R. v. Nelson Kimanga and Another, Crim. Rev. 33-DDM-72, 15/6/72, Mnzavas,

 

R. v. Nelson Kimanga and Another, Crim. Rev. 33-DDM-72, 15/6/72, Mnzavas,

The accuseds were, or their own plea of guilty, convicted of using absences language is such a manner as was likely to cause a breach of the peace c/s 89 (1) (a), Penal Code, and each sentenced to six months imprisonment. The first accused, a post master at Chunya, and the second accused, a health Inspector, were at a pombe-shop when they heard about the death of the late First Vice-President of Tanzania. On hearing the sad news, they uttered derogatory remarks about the late First Vice-President in the presence of three police officers who had gone there to order the closure of the pombe-shop on hearing of the sad news,

            Held: (1) “That the remarks uttered by the two accused about the late Sheikh Karume were obscene and abusive, there can be no doubt.” (2) “But the vital question which had to be decided b the trial court was whether the remarks were, on the facts of this case, likely to cause a breach of the peace. As rightly mentioned by the learned state attorney, the High court decisions on the interpretation of section 89(1) (a) and (b) of the Penal Code are conflicting. One view of the interpretation of section 89 (1) (a) is that of Hamlyn J. in R. vs. John s/o Augustino, (1967) H.C.D. n. 61. The facts in that case were that the accused, while under the influence of alcohol, verbally deprecated the President of Tanzania, and said that he would burn down the house of anyone who disagreed with him. The learned judge in his judgment held: - “the statute is aimed at preventing incitements to physical violence. Here annoyance or displeasure among the listeners is not sufficient …… the breach of the peace referred to by the statute contemplates only action by the listeners.” Directly contradicting this decision is the decision in Volter Hopp vs. R. (1967) H.C.D. n. 91……. The Republic argued that the interpretation by Hamlyn J. was the right interpretation as it has since been supported by subsequent judgments. In Salum s/o Sefu vs. R., (1969) H.C.D. n. 177 four accuseds were among other offences convicted of brawling and creating disturbance in such a manner as likely to cause a breach of the peace c/s 89(1) (b). The facts showed that the accused did in fact create disturbances in the police station in the presence of police officers. The question was whether their behaviour in the presence of police officers was likely to cause a breach of the peace. Duff J. in allowing the appeal said: - “The persons present who could have been provoked were the police, and it could not be suggested that hey could act with anything but due professional restraint … it follows that in all the circumstances of this case it was most unlikely that there was a threat to the piece.” Another decision n support of the interpretation of section 89 (1) (a) of the Penal Code by Mamlyn J. is the decision in Mdeha vs. R., (1970) H.C.D. n. 310. …… In the present case the facts clearly show that the obscene utterances were made by the accused in the presence of police officers. The record does not show that there were other people apart from the three police officers. This being the position, and the facts being similar to the two decisions by Hamlyn and Biron JJ quoted above, it is most unlikely, indeed most inconceivable, that the three police officers would have, on hearing the utterances of the accused, resorted to physical violence and thereby created a breach of the peace …….. The utterances of the accuseds, thought undoubtly most irresponsible and stupid, did not, on the facts as found by the learned resident magistrate, amount to an offence under section 89(1) (a) of the Penal Code.” (3) Appeals allowed and convictions quashed.