Mohamed s/o Ramadhani v. R. Crim. App. 815-D-69; 31/12/69, Georges C.J

Mohamed s/o Ramadhani v. R. Crim. App. 815-D-69; 31/12/69, Georges C.J

The appellant in this case, a police constable, was charged with corrupt transaction contrary to sections 3 (1) and 4 of the Prevention of Corruption Ordinance, Cap. 400. The facts were that on 20^th December, 1968 at Dar es Salaam, Cap. 400. The facts were that on 20^th December, 1968 at Dar es Salaam he had corruptly obtained.

Shs. 110/- each from one Ramnikial Purshettam Semani as an inducement to forbear the prosecution of his sister, Miss Pushpa Samani, for a traffic offence. He was convicted and the minimum sentence imposed.

            Held: Counsel for appellant, Mr. Kanabar, argued that there was no evidence from the prosecution that the appellant had any power to prevent prosecution in this case. He had stated in evidence that s a police constable he could neither authorize nor prevent a prosecution. There was no evidence from any of the prosecution witnesses that he did have any such power. Mr. Kanabar argued therefore, that the offence proved was one of obtaining money by false pretences rather than corruption. He cited no authority. The argument struck me as lacking in merit. Although Mr. Kanabar said that there were no authorities on the matter, in East Africa which he could trace, it does appear that this contention has been considered in at least two cases. In Haji Moledina v. R. (1960) E.A. 678, the Chief Justice of Uganda considering the comparable Uganda provision dealing with corruption stated as follows at p. 681: “In regard to count 2 it was argued that s. 78(1) of the Penal Code is applicable only to a case where the public officer is acting in the lawful conduct of his employment, or where the conduct to be influence is the lawful conduct of his employment. I cannot read any such limitation into s. 78(1). If a police officer offers to drop a prosecution, even though he has no power to do so, or it is not lawful for him to do so, the offer, in my opinion, is nevertheless made with reference to his conduct in his employment as a police officer.” There is also a discussion of his argument in the High Court of Kenya in Gilbert Ouko v. R. (1966) E.A. 286. In that case the offence charged was one against s.2 of the Prevention of Corruption Act in Kenya. This section is in almost the same words as the corresponding section in Tanzania except that where the Tanzanian section refers to forbearance to do anything in relation to the affairs of the accused’s principal the Kenya section refers to forbearance to do anything in respect of any matter in which a public body by which the accused is employed. In that case a police officer was charged with receiving a bribe for releasing a convicted prisoner. It was urged on his behalf that this could not be an offence under the Corruption Ordinance because as a policeman he could no possibly have had any power to release a convicted prisoner. The court agreed that there was clearly nothing that the appellant could do as a policeman to have the prisoner released. That could have resulted only from an order of the High Court on appeal or revision, or from an exercise of the President’s power to grant a pardon. The Court, however, accepted the prosecutor’s argument that the term ‘public body’ as defined in the Kenya Act would include not only the police force of which the appellant was a member but also the whole Government of Kenya, and since the Government of Kenya was concerned with the safe custody of convicted prisoners then the appellant as a servant of the Government was in breach of the section if he received money corruptly to act in  a matter in which the Government was concerned whether or not it was the  concern of the appellant in his particular role as a policeman. I think the same arguments are applicable to the Prevention of Corruption Ordinance Cap. 400. The appellant in this case is a policeman. His principal is the Government of the United Republic of Tanzania. The prosecution of offenders is part of the business of the Government of the United Republic and if the appellant corruptly accepts money to do or forbear to do anything in relation to his principal’s business then he is guilt of an offence whether or not he has the power to do that which he held out himself as being able to do …… it can be said that any

Servant or officer of the Government of Tanganyika can be fixed with liability if he corruptly undertakes to act in respect of a matter in which the Government of Tanganyika, as his principal, is concerned whether or not the matter is the concern of the particular officer or servant. Since this was the only substantive argument advanced against the conviction as such the appeal against conviction has been dismissed.”