Zama v Regina [2007] SBHC 113; HC-SI CRAC 146 of 2007 (24 September 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 146 of 2007

FRANCIS ZAMA
v

REGINA

(Naqiolevu, J)

Date of Hearing:
Date of Judgment: 24 September 2007

For Appellant: Mr. B. Titiulu
For Respondent: Mr. N. Mirou

APPEAL

Naqiolevu J: This is an appeal by the applicant from a decision of the Principle Magistrates Court to convict him of the offence of OFFICIAL CORRUPTION contrary to Sections 91(a) of the Penal CODE.

APPELLANT SUBMISSION

1. The thrust of the appeal is that the Magistrates Court erred in convicting the appellant and sentence him for the charge, when the appellant as Minister of the Crown is not a person employed in the Public Service.
   

2. This is a clear from the wording of the section which defines a person or persons employed in the Public Service.

3. The charge in which the appellant was convicted upon is couched as Official Corruption under Section 91 (a) of the Penal Code.
Section 91 (a) of the Penal Code

"A person who -

(a) being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly asks for, solicits, receives or obtains, or agrees or attempts to receive or obtain,

any property or benefit of any kind for himself or any person on account of any thing done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharged of his duties; or

(b) .......................................

is guilty of felony and shall be liable to imprisonment for seven years.

Particulars of the Offence:-

That Francis Zama of Western Province at Honiara in the Guadalcanal Province on March 4, 2004 did whilst being employed as a Minister of the Crown and charged with the performance of his duty as a Minister of Finance by virtue of that employment did corruptly obtain a benefit for himself by granting himself, in the purported discharge of his duties, an exemption from stamp duty."

4. The definition provisions of the Persons Employed in the Public Service is prescribed under Section 4 of the Penal Code:-

"means any person holding any of the following offences or performing the duty thereof or otherwise, namely"

(i) any office to which a person is appointed or nominated by Act or by election"; or

(ii) any civil office, the power of appointing to which or removing from is vested in any person or persons holding an office of any kind included in either of the last two proceeding paragraphs of this section;

5. The elements to be proved by the crown beyond reasonable doubt are as follows:-

(a) The Appellant at the time of the commission of the offence was "a person employed in the public service";

(b) The Appellant was charged with a duty by virtue of his employment;

(c) Corruptly obtained a benefit of any kind for himself;

(d) The Appellant received a benefit on account of any thing done or omitted to be done, or to be afterwards done or omitted to be done;

(e) The corrupt act was done in the purported discharged of his duties.

6. The appellant had filed 8 grounds of appeal in support of his case but the first ground is clearly the important ground as if he succeeds on this ground all other grounds would follow.

7. The appellant submit the Learned Magistrate after discussing the issue at length formed the view that the appellant is a person "employed in the public service" within the meaning of Section 91 (a) of the Penal Code.

CROWN’S SUBMISSION

8. The crown in response to the appellant submission urged the court to allow the appeal on the first ground given it is a technical breach.

9. The Lower Court may have technically fallen into error by accepting the fact that the Appellant was a Public Servant.

10. Mr Zama was a Member of Parliament, and by definition is not a person employed in the Public Service and clearly falls outside the ambit of Section 91 (a) of the Penal CODE. Therefore he could not have been charged for the criminal offence of "Official Corruption" under the Penal Code.

11. The police, the crown submit did not have the jurisdiction to deal with the appellant as he should have been properly dealt with by the Leadership Code Commission. This is clear from the provision of the Constitution and the Leadership CODE COMMISSION (FURTHER PROVISION) ACT 1999 which sets out the procedure for dealing with leaders.

12. The crown further conceded that the other grounds of appeal would follow under the definition of section 91 (a) of the Penal CODE, as it does, not apply in this instance.
    

JURISDICTIONAL QUESTION

13. It is clear to this court that the appeal has been conceded by the crown who agrees with the appellant that the lower court has erred, in accepting that the appellant is a person employed in the Public Service within the meaning of the provisions of the Penal CODE. The crown concede that the police did not have the jurisdiction to deal with the appellant as he should have been proceeded against under the Leadership Code Commission as a Leader. It is clearly a question of jurisdiction.

14. The crown notwithstanding its concession ask the court to clearly define the role of the Leadership Code Commission in relation to those persons who are considered leaders under the Constitution and that the Leadership Code Commission is the lawful authority vested with the powers to deal with complaints against leaders.

15. The court in considering the appeal and the grounds advanced by the appellant in support of the application furthermore having considered the crown concede to the appeal and ask the court to allow the appeal given ground 1 of the appeal is a technical breach. The police the crown submit did not have jurisdiction to deal with the appellant.

16. The court having further considered the crown’s recommendation that the other grounds, (2 – 8) would follow given the definition section of Section 91 (a) of the Penal CODE does not apply to the appellant at the time he committed the offence, as he should have been appropriately dealt with by the Leadership Code Commission.

17. The court accept the submission by the crown and indeed find the appellant as a Leader who come squarely within the definition of the provisions he should have been properly dealt with under the provision of the Leadership Code.

ROLE OF LEADERSHIP CODE COMMISSION

Constitution

18. The Constitution of the Solomon Islands the Supreme Law of the land has clearly laid down the rules and procedures in how leaders in the nation are to be proceeded against if they breach the law. It has set out a high standard of conduct for those who aspire to be leaders and the appropriate procedure of dealing with any breach of the law.
    

PART VIII - CONSTITUTION

19. The provision which specially addresses the role of leaders are prescribed under PART VIII of the Constitution. Section 93 clearly sets out the application of the chapter. Section 94 prescribed the Responsibilities of Leaders and Section 95, makes further provisions which empower Parliament to make provision for the practical application of the law. As a consequence of the provision, Parliament enacted the Leadership Code (Further Provision) Act 1979, and the amended Leadership Code (Further Provision) Act 1999. Section 93

20. The provision of this chapter apply to and in relation to:-

a)	the Governor General
b)	the Prime Minister and other Ministers
c)	the Leader of the Official Opposition and the Leader of the Independent Members
d)	all other members of Parliament
e)	the Speaker
f)	members of any Commission established by the Constitution
g)	public officers
h)	officers of the government of Honiara city, provincial government officers, members of the Honiara city council and provincial assemblies
i)	officers of statutory corporations and Government agencies and
j)	such other officers as Parliament may prescribe.

Section 94 – Responsibility of office

Sub-section 1 - 4

Defines the duty of how leaders are to conduct themselves in both public and official life and their private life. Failure of which will amount to misconduct in office.

LEADERSHIP CODE (FURTHER PROVISION ACT)

INVESTIGATORY POWERS, COMPLAINTS PROVISIONS, AND PROCEDURAL POWER

21. The Leadership Code (Further Provision) Act 1999 set out the application of the Act (Section 3), the allegations of misconduct in office to be investigated by the commission (Section 7) the definition of what constitute misconduct (PART III S11-22) and provision for complaints and investigatory powers of the commission to regulate its proceedings (Section 23 – 32) and the procedure for referrals to the High Court of cases it considers necessary, Section 24 sub-section (2-3). This provision in my view provide the mechanism for the commission to refer cases it considers will be appropriately dispensed with by this Court.

22. I am of the view the Constitution has clearly set out the provision for the issue of misconduct of leaders, and the procedure for conduct of the investigation and the proper authority for the purpose of addressing the issue. The Constitution further make provision for the power of Parliament to enact laws that give purpose to the provision. Parliament has enacted legislation for the very purpose.

23. The Leadership Code Commission is set up for the purpose and it must be given the sole responsibility to determine issues relating to breaches of the laws by leaders, and the appropriate mechanism to deal with them.

24. The court in all circumstances allow the appeal and make the following order.

ORDER

1. APPLEAL IS ALLOWED.

2. THE ORDER OF CONVICTION AND SENTENCE OF 20 MONTHS BY THE PRINCIPAL MAGISTRATE COURT IS HEREBY QUASHED.

3. APPELLANT IS ACQUITTED ACCORDINGLY.

THE COURT