(CRIMINAL REVISION)

SUDAN GOVERNMENT v. EL TAYEB MOHAMED EL AWAD AND OTHERS

AC-CRV-267-1966

Principles

·  Criminal Law-Defamation- Penal Code, S. 436, third exception—Conduct of any person touching any public question—Comment must be fair and without malice-It must serve public interest and not be moved by personal spite

According to Penal Code, s. 436, third exception, it is not defamation to make fair comment without malice against any person who takes active part in a matter touching public question. The comment must serve the public interest and not be moved by personal spite.

Judgment

Salah E. Hassan J. (By authority of the Chief Justice), September 13,1966: - This is a difficult case where the court has’ to adjust the balance between freedom of speech and the public interest on one side and personal interest and individual reputation on the other side. The Presiding Trial Magistrate has done his best, but I ant afraid the case is less than being well tried; no wonder the magistrate is not a qualified lawyer and a charge under Sudan Penal Code, S. 437, is not devoid of tecb The trying magistrate ought to have gone into details concerning the facts upon which both publications were based. This would have given a more vivid picture and the decision as to whether the case falls within any of the exceptions would been more easy.

The learned Province judge has written a beautifully argued judgment with vyhich I am in Ml support and I would repeat tI some of the words contained in accused’s publication are no doubt imputations concerning complainant, which accused at least haye reason to believe, will harm the complainant in his reputation.

The next step is to see whether the case falls within any of the exceptions to Sudan Penal Code, s. 436. “ ‘ ‘

The relevant exception is the third one. It is clear that both complainant and accused belong to the N U P with the Omma party. The accused issued their publication. The subject of this prosecution describes complainant as a man who works for his own le eré hose intent is to divide people and that he is devoid of any n an t background, etc.

This exception gives protection to criticism of private i take an active part in urging or opposing measures in which the public are interested. This exception more or less embodies the rdefen of comment. It applies to expressions of opinion or impuatians-rnoit character and not to assertions of facts. Comment must be on actüa15asui not on imagined conduct. The statement of facts need onbffri stantially correct and need not be microscopically true. Mere’ exa tion or even gross exaggeration does not make a comment unfair.b, next test as to the comments is that they should be fair in the sense t they are inspired by genuine desire on the part of the writer to serwe the public interest. Moreover the comment should not be actuated private spite. The complainant has held himself out as the Iawfull president of the N.U.P. Committee in Singa and declared accused as’ unlawful. He refuted also their allegation that the Omma Party and the N.U.P. has made a co-operation agreement. The accused criticised hun in this respe by their publication (ex. i). The Province Judge has rightly found that these comments are fair in the light of the above expJanation of the Iaw There is no evidence of malice and the matter is clearly a matter of paramount public interest. The political developments thereafter do support the fact that accused were genuine and honest in their comments and not moved by personal spite.

I confirm the order of the Province Judge quashing findings and ordering refund.