The appellant submitted that:
1) the Declaration of Rights in the Constitution applied equally to freedom fighters;
2) there were no special conditions imposed on the appellant on his entry into Zambia; and
3) if any conditions had been imposed and the appellant was in breach thereof the only lawful action which could be taken against him was either to deport him or to charge him with an offence if the breach was criminal.. He submitted further that he was not allowed to leave the camp except under escort. Furthermore, he placed on record that he wished to leave Zambia and go to a place of his own choice but that he had not been allowed to do so. This amounted to an unlawful deprivation of his liberty, against his will.
The respondent submitted that it was common cause that the appellant entered under the aegis of SWAPO, whichwas an army of liberation. The respondent argued that the appellant was not in detention, but conceded that the appellant was not at liberty to leave the camp without permission, and if so under Zambian security forces escort.
The respondent further argued that the Zambian security forces were acting as agents of SWAPO in this regard and that members of the SWAPO army were also present at the camp.
Liberty, deprivation of liberty, custody, protective custody, SWAPO, constitutional law, habeas corpus, necessity, taken into protective custody involuntarily
The appellant was the information secretary of the South West Africa People’s Organisation (SWAPO) who entered and resided in Zambia lawfully since 1972. He held a United Nations Council for Namibia travel document allowing him to re-enter and remain in Zambia until its expiry.
Differences arose between the SWAPO leadership and the appellant. A number of his colleagues and the government of Zambia took the appellant and his colleagues to a camp and held them under armed guard fearing that the situation would turn violent.
An application for a writ of habeas corpus in the High Court was refused because the appellant was not in detention and he was merely being allowed to reside in a different area for his own safety. Additionally, that the appellant was not entitled to the broad Constitutional principles of freedom due to the way he was allowed to enter and reside in Zambia.
The appellant then appealed the decision of the High Court to the Supreme Court of Zambia.
The Supreme Court allowed the appeal and ordered the issuing of the writ of harbeas corpus.
The Supreme Court held that for a person to prove that they were deprived of their liberty it was only sufficient to prove that they were not free to leave the place where they were held.
The Supreme Court also held that one may only be deprived of their liberty if such deprivation is sanctioned by law.