Case No.:

AC-CP-24o -1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Constitutional Law—Constitutionality of Penal Code, s. 105 under the Transitional Constitution, Article 5 (2)

·  Civil Procedure—Testing constitutional rights under Civil Justice Ordinance, Order XXIV,1954,L.R.O,19

Accused made a speech at the Khartoum North Club in which he
(i) stated that the Government was under foreign influence;
(2) stated that the government was suppressing liberties and jailing liberal-minded people;
(3)appealed to the people to overthrow the Government by revolution.
He was convicted under Penal Code. s. 105, of attempting to arouse illegal opposition to the Government, and appealed on the grounds that Penal Code. s. 105 as applied to him, violated Article 5 (2) of the Transitional Constitution.
Held: The “free expression” provision of Article 5 (2) of the Transitional Constitution does not prevent the enforcement of Penal Code, s. 105 against one who delivers a speech
(i) the utterance of which is intended to incite the people to illegal opposition. i.e., revolt; and
(2) which in the circumstances of the time, “ a time when political feelings are high,” tends to produce hatred and contempt of the lawful govern ment of the country.

Obiter dictum : When rights are infringed under the Self-Government Statute, chapter II or when rights under the Transitional Constitution are transgressed, a remedy exists under the 1954 Amendment to Civil Justice Ordinance, Order
XXIV. 1954, L.R.O. 19.

Judgment

)MAJOR COURT CONFIRMATION(

SUDAN GOVERNMENT V. NASR EL DIN EL SAYED MURGAN

AC-CP-24o -1957

Advocates: Ahmed Zien El Abdin and M. Zarroug………… for the accused

M. A. Abu Rannat C.J. October 19, 1957:—On January II. 1957, the accused delivered a speech at Khartoum North Club and on January 12, 1957, P.W. 2, Shawish Sirr- El Khatim El Khidir and P.W. 3, Awad Mohamed Nasri of the C.l D. police made a statement to the investigating officer. Their statements at the police investigation are in substance the same as their evidence at the magisterial inquiry and at the trial, Both these policemen were inside the club and did not leave the place until the accused left the platform. P.W. 2 was writing notes while the accused was delivering his speech.

The gist of the seditious words attributed to accused is this: the government was falling under foreign influence, that they were acting on directions from the British Ambassador, that they were keeping the emergency laws as a cloak in order to suppress the citizens’ liberties, that they were similar to Nuni El Saeed’s Government in Iraq which sent liberal minded people to jails: the witnesses also added that the accused appealed

to the people to make a national revolution to overthrow this Government which came to power by intrigues of minorities.

The accused was convicted by a major court of an offence under penal Code, s.105, and given four months’ imprisonment.

An appeal has been submitted by Advocates Mubarak Zarroug and Ahrned Zein El Abdin.

The learned advocates submit that these two witnesses should not he believed, as the notes prepared by them contain many amendments and crossings. In my view the notes were kept by these witnesses for refreshing their memories only. The important point is that they made a statement to the police on the day following the day on which the speech was made, and when their memory was fresh and so they remembered the material points included in the speech. The amendments or crossings strengthen rather than weaken their evidence.

It would have been suspicious if these notes were smartly written, as in that case the inference would have been that they wrote it after the event.

The learned advocates contend that the court accepted the evidence of P.W. 4, Omar Hamza, who was known to be against the accused. In forming my opinion, I rule out the evidence of Omar Ham and defence witness No. 1, Osman Abdel Naeem, not because I doubt their veracity, but because they are political opponents to accused.

In addition to the evidence of the two policemen, there is the evidence of the District Commissioner, Khartoum North, who was reluctant to give evidence. The District Commissioner said (page 22 of the record):

“Accused said this is not a Government of the people. It is under foreign influence and is directed by the British Ambassador. At last accused appealed to the audience to revolt against the Government.”

The learned advocates contend that only isolated sentences of the speech were mentioned and that the prosecution failed to produce the speech itself or relate most of it.

The accused admitted that he destroyed the speech which was written on an exercise book, and the prosecution can only rely on oral evidence. The prosecution witnesses described what had happened, and the words and phrases used by the accused. What else can they do? On reading their evidence I am left in no doubt as to what had been said by the accused. The learned advocates cited R. v. Burns (t886) 16 Cox C.C. 355, and the directions given to the jury by Cave J. On the authority of R. v. Burns the court gave consideration to all that was said and the circumstances in which it was said. The club committee allowed the accused to make a speech to cover certain defined points, but the accused

overstepped his mandate and launched a determined attack on the Government. The club committee did not read or see the speech before it was delivered.

In my view the character of the words used form irresistible evidence of the nature of accused’s intention. The expressions used by the accused are at least tendering in the circumstances of the time to produce hatred and contempt of the lawful Government of the country. The appeal to revolution is calculated to produce popular disaffection and lead ignorant people to subvert the Government.

The learned advocates made the following submission in paragraph 7 of their memorandum of appeal:

“The crucial question to be asked now is whether the interpretation which was used to be given to this section and kindred section during the bureaucratic government which existed before I954 could remain to be the same after the promulgation of the Self-Government Statute and the Transitional Constitution both of which enacted for The first time in the history of the country a provision whereby the freedom of speech is safeguarded.”

I have been reading in the press, loose words suggesting the unconstitutionality of certain sections in the Penal Code, including Penal Code, s. 105. I may excuse laymen in making such suggestions, but I can find no excuse for lawyers.

If a lawyer holds the view that Penal Code, s. 105, is repugnant to the Transitional Constitution of the Sudan, he must apply to the High Court under Article 8 of the said Constitution and the procedure to be followed is laid down in Order XXIV of the Civil Justice Ordinance (1954 L.R.O.No. 19).

Article 5 (2) of the Transitional Constitution reads “ All persons shall have the right of free expression of opinion and the right of free association and combination subject to the law.”

The constitutional guarantee of free speech does not protect a man from prosecution for uttering words which arouse illegal opposition or hatred or contempt to Government.

In fact our Parliament had reviewed the situation and passed the Sudan Laws (Adaptation) Act of 1956. The preamble of this Act reads An act to provide for adaptation of existing laws to conform to the provisions of the Sudan Transitional Constitution.” By section 2, sub section 3 of this Act, all references to existing laws to the Government of Great Britain or Egypt were deleted. This was the amendment which was made after our independence to Penal Code, s. 105. This means that Parliament deliberately retained Penal Code, s. 105. after the deletion of the words “Great Britain and Egypt.”

The fundamental principle is that every man has a right to give every public matter a candid, full and free discussion, but an intention as in this case to incite the people and provoke them by appealing to revolution, and describe the Government as being run by directions from a foreign Government is no doubt seditious.

In my view an offence under Penal Code, s. 105, is proved.

As to sentence, most of the precedents under this section show a substantial term of imprisonment. At a time when political feelings are high, such sentences are necessary so as to restrain people from making provocative speeches which would no doubt lead to a serious breach of the peace.

I confirm both findings and sentence.