R. v. Omari Halfani, H.C. Crim. Rev. 33-DDM-72, 14/8/72.

R. v. Omari Halfani, H.C. Crim. Rev. 33-DDM-72, 14/8/72.

                        The accused was charged with conduct conductive tot a breach of the peace c/s 5, Public Order Ordinance, Cap. 304. The definition of this offence reads: “Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach or the peace or whereby breach of the peace is likely to be occasioned, shall be guilty of an offence.”

Held:   The uttering of foolish and unpatriotic words relating to the demise of a national leader does not constitute the offence charged where the listeners were merely “displeased”.

KWIKIMA, AG. J. – On 29^th December, 1971 the accused was relaxing in Nyang’oro Bar. There were other customers besides him, among these customers were Samson Sitapakure, Mbamboleo Mbugi and John Mpunge. These three the accused then started talking about the death of the late Dr. Kleruu who had just been killed. In the course of their conviction the accused uttered words which displeased the others. He was then reported to the Police who arrested him and charged him. He was convicted and fined Shs. 800/=

According to the three people who testified against the accused three different versions of the words uttered by the accused are given. Samson reports the accused as saying; “Kwa nini mnasikitika mauaji haya …… Ni bure tu mnasikitika yule ameuawa kwa haki, sawa kama karani mmoja wa Cooperative aliuwawa na makuli wake alipowaambia wachukue mizigo wakampiga sindano mbili akafa kwa hiyo kifo chake ni haki.”

            If that is what the accused said, he was telling the others not to feel sorry for the untimely demise of Dr. Klerru whom the  accused felt to have been killed with justification like some clerk of a Cooperative he knew who was stabbed with a needle by the porters whom he had been ordering. That is one version. Another one is given by Mamboleo and it goes thus: “Hii maneno mnasemasema kila saa mambo namna hii yalitokea Nairobi yuko baniani mmoja tajiri aloindoka kwenda safari na mtoto wa banian akaamrisha makuli kufanya kazi hawa makuli walikasirika na wakampiga na sindano mtoto wa baniani akafa.”

            This version differs substantially from the first one. In the first place, Mamboleo does not report the accused to have said that the death was justified. What is more, the person stabbed with a needle is this time the son of an Indian employer and not the clerk of a Cooperative. Yet Mamboleo and Samson were both there and claim to have heard the accused simultaneously.

The third eye-witness, John, came with yet another version. It went thus: “Hicho mnachozungumza kuhusu kifo cha Dr. Kleruu ni sawa tu amekufa kwa haki. Kulikuweko makuli Fulani ambao walikuwa wakisukumwa na Kiongozi wao na wakampiga sindano akafa.”

            This time the person who was pierced with a needle is not a cooperative clerk but the reason for his being pierced is the same however. It is that he was driving the porters hard, or “pushing them around”. The learned trial Magistrate was aware of the patent contradictions in the versions of the eye-witnesses. He did not however, bother to resolve the contradiction. He only chose to believe the prosecution witness.

            It should be pointed out to the learned Magistrate that the issue was not whether the prosecution witnesses were to be believed or not. The issue was whether the words reported to have been uttered by the accused were “abusive or insulting” as is laid down in section 5, Cap. 304. it was certainly unpatriotic and naïve on the part of the accused not to sympathise with his compatriots on the demise of a national leader. But his is not saying that in uttering his drunken words the accused did utter. The charge came out with a fourth version which included some reference to Ujamaa villages. Unfortunately none of the witnesses heard the accused referring to Ujamaa villages. Had the learned trial magistrate given the contradiction the attention it deserved, it is doubtful whether he would have concluded that the accused uttered any on the four versions. And looking at the reported words, it cannot be said that all four versions or any of them could be taken as abusive or insulting. Indeed, even the witnesses were only displeased. They were not annoyed in such a way as to want to teach the accused a lesson. Certainly even this court is displeased at the accused’s folly, but the law has not yet got to punishing the foolish or the unpatriotic. The trial court appears to have acted vindictively especially if it is recalled that he accused, a first offender was fined Shs. 800/=. There is nothing to exclude the possibility that this conviction was also arrived at vindictively and against natural justice. Accordingly it is hereby quashed and the sentence thereof set aside. The Shs. 800/= should be refunded to the accused who is here by acquitted.