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
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
The Regional Police Commander Mara Region and/or The Officer Commanding District Tarime District I
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
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
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
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
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
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