By Peter Sinkamba
Absence of a Law to be Enforced by the Courts Deprives the Court Jurisdiction to Convict a Person
I have read comments made by my followers on my previous posts concerning then Nakachinda defamation of the President conviction. Some are asking me to check when the offence was committed. Obviously they are suggesting some archaic laid down the principle in some jurisdictions, that an appellate court will not set aside the conviction of an appellant merely on the complaint that he was tried and convicted under a repealed law if at that time there was an existing law which he should have been tried and convicted.Elsewhere in the world, the above archaic principle has been done away with.
In this thesis I address the issue of pending prosecutions under the repealed statute.In particular, I advance reasons relate to (A) the absence of a law to beenforced by the courts; (B) the absence of an offenseto be punished; (C) the release of an offender’s guilt;
and (D) the absence of power in the court to proceed with prosecution after a repeal of a law.
In the US, for example, it is familiar law that “the repeal of a statute pendinga prosecution thereunder without any saving clauseas to such prosecution will prevent its being furtherprosecuted, and this applies as well after judgmentand sentence pending an appeal duly taken therefromas before the final determination in the trial court.” These words were laid down as law inState v. Allen (44 Pac. 121) (1896).
Similar language was used by JudgeArnold, of Mississippi, who said:
“The proposition istoo plain to admit of discussion, that, after the repeal
of a law, no penalty can be enforced nor punishmentinflicted for a violation of its provisions, committedwhile it was in operation, unless provision be madefor that purpose.”
In 1921, Woods, Circuit Judgefor the Fourth Circuit, announced:
“The general ruleis that the unqualified repeal of a criminal statute expresses the legislative will that the acts which wereoffenses under it, done while the statute was in force,shall no longer be regarded as criminal; and shall notbe punished under the repealed statute.”
Fiftyyears earlier, Lord Campbell, C.J., in the leadingEnglish case of Regina v. Denton, declared;
“Thegeneral rule is that a statute from the time that it isrepealed cannot be acted upon”; and Earle, J., in hisconcurring opinion said:
“To say that proceedings can
nevertheless be followed up contravenes the sense of
the word repeal…. The repeal takes away the groundand makes the indictment bad in substance as well as inform.” This is still good law in England today.
From above court decisions in the US and England, it would seem then that the repeal of a statutecompletely destroys the possibility of continuing any prosecutions which were pending at the time the statuteupon which the prosecutions were founded is repealed,unless there is a saving clause within the repealingstatute, or in another statute which controls generallythe effect of repealing statutes upon pending prosecutions.
A careful reading of most cases which support conviction on repealed law does not reveal any adequate reason why thelaw should be as it is or should so remain.
In the Nakachinda case, the justification by the trial magistrate departed from the case before her, which was defamation of the President, to disparaging the judiciary. The accused was never brought before her for contempt of court or disparaging the judiciary. Therefore, disparaging the judiciary should never have been used as the ratio for the decision. The ratio for the decision in the Nakachinda case by the magistrate is based upon
the continued, thoughtless acceptance of, and upon an outworn theory that the function of the criminal law is purely and solely punitiveand vengeful.
The thesis presented in this and prior articlesis that the repeal of a statute should have no effectwhatever upon pending prosecutions founded upon theprovisions of the repealed statute.
When an offense is made, treason or felony, by an actof Parliament, and then those acts are repealed, theoffenses committed before such repeal, and the proceedings thereon are discharged by such repeal, and
cannot be proceeded upon after such repeal, unless aspecial clause in the act of repeal be made enabling such proceedings after the repeal for offences committed before the repeal.
Otherwise, the defendant must be released because the court lacks jurisdiction or power to proceed with the matter.
In the leading case of Hartung v. People (22 N.Y. 95) (1860), thecourt said:
“It scarcely required an examination ofauthorities to establish a principle so plain upon reasonas that life cannot be taken under color of the lawafter the only law under which it is authorized to betaken has been abrogated by the law-making power.”
In Halfin v. State (5 Texas, App. 212) (1878) the court said, “there is nolaw now in force in Caldwell County by which persons who may be charged under the act can lawfullybe punished.”
In Greer v. State (22 Texas, 588), the court held that a prosecution must be dismissed and “this for the obvious reasonthat no one can be punished except by virtue of a lawin force as to the offense in question at the time ofthe trial of the offender.”
The idea in all decisions above-mentioned, seems to suggest that when the law itself is wipedout, so nothing further can be done to prosecuteoffenses under the previously existing law. The destruction of the law seems to have some erasure-effect upon the proceedings so that they cannot go on.
In the Nakachinda case, the magistrate does not have any reason to justify why the accused should be convicted of defamation of the President, especially that the President publicly proclaimed in Parliament that defamation of the President law is repealed.
Every offense for which a man is indicted mustbe laid against some law and it must be shown tohave come within it. Such law may be the generalwritten or common law or the statute law. The offensemust not only come within the terms of such law butthe law itself must at the time of conviction be subsisting.
From the US and England case law, is aclear rule that if a statute create an offense and it isthen repealed, no prosecution can be instituted for anyoffense committed against the statute previous to itsrepeal.
Afterall, the end of punishment is not only to correct the offender but to deter others from committinglike offenses. But if the legislature has ceased toconsider the act in the light of an offense, those purposes are no longer to be answered and punishmentis then unnecessary.
In conclusion, my thesis is that a repeal of a law places the acts committed under them upon the same ground as they were beforethe act was passed. After repeal, absence of a law to be enforced by a court deprived the court jurisdiction to convict any person.
REPEALED: SECTION 69 OF, PENAL CODE
“69. Any person who, with intent to bring the President into hatred, ridicule orcontempt, publishes any defamatory or insulting matter, whether by writing, print, word of
mouth or in any other manner, is guilty of an offence and is liable on conviction toimprisonment for a period not exceeding three years.”
Repealed by SECTION 11 of the PENAL CODE AMENDMENT 2022
“11. The principal Act is amended by the repeal of section 69.”