MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. DARIOS BASHIR AND OTHERS

AC-CP-480-1965

Principles

·  Constitutional Law-freedom of expression-Transitional constitution (amended 1964)  Art 5 (2) –Interpretation of  such right vests in the High Court

·  articles, time of its publication and the readers of the paper.

·  Criminal law –seditious articles-Mens rea may be proved from language of the articles, time of its publication and the readers of the paper.

·  Criminal law –seditious articles-when there are two different voices in one article-Responsibility is for the seditious voice-Other temperate voice will not be sufficient  excuse.

·  Criminal law –seditious articles-Penal Code, s,  105and 106-Arousing illegal opposition or hatred against government  and exciting hatred between classes.

·  Criminal law –seditious articles-truth of what is written may be good defense. Criminal law-liability of proprietor newspaper for acts of editor-limited to proprietor in actual control of the newspaper. Criminal Procedure –contents of judgment-Code of Criminal Procedure ,s,243 (1) and (5) must be followed.  

The proprietor, editor and assistant editor of the Vigilant, a daily English newspaper, were charged for seditious articles published in the newspaper under Penal Code, s, 105 and 106, i.e. arousing illegal opposition or hatred acquitted the assistant editor for lack of evidence and proprietor because of the seditious article. The editor was convicted under Penal Code, s, 105 and 106 because one article was considered by the court as seditious from its language, time of publication and the reader of the papers. As there were two different voices in the article, the editor held responsible for the voice which was seditious and that other temperate voice was not a sufficient excuse.
As regards Transitional Constitution (amended 1964) Art 5 (2) I.e., freedom of expression , its interpretation is vested in the High Court.
Held: acquittal of the assistant editor and proprietor under Penal Code, s, 105 and 106 is confirmed as well as conviction of the editor under same sections; but the court ought to have followed Code of Criminal Procedure s, 243 (1) and (5) when writing its judgments.
Obiter dictum; truth of the matters complained of in a charge of sedition is a good defense in some cases, e.g. it may be evidence of an intentions to point out errors of government .
The proprietor, editor and assistant editor of the Vigilant, a daily English newspaper, were charged for seditious articles published in the newspaper under Penal Code, s,  105 and 106, i.e. arousing illegal opposition or hatred acquitted the assistant editor for lack of evidence and proprietor because of the seditious article. The editor was convicted under Penal Code, s,  105 and 106 because one article was considered by the court as seditious from its language, time of publication and the reader of the papers. As there were two different voices in the article, the editor held responsible for the voice which was seditious and that other temperate voice was not a sufficient excuse.
As regards Transitional Constitution (amended 1964) Art 5 (2) I.e., freedom of expression , its interpretation  is vested in the High Court.
Held: acquittal of the assistant editor and proprietor under Penal Code, s,  105 and 106 is confirmed as well as conviction of the editor under same sections; but  the court ought to have followed Code of Criminal Procedure s, 243 (1) and (5) when writing its judgments.
Obiter dictum; truth of the matters complained of in a charge of sedition is a good defense in some cases, e.g. it may be evidence of an intentions to point out errors of government .
The proprietor, editor and assistant editor of the Vigilant, a daily English newspaper, were charged for seditious articles published in the newspaper under Penal Code, s, 105 and 106, i.e. arousing illegal opposition or hatred acquitted the assistant editor for lack of evidence and proprietor because of the seditious article. The editor was convicted under Penal Code, s, 105 and 106 because one article was considered by the court as seditious from its language, time of publication and the reader of the papers. As there were two different voices in the article, the editor held responsible for the voice which was seditious and that other temperate voice was not a sufficient excuse.
As regards Transitional Constitution (amended 1964) Art 5 (2) I.e., freedom of expression , its interpretation is vested in the High Court.
Held: acquittal of the assistant editor and proprietor under Penal Code, s, 105 and 106 is confirmed as well as conviction of the editor under same sections; but the court ought to have followed Code of Criminal Procedure s, 243 (1) and (5) when writing its judgments.
Obiter dictum; truth of the matters complained of in a charge of sedition is a good defense in some cases, e.g. it may be evidence of an intentions to point out errors of government .
The proprietor, editor and assistant editor of the Vigilant, a daily English newspaper, were charged for seditious articles published in the newspaper under Penal Code, s, 105 and 106, i.e. arousing illegal opposition or hatred acquitted the assistant editor for lack of evidence and proprietor because of the seditious article. The editor was convicted under Penal Code, s, 105 and 106 because one article was considered by the court as seditious from its language, time of publication and the reader of the papers. As there were two different voices in the article, the editor held responsible for the voice which was seditious and that other temperate voice was not a sufficient excuse.
As regards Transitional Constitution (amended 1964) Art 5 (2) I.e., freedom of expression , its interpretation is vested in the High Court.
Held: acquittal of the assistant editor and proprietor under Penal Code, s, 105 and 106 is confirmed as well as conviction of the editor under same sections; but the court ought to have followed Code of Criminal Procedure s, 243 (1) and (5) when writing its judgments.
Obiter dictum; truth of the matters complained of in a charge of sedition is a good defense in some cases, e.g. it may be evidence of an intentions to point out errors of government .
The proprietor, editor and assistant editor of the Vigilant, a daily English newspaper, were charged for seditious articles published in the newspaper under Penal Code, s, 105 and 106, i.e. arousing illegal opposition or hatred acquitted the assistant editor for lack of evidence and proprietor because of the seditious article. The editor was convicted under Penal Code, s, 105 and 106 because one article was considered by the court as seditious from its language, time of publication and the reader of the papers. As there were two different voices in the article, the editor held responsible for the voice which was seditious and that other temperate voice was not a sufficient excuse.
As regards Transitional Constitution (amended 1964) Art 5 (2) I.e., freedom of expression , its interpretation is vested in the High Court.
Held: acquittal of the assistant editor and proprietor under Penal Code, s, 105 and 106 is confirmed as well as conviction of the editor under same sections; but the court ought to have followed Code of Criminal Procedure s, 243 (1) and (5) when writing its judgments.
Obiter dictum; truth of the matters complained of in a charge of sedition is a good defense in some cases, e.g. it may be evidence of an intentions to point out errors of government .
The proprietor, editor and assistant editor of the Vigilant, a daily English newspaper, were charged for seditious articles published in the newspaper under Penal Code, s, 105 and 106, i.e. arousing illegal opposition or hatred acquitted the assistant editor for lack of evidence and proprietor because of the seditious article. The editor was convicted under Penal Code, s, 105 and 106 because one article was considered by the court as seditious from its language, time of publication and the reader of the papers. As there were two different voices in the article, the editor held responsible for the voice which was seditious and that other temperate voice was not a sufficient excuse.
As regards Transitional Constitution (amended 1964) Art 5 (2) I.e., freedom of expression , its interpretation is vested in the High Court.
Held: acquittal of the assistant editor and proprietor under Penal Code, s, 105 and 106 is confirmed as well as conviction of the editor under same sections; but the court ought to have followed Code of Criminal Procedure s, 243 (1) and (5) when writing its judgments.
Obiter dictum; truth of the matters complained of in a charge of sedition is a good defense in some cases, e.g. it may be evidence of an intentions to point out errors of government .

Judgment

Advocates: Abel Alier……………………………………………..for accused

                  Zaki Abdel Rahman and Dr. Sid Hmed Hussin………..for Attorney-  General prosecution

D. R. Siddig. President of the Major court. November 7, 1965:-The learned counsel for the defense urged us to have in mind the Transitional Constitution 1956 art 5(2).

The broad question raised by this case  is :where to draw the line between the duty of a government in maintenance of minimal order on  the done hand and its prime function as regards enhancing the values of its nationals on the other. The values enlightenment and rectitude are directly in issue here. In a state which professes to have selected democracy as a way for governing its people hose two obligations seem to be in conflict and cannot peacefully co-exist side by side. This apparent conflict gives rise to a set of pertinent questions, the answers to which cannot be found without difficulty. Some jurists maintain the freedom of expression  is absolute . for instance Mr. Alexander Meikle John advocated the above-mentioned view see Pritchett, American Constitutional Issues (1962) P. 224. By the state. Still we are left with the important question as to where should the line be drawn so that the state will not be contradicting itself when trying to effect its two primary functions which have heretofore been mentioned in this judgment.

In fact, neither thee constitutionality of Penal Code, s,105 and the other sections of the law under which accused  are charged had been impeached before us, nor do we profess to have the competence to decide on such questions had it been that such an impeachment is made before this court. This is so, because  legislation is part of the function of the authoritative political decision makers, while matters pertaining to the constitutionality of our laws are exclusively within the domain of our honourable High Court. We however ,have only to consider the legality or illegality of the acts complained of in the  light of legal norms in  their present status quo.

After powerful arguments by the legal counsel, we are left with the difficult task of finding out whether the articles in issue are of seditious nature of otherwise. The main difficulty confronting us is vis-à-vis the hypothetical man, we are better acquainted with him in legal literature as the reasonable man in the circumstances. However , part of he difficulty is removed due to the fact that the authorities tend to justify dispensing with extrinsic testimony for gathering the intention of the accused. To cite Ratanlal he states,

“it is not necessary for the prosecution to prove the intention directly by evidence which in most cases would be impracticable.

The law will presume the intention, whether good or bad, from the language and conduct of the accused, and it will be then for him to show that his words were harmless and his motive innocent”:

Ratanlal, The law of Crimes (20th ed, 1961) p. 293.

See also Archhold, Criminal Pleading . Evidence and practice (33 th.  ed. 1962). P. 1966.

Even the above citation, however much of a help it may be, does not solve the whole difficulty. We still have to orient ourselves to the appraise these articles candidly for the sake of arriving at our verdict, We have to envisage the sort of feelings and reactions which an  ordinary reader pf the vigilant entertains when reading the articles complained of.

This court addressed itself to the following question;

1-     Did the  accused publish the articles complained  of?

2-     If so, did they thereby bring or attempt to bring into hated or contempt or did they excite or attempt to excite disaffection towards the Government  of the Sudan?

Or

3-     Did the accused thereby incite or attempt to incite any person to oppose by force or other illegal means the Government of the Sudan or any Act of policy by legislature or executive body so empowered to Act by the constitution?

4-     Did the accused thereby seek to excite hated or contempt against any class of  persons in the Sudan  in such a way as to endanger the public peace?

Now we move on to discuss the relevant aspects of the substantive law and apply them to the facts found to be true by us. We thought it appropriate that hitherto the liability of the other accused if any, cannot be established unless  it is decided that there is seditious material in the articles at issue .

We found no difficulty in answering the first question posed above in the  affirmative. Even the second accused himself concedes that he is the responsible editor of the Vigilant and that he published the articles, the subject of controversy in this case.

No purpose will be served by retreating the details in questions (2),(3) and (4) reference to which can be made, being already embodied in this judgment, Now, the question is did the material published by accused bring him within the purview of the Sudan  Penal Code, s,  105 and 106?

It is of utmost importance to direct the attention to the fact the in judging the nature of the articles complained of quo magistrates we felt bound to adopt an  entirely different spirit and technique to that of the ordinary reader when reading these articles. Indeed, it is our legal duty to so do. Ratanlal in his treatise, already referred to in this duty to so do. Ratanlal in his treatise already referred to in this judgment said:

“In construing a newspaper article its meaning must be taken form the article as a whole and not from isolated passages”: Ratanlal, law of Crimes (20th ed, 1961),P. 295.

He further went on to say on page 296:

“The speeches must be read as a whole, in a fair fee and liberal spirit, In  dealing with them one should not pause upon an objectionable sentence here or a strong word there. They should be dealt with in a spirit of freedom and not viewed with an eye of narrow criticism. The case should be viewed in a free bold, manly, and generous spirit towards the petitioner.”

The above citation is quoted by Ratanlal ,from the celebrated Indian case of Bal. G. Tilak (1961) 19 Bom. L.R.211,272.

Having viewed thee articles complained of in the fair bold spirit described in the above passage  came to the conclusion that only one article of those complained of  is of seditious nature. It is our feeling that no good purpose will be served by lingering  on the articles other than the one categorized by us as seditious. It suffices to reduce it in broad terms that we read them too in the above spirit and that in our value judgment they fall outside the purview of the law, We do agree that even those articles contain excepts which are far from being temperate; but these excerpts occur incidentally and do not from the theme and the backbone of the idea of their writer.

Now, we come to discuss the article which in our opinion is objectionable in law. The title of the article is : “Ours is a national liberation  Movement.”

Needless to say we read this article while bearing in mind the directions in Ratanlal, already indicated above. To our minds this article is calculated to nurse a grudge between nationals of this state on the basis of ethnic groupings.

Furthermore the article tries to indoctrinate nationals in the southern part of the country on hared and disaffection to the nationals in the northern part of it who are portrayed as imperialist. It also needs no intelligence to see that the writer is trying to plant the seeds of insurrection and resort to naked power to  overthrow the Government from the South

 In our view it is of no avail to accused that he speaks with double voices. To quote Ratanal, Law of Crime (20th ed,19621), P. 296:

“If person speak in the same publication with two different voices and one of  those brings him within the reach of the Criminal law, it is no excuse for him to say that the other voice expresses his real view.”

Moreover the general theme of his article struck us as tainted with malignancy. The trend between the writer’s lines suffices in our view to justify our conclusion.. as  a matter of law, it is not necessary that an to justify our conclusion. As a matter of law, it is not necessary that an accused should state words inciting others expressly. It is legal to convict on the innuendo. See Ratanlal, law of Crimes (20th ed,1961),P,296. The authorities in England also support the above rule. See Archhold, Criminal Pleading ,Evidence and Practice (35th ed, 1962) p. 1267, already referred to in this judgment.

In fact, we did not want to discuss only one word which occurred in this article namely the word “revolution” had it not been that it was especially stressed by the learned counsel for the defense. The defendant’s counsel tried to urge us to believe that the word “revolution” in ourselves to share the same view with the learned counsel for the defense. First, sees the word “revolution” in ordinary use conveys images and nuances we are all well aware of . the writer could have used phrases like “we need a change ,we felt that our values should be enhanced” and so forth. Secondly the word “revolution” has do be viewed in revolutions and wars of liberation in the international arena, the writer leaves no doubt in our minds as to the sort of change he is out for. It will be an abuse to our mentality to call for extrinsic evidence to establish of  these revolutions being a matter of common knowledge we felt justified in taking cognizance of them.

However, we thought the learned counsel for the defense ought to have said to his client, “physician, heal thyself.” See the definition of revolution in Barnhart, Comprehensive Desk Dictionary: ‘it is a complete overthrow of an established government or political system. A complete change etc.”

Indeed we could not bring ourselves to doubt that the article is seditious.

Now, we move further to decide whether there is a guilty intention.
 

or not. Mala fides is the gist of the offence of sedition. In trying to gather the intention of the accused the following factors influenced our minds:

(a)The language of the article itself. This aspect had already been discussed .

(b) The time of publication. Accused published the article at a time of political upheaval and unrest. There is sighting and killing going on in the country in connection with the problem of the South, We can safely infer and rightly state that there is antipathy between some organs in the South and the North at the time of publishing the article.

© The type of readers to whom the Vigilant is distributed, both in the South and the North . in the circumstances in which the country was living at that  time .

we feel bond to state that we found much guidance in the opinion of Srachey J. IN Tialk’s case , reported in Ratanlal, Law of Crimes (20th ed ,1961) P. 393, in trying to gather the intention  of the accused . Owing to the above factors it is our conclusion that there is mens rea and accused by publishing the material in the above circumstances is deemed to  have intended the natural consequences of his acts.

Ergo, in the light of the reasons adumbrated above accused BONDA  Malwal  is found guilty under the Sudan Penal Code, s,  105 and 106.

Proprietor. Accused Darios Basher

This accused concedes that he is the proprietor of the Vigilant newspaper. It is part of our finding off facts that had been outside the Sudan between July 2 and  August 2.1965. since it is our opinion that none of those articles published during his absence are of seditious nature it follows that it is immaterial whether he was present in this country at the time of publication of these issues or otherwise. However, on the merits of the case we feel bound to discuss the position of the proprietor merits of the case we feel bound to discuss the position of the proprietor since to four minds the only article branded with illegality had been published while he was in the Sudan. We mean the article titled :

“ours is a National Liberation Movement.”

The law with respect to proprietors of the press may be found in I Gour, Penal Law of India (7th eed,1961) P.633:

“The man who is the owner and proprietor of the press and the publishing house connected with the seditious publication cannot be permitted to say that he could set his eyes to everything going on upon his premises and then pretend that he had no knowledge of the contents of the publication printed and issued by him. Where there is prima facie evidence against him, he, can produce evidence  to that in spit of the circumstantial evidence against him, in face he was away from the premises during the whole time the book was being printed and that he had not been informed either of the printing and publication or contents of the book.”

The above authority is indicative of a departure form the golden rule of evidence with demands that the prosecutor has to prove his case beyond shadow of reasonable dubiousness. The onus probandi in the situation we are considering is shifted to the accused on proof of a prima facie case by the prosecution. Now we turn to the facts. The Vigilant. In his examination the accused asserts that he is not responsible for the debiting which entrusted to accused (2) a qualified editor, and that he only reads the Vigilant like the other readers do. On being asked whether he read the issues published in his presence he answered that he is not sure whether he read the issues published in his presence he answered that he is not sure whether he read them or not. In our judgment the evidence is too scanty to justify conviction of the accused. There is not a shred of evidence to make us believe that he is in actual control of the Vigilant or that he had a chance of censoring the article on which the conviction of accused (2) is based. Our contention finds  support in the Indian case of  Gadicherla Haris v. K.G. (1909) I.LR.32 Mod. 338. The principle laid down in the above-cited case may be in a newspaper under the control of the proprietor, the court might presume that he authorized it publication but not if the proprietor was an absentee, nor in the case of a large newspaper with an editor, distinct form the proprietor, who was responsible for the material published.’ Gledhill, The Penal Code,  of Northern Nigeria and the Sudan (1963), P.176. Emphasis should be laid on the word control in the above paper and so we maintain  that in establishing legal norms the size of the Moreover, what is meant by control? Justify the conclusion that a certain proprietor is actually in control of paper. In our view there is no legal duty of control imposed by law on the proprietor. This is the only logical inference we could draw from the above authorities.

It may be argued that since the accused entrusted the editor with the whole work he should be responsible for this general authority  which he gave. The principles of respondent superior and vicarious liability do not apply in crimes. Some overt and direct Act coupled with male fides on the part of the accused have to be established if he is to be convicted at all. In R. v. Holbrook (1976) 4 Q.B 42. where the editing was left entirely in the hands of an editor who published a seditious article, it  Was held that the general authority given by the prisoner to he editor must be taken to  mean conducting the paper in accordance with the law.

See Arch hold Criminal Pleading, Evidence and Practice (35th ed, 1962), P, 1268.

In the light of the reasons adumbrated above we hereby order that the accused be set at liberty at once for lack of evidence to justify his conviction.

Accused (3) Shan Mallual

Although the accused aided in the publication of the issues complained of and thereby participated in the acts Restriction, yet we could not assume mala fides on his part. There is not the scantiest evidence against him to justify his conviction. The only evidence with respect to this accused is his own assertion that his position in the Vigilant is to correct only grammatical and typing mistakes. In absence of evidence to prove that he is responsible for the selection of the material published we had to Judge  on the only evidence before us. In our view accused ought to be acquitted.

Ergo, accused is set at liberty at once.

Abdel Magib Imam J. December 25.1965:-I have confirmed both finding and sentence of guilty under Sudan Penal Code, s,  105 and 106 which were preferred  against Bona Malwal, accused No,2 and that in respect of one head or count of the charge namely, of material published in issue No. 15 of the Vigilant Newspaper dated May 26.1965, and entitled “ ours is a National Liberation Movement “ and I have accordingly acquitted the same said accused of all or any remaining heads or counts of the charge.

I have confirmed the finding of not guilty of all or any of the charges with which Darios Bashir, accused No. 1. and Shan Malwal;. Accused  No, 3  were charged.

It is observed that the court ought to have acquitted the above mentioned accused, according to its own finding in respect of the above counts. It should also be observed that, having reached a finding of not guilty in respect of the other two accused parsons, Barios Bashir and Shan Malwal  No s 1amd 3 Restrictively the court ought to have uttered proper judgment. The Code of Criminal Procedure s,243 (1) read with subsection (5) requires that such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision.

The statement herein below is what the court was able to produce:

“having viewed the articles complained of in the fair hold sprit described in the above passage we came to the conclusion that only one article of those complained of is of seditious nature. It is our feeling that no good purpose will be served by lingering on the articles other that the one categorised by us as seditious. It suffices to reduce it in broad terms that we read them too in the above spirit and that in our value judgment they fall outside the purview of the law. We do agree that event those articles contain excerpts occur incidentally and do not from the theme and the backbone of the idea of their writer.’

If the above-mentioned statement can be applied to issues No. s, 9.16.37 ,it can hardly be applied to the matter contained in issues No, s, 39 and 40, In these issues the charge is made against he Government whether by innuendo or in express plain words, that the  said Government  is engaged in  mass man-killings in the South picking  as favourites its own employees. Such charge is obviously  seditious, and the accused ought to have, therefore been found guilty, unless there is, in law, a plea or defence open to them.

It has been proved by abundant evidence and beyond any reasonable doubt that the following are facts:

(a)    The JUBA Incident: The Army seems to have carried a reprisal or Natives were killed and may others wounded. The shooting started at about 11.20 on July 8.1965. and did not end till late in the afternoon the next day. On this second day, bodies of dead and wounded began were heard, and soldiers broke into the theatre. From what was over heard it was clear that they were after those doctors. One doctor short dead  on the spot. The other two escaped by a miracle but before they did so they could see one of the soldiers pulling out drip infusion from a patient.

(b)   The Wau Incident : On  July 11.1965. two marriage ceremonies were being held at Wau, one of a certain Chirano Chir and the other of a certain Octavio Deng. The celebrations were carried on inside a private house. About one hundred were invited and attendance was approximately a little less or a little more. At about 7:30 p.m, when festivities were going on, the house was surrounded by troops.  The troops opened fire and breaking into the house mowed down male inmates. Over seventy were killed. Among these were some prominent Government Officials and many ordinary such officials. The list includes a 4-year old boy and a 10 years girl.

The Government did not care to produce a single witness to refute these facts. They might have thought, perhaps, that the truth of the matter complained of in a seditious case is no defiance. This true; but not in such a case with this latitude of gravity.

“An intention to point out errors or defects in the Government or constitution as by law established ….or to point out in order to their removal matters which are producing, or have tendency to produce feelings of hatred and ill-will between classes, is not a seditious intention.”

This celebrated statement is taken from Stephen  , Dig, Cr,l.(8th ed),see I Russell, Crime (12th ed,1964) P.P 217-218.

The facts in respect of these grievances must therefore, be proved and the truth in respect of them be brought to light.

The Government which engages in such High handed illegal and most inhuman acts is contemptuous and any citizen who says this of it should be protected by a presumed intention to have these illegalities and inhumanities removed : for to hold otherwise would be protected by a presumed intention to have these illegalities and inhumanities removed; for to hold otherwise would frustrate both letter and spirit  of all laws and would render them futile