TOWNSHIPS (REMOVAL OF UNDESIRABLE PERSONS) ORDINANCE

R. v. MWUKWA  (1972) HCD 32

Crim. Rev. 76-M-71; 7/1/72; Kisanga Ag. J.

The accused was convicted on his own plea of failing to comply with a removal order c/s 3(b) of the Townships (Removal of Undesirable Persons) Ordinance, and was given twelve months conditional discharge with a further order that he should comply with the removal order immediately. The matter was admitted on revision to consider (a) whether the order for conditional discharge was a sentence in law and (b if so whether it was lawful considering that under section 6(2) of the Townships (Removal of Undesirable Persons) Ordinance, the maximum prison sentence for this offence is only three months. The accused a first offender was a young person aged about 14 years and it would appear that the learned trial magistrate dealt with him as a juvenile under Section 18(1) of the Children and Young Persons Ordinance.

            Held: (1) ….. “The order was within the provisions of section 18(1) of the Children and Young Persons Ordinance cited above. The said section 18(1) is under Par 111 of the Children and Young Persons Ordinance which is headed “Punishment of Juvenile Offenders.” It appears therefore that an order of conditional discharge under this section is a punishment and thus a sentence.” (2) “I also think that the trial magistrate was entitled to order a period of conditional discharge which is longer than the maximum prison term for the offence of failing to comply with the removal order for, in my opinion, the maximum Prison term for failing to comply with a removal order has relevance only where the accused is called upon to be sentenced for failing to observe the condition of his release, it is only then that the court ought to ensure that it does not impose a term in excess of the maximum prison term which is provided for the offence for which the accused is being sentenced.”

 (3) “One point, however, was not raised when the case was being admitted in revision or at the hearing of the revision, and that is whether the learned trial magistrate was entitled to order the accused to comply with the removal order previously made by the Area Commissioner. The removal order made by the Area Commissioner was a purely administrative decision and it is not apparent under what provision of the law the trial magistrate sought to enforce it. It is true that under section 23(b) of the Children and Young Persons Ordinance the magistrate has power in a case like this to make an order repatriating the young person to his home district. That section however does not seem to empower the magistrate to enforce a removal order made by the Area Commissioner, and if a contrary view were to be taken this might lead to a conflict in the functions of the court. Under section 5 of the Townships (Removal of undesirable Persons) Ordinance, a person aggrieved by a removal order made by the Area Commissioner may appeal to the district court which has power, among other things, to cancel that removal order. Thus, in the present case, if the accused were to appeal to the district court against the removal order, the trial magistrate might find himself having to cancel the removal order which he himself has had occasion to enforce, and to my mind, such a situation would be both embarrassing and undesirable. I therefore think that the role of the district court in such a matter should be restricted only to deciding whether or not the accused failed to comply with the removal order. If after conviction the Area Commissioner still felt that the accused must be repatriated, there is a provision which enables him to achieve that end. For, under section 6(3) of the Townships (Removal of Undesirable Persons) Ordinance it is provided that a second or subsequent removal order may be made in relation to any person who is convicted of any offence against the Ordinance. 

(4) “It therefore appears that the learned magistrate was not entitled to make the order requiring the accused to comply with the removal order, and accordingly that order of the trial court is set aside.”