Samatta, J.: The three appellants, Leonard Pius, Iddi Ally and Samwel Kubeja, were G convicted by the District Court of Mbeya district of failing to comply with a resettlement order, contrary to s.13(1) of the Resettlement of Offenders Act,1969, which hereinafter will be referred to as the Act, and each of them was sentenced to a term of six months' H imprisonment. Three years ago I allowed the appeals, quashed the convictions and set aside the sentences. I reserved my reasons for so doing, and now I proceed to give them.
The subsection under which the appellants were charged, namely, s.13(1) of the Act, is I couched in the following language:
Any person who, without reasonable excuse, fails to comply with any of the terms of a A resettlement order, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 12 months.
The particulars of the offence in the charge preferred against the appellants were as B follows:
Leonard s/o Pius, Iddi s/o Ally and Samwel s/o Kubeja are jointly and together charged [that] on 21st day of February 1981 at about 10.00 hrs at Songwe Area within the District and Region C of Mbeya, being settlers under Settlement (sic) of Offenders Act, without reasonable excuse did leave such precincts of the Settlement Centre without authority of the officer in-charge of the said Settlement Centre. D
In my view, to prove a charge under s.13(1) of the Act the prosecutor must establish beyond a reasonable doubt, inter alia, both that a resettlement order had been made (by the Minister responsible for home Affairs) in respect of the accused person and that the order was still in force at the material time. In the case now at the Bar neither the E original nor a copy of any such order was produced before the trial court. In view of the fact that the prosecutor failed to lay down any foundation for the introduction of the secondary evidence on the matter, any oral evidence given (on the point) was inadmissible in law. There was, therefore, no evidence in this case upon which the trial F court could legally base a finding that the appellants were persons in respect of whom a resettlement order had been made. According to s.10 of the Act, every resettlement order must specify the following:
(a) the name and address of the person in respect of whom it is made; G
(b) the reason for which the order is made;
(c) the resettlement centre at which such person is to report;
(d) the route by which the settler has to travel to the resettlement centre. H
(e) any other matter which may be prescribed.
It seemed to me to be elementary logic that, unless the resettlement order is produced as an exhibit or its contents are otherwise properly proved, the court will remain ignorant of its terms I
and cannot, therefore, hold that the settler concerned failed to comply with any of them. A No criminal offence is committed under s.13(1) of the Act if the non-compliance is that of a term other than that stated in a resettlement order.
The particulars of the offence stated in the charge which was laid at the appellant's door B give the distinct impression that the prosecutor was not sure whether he should charge the appellants under s.13(1) or 14(2) of the Act or under Regulation 17(1) (f) of the Resettlement of Offenders Regulations, 1969. S.14(2) of the Act reads as follows:
Any settler who absents himself from a resettlement centre without the written authority of the C officer-in-charge [of the Resettlement Centre] shall be guilty of an offence (the underscoring is supplied).
It was the case for the Republic that the appellants had escaped from the Songwe D Resettlement Centre. According to The Concise Oxford Dictionary, when used as a verb the word 'absent' means keep oneself away. Applying this meaning, it seemed incontrovertible to me that s.14(2) of the Act does not cover or deal with the act of E escaping from a resettlement centre. What, in my opinion, the subsection deals with is the omission on the part of a settler to return to a resettlement centre. Regulation 17(1)(f) of the Resettlement of Offenders Regulations, 1969, is in the following terms:
Any person who- F
(f) being a settler, leaves the precincts of the resettlement centre without the authority of the officer-in-charge shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding six months.(The emphasis supplied.) G
To prove a charge under this provision it must be established, beyond a sane doubt, and among other things, that a resettlement order was in force against the accused at the material time. Since, as already pointed out, no admissible evidence was laid in the scales against the appellants to prove the existence of resettlement orders, I was of the H settled view that it would have been a waste of time to consider the possibility of this court varying the appellants' convictions to ones of leaving the precincts of a resettlement centre without the authority of the Officer-in-charge of the centre, contrary to Regulation I 17(1)(f).
During the hearing of the appeals the appellants raised the point that, since before they A were convicted by the lower court this court had declared, while determining their applications for orders of habeas corpus, that the restraints imposed on their personal liberties were more than authorised by law, they (the appellants) could not in law be convicted of failing to comply with a resettlement order. This is not an uninteresting B contention, but, in view of what I have endeavoured to state, I do not find it necessary to express any views on it.
For the reasons I have given, I allowed the appeals and ordered that unless they were otherwise lawfully detained in prison, the appellants be released therefrom forthwith. C
Appeal allowed.
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