 |
R v CHONA (High Court of Northern Rhodesia, 1962) The accused was the National Secretary of the United National Independence Party, and in that capacity issued, in November, 1961, a document describing the evils of colonial rule, which was addressed to all divisional secretaries, constituency secretaries and international representatives of the party for “distribution and publication”. The document was signed by the accused. He was charged with publishing a seditious publication contrary to section 53D (1) (c) of the Penal Code. CONROY, C.J.,having found that the statement was a “publication”, continued: that colonialism is bad and that UNIP’s policy was to smash colonialism. The accused intended to broadcast this theme as widely as possible, in order to whip up enthusiasm among the rank and file of the Party for the Party line, so that the Party could bring as much pressure to bear as possible on the Secretary of State during his visit. That is in itself an unobjectionable course provided that no criminal offence is committed in its execution. As one would expect, the document was written in a style which was intended to comment itself to the public to whom it was addressed. It uses strong words and shows that the accused was trying to produce strong and effective results from what he had written. Some evidence has been given of the state of public order in Northern Rhodesia at November, 1961. Judges are entitled, and indeed bound, to take judicial notice of that which is common knowledge of the great majority of the population, see R v Aspinall (1). It is a matter of common knowledge that during 1961 there was an outbreak of violence designed to bring pressure to bear upon the Government in connection with the negotiations then taking place with regard to constitutional advancement in the Territory. Many members of UNIP were then convicted by the courts of violence, including a substantial number of cases of arson and destruction of public property. This outbreak of violence is referred to in para. 5 of the statement where the accused congratulates the “brave and patriotic” members of UNIP, who by following UNIP’s “master plan” induced the British Government again to negotiate. For this success, the Party has paid the high price of about fifty members dead and over 2000 jailed. By November, 1961, this campaign of violence had largely died down and public order restored. It is against this background that I have to consider the intention with which exhibit P7 was written and published, and what consequences would naturally follow from such writing and publication at the time they were effected. In my view, looking at the words themselves, the only meaning which any reasonable person can have intended to convey when he wrote the press statement is that colonialism is a bad thing and must be destroyed: that the mock justice administered by the courts and the manner in which the courts rubber-stamped oppression is but an example of the evils of colonialism… The learned Chief Justice then considered the evidence of the accused, and continued: Reading the article as a whole, I do not believe the accused when he says that this statement addressed to “Freedom Fighters” was a publication which intended to point out errors or defects in the administration of justice with a view to remedying such errors or defects. The statement was written for the purpose of ensuring an enthusiastic and widespread reaction by member of the Party so that they would take action to bring pressure upon the Government of the United Kingdom and thus achieve their ends… I therefore find that when this article was written and when or on about the 20th November, 1961, it was published to the constitutional and divisional secretaries and to the international representatives of UNIP and to the press, it was a seditious publication because it intended to bring into hatred or contempt and to excite disaffection against the administration of justice in the Territory, and it did not fall within the exemptions set out in the latter part of section 53G (1) of the Penal Code. The intention of the publication was not to put right errors and defects, but to excite hatred and contempt and disaffection against the administration of justice for the purpose of propagating the policy of UNIP. Such finding does not, however, dispose of the issues which I have to try. The accused is charged with publishing a seditious publication on or about the 5th December, 1961, at Lusaka. The seditious publication so charged is only para. 7 of the press statement. The crown case is that the publication charged is not the publication to the addressees of the whole press statement on or about 30th November, but the publication to the Commissioner of Police and the persons in his office of only para. 7 on or about 5th December. The defence on this issue is that the accused wished to draw attention to the fact that a member of UNIP, Mr Mukwenje, had been arrested for riot and sent to jail without a proper trial. In the course of his arrest he has been beaten by police officers with long batons, as a result of which he had sustained serious personal injuries. The accused was complaining that the police were not prosecuting their own officers whom he said had been guilty of this assault. In his letter to the Commissioner, of 30th November, the accused said that he was drawing the Commissioner’s attention to para. 8 and para. 9 of the press statement issued by UNIP Headquarters, that UNIP was contemplating handing the matter over to their solicitor, but before they did so they wanted to know whether the police contemplated criminal prosecution against the police officers involved. The accused then enclosed the whole of the press statement, and side-lined para. 8 and para. 9, which dealt with the allegations of assault on Mr Mukwenje and which stated “Brothers and sisters, there is no justice whatsoever under colonial rule anywhere in the world”. If the accused had only sent an extract containing para. 8 and 9 to the Commissioner then I should have found that these two paragraphs did not constitute a seditious publication, as the document would have fallen within the exemption set out in s.53G (1), in that it would be pointing out errors or defects in the administration of justice with a view to remedying such errors of defects. The difficulty, however, is that the accused sent the whole of the press statement to the Commissioner, which as I have already found, was a seditious publication because it had a seditious intention. In evidence the accused said that his purpose in sending the letter and its enclosure to the Commissioner was “res ipsa loquitur”; he meant to ask the Commissioner to institute a prosecution of the people who had used violence against Mr Mukwenje, and he considered it shameful that the police officers had not been prosecuted in view of the fact that Mr Mukwenje had sustained four fractures. When he wrote to the Commissioner of Police and enclosed the whole press statement he did not remember what was in the other paragraphs, and that was why he put a bracket to draw the Commissioner’s attention to para. 8 and 9. All he remembered was that he had written a circular containing the facts of Mr Mukwenje’s case and he just included it with the letter to the Commissioner. He had forgotten all about the other paragraphs containing the attack on the courts. He considered it an innocent document and he therefore did not care to whom it was published, even though it would have been easy to extract the two paragraphs relevant to his communication to the Commissioner. I do not believe the accused when he says he had forgotten what was contained in the other paragraphs, which he had written only ten days before. In order to mark para. 8 and 9 it would obviously be necessary to read through the press statement, certainly down to para. 7 which contained the matters exciting hatred and contempt against the administration of justice. I think that one of the statements made by the accused in the witness box under cross-examination contains the truth of the matter when he says: “I did not care to read it. I did not care if anyone at Police Headquarter read about ‘mock justice’” I find therefore as a fact that when the accused published para. 7 of exhibit P7 to the people at police headquarters he was not seeking to point out errors or defects with a view to their being remedied. And para. 7 does not fall within any of the exemptions in s. 53G (1). Even if the accused were telling the truth in this matter I consider that under the sections of the Penal Code he would have been guilty of the crime charged. As I read the Penal Code, the offence is not “with seditious intent publishing written or printed matter’, it is “publishing written or printed matter which matter has a seditious intention”. In other words if a person publishes a document which is a seditious publication because it has a seditious intention, then he does so at his peril. My attention was drawn to the case of R. v Luima and others (2). In that case the East African Court of Appeal decided that the Legislature in drafting the Penal Code of Uganda has so framed the sections dealing with seditious publications as to exclude the necessity of mens rea as an element in the offence of publication. The court there referred to, and acted upon, an earlier unreported decision in which they had reached a similar conclusion upon the Kenya Penal Code. It appears from the report that the wording of the Kenya Code in the section creating the offence of publishing a seditious publication is similar to the wording of the Northern Rhodesian s. 53D (1) (c). In the context of the instant case, I take the word “intention” to mean the state of mind of the publisher of the document, who foresees and desires that certain consequences shall follow from his publishing the document, and the word “motive” to mean the object he had in mind in bringing about those consequences. The provisions of s. 10 [of the Penal Code] therefore requires s. 53D (1) (c) to be read to mean that the intention with which a seditious document is published is immaterial. If the legislature had intended to make the intention of the person publishing the document an ingredient of the offence, then the legislature had intended to make the intention of the person publishing the documentan ingredient of the offence, then the legislature would have to have use express words to that effect: such as “advisedly”, or “with a seditious intention” or “knowingly”. The evil which the legislature was seeking to prevent was the effect which seditious publications have upon the minds of the persons to whom they were published. In this context there is an analogy between sedition and libel. At common law it was no defence to a libel for the defendant to plead that he had no intention to defame the plaintiff, if the words conveyed a defamatory meaning to reasonable persons to whom they were published. It is very relevant to note that the legislature in creating the statutory offence of criminal libel, provided (in section 168 of the Penal Code) that: “Any person who…unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed ‘libel’” There the legislature specifically adopted, as a criterion, the intention with which the libel was published. The criterion which the legislature adopted in the sections dealing with the publication of a seditious document was not the intention of the publisher but the intention contained in the document, which can only be estimated by the effect which it must have upon the reasonable reader in the circumstances of its publication. Section 53G (2) provides: “(2) in determining whether the intention with which any act was done, any words were spoken or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would follow naturally from his conduct at the time and under the circumstances in which he so conducted himself”. This subsection conflicts with the views I have expressed above, as it provides a test by which to determine the intention with which any document was published. If my view is correct, this test is otiose. This section was considered by the Federal Supreme Court in Buchanan v R (3), where it was pointed out that s. 53G (2) bears every indication of having come from Art 115 of Stephen’s Digest of the Criminal Law. Art 112 of that digest provides that anyone who, with a seditious intention, publishes anything capable of being a libel shall be guilty of misdemeanor called “seditious libel” and requires to be defined in the terms used in art. 115. Section 53G (2) was inserted in the Penal Code in 1938 and (I can assume by oversight) included the irrelevant words, when it imported, virtually unchanged, the whole of art. 115 from Stephen’s Digest into the Penal Code. I have been able to find no authority (other than Luima’s case (2) to which the Crown drew my attention) which deals with the position under the Northern Rhodesia Penal Code (or any similar code) where a person publishes, without a seditious intention, a seditious document. Most reported cases relate to facts in which the accused was not only the publisher, but also the author of the document in question. There the intention with which he wrote the document would be relevant to assist the court to arrive at a finding on the intention of the document. The author’s intention in writing the document would also be relevant to the question of whether it fell within the exemptions set out in s. 53G (1). On the wording of the code, I do not see how the intention of the publisher qua publisher is relevant once it is established that the document is itself seditious. For these reasons I am of the opinion that even if the accused had been unaware that the document which he published to the Commissioner of Police and to the people at police headquarters, contained para. 7 such lack of awareness would not have constituted a defence under the words used by the Legislature in s. 53D to s. 54 of the Penal Code. I find that the Crown has discharged the burden placed on it, and I convict the accused of the offence of publishing a seditious publication, contrary to s.53D (1) (c) of the Penal Code. Accused convicted (1) 13 Cox C.C. 563 at 571. (2) 16 E.A.C.A 128. (3) [1957] R. & N. 523. |
|
Related materials
|
|
 |
