Madzimbamuto v Lardner-Burke
| Madzimbamuto v Lardner-Burke | |
|---|---|
.svg) | |
| Court | Judicial Committee of the Privy Council |
| Full case name | Stella Madzimbamuto v Desmond William Lardner-Burke and Frederick Phillip George |
| Decided | 23 July 1968 |
| Citation | [1968] UKPC 18; [1968] 3 WLR 1229; [1968] 3 All ER 561; [1969] 1 AC 645 |
| Case history | |
| Appealed from | High Court of Southern Rhodesia |
| Court membership | |
| Judges sitting | Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson |
| Case opinions | |
| Decision by | Lord Reid |
Madzimbamuto v Lardner-Burke and another [1968] UKPC 18 is a decision of the Judicial Committee of the Privy Council on UK constitutional law which was concerned with the legality of the Unilateral Declaration of Independence made by Rhodesia in 1965.[1] The case is often cited in relation to the legal status of constitutional conventions in United Kingdom constitutional law.
Facts
Southern Rhodesia was a British crown colony which had been granted limited self-government in 1923 under white minority rule. After it became clear that the British government did not intend to block the "Wind of Change" that had led to independence in much of Africa after 1958, Rhodesian politicians began to contemplate secession from the British Empire and Commonwealth as a white-ruled state. A Unilateral Declaration of Independence (UDI) was issued in 1965 by the lawfully constituted government of Ian Smith and purported to establish the new sovereign state of Rhodesia. However, in common with other states, the United Kingdom considered UDI to be illegal and its parliament passed the Southern Rhodesia Act 1965 to permit the colonial governor to dismiss Smith's government. This ran contrary to the constitutional convention that Parliament did not legislate for self-governing colonies. Smith's government refused to recognize the validity of their dismissal and continued to act as Rhodesia's de facto government until 1979.
UDI occurred against the backdrop of the Rhodesian Bush War (1964–79) and in 1965, shortly before UDI, the colonial legislature had enacted a series of Emergency Power Regulations. Daniel Madzimbamuto, an African nationalist, was detained under section 21 of the Regulations as a person "likely to commit acts in Rhodesia which are likely to endanger the public safety, disturb or interfere with public order or interfere with the maintenance of any essential service". The 1965 Regulations expired in 1966. The state of emergency was then prolonged by the post-UDI legislature which also issued a series of new Emergency Regulations. Madzimbamuto's detention was renewed under these new Regulations.
Madzimbamuto's wife, Stella, challenged the legality of her husband's detention on the ground that the prolongation of the state of emergency was unlawful. Rhodesia's Minister of Justice, Desmond Lardner-Burke, who had made the Order for Madzimbamuto's continuing detention, was named as Respondent.
Judgment
High Court and High Court (Appellate Division) of Southern Rhodesia
The case was first heard in the High Court of Southern Rhodesia. Lewis J. (Goldin J. concurring) found Madzimbamuto's detention to be lawful. Though he acknowledged that Rhodesia's 1965 Constitution, made without reference to the British Parliament and proclaimed through the UDI, was not lawfully made he nevertheless decided to recognize the legislative power of the new Rhodesian government as doing otherwise would create a legal vacuum. Therefore, the actions of the post-1965 Smith government, including the renewal of Madzimbamuto's detention, were lawful.
The case was then appealed to the Appellate Division of the High Court. The Appellate Division (Beadle CJ, Quenet JP, Macdonald JA; Fieldsend AJA, dissenting) ruled that a fresh detention order had to be made in order for Madzimbamuto's detention to continue under the 1966 regulations, but found that the Smith government was the de facto government of Rhodesia by virtue of its "effective control over the state's territory", and could "lawfully do anything which its predecessor could lawfully have done". However, the Appellate Division withheld de jure recognition of the Smith government. The Appellate Division also declined to recognize the validity of the 1965 Constitution, ruling instead that the 1961 constitution still applied to the territory.
Leave to appeal to the Judicial Committee of the Privy Council was then sought, which the Appellate Division refused to grant. Nevertheless, the appeal was granted by way of special leave to appeal by Order in Council. Oral arguments were heard over ten days from May to July 1968. Sydney Kentridge and Louis Blom-Cooper appeared for the appellant. The respondent did not appear.
Advice of the Privy Council
The majority judgment of the Board was given by Lord Reid, who held that the 1965 Emergency Regulations and the detention order made under it were unlawful. Sovereignty over Southern Rhodesia rested with the Crown of the United Kingdom and had not been affected by the unilateral declaration of independence. Hence, the United Kingdom retained full law-making powers over Southern Rhodesia. Since the United Kingdom deprived the Southern Rhodesian legislature of its law-making powers through the Southern Rhodesia Act 1965, the Emergency Regulations made by that legislature were invalid.
Lord Reid also made obiter dictum comments about the nature of parliamentary sovereignty and constitutional conventions in the United Kingdom:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid.
Lord Pearce gave a dissenting judgment, in which he concluded that the detention orders should be upheld under the doctrine of necessity. Although he agreed that the United Kingdom retained full sovereignty over Southern Rhodesia, acts done by the de facto government of the territory should be recognized if such acts are necessary for "the ordinary orderly running of the country".
References
- Hahlo, Herman H. (1969). "The Privy Council and the Gentle Revolution" (PDF). McGill Law Journal. 16 (1): 92–112.
- Marshall, H. H. (1968). "The Legal Effects of U. D. I. (Based on Madzimbamuto v. Lardner-Burke)". International and Comparative Law Quarterly. 17 (4): 1022–1034. doi:10.1093/iclqaj/17.4.1022. JSTOR 756683.
- Saki, Otto (10 July 2014). "Revisiting the Daniel Madzimbamuto case". Financial Gazette (Zimbabwe). Retrieved 10 May 2018.