IN THE MATTER OF THE DETENTION OF DISHON SUSA YAMO AND JOHN YAMO AND THE REPUBLIC 1985 TLR 119 (HC)

IN THE MATTER OF THE DETENTION OF DISHON SUSA YAMO AND JOHN YAMO AND THE REPUBLIC 1985 TLR 119 (HC)

Court High Court of Tanzania - Mwanza

Judge Mushi J

4 June, 1985

MISCELLANEOUS CRIMINAL CAUSE 7 OF 1985

Flynote

Administrative Law - Application for habeas corpus - Detainees held under a

deportation order under which they had previously been detained and subsequently

released - H Whether detainees legally held.

-Headnote

Dishon Susa Yamo and John Yamo were arrested and detained in 1984 under a

deportation order issued in 1983. Towards the end of 1984 they were released. In I

March 1985, they were arrested again. When their

1985 TLR p120

MUSHI J

arrest and detention were questioned in court the authorities produced a photostat

copy A of the 1983 deportation order. The court considered whether the arrest and

detention of the two persons in 1985 under the 1983 deportation order was legal.

Held: (i) The release of the detainees towards the end of 1984 meant that the B

deportation order under which they were being held had been rescinded;

(ii) once the deportation order has been rescinded against a deportee, the

deportation order dies as against that particular person and it can never apply to him

again; C

(iii) the arrest and detention of the two persons in 1985 under the rescinded

deportation order was illegal.

Case Information

Order accordingly D

No case referred to.

Tendwa, for the Republic

Judgment

Mushi, J.: This is an application for Habeas corpus under Section E 348(1) of

Criminal Procedure Code. The application has been filed by one Patrick Odongo

Yamo for and on behalf of his two brothers by the names of Dishon Susa Yamo and

John Yamo. The application is supported by affidavit which states as follows:

1. That I am the brother of one Dishon Susa Yamo and John Yamo who

are both under F custody and incarcerated at Tarime Prison.

2. That the two referred to in Para 1 hereof were arrested at Kowak

Village in Tarime District on 30th March, 1985 and so far no charges have been

preferred against them. G

3. That earlier on the two referred to in Para 1 hereof were arrested by

the police and were only released after I complained to the State Attorney in

Mwanza.

4. That the two referred to in Para 1 hereof are being held illegally by the

Police in Tarime. H

5. That I pray that this Application be granted and the relevant

authorities be ordered to release the two referred in Para 1 hereof forthwith.

The application was set down for hearing on 24.5.85 and as the complaint was against

I the Police and or Prison authorities in their capacities

1985 TLR p121

MUSHI J

as agents of Government, the application together with the affidavit were served on

the A Attorney General through his Chambers in Mwanza. On the hearing date, the

Attorney General was represented by Mr. Tendwa, State Attorney from Mwanza

Chambers.

In support of the affidavit, Mr. Patrick Odongo Yamo, the applicant, stated that

Dishon B Susa Yamo and John Yamo were arrested at Tarime on 30/3/85 by police

and were taken to police custody on allegations that they were in possession of

ammunition contrary to law but when their houses were searched nothing illegal was

found in their premises. The applicant stated that from the date the two people were

arrested no charge has been made against them nor have they been sent before a court

of law and it C is not known why these people have been detained or what is going

to happen to them. The applicant further said that these same persons were arrested

in July 1984 on allegations that they were habitual criminals. The applicant said that

after the two people were arrested and noting that no charges were brought against

them, he complained to D the Regional Party Chairman and Regional Commissioner

of Mara Region as well as to the Attorney General's Chambers in Mwanza. As a result

of his complaints, the two brothers were released in December 1984. The applicant

said that the same persons were arrested again this year and detained without charges

being preferred against E them, he had no alternative except to file this application

to request the court to summon the authority who are holding the two persons

illegally to produce the persons and to show cause as to why they should not be set at

liberty.

Mr. Tendwa had no objection to the application and he was of the view that the F

authority holding the two persons be summoned to appear so that it can be

determined as to the legality of these persons' detention.

Having read the affidavit and hear the applicant, I was satisfied that summons be

issued as requested. As we were not sure as who was actually holding the detainees I

directed the summons be issued and in the following manner: G

You: The Regional Prisons Officer Mara

Region and/or The Officer in charge

Prison Tarime District H

AND

The Regional Police Commander Mara Region and/or The Officer Commanding

District Tarime District I

1985 TLR p122

ARE HEREBY

Ordered, without fail, to bring before this court on 31/5/85 at 9.00 a.m. the following

A persons who are alleged to be unlawfully detained by you. The persons are Dishon

Susa Yamo and John Yamo.

You are required to bring with you the original of any warrant or order for the

detention, B if any, for the above mentioned persons or show causes why the

persons so detained should not be released forthwith.

GIVEN UNDER my hand today the 24th day of May, 1985.

Sgd. N.M. MUSHI C

JUDGE

On 31st May 1985, none of the persons mentioned in the summons appeared as D

required. However a prison warden brought to the court two people who were

Dishon Susa Yamo and John Yamo. These are the people who were said to be

illegally held.

The persons alleged to have been illegally detained having appeared in person they

were allowed to narrate what their problems are. Dishon Susa Yamo, stated and I

quote: E

D. S. YAMO & J. YAMO & THE REPUBLIC (Mushi, J.)

I am being arrested very often but I do not know what crime I have

committed. I want to know F what offence I have committed. At first I was

arrested on 11/7/84 but I was released on 16/12/84. When I was arrested they told me

that I was a cattle thief but I have never stolen any cattle. I was not charged with any

offence. I was released by OCD Tarime. Again on 30/3/85 G police came and

arrested me, upto-now I am in remand and I haven't been charged with any offence.

And John Yamo said:

Last year in July on 11th I was arrested. I was remanded till 16/12/84 when

we were released. H On 30/3/85 I was arrested again and sent to Tarime Police

station where I was released on 5/4/85. I was told to go home but I was required to

report back on 9/4/85. I reported as I was told by O.C.D. Tarime. When I reported as

I was told, the O.C.D. asked me whether last year I I had been arrested. I told him

that I had been arrested and I was released by

1985 TLR p123

MUSHI J

himself. The O.C.D. told me that my problem was a difficult one and I would

be locked up. A The O.C.D. told me to stop "maneno". Since then I have been in

remand. I have not been told what offence I have committed.

Mr. Tendwa - State Attorney who appeared for the Republic informed the Court that

on B 27/7/84 a complaint was received in their office from one J.P. Yame working

with Ministry of Justice complaining about his two brothers - i.e. Dishon Susa Yamo

and John Yamo who were being held by the Police at Tarime and he wanted to know

if they had been lawfully detained. As a result of this complaint, on 8/8/1984 a letter

was C written to the R.C.O. Mara enquiring about the matter. Mr. Tendwa further

stated that their office received a copy of a letter written to O.C.D. Tarime by the

R.C.O asking for explanation as to why the applicants were in remand without being

charged. Mr. Tendwa stated further that there was no reply from either R.C.O or

O.C.D. Tarime. But in December, 1984 the person who wrote the complaint called in

their office in D Mwanza and informed them that his two brothers i.e. Dishon Susa

Yamo and John Yamo had been released. Again, Mr. Tendwa stated, that on

13/5/1985 another complaint was received in his office to the effect that Dishon Susa

Yamo and John Yamo had been arrested on 30/3/85 and that up to the date of the

complaint, the two people E had not been charged. This time the complaint was

written by one Patrick Odongo Yamo. This is the person who filed the application

for summons to issue on behalf of the applicants and he is their brother. After

receiving the complaint, a letter was written to R.C.O. Mara enquiring about the

position of the applicants. Up to the time of the F hearing of this applications, no

reply had been received. However, Mr. Tendwa, stated that the Prison Sergent who

brought the applicants handed to him a photostat copy of a deportation order under

Cap. 38. The deportation order was from Regional Prisons Officer Mara. The said

deportation order is signed by the President and it is dated 24th G September, 1983.

And the two applicants are among 280 people listed to be deported from Mara Region

to Ruvuma Region. The applicants are listed as Nos. 210 - Susa Yamo and 211 - John

Yamo.

Mr. Tendwa continued and stated, and I quote:

I fail to understand as to why the two people were not arrested since

September 1983 until H July 1984. It is not known whether their arrest in July 1984

was in connection with the deportation order or another matter. Even if the two

applicants were arrested in connection with the order of the President of 24/12/84,

again I do not know as to why they were rearrested I in March 1985. I

1985 TLR p124

MUSHI J

have no idea as to whether there was any other order to arrest them. The

persons who are in A sound position to give explanations regarding the arrests and

release of these applicants are the Regional Police Commander, Mara, the Regional

Prisons Officer Mara, The Regional Crime Officer Mara and the O.C.D. of Tarime

District but all of these officers were served but B none of them came. I have no

information at all as to why these officers did not come.

The question before me now, is whether on the facts as have been revealed, and to a

very large extent undisputed, are the applicants being held illegally or not. It would

C appear to me that by sending a photostat copy of the deportation order signed by

the President the Regional Prisons Officer, Mara, is telling us that the two applicants

are lawfully being held since their names appear among the people to be deported

listed in the order.

Under Cap. 38, the President may order a person to be deported to any part of the D

country if he is satisfied that such person is conducting himself so as to be dangerous

to peace and good order in any part of the country. This is provided under section (2)

of Cap. 38 which if I may reproduce here reads: E

2. Where it is shown by evidence on oath, to the satisfaction of the

President, that any person is conducting himself so as to be dangerous to peace and

good order in any part of Tanganyika, or is endeavouring to excite enmity between

the people of the F United Republic and the Government or is intriguing against

Government, the President may, if he thinks fit by order under his hand and official

seal, order that person to be deported from any part of the Territory to any other part

of the Territory. G

And by section 3 there is no appeal against a deportation order made under the

Ordinance. And this is not an appeal against the said order. In fact what the

applicants are saying is that they are not even aware of the deportation order

otherwise they would H not have made this application. The deportation order is

dated 24th September 1983. As the learned State Attorney pointed out it is not

known as to why it took so long to arrest the applicants if at all the arrests in July,

1984 were in connection with the deportation order. There is no evidence to show

that the arrests of July, 1984 were in connection with the deportation order. If it had

been so, the applicants should have I been informed that they were being deported

and their family members be informed. An order of

1985 TLR p125

MUSHI J

deportation is not a secret document. The reasons which make the President order a

A particular person to be deported from one part of the country to another may be

secret but the order of deportation itself is not secret thing.

Assuming that the arrest of July 1984 were in connection with the deportation order

in question, then the arrests were lawful and their detention was also lawful under

the B deportation order dated 24th September 1983. There is evidence from the

applicants themselves to the effect that after being arrested in July 1984 they were

released in December 1984 and they were free citizens until 30/3/85 when their

liberty was taken away by the Police at Tarime by arresting them and locking them

up till today. The C question is whether their arrests in March 1985 and their

continued detention is lawful. The answer to this question is clearly No. This is so

because if we assume that the applicants were detained under the deportation order,

then their release in December must have been under section 8 of Deportation

Ordinance. This section reads and I D quote:

8. The President may by order under his hand and official seal, vary or

rescind any order of deportation made under this Ordinance, or without varying or

rescinding the order of E deportation, may grant permission in writing to the person

deportated to leave for a temporary purpose the part of Tanganyika to which he has

been deported for some other part named in such permission. Such permission may

be granted subject to such conditions as to the President may deem proper, and any

person who shall fail to F comply with the conditions attached to any permission

granted to him as aforesaid, shall be liable to the penalties provided in the next

section.

As the section clearly says, after a deportation order has been issued against a

particular G person such person can only be released by the order of the President in

writing and under the official seal. If the President wishes the deportee to be

released, he will rescind the order. Or without rescinding the deportation order, the

President may vary the deportation order in any manner that he deems fit or grant

permission to the deportee H to leave one part of the country temporarily or

otherwise on conditions that may be specified by the president in writing. Since the

applicants were released in December 1984, and it had not been shown that their

release was other than under Section 8 of Cap. 38 quoted above, and further that it

has not been shown that their release was I conditional in any

1985 TLR 126

MUSHI J

manner, the only logical conclusion is that the deportation order against them was A

rescinded. It must be so because there has been no allegation that particular person

and it can never apply to him again. In this particular case, the moment the

deportees, Dishon Susa Yamo and John Yamo, were released, the deportation order

dated 24th September 1983 ceased to apply against them. If the President is again

satisfied that the B applicants ought to be deported, a new deportation order has to

be issued as if the former one had not been made. Since it has not been shown for

what offence the applicants were arrested on 30/3/85 and under what authority they

are being detained, their arrests and detention can be nothing other than illegal. No

citizen of this country or C any lawful visitor to this country ought to have his

freedom or liberty restrained by the Police for any second unless such person has

contravened any of the provisions of the law of the state. It is therefore declared that

the arrests of Dishon Susa Yamo and John Yamo on 30/3/85 and their continued

detention is unlawful and illegal. And as no cause D has been shown as to why they

should not be released, it is ordered that Dishon Susa Yamo and John Yamo be

released forthwith from the Prison. As both persons are before the Court, it is

ordered that this order takes effect as of this moment and the two persons are

declared freed and may go about their business unrestrained.

As for the Prison and Police officers who were summoned to appear and answer the

E complaint levelled against them, but have decided to disobey the order to them I

say:

The laws which they are enforcing against others are equally enforceable

against them. F

Order accordingly.

1985 TLR p127

A