Facts
This was an application for the issue of direction in the nature of habeas corpus made on behalf of the 5 applicants who were detained under the provisions of the Zanzibar Preventive Detention Decree No. 3 of 1964. The applicants were detained so that they would not disrupt peace and security. It was argued for the applicants that detaining a person on grounds of security could only be ordered under the Preventive Detention Act. No. 60 of 1962 as amended by Act, No. 2 of 1985 by the President of the United Republic of Tanzania because peace and security are matters reserved for the Union.
Held: (i) Since the list of Union matters in the constitution of the United Republic of Tanzania, 1977, does not include preventive detention power or preventive detention per se as a Union matter it means the President of Zanzibar is empowered to order preventive detention in relation to non-Union matters pertaining to Zanzibar.
(ii) the position of the Zanzibar Preventive Detention Decree No. 30, 1964 in the light of
Articles 65(4) and 64(3) of the Union Constitution is that that legislation is inconsistent with the Union Constitution in so far as matters of defence and security are concerned and therefore it stands null and void to that extent alone.
(iii) since preventive detention on matters not related to defence and security is a nonUnion matter only legislation passed by the Union Parliament legislating for Zanzibar on that subject would be inconsistent with Articles 106(3) and 64(2) of the Union Constitution, 1977 as well as Article 7(1) of the Zanzibar Constitution, 1984, hence the extension to Zanzibar of the Union Preventive Detention Act No. 60 of 1962, as amended by Act No. 2 of 1985 is valid to the extent it relates to Union matters of defence and security only whereas the non-Union aspect of it relating to Zanzibar is exercisable by the President of Zanzibar under the relevant Zanzibar legislation.
(iv) the mere fact that the Union Preventive Detention Act confers powers on the Union President and extends its applicability to Zanzibar as well as mainland Tanzania does not preclude the President of Zanzibar from exercising similar powers on non-Union matters relating to Zanzibar.
(v) since the detention of the applicants was grounded on security matters which are Union matters it should have been carried out under the orders of the President of the United Republic of Tanzania pursuant to the Preventive Detention Act. No. 60 of 1962 as amended by Act No. 2 of 1985.
(vi) the detention of the applicants as carried out under the orders of the President of Zanzibar pursuant to A the Zanzibar Detention Decree No. 3 of 1964 is illegal.
Case Information
Application granted.
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