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Crisis in Southern Rhodesia Crisis in Southern Rhodesia http://www.aluka.org/action/showMetadata?doi=10.5555/AL.SFF.DOCUMENT.ranger00002 Use of the Aluka digital library is subject to Aluka’s Terms and Conditions, available at http://www.aluka.org/page/about/termsConditions.jsp. By using Aluka, you agree that you have read and will abide by the Terms and Conditions. Among other things, the Terms and Conditions provide that the content in the Aluka digital library is only for personal, non-commercial use by authorized users of Aluka in connection with research, scholarship, and education. The content in the Aluka digital library is subject to copyright, with the exception of certain governmental works and very old materials that may be in the public domain under applicable law. Permission must be sought from Aluka and/or the applicable copyright holder in connection with any duplication or distribution of these materials where required by applicable law. Aluka is a not-for-profit initiative dedicated to creating and preserving a digital archive of materials about and from the developing world. For more information about Aluka, please see http://www.aluka.org Crisis in Southern Rhodesia Author/Creator Ranger, Terence Date 1960-07-30 Resource type Articles Language English Subject Coverage (spatial) Zimbabwe Source Rhodes House Library, Ranger Papers, Box 1, 16R-19V Format extent 8 page(s) (length/size) http://www.aluka.org/action/showMetadata?doi=10.5555/AL.SFF.DOCUMENT.ranger00002 http://www.aluka.org CRISIS IN CRISIS IN SOUTHERN RHODESIA Reprinted from CENTRAL AFRICAN EXAMINER July 30, 1960. The Central African Examiner is an independent journal published fortnightly in Salisbury, the capital of the Federation of Rhodesia and Nyasaland. It reports on and interprets political, social and economic developments in these territories and in all of Central and Southern Africa. Single copy price (from August, 1960): Is. Annual subscription rates (26 copies): Central, Southern and East Africa ........................ 25s. United Kingdom and Europe (by air) .................. 50s. U .S.A . and Canada (by air) .......................................... $12 Priee: 3d. WHAT PRICE OPPOSITION? The ordinary course of law BY A LEGAL CORRESPONDENT THE origin of this present difficulty arose with the arrest of three I leaders of the National Democratic Party in the ordinary course of law. I do want to stress this, that the normal processes of law were followed, information was laid before the Department of the AttorneyGeneral and they decided that a prosecution was warranted, and that prosecution was brought in the ordinary way'. (The Prime Minister of Southern Rhodesia in the Legislative Assembly, 20th July, 1960). 'I am sure that the due process of law which is being pursued will fill the United Kingdom Government with admiration in the present circumstances.' (The Prime Minister in the Legislative Assembly, 21st luly, 1960). S IR Edgar Whitehead has, of course, been concerned to emphasize that arrests had been made according to law and not in the exercise of any arbitrary executive power not sanctioned by ordinary law. Unfortunately, however, 'the due process of law' and arbitrary action by the government are not necessarily incompatible under the statute law of Southern Rhodesia. Certain statutes permit the government, in effect arbitrarily, to curtail the fundamental liberties of the individual to a considerable degree, not by taking extraordinary or emergency powers for the purpose, but 'in the ordinary course of law'. It is not intended here to pass any judgment, on the recent prosecutions which have been instituted. But the Prime Minister's remarks suggest the interesting exercise of considering what an unscrupulous or frightened government could do to destroy legitimate political opposition without ever overstepping the bounds of 'the ordinary course of law.' The exercise is not an academic one, for while the powers are there, some of the normal constitutional obstacles to the abuse of power are absent or have been removed. The right of the subject to seek the redress of the Courts has in some instances been excluded, and the other check on the abuse of power, public opinion, is effective only to the extent that it is enfranchised. It is therefore not beyond the bounds of possibility that some future Government, representative only of a minority of the people, urged on by its electorate and free of the control of the judiciary, might be tempted to destroy the opposition of the unenfranchised majority. How could it do so 'in the ordinary course of law' without taking and exercising emergency powers? 1. It could simply declare the party opposing it to be an unlawful organization in terms of the Unlawful Organiza.ions Act, 1959. Thereafter it would be an offence for anyone to continue to be a member or persist in the activities of that party. It is true that the wording of the Act permits the banning of an organization only when it appears to the Governor 'likely to endanger public safety, to disturb or interfere with public order' etc. But these are matters which, only the Government has the power to determine, because the Act provides that a proclamation under it 'shall not be open to question in any court of law'. Only the approval of Parliament is required, a slender safeguard when the Government has a majority in Parliament, the banned party no representation at all, and the minority electorate supports the action of the Government (a not inconceivable concurrence of circumstances). 2. The Government could prevent all political activity by the leaders of the party by detaining them, without conviction of any offence, under the Preventive Detention (Temporary Provisions) Act, 1959. According to the Act, the power of detention can only be exercised in respect of a person concerned in activities 'which in the opinion of the Governor are potentially dangerous to public safety or public order to such an extent that the continuance thereof might necessitate the declaration of a state of emergency under the Public Order Act'. But again this is a matter for the decision of the Government. The detained person has recourse, not to the Courts, but only to a semi-judicial tribunal, whose judgment in any event the Government is quite at liberty to reject. These measures would effectively curtail any legal opposition to government policy by -the party concerned, and they could in practice be taken though that opposition had never been violent, subversive or unconstitutional. But the Government might prefer to deal with the opposition by more subtle means, by making it impossible or difficult for the opposing party to carry out normal political activities. For example: 3. The Government could, under the provisions of the Subversive Activities Act, 1950, prohibit the holding of any public meeting by the party within specified areas for a specified period, or could prohibit any leader of the party from attending public meetings for a period. In terms of the Act, the Government can take such action only when in its opinion 'there is reason to apprehend from written information taken upon oath that feelings of hostility likely to cause a serious breach of the peace would be engendered . or that subversive propaganda would be advanced'. But these limitations would appear to be no more enforceable than the others. 4. Under the Public Order Act, 1955, the Government could prohibit the party from holding any public processions for a period of up to three months, if it was of the opinion that because of the circumstances prevailing serious public disorder might result from such processions. 5. If the party were thus prohibited from holding public meetings or processions, it might wish to rely on the written word for the dissemination of its ideas. But the Government could cope THE CENTRAL AFRICAN EXAMINER JULY 30, t960 with this as well. Under the Subversive Activities Act, the Minister of Justice may prohibit the publication or circulation of any written matter. True, he may do so only if he is of the opinion that such document may engender feelings of hostility between different sections of the population, or contains subversive propaganda. Once again, however, the courts cannot question the validity or reasonableness of his opinion. Only Parliament can do so. 6. Under the same Act, the Minister can prohibit any person who is promoting feelings of hostility or spreading subversive propaganda from being within any specified area of the Colony. This, however, is one of the Government's less effective weapons, because here the person concerned can appeal to the High Court, which can substitute its findings for that of the Minister. But, as we have seen, the Government is not without other powers. 7. If the opposing party were an African one, the Government would have the additional comfort of knowing that apart from the special exercise of executive powers, the holding of public meetings in African urban areas is restricted by regulations, and in the reserves and other tribal areas by the Native Affairs Act. It should in fairness be said that it is not inconsistent with the rule of law for government to have power where necessary to prohibit public meetings and processions. The United Kingdom Government has such power by statute. But the only really effective safeguard against abuse of such power is a genuine respect by the government for the rights of the individual, and a public opinion which can ultimately assert itself by means of the vote. Similar considerations apply to certain penal laws designed to prevent violent, seditious, inflammatory or intimidatory conduct. Such laws may be necessary, but they are particularly difficult to formulate so as to achieve a fair balance between the public safety and individual liberty. Inevitably the lawmaker leans towards the safety of the state, with the result that the laws are so drafted as to penalize behaviour which is no more than legitimate political agitation, or are so widely stated as to make it uncertain whether a particular act is criminal or not.
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