Incarcerating the Innocent: Preventive Detention in Tanzania

[Y]ou are imprisoning a man when he has not broken any written law, or when you cannot be sure of proving beyond reasonable doubt that he has done so. You are restricting his liberty, and making him suffer materially and spiritually, for what you think he intends to do, or is trying to do, or for what you believe he has done. Few things are more dangerous to the freedom of a society than that. ¹

Julius K. Nyerere

I. Introduction

As the process of democratization gains momentum in Africa and elsewhere with movement from one-party political systems to multiparty politics, one would have expected this process to be wide ranging, affecting all aspects of the states involved. The change at the political parties level should have gone hand in hand with the realization of fundamental rights and freedoms. This has not been the case. In the newly “democratic” states in Africa, a cluster of laws defeats the whole democratization process. The most disturbing of these laws are those relating to the detention of citizens without due process of law.

One of the most important achievements of Ali Hassan Mwinyi, President of the United Republic of Tanzania from 1985 until 1995, was that when he vacated office in November 1995, he left not a single detainee in custody. Along with releasing the few detainees that he had inherited from his predecessor Julius Nyerere in 1985, Mwinyi also freed hundreds of deportees who had been condemned by his predecessor to the southern regions of the country under the colonial Deportation Ordinance. ² This is an achievement that critics of the Mwinyi era unsuccessfully attempted to dismiss. ³ To appreciate a third world state with no political detainees, one needs to come to terms with the gravity of detention without trial. Almost all states in Africa have laws allowing them to detain without trial for any obscure reason. These laws are identified by different names, such as preventive detention laws, preservation of public security, and emergency powers laws. But what really is preventive detention and how does this act of the state affect the lives of the victims and the society at large?

Preventive detention has been defined by Justice Mahomed as “the compulsory incarceration of a citizen following upon a perceived threat adjudicated upon by an executive official, without the appearance of the detainee before an ordinary court of law and without any objective finding as to the guilt of the detainee or the correctness of the executive perception.” ⁴ Such incarceration without due process of law is one of the greatest injustices committed by the state against the individual.

Preventive detention as an act takes various forms. In most cases, the security of the state is invoked as justification, with the freedom of the individual weighed against the very existence of the state as a whole. “Logically,” the scale weighs against the individual. Julius Nyerere, the retired President of the United Republic of Tanzania, was very honest in his support of detention without trial: “[T]he Government was prepared to take the risk of locking up innocent people in order to prevent harm to the state.” ⁵ It is debatable whether the security of the state really is at stake, or whether this is merely a camouflage for authoritarianism.

As indicated above, detention without trial, or preventive detention as it is “popularly” referred to, is effected by the executive arm of the state which, through the enforcement of legislative measures, usurps the power of the judiciary and pronounces individuals dangerous (or potentially dangerous) to society, sanctioning their incarceration. The most disturbing aspect of this form of detention is the subjective nature of the test involved in making the judgment. The deciding authority is given carte blanche to use instinct without a corresponding duty of justifying the decision taken. This is the genesis of authoritarianism and dictatorship. It is “a departure from the ideal system that no one should be deprived of his freedom without having had a fair trial.” ⁶ In Tanzania there are several laws which “legalize” detention without trial...