Mackanja, J: I
The appellant and one Geras Jeremia were convicted of burglary contrary to s 294(1) of the Penal Code in respect of the first count.
These two men and the third accused, a young woman aged 20 years, were convicted A on the second count in respect of stealing contrary to s 265 of the Penal Code. Only the appellant, who featured as the second accused during the trial, has appealed. He has raised four grounds in his appeal. Mr Mahuma, who represents him, was granted leave to argue the fourth ground first. It is there contended that the trial of the appellant in B the lower court is a nullity for non-compliance with s 34(4) of the Police Force Ordinance Cap 332 as amended by s 397 of the Criminal Procedure Act 9 of 1985. Mr Mahuma's submissions will be understood if the events which led to the prosecution of the appellant are brought out. C
The events are fairly brief. It was found as a fact by the lower court that the appellant and the said Geras Jeremia burgled the residential house of one Leonard Daud at 3.00 am on the night of 21 February 1996. In tandem with that burglary the appellant and his D co-accused persons were found to have stolen one radio from that house. The recovery of the radio is the genesis of the fourth ground of appeal.
According to the record of proceedings before the lower court the radio was seized from the room in which the third accused spent nights. The seizure of the radio came about E after that room was searched by D/C Sembulya (PW2) who was armed with a search order, Exh P2. A search order is Police Form (PF) 91 which is issued under s 34 of the Police Force Ordinance. PF 91 with serial No 304842, Exh P2 tells it all. It is Mr Mahuma's contention that no prosecution should have been commenced without the F consent of the Director of Public Prosecutions as required by ss (4) of s 34 of the Police Force Ordinance, and that non-compliance with these provisions has rendered the prosecution of the accused persons null and void. For this reason he has invited me to quash the conviction and to set aside the sentence. G
Mr Kabuguzi, learned State Attorney, has conceded that he finds a fundamental point of law and fact from the record of proceedings of the lower court which has been raised in the fourth ground of appeal. He admits that it is mandatory to comply with s 34 of the H Police Force Ordinance. He intimated, however, that the construction of that section should be such that where there are circumstances proving the commission of an offence the Court should desist from interfering with a conviction. He believes that the non-compliance was a technical error which can be overridden by the larger interest in I justice. Thus he prayed that the appeal be dismissed.
The provisions which are the subject of these contentions are these: A
`34(4) No prosecution resulting from the exercise of powers under this section shall be commenced without the leave of Director of Public Prosecution.' (The emphasis is mine.) B
The operative word is `shall'. What is the effect of this word when used in statutes? The word `shall', according to The Collins English Dictionary, second Ed, is used in documents to indicate compulsion. Black's Law Dictionary (Abridged sixth ed) goes C further, the learned authors say thus:
`Shall. As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance and in its ordinary signification, the term "shall" is a word of command, D and one which has always or which must be given a compulsory meaning as denoting obligation ...'
MP Tandom, the learned author of Interpretation of Statutes, fifth ed says at 97 that: E
`From the mere use of the word "shall" it does not necessarily follow that the provisions are mandatory for all purposes. The meaning of the word "shall" has to be determined by looking at all the provisions of the section and in particular the context in which it is used. The word "shall" is F mandatory if certain penal consequences ensue the failure to take action under the particular provisions ...'
It may be safely stated that generally the word `shall' does not always mean that the enactment is obligatory; it depends upon the context in which the word `shall' occurs G and the other circumstances. In fact authorities on the use of the word `shall' are agreed that, although the word in ordinary usage means `must', it is not inconsistent with discretion. Where, however, its application or use infringes on an individual's basic rights, its use should be restricted to its natural and ordinary meaning. H
A criminal trial involves a number of basic rights the most immediate one being the right to a fair trial. A trial will not be fair if it is not in conformity with the law. In the instant case the prosecution was commenced without the consent of the Director for Public Prosecutions. It is not for nothing that the consent was made a pre-condition for any trial. I Speaking for myself I find that the intention to legislate on a consent was intended to protect indivi-
duals against unwarranted and sham trials. In order to protect people against possible A abuse of the due process of the law it is mandatory that s 34(4) of the Police Force Ordinance be construed strictly in the ordinary and natural meanings of words employed in its provisions. In this connection the argument by learned State Counsel is untenable, B for justice is not just if the accused is not accorded a fair trial. The contravention of the provisions of ss (4) of s 34 of the Police Force Ordinance has therefore rendered the proceedings before the lower court null and void. I would therefore quash the proceedings and order a fresh trial according to law if the Republic is still interested. C
The convictions against Geras Jeremia, Peter Thomas alias Peter Toshi and Halima Mussa alias Kase are quashed and sentence set aside. Because the accused persons have served only a minor part of the sentence in respect of the first count I direct that they be tried afresh in conformity with the law if the Director of Public Prosecution still D desires to do so. Unless, therefore, their continued incarceration is justified on account of other lawful matters, each of the accused persons is discharged from prison forthwith. E
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