Southern Rhodesia was a British crown colony which had been granted self-government in under white minority rule. In common with other states, the United Kingdom considered UDI to be illegal and its parliament passed the Southern Rhodesia Act to permit the British Governor to dismiss the Rhodesian government. This ran contrary to the constitutional convention that Parliament did not legislate for self-governing colonies. However, Smith's government refused to recognize the validity of their dismissal, and continued to act as Rhodesia's de facto government until This occurred against the backdrop of the Rhodesian Bush War —
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Rhodesia - Constitution - Declaration of Independence - Revocation by United Kingdom of Legislative Assembly's powers - Transfer of legislative and executive powers to Her Majesty in Council - Adoption by Legislative Assembly of new constitution - Validity of emergency regulations - Governor's directive requiring judges "to maintain law and order VII, c.
Crown - Allegiance to - Usurpation - Colony - Southern Rhodesia - Usurping government in effective control - Temporary allegiance knife owed to usurping government - Applicability of doctrine of necessity - Statute of Treason, International Law - Recognition - Crown colony - Territory under effective control of usurping government - Whether conceptions of de facto or de jure status applicable in courts of lawful Sovereign - Southern Rhodesia.
Madzimbamuto v. Lardner-Burke P. Privy Council - Leave to appeal - Special leave - Southern Rhodesia - Emergency regulations made after unilateral "Declaration of Independence" - Determination by High Court by implication that detention order made thereunder valid - Detention without trial - Right of appeal to Privy Council by special leave only - Constitution of Southern Rhodesia, , ss.
Southern Rhodesia was annexed by the Crown in , by virtue of an order in Council coming into operation on September 12, , being given the status of a colony. In the colony was granted a Constitution where under, inter alia, its legislature had power to make laws for the peace, order and good government of Southern Rhodesia and "the executive authority On November 5, , a state of emergency in Southern Rhodesia was validly proclaimed by the Governor, and emergency regulations were made, under which, on the following day, the first respondent, as Minister of Justice, lawfully made an order for the detention of the appellant's husband, M.
On November 11, , the Prime Minister of Southern Rhodesia and his colleagues issued a "Declaration of Independence" purporting to declare that Southern Rhodesia was no longer a Crown colony but was an independent sovereign state. On the same day, in a message to the people of Rhodesia, the Governor informed them that the Declaration of Independence was unconstitutional, and that the Prime Minister and his colleagues had ceased to hold office.
This applies equally to the judiciary, the armed services, the police and the public service. On November 16, , the United Kingdom Parliament passed the Southern Rhodesia Act, , which declared that Southern Rhodesia continued to be part of Her Majesty's dominions and that "the Government and Parliament of the United Kingdom have responsibility and jurisdiction as heretofore for and in respect of it.
On November 18, , the Southern Rhodesia Constitution Order, , was made, section 2 1 of which provided that. By section 3 1 the powers of the legislature to make laws, of the Legislative Assembly to transact business, and of any person or authority to take steps for the reconstitution of the Legislative Assembly or the election of members thereof, were suspended, and by section 6 any law made, business transacted or step taken in contravention of the order was declared void and of no effect.
In proceedings for a declaration that M. On appeal, the Appellate Division affirmed that decision in the main, but held that the particular regulation under which M. A fresh detention order was immediately made under a regulation which the Appellate Division had by implication held to be valid.
On appeal to the Privy Council against so much of the decision of the Appellate Division as determined that the regulation under which the existing detention order was made was valid and M. Held, 1 allowing the appeal, that since the appellant, while not specifically relying upon the "Declaration of Rights" contained in the Constitution, had throughout the proceedings maintained that her husband had been unlawfully deprived of his personal liberty, and since the Appellate Division had impliedly determined that the emergency regulation under which he was detained was valid, the appellant and her husband were "aggrieved" persons within the meaning of section 71 5 of the Constitution, and that, accordingly, the appellant had a right to appeal to the Privy Council post, p.
Dictum of Beadle C. Bosman N. Dictum of Innes C. Estate Whittaker  A. Harrison and Dryburgh  A. Per curiam : The Statute of Treason, 11 Hen. Uganda v. Commissioner of Prisons, Ex parte Matovu  E. Dosso  2 P. PAK distinguished. Texas v. White 7 Wallace , 74 U. Woodruff 15 Wallace , 82 U. Lockhart 17 Wallace , 84 U. Per Lord Pearce dissenting. The Order was directed simply to preventing improper use or manipulation of the Constitution, and was not concerned, either expressly or impliedly, with any unauthorised Constitution.
Accordingly the doctrine of necessity or implied mandate applied and the appeal should be dismissed post, pp. The Queen Judgment No. Its legislative and administrative acts have no legal validity. It cannot therefore lawfully detain persons without trial, and ii the detention of the appellant's husband.
Daniel Nyamayaro Madzimbamuto is unlawful. It also contravenes his constitutional rights under section 58 of the Constitution of Rhodesia, The facts are stated in the judgments. May 22, 23, 27, 29, June 11, Sydney Kentridge S. Blom-Cooper of the English bar for the appellant. His arrest, on November 6, , under emergency powers brought into force by the proclamation of a state of emergency, made on the previous day, by the governor, acting on the advice of his Ministers under section 3 of the Emergency Powers Act, , was lawful.
But those powers could only remain in force for three months unless lawfully renewed, and after the date of the unlawful declaration of independence no such renewal was possible. The extension of the state of emergency required a resolution of the Legislative Assembly and a proclamation by the Governor, neither of which events has occurred.
The detention of the appellant's husband subsequent to February 4, , is, therefore, illegal. Possibly the most important question arising out of the appeal is whether it is the duty of Her Majesty's judges, who hold office under the legal Constitution of , to maintain and enforce, so far as they are able to do so, the rights of citizens under the Constitution, or whether it is their duty to transfer their allegiance to those at present exercising physical power in the Colony. The constitutional position in Southern Rhodesia.
The early history of the Colony is set out in In re Southern Rhodsia. That order set up the Constitution, and provided for an elected legislature and cabinet government. The Legislature was given wide powers but there were reservations which made it impossible to say that the Colony was a fully self-governing territory. Southern Rhodesia is still a colony today, and as such Her Majesty's Government and the Parliament of Great Britain have responsibility for and jurisdiction over it.
The creation in and the dissolution in of the Federation of Rhodesia and Nyasaland were effected by Acts of the United Kingdom Parliament. Section 1 1 of the Southern Rhodesia Constitution Act, , gave Her Majesty power, by Order in Council, to amend or revoke the Constitution, but by subsection 2 of that section nothing in the Act was to authorise any amendment or revocation other than as authorised under subsection 1.
The Southern Rhodesia Constitution Order in Council, , made under that section, gave to the Legislative Assembly extensive powers of amending the Constitution, and in and a number of such amendments were made, but substantially the Constitution in force on November 11, , was the Constitution, as amended by the Constitution Amendment Act, No.
The existing law and the High Court were retained for all purposes, by sections 7 and 11, respectively of the Order in Council. By section 22 of the Order full authority was reserved to Her Majesty to amend, add to or revoke the Order, by another Order in Council, at any time prior to the coming into force of the Constitution, but once the Constitution was in operation Her Majesty's general powers to amend or revoke under Royal Prerogative ceased, and thereafter any power that remained in Her Majesty in Council must be sought in the Constitution itself.
While section of the Constitution gave the Legislature of Southern Rhodesia power to amend, add to or repeal any section of the Constitution, other than those mentioned in section , section reserved to Her Majesty the power to amend, add to or revoke. The limit thus placed on Her Majesty's power by section was the basis of Beadle C. The sections, with which the Southern Rhodesian Legislature was precluded from dealing, concerned, inter alia, the office of Governor, his powers and duties sections 1, 2, 3 and 5 , the constitution of the Legislature, consisting of Her Majesty and the Legislative Assembly section 6 , the assent to bills by Her Majesty or the Governor on Her behalf section 29 , the power to disallow bills section 32 , the vesting of executive authority in Her Majesty section 42 and the Prerogative of mercy section The Governor, who holds office during Her Majesty's pleasure, on the advice of the Governor's Council, appoints the Prime Minister see section 43 1 , and, on the Prime Minister's advice, the other Ministers.
The persons so appointed likewise hold office during Her Majesty's pleasure: see section 43 2. Her Majesty was therefore entitled to dismiss them on November 11, The discretion to dismiss rests in Her Majesty. The Governor merely notifies those concerned that Her Majesty's pleasure has ceased.
It cannot be that, when Ministers are dismissed, the Governor acts on the advice of the very people who are to be dismissed. Under section 45 2 in cases where the Governor is required to act on his own discretion or on the advice of any specified person or authority, a court may not inquire on whose advice he acted or whether any advice was tendered.
When exercising the Royal Prerogative of mercy, in Her Majesty's name and on Her behalf, the Governor normally acts on the advice of the Governor's Council.
Section 54 3 provides for the judges to take an oath of allegiance and a judicial oath. Subject to certain provisions as to customary law the law to be administered was to be the law in force in the Colony of the Cape of Good Hope on June 10, , as modified by subsequent legislation having in Southern Rhodesia "the force of law. The object of including them in the Constitution was to "entrench" them so that they could not legally be removed and so as to provide a judicial procedure by which an individual might appeal to the Privy Council.
By section 58 1 no person shall be deprived of his personal liberty save as may be authorised by law. Section 69 provides that laws for dealing with emergencies were not to be treated as inconsistent, inter alia, with section The detention of the appellant's husband could therefore only be justified if it were necessary during a period of public emergency as defined in section 72 2. In the circumstances, therefore, the only period for which his detention was lawful was for three months after the lawful declaration of emergency of November 5, Under section 71 5 any person aggrieved by any determination of the High Court may appeal to Her Majesty in Council, and thus the rights protected in the Declaration of Rights are given this further protection.
Chapter IX of the Constitution, containing sections to , is extremely important since it deals with amendments to the Constitution. Clearly there are no concurrent powers of amendment; the sections which Her Majesty may amend or revoke may not be touched by the Government of Rhodesia at all under section An alternative method of amendment is by sections 2 b and , but this requires a majority of two-thirds in the Legislative Assembly and the approval of Her Majesty, on a special address being presented to the Governor praying him to submit a bill for Her Majesty's assent.
This therefore requires the consent of the United Kingdom Parliament. Summarizing the position, it is clear that extensive legislative powers are given to the Legislature, including the power to pass laws with extra-territorial jurisdiction; but there are extremely important limits to those powers. In particular there is no power to remove.
Furthermore, although under the Constitution the powers of Her Majesty in Council to legislate are limited, the powers of the United Kingdom Parliament to legislate have not been cut down.
The Statute of Westminster, , does not apply. The Southern Rhodesia Constitution Order of has modified and amended the Constitution, but it has not destroyed it.
The effect of the Order in Council of was to do away with the Governor's Council and the powers of the Legislative Assembly, but it leaves a substantial part of the Constitution intact. The position of the judiciary remains untouched, as does the Declaration of Rights and the right of appeal to the Privy Council. Against this constitutional background, the illegality of the Unilateral Declaration of Independence U.
Nor was it disputed in the courts below. Those who organised it were in any event clearly guilty of offences against section 2 of the Preservation of Constitutional Government Act, No. When the Governor communicated to the Ministers the withdrawal of Her Majesty's pleasure his action was not a "dismissal" but merely the communication of an event which operated automatically, cf. Adegbenro v. It attempted to endow Her Majesty with the position of "Queen of Rhodesia" and to establish, as her representative, "an Officer Administering the Government in and over Rhodesia.
In fact the Constitution followed closely the outlines of the Constitution, but it made no provision for any appeal to the Privy Council.
Madzimbamuto v Lardner-Burke: PC 23 Jul 1968
Madzimbamuto v Lardner-Burke
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