R. v. Ansagwile Mwamakula, Inspection Note, Criminal Case 31-MBEYA-70; DAR ES SALAAM, 18/3/70; Georges C.J.

R. v. Ansagwile Mwamakula, Inspection Note, Criminal Case 31-MBEYA-70; DAR ES SALAAM, 18/3/70; Georges C.J.

This matter has been sent to the High Court for inspection. The accused, a Primary Court Magistrate, was charged with the offence of Corrupt Transaction with Agent contrary to section 3(1) and (3) of the Prevention of Corruption Ordinance, Cap. 400. The particulars alleged that he “did corruptly solicit and obtain for himself cash Shs. 70/= from Petro s/o Sinkala and inducement to release the said Petro Sinkala in Itumba Primary Court Criminal Case No. 124/69.” The

Trial magistrate having heard the case for the prosecution and the defence reserved judgment. At the adjourned hearing he ruled in part as follows: - “From the evidence given it is quite obvious to me that the offence is clearly one under s. 6 of the Ordinance because it is alleged that accused received the bribe in his official capacity as a public servant.” He then went out to point out that though s.3 was a general section under which anyone could be charged, section 6 was a general section under which anyone could be charged, section 6 was a specific section for public servants and that if the prosecution was allowed to charge public servants under section 3 the effect would be to enable them to be charged without the consent of the Attorney General. Since the consent of the Attorney General had not been I obtained he felt he should remit the case for inspection.

            Held: “With respect I find myself unable to agree with the approach of the trial magistrate. Section 3 and section 6 create completely different offences. Section 3 deals with corruption so such and the maximum penalty is 7 years or a fine of Shs. 10,000/- or both. Section 6 creates the offence of a public servant obtaining an advantage without consideration. The maximum penalty for that offence is 5 years or a fine of Shs. 5,000/- or both. The Legislature could not have contemplated that public servants should never be liable to the heavier penalty even if their acts fell under section 3 but that they should always be charged under section 6. Further under section 3 both the giver and the receiver are liable to the charged. Under section 6 the giver cannot be charged. There is no offence of giving an advantage to a public servant without consideration. A civil servant who receives what is alleged to be a bribe under section 6 can exculpate himself under section B if he can prove that he did not receive the money corruptly. If he is charged under section 6 the issue of corruption does not arise. Once it is proved that the advantage was given and that the appropriate relationship existed between the giver and the public servant the offence is committed. It is because of this I would think that the consent of the Attorney General was made a prerequisite. I would rule, therefore, that a civil servant can properly be charged under section 3 and that the trial magistrate should proceed with the hearing and determination of the matter.”