DIRECTOR OF PUBLIC PROSECUTIONS v SIMON G. MARWA AND ANOTHER 1984 TLR 330 (CA)

DIRECTOR OF PUBLIC PROSECUTIONS v SIMON G. MARWA AND ANOTHER 1984 TLR 330 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Kisanga JJA and Omar JJA

CRIMINAL APPEAL 46 OF 1984 D

Flynote

Criminal Law - Punishment - Detention ordered under Preventive Detention Act -

Whether, punishment within the E meaning of section 21 of the Penal Code.

-Headnote

The two respondents were charged in the District Court with unlawful possession of a

pistol and six rounds of ammunition contrary to section 8(1) of the National Security

Act No. 3 of 1970. They were F convicted as charged, but the trial magistrate found

that the gravity of offence warranted heavier punishment than he was empowered to

impose, and so he accordingly committed the respondents to the High Court for

appropriate sentence. Meanwhile the respondents appealed to the High Court against

their G conviction and it transpired that at the time of such appeal the respondents

were in detention under an order made under the provisions of the Preventive

Detention Act (Cap. 490). The High Court dismissed the appeal against the

conviction but declined to pass sentence on the grounds that the respondents had H

already been punished by being detained under the Preventive Detention Act and,

therefore, they should not be punished twice for the same offence. In doing so the

learned High Court Judge stated that he relied on the provisions of section 21 of Penal

Code which provides: I

1984 TLR p331

KISANGA JA

A A person shall not be punished twice, either under the provisions of this Code

or under the provisions of any other law for the same offence.

B The Republic appealed against the refusal by the High Court to pass sentence on

the respondents.

Held: (i) In order to rely on the provisions of section 21 of the Penal Code, it must be

shown that an accused person has been punished under a law which creates a specific

offence which can be judicially C ascertained, and prescribes a specific punishment

for such an offence;

(ii) the Preventive Detention Act does not create any specific offence or

offences. All that it does is to empower the President to detain a person who

conducts himself so as to endanger peace and good D order or the defence and

security of the State; or to prevent a person acting in a manner prejudicial to such

peace and good order or the defence and security of the State;

(iii) so long as it is not possible to ascertain judicially what offence is created

or committed under E the Preventive Detention Act, the question of ascertaining

judicially the sanction or punishment prescribed under the said Act does not arise;

therefore, a detention ordered under the Preventive Detention Act is not a

punishment within the meaning of section 21 of the Penal Code.

Case Information

F Appeal allowed.

No cases referred to.

A.J. Saffari for the appellant.

G M.J. Rainthatha for the respondent.

[zJDz]Judgment

Kisanga, J.A.: The two respondents were charged in the District Court with unlawful

possession of a H pistol and six rounds of ammunition contrary to section 8(1) of the

National Security Act No. 3 of 1970. They were convicted as charged, but the trial

magistrate found that the gravity of the offence warranted heavier punishment than

he was empowered to impose, and so he accordingly committed the respondents to

the High Court for appropriate sentence. Meanwhile the respondents appealed to the

High Court I against their conviction and it transpired that at the time of such

appeal the respondents were in detention under an order made under

1984 TLR p332

KISANGA JA

the provisions of the Preventive Detention Act (Cap. 490). The High Court dismissed

the appeal against A the conviction but declined to pass sentence on the ground that

the respondents had already been punished by being detained under the Preventive

Detention Act and, therefore, they should not be punished twice for the same

offence. In doing so the learned High Court Judge stated that he relied on the B

provisions of section 21 of the Penal Code to which a detailed reference will be made

later in this judgment. The Republic now appeals against the refusal by the High

Court to pass sentence on the respondents. At the hearing of the appeal before us the

Republic was represented by Mr. A. J. Saffari, State Attorney, while Mr. M. J.

Raithatha appeared for both respondents. C

Mr. Saffari addressed us only briefly. The substance of his submission was that

punishment in this context is something which follows upon a trial and conviction. It

is something that follows judicial process, and it necessarily excludes extra-judicial

acts including acts or orders of the Executive. In the D instant case, he contended,

there was neither trial nor conviction. There was only an Executive order which was

not punishment within the meaning of section 21 of the Penal Code.

Mr. Raithatha addressed us at some length. The thrust of his argument was that

section 21 of the Penal E Code should be construed liberally such that detention

under the Preventive Detention Act amounts to punishment within the meaning of

the section. He cited some cases and sections of the Penal Code and the Criminal

Procedure Code in support of his argument. F

As is already apparent from the preceding paragraphs, the point raised in this appeal is

a narrow one. It is whether a detention ordered under the Preventive Detention Act

amounts to punishment in terms of section 21 of the Penal Code. That section

provides that: G

21. A person shall not be punished twice, either under the provisions of this

Code or under the provisions of any other law for the same offence.

We think that in order to rely on the provisions of this section, it must be shown that

the person in respect H of whom it is sought to do so has been punished under the

law of the country which creates specific offence and prescribes specific sanction or

punishment for such offence. The law thus creating the I offence must set out the

specific offence in terms such that when the issue arises, as it does

1984 TLR p333

KISANGA JA

A here, one can ascertain judicially whether it is one and the same offence for which

it is being claimed that the person concerned has already been punished. Likewise

the law creating the offence must also provide in definite terms the sanction or

punishment for the offence such that if and when need arises one B can ascertain

judicially whether the person concerned has, in fact, been duly punished in

accordance with the law creating the offence.

It is against this background that we have to look at the relevant provisions of the

Preventive Detention Act under which it is contended that the respondents had

already been punished for being in unlawful C possession of a pistol and six rounds

of ammunition. For the present purposes, the relevant provision of the Preventive

Detention Act is section 2(1) which provides that:

2-(1) Where -

D (a) it is shown to the satisfaction of the President that any person is conducting

himself so as to be dangerous to peace and good order in any part of Tanganyika or is

acting in a manner prejudicial to the defence of Tanganyika or the security of the

State or

E (b) The President is satisfied that an order under this section is necessary to

prevent any person acting in a manner prejudicial to peace and good order in any part

of Tanganyika, or to the defence of Tanganyika or the security of the F State, the

President may, by order under his hand and the Public Seal direct the detention of

the person.

A glance through this sub-section shows that the provision does not create any

specific offence or offences. All that it does is to empower the President to detain a

person who conducts himself so as to G endanger peace and good order or the

defence and security of the State; or to prevent a person acting in a manner

prejudicial to such peace and good order or defence and security of the State. It has to

be H acknowledged that there are numerous ways in which a person may be

considered to conduct himself so as to endanger or to be prejudicial to peace and

good order or the defence and security of the State. It is equally true that it is often

difficult, if not impossible, in practice to know exactly why a person has been

detained. More so because the decision to detain is purely subjective depending on

what the President I considers to be conduct which is dangerous or

1984 TLR p334

KISANGA JA

prejudicial to peace and good order or the defence and security of the State. A

This point may be illustrated by the facts of the present case. At the hearing of the

appeal in the High Court the respondents alleged that they had been detained, and

were still in detention, for the same offence. Whereupon the learned judge hearing

the appeal investigated the matter, and his findings and B conclusion are

summarized in the following lines of his judgment:

As for sentences to be imposed the Court had to investigate the authenticity or

otherwise of the accuseds' allegation C that they were also being held under the

Preventive Detention Act - Cap 490 of the laws for the same offence. A letter ref. No.

P. 220/180/7 dated 11/7/84 from the Principal Secretary Ministry of Home Affairs

addressed to the Registrar in response to the latter's letter No. HCCC/C.170/4/30 of

2/7/84 says inter alia: D

Ni kweli kuwa washitakiwa hawa waliwekwa kizuizini kwa amri ya

Rais ya tarehe 10/3/1981 na hadi sasa bado wakochini ya amri hiyo kwa sababu za

usalama wa taifa kwa ujumla. E

After saying that the appellants are known to be bandits the letter continues: F

kama uonavyo kuwekwa kwao kizuizini ni katika kuwazuia

wasiendelee na vitendo vyao vinavyoharibu usalama wa Taifa.

That being the reply from the Ministry of Home Affairs it is crystal clear that

the appellants have been detained G because they are believed to be bandits. I have

no quarrel with their being detained under the Preventive Detention Act although it

could be argued as to whether the Preventive Detention Act, Cap. 490, was meant to

cater for offences covered under the Penal Code, Cap. 16 of the Laws! H

However bearing in mind that the accused persons have already been

punished for the offence of being in possession of offensive weapons by being

detained; it will be contrary to the clear provisions of section 21 of the Penal Code for

I this

1984 TLR p335

KISANGA JA

A Court to impose another sentence over and above the punishment of detention

which the accused are still serving.

Upon reading the whole extract, one gets the clear impression that the respondents

were detained on B grounds of national security generally; they were known or

believed to be bandits and therefore their detention was an attempt to prevent them

from continuing with their activities which disturb the security of the nation. Yet

the learned High Court judge found that the respondents by being thus detained, had

C already been punished for being in unlawful possession of offensive weapons. The

position is by no means easy. It seems to us that on the information available it is not

clear what exactly the respondents had been detained for. It may very well be that, as

the Principal Secretary, Ministry of Home Affairs said in his letter referred to by the

learned judge, the respondents as persons who were known or believed to be D

bandits were detained simply as a measure designed to prevent them from continuing

their mischievous activities in the society. If that is so it would seem plain that such

detention was purely preventive in the sense that it was intended to prevent the

respondents from committing possible offences. As such it E could not properly be

regarded as a punishment imposed on the respondents specifically for being in

unlawful possession of a pistol and six rounds of ammunition.

So long as it is not possible to ascertain judicially what offence is created or

committed under the F Preventive Detention Act, the question of ascertaining

judicially the sanction or punishment prescribed under the said Act does not arise.

In these circumstances we agree with the submission by the learned advocate for the

Republic that the learned High Court Judge erred in refusing to sentence the

respondents on the ground that they had G already been duly punished for the same

offence. For the reasons stated above we are firmly of the view that detention

ordered under the Preventive Detention Act is not punishment within the meaning

of section 21 of the Penal Code. Accordingly we allow the appeal by the Republic, set

aside the decision of H the High Court refusing to sentence the respondents, with a

direction that the respondents now be brought before the High Court for sentencing.

We would add that in deciding on what appropriate sentence to impose, we think

that the court would be perfectly entitled to take into account the term which I the

respondents have or had served in detention under the Preventive Detention Act.

Appeal allowed.

1984 TLR p336

A