[1946] EACA 66

# APPELLATE CRIMINAL

# Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

### REX, Respondent

#### $v$ .

# HAJI MOHAMED JAMA, Appellant

# Criminal Appeal No. 319 of 1945

Criminal law—Outlying Districts Ordinance, S. 8—Doing an act calculated to cause a breach of the peace and disaffection of natives of a closed district towards Government—Defective charges—No failure of justice—Adequacy of evidence.

The appellant was convicted on four counts of speaking to various persons in a manner calculated to disturb the peace of the Northern Frontier Closed District and calculated to cause the natives of the Abdwak tribe of the Northern Frontier Closed District to be disaffected towards Government. The charges did not state the words alleged to have been used. The witnesses, however, deponed at the trial to the words spoken by the appellant who cross-examined them and gave evidence on his own behalf. The only evidence in respect of two of the charges was that of one headman.

Held (29-3-46).—(1) Notwithstanding that the charges were defective inasmuch as they did not state the words alleged to have been spoken by the appellant, this omission did not invalidate the proceedings as no failure of justice was thereby occasioned.

(2) The evidence supported the convictions.

Appeal dismissed.

Khanna for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The accused, a licensee of the Somali (Isaak) tribe, living in a closed district was charged under section 8 of the Outlying Districts Ordinance on six counts with having on different occasions spoken in a manner calculated to cause disaffection of the natives of the Garissa area towards Government. On the first and second counts he was acquitted, the learned Magistrate holding that the charges had not been proved. On the third, fourth, fifth and sixth counts he was convicted and sentenced to two months' hard labour on each count, the sentences to run consecutively. All the charges are defective inasmuch as they do not disclose what words the accused is said to have used, and if we thought that this defect occasioned a miscarriage of justice we would set aside the convictions and sentences. We realise, of course, that it might be difficult to set out anything more than the gist of what the accused is alleged to have said. The accused did not complain of this matter at the trial, but then a person like him could not be expected to do so. As the trial proceeded the accused heard what the witnesses charged him with having said, he cross-examined them and subsequently gave evidence himself, and called witnesses, so that despite the defective charges it cannot be said that they occasioned a failure of justice. Taking the fifth and sixth counts first, there is ample evidence that the accused spoke untruthfully of the proposals of Government with regard to the Abd Wak section in such a manner as was calculated to cause those who heard him or heard of what he had said to become disaffected towards Government. This is more readily understood when one reads the evidence of Mr. Winser, D. C., Garrisa, that "the tribes are credulous and excitable and generally liable to be swaved in their opinions by anyone talking to them". Korani Elmi, an Abd Wak, whose evidence was believed, said: "He (accused) replied that he had been at a baraza in Garissa when the D. C. had given the order. I replied that if the D. C. had given the order why had our elders not argued with him. Accused replied that while Stamboul and his elders were asleep, Chief Hilole of Aulihan had secretly bought

some Abd Wak country from the D. C. Then all the good stock country would go to Aulihan, and what was left was bad, and that our stock would be finished. Then we would go to Government to ask for work and we would be told to dig wells or pans or to do road work for the P. W. D. We would then be shenzies. When I heard this I was angry, as I thought it was true, and I thought of leaving Kenya and going to Somalia, because my stock would be lost in bad country and I would be a shenzie if I stayed here. But afterwards I thought about it and went to see the Chief at Fafi. He is called Samuel, I learnt that there were no boundaries yet established, so I have stayed."

Referring to Mr. Winser's evidence as to what happened at the baraza one realizes that what the accused is stated by Korani to have said was not true. Korani's evidence refers to the fifth count, as does the evidence of Yunis Boo which was as follows: -

"Accused had come from Garrissa and Korani asked the accused where the boundary was. Accused first mentioned the boundary, saying the boundary would be the Garissa-Liboi road. Korani replied telling accused to speak the truth as he could not believe it. Accused said that, worse still, the elders and the *bwana* had made an agreement the people should dig wells and would then be shenzies."

The importance of digging wells and the seriousness of any interference with such a project will appear from Mr. Winser's evidence, "this district is a dry one, and wells are an urgent public necessity. Any man trying to sabotage the digging of wells would be doing considerable disservice to the district and people. in it". He said: "In fact I have had refusals to dig wells." The evidence on the fifth count is clearly adequate. On the sixth count evidence of much the same character was given by the three witnesses, Aden Mohamed, Dagana Ghersi, Abdullahi Bahre. The first, Aden, said: "Shakalani asked accused if the people from Garissa had any news of boundaries and accused replied that he had heard that the boundary was the Garissa-Liboi road. This was Abd Wak-Aulihan road. Accused also said the Abdulla-Abd Wak boundary was through Koro Koro-El Lein Fafi. Shakalani said he could not believe it, and accused replied that he would believe it when he saw how bad it was. Shakalani asked why this was so and accused said that the Abd Wak were to dig wells, and they could not have the country they wanted. As they wanted the boundaries fixed, they would lose grazing lands on the left of the road from Garissa to Liboi which would go to Aulihan and the right of the Koro Koro-Fafi line the land would go to the Abdulla. The grazing which would be lost has always been used by Abd Wak. Shakalani asked if their elders were there when this was decided, and accused said that Stamboul was not there, but Hilole and Mwalim Stamboul were there. Hilole said to call the fat man (Stamboul) there, or later he would complain that he had not been present. Shakalani was angry and then I said to Shakalani that we had not seen these things and accused had not seen them either. We would go either to quarrel with our elders or we will fight the Aulihan or the Abdulla. There were many people there, and I told Shakalani not to do anything until we had spoken to our chief."

Cross-examined accused: "At the time, besides the people already mentioned, there were many people present. I do not know any of them."

Dagana said: "Shakalani and I arrived at accused's and asked him, as he had come from Garissa, for news. There were only the three of us. He told us that the boundary had been fixed as the Garissa-Liboi road. We asked him if this was really true. He said the Abd Wak tribe had no ears. He said worse was to follow. We asked what. He said we would have to dig wells and make roads. Shakalani got angry and I caught hold of him. I was also angry. We went away. Later I got on to Hilole's lorry and came to Garissa. During the conversation accused had also explained why our country would go to Aulihan. He said that while we slept Hilole and the Government had made a secret agreement $re$ sale of country. This is a very big affair. I had forgotten it."

Abdullahi said: "I spoke to the accused one day. Many people were there. Shakalani, Danaga and Aden were under a tree, not with me. There were Degodia, Aulihan, Abd Wak, etc. There were about 40 people. People were buying things. I heard accused talking. I asked him about the boundaries. Accused mentioned boundaries first. He said the boundary would be Garissa-Liboi road for Aulihan-Abd Wak. The line from Koro Koro-Fafi would be the Abdullah boundary. I asked him for the truth and he replied that he had not done it, the Government had. He also said that Hilole and Omar Shuria, chiefs of Aulihan and Abdulla, had paid money to D. C., Garissa, to buy the land of the Abd Wak. I thought this was bad. Accused then said there was worse to come, that we would dig wells and make roads as porters. I was despondent. Then I decided to report to Chief Samuel and heard that there was nothing in the report."

The evidence on the sixth count is also adequate. As for the third and fourth counts the convictions depend on the evidence of a headman, Mwalim Stamboul, whom the Magistrate believed. This witness admitted that he did not like the accused, saying: "At the beginning of this year, I did not like the accused. Ever since he returned from the Haj he has had too much to say and we have not got on together." This candid admission does not in our opinion detract from the weight of Mwalim Stamboul's evidence, but on the contrary strengthens it.

In the result we dismiss the appeal.