ALBERT SIBEYA
PLAINTIFF
and
THE MINISTER OF HOME AFFAIRS
DEFENDANT
MARTIN MUTUMBA
PLAINTIFF
and
THE MINISER OF HOME AFFAIRS
DEFENDANT
CHRISPIN MAZILA
PLAINTIFF
and
THE MINISER OF HOME AFFAIRS
DEFENDANT
CORAM: SHIVUTE, A.J.
Heard on: 2000.09.11 Delivered on: 2000.11.07
JUDGMENT
SHIVUTE. A.J.: In these matters the three plaintiffs sued the same defendant for unlawful and wrongful arrest and detention. Since they involve the same legal issues and essentially similar facts the matters were set down on the same day so as to be heard together. By agreement the relevant parts of the pleas were put in issue for decision by this Court.
The first two plaintiffs, Albert Sibeya and Martin Mutumba, were arrested on 7 August 1999 in Oshakati and were subsequently detained in the police cells at Oshakati Police Station, Ongwediva Police Station and the Grootfontein military base until they were released on 16 August 2000.
The third plaintiff, Chrispin Mazila, was arrested on 6 August 1999 in Grootfontein and was detained until 16 August 1999 in the Grootfontein Police cells. None of the plaintiffs appeared before a magistrate within 48 hours as required by Article 11 (3) of the Namibian Constitution and Section 50 of the Criminal Procedure Act, Act 51 of 1977.
In each of his three pleas the defendant admits the arrest and detention but pleads that the arrests and detentions were lawful in that the plaintiffs were arrested and detained in terms of the Emergency Regulations which were applicable in and with respect to the Caprivi Region.
The plaintiffs filed an exception to the defendant's pleas on the ground that they do not contain the necessary averments to disclose a defence. Mr Tjombe who appears for the plaintiffs, contends in the main, that the Emergency Regulations could not be applicable to the geographical areas in which the plaintiffs were arrested and detained which areas he says are outside the Caprivi Region.
Following an armed rebellion in the Caprivi Region on 2 August 1999, the President of the Republic of Namibia, by Proclamation in the Government Gazette, declared that a state of emergency existed within the Region of Caprivi "as defined by Proclamation No. 6 of 3 March 1992" (See Proclamation No 23 of 2 August 1999).
The declaration of the state of emergency in the Caprivi Region was made pursuant to Article 26 (1) of the Namibian Constitution (the Constitution) which provides:
"(1) At a time of national disaster or during a state of national defence or public emergency threatening the life of the nation or the constitutional order, the President may by Proclamation in the Gazette declare that a state of emergency exists in Namibia or any part thereof.
The State of Emergency in the Region of Caprivi was declared on account of circumstances that had arisen in that region causing a public emergency threatening the life of the nation and the constitutional order. (See Proclamation 23 of 1999).
In terms of Article 26 (5)(a) of the Constitution.
"During a state of emergency in terms of this Article ... the President shall have the power by Proclamation to make such regulations as in his or her opinion are necessary for the protection of national security, public safety and the maintenance of law and order."
In making such regulations the President is also empowered to
"... suspend the operation of any rule of the common law or statute or any fundamental right or freedom protected by this Constitution, for such period and subject to such conditions as are reasonably justifiable for the purposes of dealing with the situation which has given rise to the emergency.." (Article 26 (5)(b) of the Constitution).
Pursuant to the provisions of Article 26 (5)(a) of the Constitution, the President made Emergency Regulations (the Regulations) by Proclamation 24 of 1999. The scope and validity of the Declaration of the State of Emergency and the validity of the Regulations
are not questioned. The question that arises in this matter is the applicability of the Regulations to areas outside the Caprivi Region.
Mr Philander, who appears on behalf of the defendant, argues that it was the President's intention that actions outside the Caprivi Region relating to the circumstances that gave rise to the public emergency should fall within the ambit of the Regulations. This is, so the argument runs, because of the inclusion in the preamble to Proclamation 24 of 1999 of the phrase "and with respect to."
In his heads of argument Mr Philander contends that if the Regulations were not made applicable to areas outside Caprivi Region, the other option open to the President was to declare a state of emergency in the whole country, which option would, in the words of Mr Philander, have "dire consequences on the majority of the people of Namibia." During oral argument though Mr Philander conceded that if the words "and with respect to" were to be given a meaning to the effect that the Emergency Regulations were applicable to areas outside Caprivi Region, it would lead to a conclusion that a de facto state of emergency existed in the whole of Namibia without a proclamation as required by Article 26 (5)(a) of the Constitution. In spite of this concession Mr Philander urges the Court to have regard to the intention of the lawmaker which was to curb the unrest and to limit its possible spread to other parts of the country.
The defendant maintains that the plaintiffs were arrested under regulation 3 (1) of the Emergency Regulations. Regulation 3 (1) of the Regulations states:
"3(1) A member of a security force may, without a warrant of arrest, arrest or cause to be arrested any person whose detention is, in the opinion of such member, necessary for the safety of the public or the maintenance of public order or for the termination of the state of emergency, and may under a written order signed by any member of a security force detain or cause to be detained such person in custody in a prison, subject to compliance with the requirements of Article 24 (2) of the Namibian Constitution."
It is also important to note subrule (2) of Rule 3 of the Regulations which suspends a
fundamental right of an arrested person. The subrule provides:
"(2) Subject to Article 24 (2) of the Namibian Constitution, the fundamental right protected by Article 11 (3) of the Namibian Constitution and the operation of Section 50 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) are hereby suspended in relation to a person arrested and detained under subregulation (1), including any person who was arrested and detained before the coming into effect of these regulations for any reason contemplated in that subregulation."
Mr Tjombe contends that the declaration of a state of emergency and the regulations made in terms thereof have to be interpreted strictly and within the context of the Constitution. I agree. In view of the fact that the Regulations derogate from certain rights and freedoms conferred on persons by the Constitution, a narrow or strict interpretation is called for. In Ntenteni v Chairman of Ciskei Council of State and Another 1994 (1) BCLR 168 (CK) at 172 Heath, J stated:
"... the very nature of a constitution requires that a broad and generous approach be adopted in the interpretation of its provisions ... and that where rights and freedoms are conferred on persons by the Constitution, derogations from such rights and freedoms should be narrowly or strictly construed (Emphasis added).
See also Kauesa v Minister of Home Affairs and Others 1995 NR 175 (NmSc) at 184H)
With this general approach in mind I proceed then to consider whether the regulations were applicable outside the Caprivi Region.
The declaration of the state of Emergency is couched in the following terms.
"DECLARATION OF STATE OF EMERGENCY: CAPRIVI
Whereas circumstances have arisen in the Region of Caprivi causing a public emergency threatening the life of the nation and the constitutional order, I therefore under the powers vested in me by Article 26 (1) of the Namibian Constitution declare that as from the date of publication of this Proclamation a state of emergency exists within the Region of Caprivi as defined by Proclamation No. 6 of 3 March 1992." (Emphasis added).
In terms of Proclamation 6 of 1992 the Caprivi Region (which was by then known as the Liambezi Region) is defined as follows:
"(a) That part of Area 1 of the district of Kavango, as defined in schedule D to Government Notice 2428 of 1972, situated to the east of the meridian of longitude 21 east; Area2 of the said district of Kavango as so defined; and
the district of Eastern Caprivi as defined in Government Notice 2429 of 1972."
The short title to the regulations reads:
"EMERGENCY REGULATIONS APPLICABLE TO THE CAPRIVI REGION: ARTICLE 26 OF THE NAMIBIAN CONSTITUTION"
From (i) the declaration of the state of emergency, (ii) the definition of the "Region of Caprivi" and (iii) the short title to the regulations as quoted above it seems to me self-evident that the declaration of the state of emergency was made in respect of the geographic area of the Region of Caprivi only.
The words "and in respect of do not appear in the declaration. They only appear in the regulations. I agree with Mr Tjombe that the ordaining part of the regulations which contains the phrase "and in respect of has to be read subject to the declaration itself.
The ordaining part in my view cannot extend the ambit of the declaration. The phrase "and in respect of is not defined in the Regulations. It should therefore be given its ordinary meaning. The Concise Oxford Dictionary defines "with respect to" as "as concerns, with reference to"
Properly construed therefore, the phrase "and with respect to" in the context used in the regulations means that the regulations were applicable in the Caprivi Region and with reference to matters related to Caprivi but which were confined to or done inside the Caprivi Region, in which a state of emergency was declared.
To give the phrase a meaning to the effect that the regulations were applicable to outside Caprivi would amount, in my opinion, to an impermissible extension of the state of emergency. If it was the lawmaker's intention to have the regulations applicable to outside the declared area there can be no real doubt that the President would have declared a state of emergency in the entire country, for he is legally empowered to do so. (See Article 26 (1) of the Constitution).
A de facto state of emergency is not permitted. In support of this proposition I quote with approval what was stated in Rights and Constitutionalism: The New South African Legal Order (1994), by Professor Erasmus Van Wyk et al at page 655:
"A state of emergency cannot exist unless officially declared. Its proclamation must be by an authority competent and legally empowered to do so. The reason for such a proclamation is to announce publicly the existence of an exceptional situation and to inform the public about the special conditions, powers, suspension of rights, controls, and remedies which will apply. Such declaration and all subsequent regulations should contain sufficient information to explain the reasons for the emergency, when it will come into effect, and the scope and effect of any suspension of rights. A de facto state of emergency is not permitted"
It remains now to consider Mr Philander's argument that to construe the words "with respect to" in the Regulations in the manner I attempted to do would result in an absurdity. Mr Philander's argument is couched in the following terms.
"In the event of the Regulations not being applicable outside the declared area, which is still denied, one will be left with the situation where person X, being part of the secessionist group and activities that led to the state of emergency, flees the Caprivi Region and cannot be arrested under the Regulations as he/she is no longer within the declared geographical area. The person can thus continue with his/her unlawful activities, which may have resulted in an interminable state of emergency. This will also be the case in a matter of hot pursuit. It is submitted that this contention would have led to absurdity as it implies that suspects could only have been arrested in Caprivi, even though sufficient evidence may exist to link a suspect to the secessionist operations, which operations were the main cause for the declaration of the state of emergency."
In the first place it is not pleaded nor was it argued that the plaintiffs were arrested in hot pursuit. However, there can be no reason why a person in the circumstances hypothesized by Mr Philander could not be arrested outside the Caprivi Region. Of course, he or she could be arrested except that the arresting person cannot purport to effect the arrest under the Regulations when the arrest is made outside the declared area. Normal or ordinary laws of the land must apply in such a case. That would entail principally respect for the fundamental right protected by Article 11 (3) of the Constitution and the application of Section 50 of the Criminal Procedure Act, 51 of 1977.
Both Mr Tjombe and Mr Philander raised other points of argument but because of the conclusion I have arrived at in this matter I find it unnecessary to consider those points.
In the result, I have found that there are merits in the contention that the wide powers of arrest and of indefinite detention without trial embodied in Regulation 3 of the Regulations could only be exercised in the Caprivi Region. In respect of the rest of Namibia all the provisions of the Constitution continued to operate as the State of Emergency was not declared in respect of the whole country.
Accordingly, the defendant's three pleas that the plaintiffs were arrested and detained pursuant to Regulation 3 of the Regulations are dismissed with costs.
ON BEHALF OF THE PLAINTIFF Mr Tjombe
Instructed by: Legal Assistance Centre
ON BEHALF OF THE DEFENDANT Instructed by:
Mr Philander Government Attorney