|CULLINAN, J.: On 7th March, 1979, the court delivered its determination in this matter, pursuant to the provisions of s. 28 of the Electoral Act, Cap. 19. The court found that the respondent had committed the corrupt practice of bribery in connection with the final election for the Kafue Constituency held on 12th December, 1978, in that he gave the sum of K4 in order to induce the recipient to endeavour to procure the return of the respondent. Consequent upon the court's determination the question of making and delivering a report under the provisions of s. 28 (6) and (7) of the Act arises. Those provisions read as follows:
28. (6) Where it appears to the High Court upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating -
(a) the evidence given in the proceedings in respect of such corrupt practice or illegal practice;
(b) the names and particulars of any person by whom such corrupt practice or illegal practice was, in the option, of the High Court, committed;
Provided that the High Court shall not state the name of any person under this paragraph unless such person has been given an opportunity of appearing before the High Court and of showing cause why his name should not be so stated.
(7) The Registrar shall deliver a copy of every report prepared by the High Court under subsection (6) to -
(a)the Commission; and
(b)the Director of Public Prosecutions.
[The comma after the word 'opinion' seems unnecessary.]
The question arises as to what is the interpretation to be placed on the above proviso in s. 28 (6). Does it mean that the court shall not arrive at its conclusion that a person committed a corrupt or illegal practice without first giving that person an opportunity of being heard; or does it mean that the court, though satisfied that person committed a corrupt or illegal practice may nonetheless, in the exercise of its discretion, for good cause shown, decline to state the name of that person in a report?
Mr Fernando initially submitted that the proviso in s. 28 (6) applies only to para. (b); that there is no discretion under para. (a) and that as the court must comply therewith and state the relevant evidence, then in doing so it must inevitably state the name of the person involved therein. I agree that the proviso applies only to para. (b): indeed, referring as it does to this paragraph, it can only be construed as forming part of para. (b). The requirement under para. (a) however is merely to state the evidence as such. The recitation of the evidence does not in itself constitute a report in respect of a particular person: it is only where the evidence having been recited, it is then stated under para. (b) who in the opinion of the High Court committed a corrupt or illegal practice, rendering
the person's names and particulars, that such person can then be regarded as having been reported. Mr Fernando agreed with this interpretation and very properly made the submission, in the interests of the respondent, that there appears to be a discretion under para. (b). Mr Sikatana makes the same submission. My first impression of the above provisions is that they are mandatory, namely that the court must state the name of the person involved where it appears to the court that he has commited a corrupt or illegal practice. There are however some difficulties to be encountered in this construction.
It may be suggested that the words it appears, in their present context, are to be construed as meaning it seems; that is to say, that where it merely seems to the court that a corrupt or illegal practice has been committed the court must provide the person involved with an opportunity of being heard and thereafter reaches its conclusion or formulates its opinion the matter. What then if the person declines to appear before the court? If the provisions of s. 28 (6) are mandatory then the court is obliged in such a case to state the person's name in a report. The words it appears could hardly then be construed as meaning it seems. Those words may be interpreted differently according to their context. For example, in the case of Langton v R. (1) at p. 20 Briggs, F.J., was of the view that in the context of criminal provision identical to s. 25 (2) of our Penal Code the same words connote proof beyond reasonable doubt. The effect of the High Court's report under s. 28 (6) is that the person reported is disenfranchised under section 6, and disqualified for nomination for election as a member of the National Assembly under s. 8 (3) of the Act for a period of five years; if he is already member of the National Assembly he is unseated under Art. 71 (2) (e) of the Constitution-if the corrupt or illegal practice was committed in connection with his own election, the effect of course, would be the same under s. 17 (2) (c) of the Act. The report of the court therefore under s. 28 (6) has grave consequences and can be said to be penal in effect. Further, it may expose the person reported to criminal sanctions if not furnished with a certificate of indemnity under s. 27 and if the Director of Public Prosecutions in his discretion decides to initiate prosecution. I do not see therefore that the High Court could possibly report person under s. 28 (6) unless the commission by him of a corrupt or illegal practice had been proved before the court, and the words it appears and opinion must in view be construed accordingly. While the parliamentary draftsman in the inclusion of the words in the opinion of the High Court, may well have provided for a formula to be adopted by the court in making its report, bearing in mind that such report does not amount to, while it may well be the precursor to a conviction, nonetheless I consider that the word option must be construed in the same way as the words it appears.
It can be argued that if the words it appears are to be so construed that the court nonetheless formulates such conclusion only after hearing the person involved. That person however, as I have already said, may not avail himself of the opportunity of being heard. Further, the making of a report is a step subsequent to the trial of an election petition and the
determination of the issues therein. The provisions of s. 28 (6) however indicate that the court arrives at its conclusion as to the commission of a corrupt or illegal practice upon the trial of the petition and not upon making the report. This is only to be expected. It would be absurd to suggest that the court would deliver its determination under s. 28 (1) declaring, say, the election void under s. 17 (2) (a) or (c) by reason inter alia of a corrupt or illegal practice committed by a particular person without being satisfied thereof. There might conceivably be circumstances where the court would reach such a conclusion without exercising its powers under s. 27 of the Act and without calling any person incriminated by evidence of a corrupt or illegal practice. If the court did reach such conclusion at the trial in the absence of such person then it seems to me that the evidence against him would have to be little short of overwhelming and I do not see that evidence subsequently rendered upon consideration of a report could alter the question of liability.
It might be said that the proviso applies only to those persons who did not appear before the court at the trial. I do not see that the proviso could be so interpreted however: even if a person appeared before or gave evidence before the court at the trial, it could not be said that his attention had thereby been directed to the aspect of a report under s. 28 (6) much less the question of showing cause why his name should not be stated therein. As I see it, the proviso must apply to any person involved whether or not he has appeared before the court at the trial. It must then include the parties themselves, who most likely have given evidence at the trial and the other witnesses involved: indeed it must include witnesses who have at the trial truthfully admitted to having committed a corrupt or illegal practice, to the extent that they have been furnished with a certificate of indemnity. I do not see how the rehearsal of their evidence could affect the situation.
The provisions of s. 28 (6) are apparently based on those of s. 140 of the Representation of the People Act, 1949, of the United Kingdom, which have their origin in nineteenth century legislation. Those provisions in part read:
140. (1) The report of the election court under section one hundred and twenty-four or one hundred and twenty-five of this Act shall state the names of all persons (if any) who have been proved at the trial to have been guilty of any corrupt or illegal practice and whether they have been furnished with certificates of indemnity, but, in the case of someone who is not a party to the petition nor a candidate on behalf of whom the seat . . . is claimed by the petition, the election court shall first cause notice to be given to him, and if he appears in pursuance of the notice, shall give him an opportunity of being heard by himself and of calling evidence in his defence to show cause why he should not be so reported.
It will be seen from the above provisions that the requirement to provide a person with an opportunity of being heard does not apply to a party to the petition nor a candidate on behalf of whom the seat . . . is claimed by the petition. It could be said that such exception emphasises
the mandatory nature of the above provisions, that is, that the provisions envisage that the evidence of the parties or the particular candidate may well be heard or at least that they will be provided with an opportunity of being heard at the trial itself, and that there will therefore be no need to further hear them, or to provide any such further opportunity. But it may well be, on a petition filed by a voter (see s. 108 (1) (a) of the 1949 Act), that the candidate on behalf of whom the seat is claimed might not have attended court at the hearing of the petition. In any event, the requirement to provide an opportunity to be heard to witnesses, who have already been heard, still exists. In this respect Cave, J., is reported as having in effect observed in the case of the Ipswich Election Petition (2) cited by counsel in the trial of R. v Mansel Jones (3) at p. 31, that:
. . . the intention was to allow a man, who had been heard as a witness - his interest then being subordinated to that of the party who called him or against whom he was called - to appear in a different position so as to take care of his own interests.
It seems to me that the learned judge was there doing his best to interpret a difficult provision (s. 38 (1) of the Corrupt and Illegal Practices Prevention Act, 1883) and was experiencing difficulties similar to that which this court now faces: once an election court had certified its determination under the provisions applicable at that time, and found a corrupt or illegal practice proved against a witness, I cannot see how that witness could have hoped to improve his situation, whether or not the court's previous finding had been based on his truthful admission, reflected perhaps in the issue of a certificate of indemnity (see s. 33 of the Parliamentary Elections Act, 1868) or on other evidence in the face of the witness' denial.
In the Chester City case (4) at p. 287 an election court, for non mitigatory reasons which need not here concern us, declined to report the names of persons proved to have been guilty of corrupt practices, unless the House required them to be reported. The learned authors of Halsbury's Laws of England, 4 Ed., Vol. 15, at para. 945, comment that the statutory provision seems to be peremptory as regards the election court reporting such names. I agree that the 1949 provisions certainly seem at first glance to be peremptory, but examination thereof on the lines indicated may reveal otherwise.
It seems to me that the exclusion of the parties and a candidate on behalf of whom the seat is claimed from the requirement in the 1949 provisions to hear the person involved, emphasises not the mandatory but the discretionary nature of those provisions. In my view emphasis is placed not so much on the liability of the person involved but the degree of culpability. The legislature obviously regards the commission of a corrupt or illegal practice by a candidate in a very serious light. No doubt a serious view would also be taken of the commission of such practice by a voter who in the face of such practice nonetheless presented an election petition. The commission of a corrupt or illegal practice by
another, other than an election or polling agent, would not necessarily have the same effect, that of avoiding the election, and even in the case of an election agent or a polling agent his culpability in the matter must be less than that of his principal. It seems to me therefore that the 1949 provisions place emphasis not on the mandatory aspect of the report, or on the aspect that those excepted from the requirement of being heard may have already been heard at the trial, but on the higher degree of culpability of those so excepted. This suggests to me that such provisions contain a discretion as to whether or not to report those who, if they so wish, must be heard even for the second time by the court.
Although there is no exception contained in the provisions of s. 28 (6) as to who must be given the opportunity of being heard, those provisions in my view similarly contain a discretion. The only inference which I can safely draw from the non repetition of such exception is that our legislature wish to extend the discretion to any person. It is significant that the proviso attaches only to para. (b) of s. 28 (6). The court is obliged to state the relevant evidence for the information it seems of the Director of Public Prosecutions, who will, the exercise of his discretion, decide whether or not to institute a prosecution on the basis thereof. Thereafter it can be said that the court may exercise its discretion under para. (b) and decide whether or not, for the information of the Electoral Commission, to state the names and particulars of the person involved. It is significant that the words in his defence, contained in the 1949 provisions, have not been repeated. Under our provisions the person is given an opportunity of showing cause why his name should not be so stated. In my view such cause can only be mitigatory in nature. Although a person might be strictly guilty of a corrupt or illegal practice such practice might be of a trivial, unimportant and limited character, a consideration which inter alia, under s. 138 of the 1949 Act, would favourably affect the commission of a corrupt or illegal practice by a polling agent, and thus the liability of the candidate.
It will be seen that a conviction in respect of an illegal practice, as distinct from a corrupt practice, does not at least have the effect of unseating a member of the National Assembly or of disqualifying him from nomination for election thereto. A report by the High Court in respect of an illegal practice does have this effect however. Further, although a conviction for an illegal practice involves the person convicted in electoral sanctions under s. 6 of the Act, the trial magistrate nonetheless retains the discretion, in a proper case, where the conditions of s. 41 of the Penal Code are met, to discharge the accused person, an order which would in effect avoid further sanctions. The same consideration applies to a conviction in respect of a corrupt practice. If the provisions of s. 28 (6) are mandatory it would mean therefore that the discretion vested in the Subordinate Court is not to be found in the High Court, I find it difficult to accept that this could have been the legislature's intention.
I cannot but see that the reappearance of a party or witness before the court in the hope of affecting his liability, is an exercise in futility. When invited to show cause, his address to the Court or any evidence
adduced will invariably be mitigatory in nature: I find it difficult to conceive what other course is open to him. The provisions of s. 28 (6) must in the least be said to give rise to doubt the matter of their interpretation. They are penal in effect and in the absence of express words I consider that the court should be slow to construe them against the Constitutional rights of franchise and election of the individual. For that reason I hold that the provisions of s. 28 (6) (b) are discretionary and in a proper case the High Court in making its report only decline to state the name of person found to have committed a corrupt or illegal practice.
To my knowledge this is the first case in the history of the Republic of a member of the National Assembly unseated because of the commission by him of a corrupt or illegal practice. The corrupt practice in question, involving the small sum of K4, was I consider of a trivial, limited and unimportant character. The recipient of the K4 was in no way induced to act thereon and even acted against the respondent's interests thereafter. There is no evidence that even one vote was corrupted thereby. In all the circumstances I consider this a proper case for the exercise of the court's discretion in favour of the respondent.
Judgment for the respondent