By Evarist Baimu Nyaga Mawalla - Home

25 (1970) E.A 487(K)26 Cap. 49027 High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No2 of 1977 (Unreported)28 (1979) L.R.T.No 129 High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No.10 of 198430 (1980) L.R.T No 215.“That the validity of an order of detention made under the Preventive Detention Act isdetermined solely by its face value and not by its background. In other words the order isto be judged by its appearances. If it appears to be an order made under the Act then it isvalid unless the appearances are shown to be false.And so according to this school of thought one is not entitled to enquire as to how thedecision was arrived at even if it was done in breach of rules of natural justice or it wasprocured by fraud. And it appears Bahati, J. sticked to the same narrow approach in late1986 in what has become to be known as the Mapalala Case despite the fact that theouster clause was repealed by Act No. 2 of 1985. Perhaps it is because habits die-hard.And because of the narrow approach adopted by the courts the President of the countryhas been above to employ with impurity the Preventive Detention act to detain cattlerustlers and moshi liquor drinkers who are ordinary criminals while the statute inquestion was meant for preservation of state security.The poor attitude of the High Court and Tanzania Court of Appeal towards the liberty ofa citizen in a face of a detention order had led the Legal Aid Committee of the Faculty oflaw of the University of Dar es Salaam to complain in their book Essays on Law andSociety that these courts are more executive minded than the executive itself.” While aradical lawyer Harrison G. Mwakyembe in his paper. “Bill of Rights in Tanzania – AGeneral Overview”32 has attacked the attitude of our courts as “uninspiring.”An ordinary man in the UDA bus has been heard to comment that the judges seem to beinterested to preserve their bread and butter rather than risk a sack by crossing sword withthe executive over detention orders.The attitudes of the courts in some other Commonwealth countries is not inspiring either.For example in Uganda first in the case of In the Matter of an Application by MichaelMatovu 33 and later in Re Ibrahim & Other34n the High Court took the narrow approachand held that the courts are not allowed to go beyond seeing the detention order. Theycould not question as to how it was arrived at and recently the Nigerian Federal SupremeCourt has124