Ali Kassam v. R., E.A.C.A. Crim. App. 92-DSM-72, 24/10/72.

Ali Kassam v. R., E.A.C.A. Crim. App. 92-DSM-72, 24/10/72.

Held:   (1) An act done to sway an agent from the impartial discharge of his duties or from loyalty to his employer is done “corruptly” within the meaning of S. 3(2), Prevention of Corruption Act, 1971.

(2) In the absence of a motive proven to be neither evil nor dishonest, to make a payment to an agent to do something in relation to his principal’s affairs which the agent is in any event bound to do is to act “corruptly” within the meaning of s.3(2) of the Act. Makubi v. R., (1968) E.A. 667; (1968) H.C.D. n. 363 doubted; Mandia v. R., (1966) E.A. 315 distinguished.

LAW, AG. V-P. – The appellant was charged in the court of the resident magistrate at Mtwara with an offence contrary to section 3(2) of the Prevention of Corruption Act, 1971, the particulars whereof read as follows:-

“That A.M.P. Kassam is charged on 16^th day of December, 1971, at about 09.40 hours at Government Quarters House at Ligula Area within the Township and District of Mtwara,

Mtwara Region did corruptly give Shs. 200/- ….. to Mr. G.L Mbawala a person employed in the public service as a Regional C.I.D. Officer, Mtwara, to do something in relation to his principal’s affairs, namely to get him a letter certifying to officer-in-charge identification Bureau Dar es Salaam that he has no bad record so that he could get a clearance pass to go to America.”

            On the charge being read over to him, the appellant pleaded thereto in the following words: - “It is true.” The prosecutor then stated the facts at length, after which the appellant said: - “What has been stated by the prosecution is correct.” These facts included the following: - the appellant asked Assistant Superintendent of Police, Mbawala, to do him a favour by obtaining for him a certificate of good character from the Identification Bureau in Dar es Salaam in order to enable the appellant to get a clearance pass to travel to America. He produced a list of eleven other persons who wanted similar certificates, and offered to pay Shs.100/- in respect of each certificate. Mr. Mbawala said he would consider the matter, and told the appellant to come later. Mr. Mbawala then enlisted the help of other police officers, and concealed them in his house next morning. The appellant arrived at about 9.40 a.m. and repeated his request, adding that he had brought Shs. 200/- which he offered to Mr. Mbawala, who took the money and gave a pre-arranged signal, whereupon the hidden police officers emerged from their hiding places and arrested the appellant. At the request of Mr. Lilani addressed him in mitigation Mr. Lilani pointed out that the appellant could have obtained the certificates of good character without payment, that he was not trying to obtain benefit or favour illegally, and that he had acted through ignorance and fear of the police. The magistrate sentenced the appellant to the minimum sentence prescribed by the Minimum Sentenced Act, 1963, which was then in force. 

The appellant appealed to the High Court claiming that he should not have been convicted as the facts did not disclose that the act complained of was done corruptly. Mr. Lakha submitted in the High court, as he did before us, that he appellant’s plea and acknowledgment of the truth of the facts should not be construed as an admission that the money was paid corruptly. The appellant was unrepresented at that stage of the proceedings and this ingredient of the offence was not specifically put to him. An unrepresented accused should have all the ingredients of a charge put to him. In particular he should not be convicted on his own plea on a charge of corruption unless he clearly admits that he acted with a corrupt intention. However, the appellant is not illiterate, and Mr. Lakha does not suggest that the manner in which his plea was taken has resulted in the proceedings being a nullity. He preferred to rely on a submission that the conviction should be set aside as he facts did not constitute and offence in law. Mr. Lakha in the court below, and before us, relied on Mandia v. R., (1966) E.A. 315 and Makubi v. R. (1968) E.A. 667. He stated (and this was accepted by r. King for the Republic ) that certificates good character are issued by the police on request, after reference to the Dar es Salaam Identification Bureau, without charge. He submitted that in offering police officer money to do what he was in duty bound to do, the appellant was not actuated by any improper motive, or evil or dishonest intention. The learned judge, after directing himself most carefully an correctly on the law came to the conclusion that on the facts the appellant “intended to buy the officer’s loyalty and get him to act in the way he wanted him to act irrespective of whatever might have been the officer’s obligations to his employer. The money was not meant to be a fee. It was the price he was prepared to pay to get the officer to do his bidding …….”, and he concluded that, in these circumstances, the appellant’s motive was “anything but honest” and his intention corrupt. After anxious consideration of the arguments raised before us, we have come to the conclusion that Onyiuke, J. was right. What possible motive could the appellant have had for offering money to the police officer in this case, other than an improper one? Even if it was only to ensure preferential or expeditious processing of the certificates, this was a payment designed to induce the officer to do something in relation to his principal’s affairs. Relying on Makubi’s case (supra) Mr. Lakha submitted that to make a payment to an agent to do something in relation to his principal’s affair’s which the agent is bound in any event to do, does not constitute corruption. We do not agree. In so far as Makubi’s case supports Mr. Lakha’s submission, we think It was wrongly decided. Mandia’s case (supra) was very different from the one now under consideration. In that case the payment was proved to have been made for a motive which was not evil or dishonest; in this case no proper motive has been suggested at all. We cannot accept the proposition that the offering of money to a public officer, to do what in any event he would have done, is lawful or proper. For one thin such a practice tends to corrupt, and to lad such officers to expect extra payment for doing their duty or to refuse of delay the doing of their duty unless extra payment is forthcoming. It follows that in our judgment a payment in the nature of that made by the appellant is made corruptly, within the meaning of section 3 (2) of the Prevention of Corruption Act, 1971, and we accordingly find that the appellant  was properly convicted and we dismiss the appeal.

            The sentence imposed was the minimum prescribed by law. Had it not been so, we might have found that there were mitigating circumstances and reduced it, but this can only be considered in another place. The sentence of corporal punishment will of course not be carried out, in consequence of the enactment of the Minimum Sentences Act, 1972 (No. 1 of 1972).

            Ed. Note: This judgment upholds the judgment of Onyiuke, J. in the High Court of Tanzania, (1972) H.C.D. n. 186, which the reader is referred to. It should be noted that neither judgment explicitly overrules the holding of Hamlyn J. in Makubi v. R., (1968) E.A. 667; (1968) H.C.D. n. 363. That case might possibly be distinguished from the present one on the grounds that in Makubi, the money was offered so that the agent might not perform an illegal act which arguably reveals a motive, neither evil nor dishonest. In the present case, there was no threatened illegal act.