R. v. Paulo Hamisi, Crim. Rev. 42-M-69, 19/12/69, Seaton J.

R. v. Paulo Hamisi, Crim. Rev. 42-M-69, 19/12/69, Seaton J.

The accused, who was convicted of stealing by an agent c/s 273(b) of the Penal Code and sentenced to the statutory minimum penalty, was ordered to “be repatriated to his home in Kasulu on completion of his sentence.”

            Held: “There does not seem to be any authority for a court on its own initiative to order repatriation within this country. Under s. 3 of the Townships (Removal of Undesirable Persons) Ordinance, Cap. 104, (hereinafter called “The Ordinance”) a District Commissioner or an administrative officer vested with or deemed to be vested with the powers of a first class magistrate has power to order removal or undesirable persons from townships and certain other areas. A person aggrieved by such order may appeal, under s. 5 of the Ordinance, to a district court which may affirm, cancel or vary the Removal Order. It is an offence contrary to s. 6 of the Ordinance for any person to willfully fail to comply with any of the terms of a Removal Order. A person accused of such offence may be brought for trial before a court of competent jurisdiction. By s. 10 of the Ordinance, a magistrate who has made the Removal Order in his capacity as District Commissioner or administrative officer is not precluded from taking cognizance of the alleged offence. It follows that officers of the administration may have dual capacities in making Removal Orders and enforcing them while Judicial Officers on the other hand, are restricted to their normal court functions, i.e. hearing appeals against Removal Orders or trying persons charged with violating such Orders. Another kind of control is authorized by the Resettlement of offenders Act, 1969, which provides for resettlement orders to established centers. Such resettlement orders are not subject to review by any court. It appears that the order for repatriation made in the present case was ultra vires and it is accordingly set aside.”