Ahmed s/o Osmani v. R. Crim. App. 383-D-68 14/8/68, Georges C. J.

Ahmed s/o Osmani v. R. Crim. App. 383-D-68 14/8/68, Georges C. J.

The appellants were charged with failing to report entry to an Immigration Officer, c/s 15 (1) and 26 of the Immigration Regulations, 1964, and being unlawfully present in Tanzania without a permit, c/s 23 (1) (i) of the Immigration Act, Cap. 534. They are described in the charge sheet as male Somalis. It was stated that an officer of the Immigration Section, Dodoma, had seen the appellants in the town on the 22nd June, 1968. He had questioned them about their immigration states, and none of them had any document concerning their stay in Tanzania. They were convicted on their own pleas. The magistrate held that the offence was a serious one and ordered each appellant to pay a fine of Shs. 1,000/- on the first counts with an alternative of four months imprisonment, and Shs. 1,500/- on the second count, with an alternative of nine months imprisonment. The appellants were not able to pay the fines and were imprisoned, serving a sentence of thirteen months.

Held: (1) “Section 2 (1) (b) removes Africans from the application of the Act. Section 2 (4) defines an African as A person not being a citizen of Tanganyika, who is a member of a tribe indigenous to Tanganyika, Kenya, Uganda, Zanzibar, Mozambique, Zambia, Southern Rhodesia, Nyasaland, Burundi, Rwanda or the Congo Republic (Leopoldiville) and includes a Swahili but not a Somali (other than a Somali who is normally resident in any of the foregoing countries).” Mr. Kanabar, therefore, argued [for the appellants] that it was incumbent on the Republic to allege in their statement of facts that the appellants were not exempted under he provisions cited above. It should be noted, however, that subsection (2) (a) of section 2 confers upon the Minster- “power to provide for the control of immigration of Africans ……” The Minister has made much regulations, and, indeed, it is under these regulations that the first count has been laid. The issue, therefore, as to whether or not the appellants can be guilty of an offence under the regulations must be decided by the regulations themselves and not by the Act simplicita. Regulation 15 (1) …. Provides: - “Every person entering Tanganyika shall on his arrival, without undue delay, present himself in person to an Immigration Officer …. Regulation 24 reads: - “(1) Subject to the provisions of regulation 25, regulations 15 and 21 shall apply to citizens and Africans as they apply to other persons. (2) Subject to the provisions of regulation 25, a citizen or African shall, if so required by an Immigration Officer, sign the prescribed form of declaration on entry.” Regulation 25, however, provides:- “Nothing in regulation 24 shall apply to – (a) a citizen or African who enters Tanganyika directly, without any transit stoppage elsewhere, form Kenya, Uganda, Nyasaland or Northern Rhodesia ship: or (ii) an Immigration Officer specifically requires him to comply with such regulation.”  In stating the facts, the prosecution did not state whether or not the appellants were normally resident in Kenya, from where they said they come, nor did they allege that they had entered by aircraft or seagoing ship, nor that they had been specifically required by and immigration Officer to comply with that regulation 15. It appears to be implicit in the facts that they had traveled overland directly from Kenya to Tanzania If, therefore, they were sommalis normally resident I Kenya, the regulation would not apply to them, and they would not be guilty of any offence. The question is whether or not the prosecution should in the statement of facts have specifically stated circumstances to show that the regulation was applicable to them. Section 22 of the Act provides:- “Whenever in any proceedings under or for any of the purposes of this Act any one or more of the following questions is or are in issue, namely – (a) whether any person is or is not a citizen of Tanganyika; or (b) whether any person is or is not an African within the meaning of this act, the burden of proof that such person is a citizen of Tanganyika or an African, as the case may be, shall be upon

the part contending such person is a citizen of Tanganyika or an African, as the case may be.” The appellants in this case would be exempted from the Act if they were Somalis normally resident in Kenya, and if they had traveled directly overland without stoppage from Kenya; if it could be shown that they were Somalis normally resident in Kenya, and then they would be Africans within the meaning of the act. It could be said, therefore, that the question as to whether or not they were Africans was in issue in the charge. The burden of proving that they were Africans would, therefore, fall on the appellants. Mr. Kanabar has urged that though this is so, where there is a plea of guilty, it is incumbent on the prosecution specifically to allege that the appellants were not Africans, and that, therefore, Act was applicable. I find this contention difficult to accept. If the burden of proof is on the appellants, then the Republic has to alleged nothing. The matter is dealt with generally in the Evidence Act, section 14 …. Mr. Kanabar agreed that it could logically be deduced from his proposition that though the prosecution would be under no obligation to lead evidence to establish that the appellants were not Africans if the appellants had pleaded not guilty, nonetheless, it was essential that they should aver that fact in a case where the accused person has pleaded guilty. Any proposition which could lead to such a result must clearly be faulty. In my view, the difficulty in this case arises because of the complexity of the charge, and one may very well be tempted to doubt whether its implications were all carefully explained to the appellants before their plea was taken. If, however, the charge were carefully explained, then no hardship would be caused. The accused person would be told that if he could show that he was a Somali normally resident in Kenya, and if he could show that he had come into Tanzania directly overland from Kenya and not by ship or aircraft, and that he had not been specifically required by an Immigration Officer to report, then he would not be guilty of the offence. If, thereafter the accused said that he was guilty and accepted as true facts such as those stated in this case, I have absolutely no doubt in my mind that the conviction would be quite correct …… It has, however, been clearly noted on the record that the charges were read and explained. This has not been challenged, and I do not think that I am entitled to assume that the whole situation was not properly explained to the appellants in the manner suggested above. Accordingly, their convictions on their plea on the first count are good and are affirmed.

(2) “On the second count, it is the Act itself which is involved and not regulations made under the Act. The situation, however, is precisely the same, because again section 2 specifically exempts Africans from the portion of the Act, and therefore section 23 would not apply to the appellants if they were Africans. Section 22, however, places the burden of proving that fact on them, and consequently there is no obligation on the Republic to aver in their statement of facts that the appellants were not Africans. It would, however, be incumbent on the magistrate carefully to explain to the accused persons that they could defend themselves by leading evidence which would satisfy him on the balance of probability that they were Somalis normally resident in Kenya. Once that fact had been properly explained, then a plea of guilty based on the statement set out in the record is supportable. The appeals against conviction are, therefore, dismissed.”

(3) “I am satisfied, however, that the sentences in this case are excessive ……. As has been stated over and over again, the court which decides to offer an accused person the alternative of paying a fine should attempt some assessment of his means in order to make the option meaningful. In the charge sheet, the occupation of each appellant is described as “Nil”. There was nothing to indicate whether or not they were able to pay what was in total a fairly substantial fine – Shs. 2,500/-. In fact, they have not been able to do so. To impose a fine which is so high as to be clearly beyond the means of the accused person is to engage in a futile exercise. Worse still, it places the accused person at a disadvantage as the terms of imprisonment to be suffered if the fine is not paid must necessarily be consecutive, whereas if terms of imprisonment are imposed, without the option of a fine, they can be made concurrent. Had the magistrate not imposed a fine in this case, but had decided to send the appellants to prison, it is doubtful whether he would have made the terms consecutive, as clearly both offences arise out of a single act …… Mr. Kanabar also argues that even if the fines were appropriate, the alternative bear in relation to the maximum term the same proportion as the fine imposed to the maximum fine. I find this proposition difficult to accept. In any event, a Court does have the power to impose both a fine and imprisonment, and for that reason, if for none other, it is clear that there need be no relationship of a proportional nature between the fine and the alternative term of imprisonment and the maximum fine and the maximum term of imprisonment. I am satisfied, however, that a term of imprisonment of thirteen months for these offences is altogether too severe. Accordingly, I shall vary the sentence on the first count in the case of each appellant to a fine of Shs. 200/- or one month imprisonment, and on the second count to a fine of Shs. 300/- or two months imprisonment. The appeals are otherwise dismissed.”