The relevance of Economic crimes to Public Security : The response of the Zambian Judiciary
Date
2011-12-09
Authors
Simamba, Bilika Harry.
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Abstract
Traditionally, in Zambia and most of the common and civil law nations, emergency legislation was by and large never directed towards economic security both in formulation and application. Increasingly in Third World countries however, legislation has been introduced to allow detention on account of factors considered relevant to the economy. Where such legislation has not been introduced, old legislation which may never have directly dealt with "economic detentions", has often been interpreted so as to make such detention lawful. This last approach has manifested itself in Zambia, breeding divergent bodies of judicial opinion. At present, there are a number of decisions by different Judges of the High Court for Zambia which have decided differently. The Supreme Court has however recently ruled in favour of the State in Rao v Attorney-General, a matter relating to illegal trafficking in precious stones. An examination of the judgments of the five judges reveals that the issue of economic crimes is far from settled. The whole issue is as to the interpretation of the following provision in the Preservation of Public Security Act:
11 2. In this Act, the expression "public security" includes the securing of the safety of persons and property, the maintenance of supplies and services essential to the life of the community, the preservation and suppression of violence, intimidation, disorder and crime, the prevention and suppression of mutiny and rebellion and concerted defiance of and disobedience to law and lawful authority, and the maintenance of the administration of justice."
Some High Court and Supreme Court Judges have held that this allows detentions for economic crimes while others have held otherwise. It is particularly important to discuss this matter at the present time for at least two reasons. First, if the power to detain under emergency laws is, by construction or by amending legislation, extended to economic crimes, it has been argued that this will make destructive inroads into the enjoyment of individual liberties through a power to detain that is already too wide. Second - and this is the opposing argument - an attempt must be made to construe the power widely so as to help contain agro-economic maladies which in Africa, for the first time in World history, are leading directly to the loss of millions of lives, and life is one of the interests which emergency legislation was meant to safeguard and promote. In Chapter I we shall lay the background in the form of emergency legislation and the judicial interpretation of it. Chapter II will directly address the issue as to whether economic crimes can properly be said to come within the meaning of "public security" as contained in section 2 of the Preservation of Public Security Act. Finally, in Chapter III we shall examine as to whether support can be found in international conventions for either view, if such conventions are construed with the African condition in mind. This discussion of international conventions in the contest of our local legislation will, I believe, give the work a further interesting and unique feature. Further, this conflict as to the relevance of economic crimes to public security re-opens some of the fundamental differences between the East and West as to the relationship between economic, social and cultural rights; and civil and political rights. In the examination of this matter of public security, it will be convenient to assess some of the old and new approaches to the construction of statutes. These approaches, regardless of which approach one prefers, will have a significant bearing , not only on the proper scope of the Preservation of Public Security Act, but also on the entire matter of modern statutory construction, and therefore on the scope of many Acts of parliament and Statutory Instruments.
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Keywords
Economic crimes , Public Security