47
20
may also direct that the delegated power is to be used against specified people and
in certain cases.
My sanction must be previously obtained whenever it is proposed to delegate more extended powers of administering criminal law.
Criminal jurisdiction as well as the power of punishing may only be delegated to such officers whose character and previous conduct offer a full guarantee for the prudent exercise of the powers vested in them.
Such officers are to be instructed in detail with reference to their duties, the principles to be observed during the hearing of cases, the provisions of the Decree of the Imperial Chancellor of 22 April 1896 and these service instructions.
Their attention is to be particularly drawn to the prohibition against the use of forcible measures for the extortion of confessions or declarations, as well as the infliction of unusual punishments particularly in cases of suspected guilt, and that violations thereof are severely dealt with.
They are also to be enjoined never to pass sentence while still labouring under initial excitement; rather that, before doing so, they should calmly and dis- passionately weigh all the circumstances which bear upon the determination of a suitable punishment. These officials should, further, be urged to leave the punish- ment in the case of serious charges, to which their delegated jurisdiction does not extend, to their superior District Commissioner or Assistant District Commissioner. A statement that this instruction has in each case been carefully followed is to be inserted in the report furnished in virtue of Section 1, sentence 3, of the Decree of the Imperial Chancellor of 22 April 1896.
2. Re Section 2: The order of the punishments specified as permissible corresponds to the gravity of each form of punishment. Accordingly, imprisonment in chains is a more severe punishment than imprisonment with hard labour. Both correspond approximately to "penal servitude" and "imprisonment
" under German law.
So far as the execution of these sentences is concerned the prisoner in chains must always be kept in chains, whereas anyone sentenced to imprisonment with hard labour should not, on principle, be put in chains. Only if there is a danger of the latter escaping-a danger which cannot be removed by means of a suitable warning is his being secured in chains admissible. A prisoner in chains is to be put to labour as well as one sentenced to imprisonment with hard labour.
3. Re Section 6: The instrument of punishment sanctioned by the Governor
is a rope's end about 60 centimetres long and 2 to 2 centimeters thick. Only rope's ends issued by the Government may be used. These must be (2 feet.)
softened by being beaten with a hammer or piece of wood before ({ to 1 inch.)
being first used. When travelling, floggings must also be carried out by means of the prescribed instrument.
4. Re Sections 7 to 9: The physical inspection must be carefully made and should extend to the private parts as experience has shown that natives frequently suffer from diseases of these organs and many such ailments, such as enlargement of the scrotum and sores, may easily be aggravated by the infliction of corporal punishment.
Corporal punishment must not be carried out in the case of old people or those of weak constitution. If the prisoner has just undergone severe physical exertion (long marches, &c.) which might render the immediate infliction of the sentence hazardous, then it should be postponed.
Great care is to be taken during the execution of the sentence that the instru- ment comes only into contact with the buttocks. In order to prevent accidental injury to the front of the prisoner's body through sudden movements on his part he should be secured by the hands and feet or bound in a suitable manner; in addition to this the small of the back as well as the region of the abdomen should be protected against ill-directed strokes and the curling round of the rope's end by being covered with clothes, sacking, or cushions.
In cases where a sentence involving loss of liberty has been imposed in addition to a flogging or whipping, then the corporal punishment should be carried out at the commencement of the term of imprisonment. When the sentence specifies a double infliction of corporal punishment, then the second flogging, &c., should be inflicted soon after the expiry of 14 days after the first. Postponement of the first or second flogging, &c., may only take place under exceptional circumstances, e.g., the state of health of the prisoner
(i.e.,imprison ment.)
21
or because wounds caused by the first flogging had not thoroughly healed, thus necessitating a postponement. In such cases the sentence should be carried out as soon as the reasons which occasioned the delay no longer operate. Should the principal punishment be subject to the Governor's confirmation (see Section 10 of the Decree of the Imperial Chancellor of 22 IV. 96), then the secondary sentence of corporal punishment must likewise be suspended until the receipt of the Governor's ratification.
(No. 102.)
5. Re Section 11: The death penalty is to be carried out by hanging. When the death penalty is put into force by means of the rope, the Rules passed by the Governor of German East Africa must be observed (see German Colonial Legislation, Vol. VIII., pp. 30, 31). The death penalty may only be put into effect by shooting in cases where special circumstances render its accomplishment by the rope impossible.
6. Re Section 12: All punishments ordered must be entered in the Record Book, i.e., judicial punishments as well as disciplinary, including among the latter not only those detailed in Section 17, but all others. As to judicial and disciplinary punishments imposed on soldiers, a separate Order has been passed, dated 19 June 1909.
Whenever an officer, invested with powers of punishing, sentences natives (to any punishment) while on tour and without having his Record Book by him, then the punishment is to be entered up, or caused to be entered up, at the first opportunity.
7. Re Section 14: Leaders of Government expeditions in the meaning of this paragraph are only such Officers or their deputies who have been expressly invested with the execution of criminal justice, and the power of punishing natives by the Governor for the duration of the expedition. Leaders of Government expeditions shall at the close of the expedition deliver the Criminal Record Book kept by them to the Government, The power of exercising criminal justice and punishing natives vested in District Commissioners and Assistant District Commissioners will remain in force during journeys outside their districts in so far as natives of their own districts who accompany them are concerned.
Officers while travelling have no further powers of punishing other than those above set forth.
8. Re Section 18: Reports on completed punishments are to be confined to a copy of the Record Book for the previous quarter. For the purpose of preparing this copy, the District Headquarters, Stations, and Sub-Stations concerned are provided with manifold copy books.
Lome, 10 January 1906.
The Governor,
COUNT ZECH.
105. Circular by the Governor concerning the Punishment of Offences by Natives.
11 February 1907. Considering that on the one hand any codification of criminal jurisdiction over natives will still take a considerable time, while, on the other hand, it repeatedly occurs that the punishment is demanded of acts by natives which constitute, according to European conceptions, punishable offences, but which are in reality less an expression of criminal intent than of ancient and deep-rooted beliefs, customs and practices, I would herein point out the existing legal position with respect to this matter as well as the duty imposed on District Commissioners and officers in charge of stations of interfering in the event of excesses on the part of natives.
No. 101. No. 102.
A definite criminal jurisdiction over natives reduced to writing has hitherto not existed in the Protectorate. The Decrees of the Imperial Chancellor, dated 27 February and 22 April, 1896, merely detail certain rules of procedure and prescribe lawful punishments, but they do not provide a basis whereby offences by natives may he judged. Although the provisions of the Imperial Penal Code and other Imperial laws cannot be applied, as they stand, to natives; still, they do at least furnish a criterion and it is the business of District Commissioners and Officers in Charge of Stations gradually to inculcate in the natives the conceptions of equity expressed therein, in so far as it is possible to apply them to the circumstances of the country which necessarily differ widely from those prevalent in Europe. The most suitable means of attaining this are through constant reference to the culpability of the act in question.
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