23-JUL-1991
17:56
+ 852 868 2431
P.03
1.
Following the promulgation of the 1961 Constitution, under the Southern Rhodesia (Constitution) Ordering Council 1961, talks were held regularly between the British and Southern Rhodesia Governments on the possibility of the latter becoming independent. The British insisted on the fulfillment of five (later six) principles before agreeing to grant independence. The Rhodesians could not agree the conditions. Negotiations finally broke down on 3 November 1965. This led directly to the unilateral Declaration of Independence on 11 November 1965 by the Prime Minister, Ian Smith, on behalf of the Government and people of southern Rhodesia. Simultaneously, a new constitution was announced. Although much of the 1961 constitution was preserved the changes were radical. These included notably: giving the Rhodesian legislature sovereign law making powers thereby overturning the role of the UK Parliament and Monarch in this respect; abolishing the right of appeal beyond the appellate division of the Rhodesian High Court (except for cases already in hand in the Privy Council); and, provided that the validity of the new constitution should not be questioned in the courts. Rhodesian Parliament did not ratify the 1965 constitution until 17 February 1966.
2.
The
The British Government gave its response in statements to the British Parliament on 12 November 1965. The Prime Minister called the Declaration of Independence "an illegal act and one ineffective in law", The Attorney General set out the legal position in more detail, noting that the British Parliament alone could grant independence to Rhodesia. Enabling legislation was then passed to invalidate any laws which had been made or might be passed by the Legislative Assembly of Southern Rhodesia.
3. In mid-January 1966, the first case challenging the validity of the 1965 constitution opened in the High Court. It was brought by the editor of the Central African Examiner, a liberal magazine, who contended that the censorship regulations were invalid because they had been revoked by British Government order, and secondly that the present administration was not the lawful government of the country. However, the case was dismissed leaving untested validity of the Smith regime.
4.
In March 1986, Madzimbamuto, an African detainee, brought a case to the High Court requesting his release on the grounds that the 1965 Constitution was invalid and, in April 1966, a European detainee brought a similar case to the Rhodesian court. Both cases were postponed several times before finally opening at the end of June 1966. Both argued that their continued detention without trial was ordered under emergency regulations imposed three months after UDI. Judgement was finally delivered on 9 September 1966. In essence it said that: the 1965 constitution was not the lawful constitution of the country, and the government set up under it was not the lawful government;