controversial paper stimulated three hours of lively debate. The audience included Tanzania’s Attorney General, a number of judges, several MP’s, professors of law and several ex-detainees. Most speakers advocated repealing the Preventive Detention Act. A number, including the Attorney General, said it should be more carefully implemented and perhaps revised. Only one speaker defended the law as it is applied. Opponents of the detention law argued that nowadays Tanzania is politically stable and that therefore the original reason for the law no longer exists. Some legal experts said that the law itself is redundant, since there are other laws which adequately protect against any threat to national security. Further, a number of speakers said that the act puts far too much power in the hands of one man, the President, and that it does not give detainees their fundamental rights, such as the right to legal counsel, or to be charged and tried in court for their alleged offences. And according to some of the speakers the law, harsh as it is on paper, is being grossly misused. They said it has become a catch-all for locking up a variety of common criminals whom, for one reason or another, the executive branch and the police cannot, or do not want to, bring to court. Those being detained nowadays are very rarely political opponents of the Tanzanian government. Rather they include small and big time criminals, such as habitual drunkards, cattle rustlers, thieves, embezzlers, smugglers, foreign exchange violators, racketeers and economic saboteurs. As one speaker, High Court Judge and Member of Parliament Nassoro Mnavas, said, ‘the law itself was originally passed to deal with political malcontents after independence. But unfortunately it is now being misused to supersede ‘ criminal law’. Neither the names nor numbers of detainees are made public. And my attempts over the past several weeks to obtain this information have, so far proved futile. But according to knowledgeable people I’ve interviewed the number of presidential detainees may be as high as several thousand.
In his remarks at the symposium Tanzania’s Attorney General, Joseph Warioba, said he was disturbed by much of the discussion, which he considered ‘a bit one-sided’ and ’emotional’. He said ‘we must look to see if there are enough safeguards’ in the detention act, but concluded: ‘I do not think we can say that we can do without the law at this time’. Just what will happen next remains unclear. However, it does seem that at a minimum there will be efforts to crack down on the current widespread misuse of the detention law and that the courts may become more aggressive in hearing detention cases. And at some point parliament may be asked to debate whether or not it should revise or repeal the detention act.
(Reproduced with the kind permission of the British Broadcasting Corporation)