[1940] EACA 61

## APPELLATE CRIMINAL

#### - Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.

### ALFRED ACHILA S/O ABOK, Appellant

# REX. Respondent

### Criminal Appeal No. 126 of 1941

Defence (Censorship) Regulations, Regulation 3—Spreading a report likely to prejudice the public tranquillity or resolution.

Appellant appealed from a conviction and sentence in respect of a charge of spreading a report likely to prejudice the public tranquility or resoution. The facts and evidence appear sufficiently from the judgment.

Held (11-9-41).—That to spread a report that a Chief had been dismissed from his office for misappropriation for Sh. 1,500, being Hut Tax collected from natives, was not likely to prejudice the public tranquility or resolution.

E. G. Russell for the Appellant.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted on the following charge:-

"That on 29th May, 1941, the accused, a native of Nyakatch Location, Nyanza Province, did call a meeting of natives in that location at which he spread a report that Chief Opio Manyalla had been dismissed from office for misappropriation of Sh. 1,500 Government moneys, to wit, hut tax collected from natives, which report was likely to prejudice the public tranquillity or resolution and was not merely a repetition of information already published with the sanction of the Officer $i/c$ of the Information Office, contra section 3

of the Defence (Censorship) Regulations, 1940, G. N. 580/40."

Clauses 2 and 3 of the Defence (Censorship) Regulations, 1940, read as follows:

"2. No person shall, except with the sanction of the Officer in Charge of the Information Office, publish directly or indirectly, in any newspaper, pamphlet, book, letter, or other written or printed document whatsoever, any information, statement, comment, criticism or suggestion with respect to any troops, ships, aircraft, or war material situated or intended for use in or about East Africa, or to any attack upon an East African territory by the enemy, or upon the enemy by the armed forces of the Crown in or about East Africa, whether any such situation, intended use, or attack is actual, projected or rumoured or with respect to any matter of a like nature which is likely to be of use or of benefit to the enemy or to prejudice the public tranquillity or resolution.

3. No person shall by word of mouth or otherwise spread any report or utter any information calculated to create alarm or despondency, or which is otherwise likely to prejudice the public tranquillity or resolution, unless such report or information is merely a repetition of information which has already been published with the aforesaid sanction."

In our view Clause 3 of the Regulations is of a more general nature than Clause 2 and in its interpretation what one has to consider is whether the spreading of any information or utterance of any report by word of mouth or otherwise is calculated to create alarm or despondency or is otherwise likely to prejudice the public tranquillity or resolution. Assuming (without proof) that the accused falsely and publicly stated that Chief Opio had been dismissed for dishonesty, is that calculated to create alarm or despondency? The answer must be no. Is it likely to prejudice the public tranquility? We should answer no. And finally, is it likely to prejudice the public resolution? Understanding resolution to mean resolve, morale, determination, we cannot see that the publication of such information can reasonably be said to affect the public resolution in any way. How, for instance, could it weaken the public resolve to win the war? Such resolution is something psychological and to hold that because by the publication of such information the collection of revenue or the interests of agriculture might suffer a setback, the information was likely to prejudice the public resolution is not a reasonably possible construction. Nor is there any evidence to show that the resolution of a single individual was in any way affected by the alleged announcement.

$\mathbf{1}$

The learned Attorney General has submitted that he cannot support the conviction, a submission with which, for the foregoing reasons, we agree. It is a little difficult to understand why so few native witnesses out of so many (60 according to one witness) present at the baraza where the announcement is alleged to have been made, were called. Only four besides the complainant were called and those were an ex-assistant chief, a mlango, a tribal policeman and a Government headman, so what we would call the rank and file of the public were not represented in the witness box.

The appeal is allowed. The conviction and sentence are set aside and the appellant ordered to be released.