Rex v Luima and Others (Criminal Appeals Nos. 35 and 37 of 1949, consolidated) [1949] EACA 33 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, C. J. (Kenya), Sir John Gray, C. J. (Zanzibat). and PEARSON, J. (Uganda)

## REX, Respondent (Original Prosecutor)

## (1) MARTIN G. LUIMA, (2) SIMONI LWANGA, and (3) YAFESI N. TABULA, Appellants (Original Accused)

Criminal Appeals Nos. 35 and 37 of 1949, consolidated

(Appeal from decision of H. M. High Court of Uganda)

(The second appellant was not served with the notice of hearing and therefore his appeal is not dealt with in the judgment herein.—*Editor.*)

Criminal Law--Printing and publishing a seditious publication, Uganda Penal Code, section 53 (1) $(c)$ —"Seditious publication", section 48—"Seditious intention", section 52—Proof—Whether extrinsic evidence necessary-Whether *mens rea* a necessary element in the offence.

The appellants were convicted by the Resident Magistrate, Kampala, on twocounts, of printing and publishing a seditious publication in Luganda and English, contrary to section 53 (1) (c) of the Penal Code of Uganda, and were sentenced as follows: appellant No. 1 to 12 months' hard labour on each count, and appellant No. 3 to 18 months' hard labour on each count. The sentences were directed to run concurrently. On appeal to the High Court of Uganda the sentenceswere reduced in each case to 9 months' hard labour but the appeals were dismissed. The appellants then appealed to the Court of Appeal on the grounds that to establish their offence there should be—

(a) some extrinsic evidence of intention outside the words themselves, and

(b) that there should be no conviction without mens rea.

Held (21-4-49).—(1) That as regards the seditious character of the article published, quite manifestly it offended against at least one of the ingredients of the phrase "Seditious-Intention" as set out in section 52 of the

(2) (a) That if words are seditious by reason of their expression of a seditious intention as defined in the section, the seditious intention appears without any extrinsic evidence, and whilst the Legislature of the Colony might have defined "seditious words" by reference to an intention proved by evidence of other words or overt acts, it is sufficient. to say that they have not done so.

(b) That in the present case the matter published contained a seditious intention that was prima facie evidence of the intention of the publishers and no extrinsic evidence was necessary to prove intention.

R. v. Girdharilal Vidyarthi and Vanshi Dhar, Criminal Appeals Nos. 72 and 73 of 1946 (Unreported) referred to.

Wallace-Johnson v. The King (1940), A. C. 231 cited and applied.

(3) That whilst generally speaking mens rea is a necessary element in a crime, the Legislature has so framed the sections of the Penal Code dealing with seditious publications as to exclude the necessity of mens rea as an element in the offence of publication.

Chisholm v. Doulton, 22 Q. B. D. 736 referred to.

Appeals dismissed.

Appellants in person, unrepresented.

Dreschfield, Acting Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—We have consolidated Criminal Appeals 35 and 37/1949.

The appellant in Criminal Appeal 35/1949 who was charged with and convicted of printing and publishing a seditious publication contrary to section 53 (1) (c) of the Uganda Penal Code with the two appellants in Criminal Appeals 35 and 37, has not been served with notice of hearing so his appeal must for the time being remain on the file.

The charge against these two appellants was heard in the Resident Magistrate's. Court at Kampala and on conviction the accused appealed to the High Court of Uganda who dismissed their appeals.

The first appellant, Martin G. Luima, admits that as editor of the newspaper Gambuze he was responsible for the publication of the matter complained of but submits that the learned Magistrate and the Court below erred in holding that the article was seditious in intention.

The third appellant Yafesi N. Tabula admits that he is a partner in the firm which published the article but he says that it was done without his knowledge or consent. As regards the seditious character of the article quite manifestly no court could come to any other view than that it offended against at least one of the ingredients of the phrase "Seditious intention" as set out in section 52 of the Uganda Penal Code. A seditious publication is defined by section 48 of the code asmeaning a publication having a seditious intention and by section 53 (1) (c) it is an offence to print, publish, sell or offer for sale any seditious publication. As. regards the first appellant therefore, if the article can reasonably be construed as containing a seditious intention, his offence is complete and it cannot avail him to say as he does say that he does not consider the article seditious and that none of his African readers would think so either.

The article in question was a copy of a cable received from an African in England named Mulumba and addressed to a number of people in Uganda including His Excellency the Governor. The first appellant as editor printed this telegram both in English and Luganda in his newspaper. The telegram is addressed to the Governor, and after a strong and perhaps unseditious beginning proceeds. to describe the Governor and his Government in terms which if believed could. not fail to bring into hatred and contempt the person of His Majesty's representative in Uganda as well as being calculated to raise discontent or dissatisfaction both against the administration of justice in the Protectorate as well as amongst its inhabitants.

The appellants have not had the advantage of representation by Counsel during the hearing of this appeal and we have not confined their submissions strictly within the four corners of their memoranda of appeal. Put into legal form their submissions, we think, amount to this, that to establish their offence there must be some extrinsic evidence of intention, outside the words themselves, and that there can be no conviction without *mens rea*. Both these points came under review by this Court in the unreported case of Girdharilal Vidyarthi and Vanshi Dhar v. R. Criminal Appeals 72 and 73 of 1946. This was a Kenya case but the law with regard to seditious publications is the same in this Protectorate. This Court in that case referred to the wording of section 57 (2) of the Kenya Penal Code which is the same as section 52 (2) of the Uganda Penal Code and after discussing the rule laid down by the Privy Council in the leading case of Wallace-Johnson v. The King, 1940 A. C. 231, adopted the following passage from the judgment of their Lordships and applied it to the provisions of the sub-section:

"The submission that there must be some extrinsic evidence of intention, outside the words themselves, before seditious intention can exist, must also fail and fail for the same reason. If the words are seditious by reason of their expression of a seditious intention as defined in the section, the seditious intention appears without any extrinsic evidence. The legislature of the Colony might have defined 'seditious words' by reference to an intention proved by evidence of other words or overt acts. It is sufficient to say they have not done so."

Similarly in the case before us as the matter published itself contains a seditious intention that is prima facie evidence of the intention of the publishers and no extrinsic evidence is necessary to prove intention.

On the point as regards *mens rea* on which the second appellant seeks to rely, .this Court expressed itself thus: —

"As regards mens rea it was urged for the appellant Vidyarthi that there being on his part no mens rea in regard to the article in Gujerati, a language which he did not understand, a necessary element of the offence alleged in regard to the Gujerati article was missing and he should be acquitted. Generally speaking of course mens rea is a necessary element in a crime, but, as it was put in the judgment of Cave J, in the case of *Chisholm* $v$ . Doulton, 22 Q. B. D. at p. 741 quoted to us by appellant's Counsel, it is in the power of the Legislature, if it so pleases, to enact, and in some cases it has enacted, that a man may be punished for an offence although there was no blame-worthy condition of mind about him. Whether the Legislature does or does not so enact is a matter of policy which is no concern of the Courts. Here the Legislature of Kenya, rightly or wrongly, has so framed the sections of the Penal Code dealing with seditious publications as to exclude the necessity of *mens rea* as an element in the offence of publication. Any person who... publishes... any seditious publication... shall be guilty of an offence.' (Section 58 (1) $(c)$ of the Penal Code.) The sub-section does not say 'any person who *knowingly* publishes' and differing from sub-section (a) and (b) does not contain the words 'with a seditious intention'. $(b)$

The plain meaning of that is that the Kenya Legislature has decided as a matter of policy to punish anyone who publishes any seditious publication thereby putting it upon publishers to satisfy themselves that anything published by them is not a seditious publication.

The reasonableness of that policy is not for this Court to consider but it is perhaps not superfluous to point out that the mischief is done whenever the seditious publication is published, whether the publisher took the trouble to know what he was publishing or not. It is the fact of publication and not the attitude of mind of the publisher which is the evil at which the Kenya law as to seditious publications is aimed. Only the publishers have the opportunity by careful examination before publication, of preventing the fact of publication of seditious matter. They neglect that opportunity at their own peril as apparently the appellant Vidyarthi did in the present case."

This statement of the law is equally applicable to corresponding section of the Uganda Penal Code and it disposes of the submission made by the second appellant.

Both appellants have also addressed us on the question of sentence, but this being a second appeal we have no jurisdiction to interfere on that matter.

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The appeals are dismissed.