REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN

PMB 9081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

ALLEGED BREACH OF THE LEADERSHIP CODE
BY MR BARAK TAME SOPE MAAUTAMATE

3rd August 2004

1185/2004/05

PUBLIC REPORT ON THE
ALLEGED BREACH OF LEADERSHIP CODE
BY
MR BARAK TAME SOPE MAAUTAMATE

TABLE OF CONTENTS

1. SUMMARY
2. JURISDICTION, SCOPE AND METHOD OF INVESTIGATIONS
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSE BY THOSE WITH COMPLAINT AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

PUBLIC REPORT ON THE
ALLEGED BREACH OF LEADERSHIP CODE
BY
MR BARAK TAME SOPE MAAUTAMATE

SUMMARY

The Ombudsman has decided to publish this report to ensure that any leader that is convicted of an offence under the Penal Code Act is liable to be dealt with under the Leadership Code Act, in addition to the punishment imposed under the Penal Code Act.

This report is about Mr Barak Tame Sope Maautamate who was convicted by the court under the Penal Code Act for two counts of forgery on 19 July 2002 and, it is in accordance with the Leadership Code Act that he should also be charged under section 27 of the Leadership Code, in addition to the sentence he received under the Penal Code Act.

On 13 November 2002, His Excellency the President of the Republic pardoned Mr Sope of the offences (sic) for which he was convicted. This pardon was made in accordance with Article 38 of the Constitution.

On 13 February 2003, the Supreme Court ruled on Mr Sope’s claim that, he still remain as a duly elected Member of Parliament by virtue of the legal effect of the Presidential pardon. The Supreme Court of Vanuatu ruled that the Presidential pardon on 13 November 2002 was only for the un-served period of the three years sentence. 

The court ruled that it is important to understand that the Presidential pardon cannot override nor stay the operation of an Act of Parliament, unless the Constitution as the supreme law expressly so provides to this effect.

The pardon does not have a retroactive effect. It pardons the penalty of conviction from the time it is granted. The pardon does not remove the conviction. Mr. Sope was convicted and was sentenced to three years imprisonment. He served his imprisonment sentence from 19 July 2002 to 12 November 2002. He was, then, pardoned on 13 November 2002. It is the un-served period of the three years sentence, at the time of the pardon, which has been pardoned. If the submission of the Mr Sope stands, then, it will be dangerous because it will create a legal friction. The conviction still stands and the President has no power to set it aside. The effect of pardon is to make the plaintiff, a new man and to give him a new credit from the date the pardon was granted. The pardon does not have retrospective effect of undoing what was done. The pardon does not mean acquittal. 

On the 6 May 2003, in Civil Case No. 04 of 2003, the Court of Appeal heard Mr Sope’s appeal against the decision taken by the Supreme Court in Civil Case No. 199 of 2002.

On 9 May 2003, the Court of Appeal ruled that the Supreme Court was correct to refuse the declarations sought by Mr Sope. The Court of Appeal dismissed the appeal by Mr Sope.

The Ombudsman found that Mr. Sope should have also been charged under Section 27 of the Leadership Code that states a leader who is convicted by a court of an offence under the Penal Code Act is in breach of the Code, and liable to be dealt with in accordance with sections 41 and 42 of the Leadership Code Act in addition to any other punishment that may be imposed under any other Act. In this case, the punishment referred to was the three years conviction that was imposed by the Supreme Court under the Penal Code Act.

The Ombudsman also found that in Civil Case No. 199 of 2002, the Supreme Court of Vanuatu has ruled that the Presidential pardon on 13 November 2002 was only for the un-served period of the three years sentence.

The Ombudsman therefore recommends that:

-	The Public Prosecutor must decide within period not exceeding three months of receiving this report whether there are sufficient grounds or evidence to support a prosecution under Section 27 of the Leadership Code Act.

-	The Public Prosecutor commences a prosecution against Mr. Barak Tame Sope Maautamate under section 27 of the Leadership Code Act for breach of the Code constituted by his conviction for forgery.

2. JURISDICTION, SCOPE AND METHOD OF INVESTIGATIONS

2.1. The Ombudsman has commenced this enquiry under Article 62(1) of the Constitution, section 11 of the Ombudsman Act and section 34 of the Leadership Code Act. This report is made so that sections 27 of the Leadership Code Act is upheld against Mr Sope Maautamate.

2.2 The purpose of this report is to present the findings of the Ombudsman as required by the Constitution, the Ombudsman Act and the Leadership Code Act.

2.3 The scope of this investigation is to establish whether Mr Barak Tame Sope Maautamate, having been convicted of the criminal offence of forgery, is also liable for additional prosecution for consequent breaches of the Leadership Code Act.

2.4 This Office collects information and documents by informal request, summons, letters, interviews,research and responses to working papers both by letters and court decisions.

3. RELEVANT LAWS, REGULATIONS AND RULES
(See Appendix F)

4. OUTLINE OF EVENTS

4.1 On 19 July 2002, Mr Barak Tame Sope Maautamate was sentenced to three (3) years jail for two counts of forgery under the Penal Code Judge Coventry stated on pages 18 & 19 of Criminal Case No.10 of 2002 that:

"You have been convicted on two charges of forgery. In deciding upon sentence the Court is aware of section 3 of Cap 174 [Members of Parliament (Vacation of Seats) Act]. However, at the heart of this is an enormous breach of trust placed in you by the people of Vanuatu. In my judgment, the correct sentence is one of three years imprisonment concurrent upon each count. I have considered whether it should be suspended. In all the circumstances it cannot."

4.2 On 13 November 2002, His Excellency the President of the Republic of Vanuatu, Fr John Bani, pardoned Mr Barak Tame Sope Maautamate of the offences (sic) for which he was convicted. This pardon was made in accordance with Article 38 of the Constitution.

4.3 Mr. Barak Tame Sope Maautamate later filed a claim in court seeking the court to declare that by virtue of the legal effect of the presidential pardon he still remains a duly elected member of Parliament.

4.4 On 13 February 2003, the Supreme Court of Vanuatu ruled that the Presidential pardon on 13 November 2002 was only for the un-served period of the three years sentence. Chief Justice, Vincent Lunabek stated on page 8 of Civil Case No. 199 of 2002 that:

"It is important to understand that the Presidential pardon cannot override nor stay the operation of an Act of Parliament, unless the Constitution as the supreme law expressly so provides to this effect.

The pardon does not have a retroactive effect. It pardons the penalty of conviction from the time it is granted. The pardon does not remove the conviction. The plaintiff was convicted and was sentenced to three years imprisonment. He served his imprisonment sentence from 19 July 2002 to 12 November 2002. He was, then, pardoned on 13 November 2002. It is the un-served period of the three years sentence, at the time of the pardon, which has been pardoned. If the submission of the plaintiff stands, then, it will be dangerous because it will create a legal fiction. The conviction still stands and the President has no power to set it aside. The effect of pardon is to make the plaintiff, a new man and to give him a new credit from the date the pardon was granted. The pardon does not have retrospective effect of undoing what was done. The pardon does not mean acquittal."
(See detailed of the court decisions in Annex B).

4.5 On 6 May 2003, Vanuatu Court of appeal in a Civil Appeal case No. 04 of 2003
reviewed the decision of the Supreme Court in Civil case No. 199 of 2002.

4.6 On 9 May 2003, the Court of Appeal ruled that the Supreme Court was correct to refuse the declarations sought by Mr Barak Tame Sope. The Court of Appeal dismissed the appeal by Mr Barak Tame Sope (See details of the court decision in Annex C).

4.7 On 27 November 2003, Mr Barak Tame Sope was successfully elected back to Parliament during the by – election conducted for the parliamentary seat he vacated due to his conviction and sentence.

4.8 On 29 January 2004, the Ombudsman issued a Working Paper on the report. This was done after the first Working Paper was issued on 3 December 2002. The reasons for this is that additional documents were included after the first Working Paper was issued.

4.9 On 12 February 2004, Mr Sope’s legal representative responded to the second issue of the Working Paper and stated that the report was unconstitutional. (See details of this in Annex D) 

5. RESPONSE BY THOSE WITH COMPLAINT AGAINST THEM

5.1 The Ombudsman received a response dated 23 May 2003 from the Geoffrey Gee & Partners, on behalf of Mr Barak Sope. Mr Sope in his reply stated that:

The Working Paper appeared vexatious. for the following reasons:

a) The matter has already been dealt with in the Criminal Courts resulting in imprisonment and loss of a parliamentary seat.

b) It has previously been the subject of an Ombudsman’s Report. I refer you to S.19 of your Act. You are prohibited reuniting a previous enquiry or the reasons why your recommendations weren’t followed.

c) There are legal issues of double jeopardy given the conviction.

The letter went further to ask these questions to the Ombudsman:

a) Are there any other similar sought of assertions being made.

b) If so why are they being drip fed on a weekly basis. Couldn’t we just face all of them at once?

c) Is there pressure being exerted for political or other reasons by other persons or parties or countries and if so who.

d) As to why does it have anything to do with the by election which is required.

Finally the Ombudsman was referred to S.18(1) (b) and (d) of the Ombudsman Act and particularly:-

1. Other remedies (Criminal Prosecution) have already been undertaken.

2. Delay – why weren’t charges put before the Criminal Court at the same time. Several years later is a delay which is unwarranted.

Mr Barak Tame Sope through his legal counsel complained that the actions of office of Ombudsman appeared to be personal and vexatious. and demanded [require] the Ombudsman to confirm the report would not be published pursuant to S.34 of Ombudsman Act.

5.2 Additional response from Mr Barak Tame Sope was through the legal firm of Geoffrey Gee and Partners in a constitutional application in March 2004 registered as civil case 49/2004.

5.3 MR SOPE’S SUBMISSIONS IN COURT

In the application Mr. Barak Tame Sope through his legal counsel was seeking the court to declare that his constitutional rights may be infringed if the Ombudsman issues a report. He supported his application with the following submissions: 

1. It was open to the Prosecutor to lay a charge under S. 27 at the time of the trial for forgery.

2. The reports of the Ombudsman require the Public Prosecutor to issue charges under the Leadership Code or to decide if there is sufficient evidence.

3. The reports contain an implied threat requiring the Prosecutor to proceed or face further inquiry or public rebuke.

4. The reports are nothing more and nothing less than an attempt to further embarrass and ridicule Mr. Sope.

5. The demand for prosecution is unconstitutional, and does not accord equal treatment to the applicant.

6. The demand for a further prosecution puts the applicant at risk of double jeopardy.

7. The Ombudsman is conducting an enquiry on a matter that has previously been the subject of an enquiry.

5.4 OMBUDSMAN SUBMISSIONS IN COURT

In reply the Ombudsman submitted that:-

1. The two reports relate to the same enquiry, which is not yet complete, and copies of the documents were provided to Mr. Sope in accordance with the Ombudsman Act No. 27 of 1998.

2. It is premature for the Court to consider any infringement of Article 5 (2) (h) of the Constitution and submissions as to whether the applicant could have been charged and convicted at the same time as the forgery matters can be considered only if and after the Public Prosecutor decides to prosecute the applicant.

3. It is constitutionally proper for the Ombudsman to make recommendations at the working paper stage.

4. The applicant is attempting to prevent the Ombudsman from performing his duties and functions under the Constitution, the Ombudsman Act and the Leadership Code Act.

5. The Ombudsman is not directing or controlling the Public Prosecutor.

5.5 THE PUBLIC PROSECUTOR’S SUBMISSIONS IN COURT

The Public Prosecutor chose to appear as a friend of the court [amicus curiae] and made the following submissions:

1. That a prosecution could take place against the applicant in breach of section 27 of the Leadership Code Act (No.2 of 1998) and that his right to protection of the law as enshrined in Article 5 (1) (d) of the Constitution would not be infringed if such a prosecution did occur.

2. Such a prosecution would not be for the same offence. The original prosecution was for forgery under section 139 (1) of the Penal Code [CAP.135] with completely different essential elements from any proposed prosecution under Section 27 of the Leadership code Act.

3. A section 27 conviction could not have been entered at the time of the first conviction. It is a condition precedent to a prosecution under section 27 that the claimant has been convicted by a Court of an offence under the Penal Code Act, and such a conviction could not be entered until the conclusion of the first trial.

4. A section 27 prosecution would not infringe the applicant’s right to equal treatment under the law or administrative action.

5. The working papers do not infringe the independence of the Public Prosecutor as enshrined in Article 55 of the Constitution.

The Prosecutor went on to submit that the Ombudsman has the responsibility under Ombudsman Act to investigate and report on the conduct of a leader (other than the President) if the Ombudsman has formed the view on reasonable grounds that a leader may have breached the code. The Ombudsman is then required to give a copy of such a report to the Public Prosecutor and must follow the procedure set out in the Ombudsman Act. There could not at this stage be a breach of Article 55 but, in any event, the second recommendation does not seek to direct or control the Public Prosecutor’s functions but simply puts forward a recommendation for consideration by the Public Prosecutor.

5.6 FINDINGS OF THE COURT

(a) While the court agreed that the applicant cannot be tried for the same offence or for any other offence which he could have been convicted of at his trial the court is of the view that a section 27 prosecution is not the same offence nor is it "any offence of which he could have been convicted of at his trial" in terms of article 5 [2] [h] of the Constitution;

(b) As such the Court was also satisfied that there has not been nor is there likely to be any infringement of the applicant’s right to equal treatment under the law or administrative action by virtue of his position as a member of Parliament, or his former position as Prime Minister.

(c) On the independence of Public Prosecutor, the Court is of the view that the working paper does not infringe such independence as enshrined in Article 55 of the Constitution.

(d) The Court agreed that there cannot yet be any breach of Article 55 and there is no indication that there is any intention expressed as to how the Public Prosecutor’s function ought to be exercised.

(e) The Court found that the Ombudsman is not conducting a fresh enquiry on a matter previously undertaken in breach of Section 19 (1) of the Ombudsman Act. The investigation is clearly an ongoing one. That is made perfectly clear because the same file number, 1185, has been used and even though the enclosures in the second working paper had just become available when the first working paper was sent to the applicant, the Ombudsman has not closed his file and has never published a report or recommendation under Section 33 and 34 of the Ombudsman Act.

(f) The Court was satisfied that the second Working Paper was effectively a re-issue of the first when further information, namely the High Court and Court of Appeal decisions, were included and have been considered by the Ombudsman. There was simply a reformulation of the recommendation in the light of subsequent events and a further draft of the same working paper.

(g) The court could not find anything sinister in the timing of the issue of the working a paper that showed something of a vendetta against the applicant and the Ombudsman is not attempting to embarrass and ridicule Sope as he is carrying out his statutory functions.

(h) The court found that the applicant’s application was not premature as it falls within the wordings of Article 5 [2] [h] which states any person who feels his rights is likely to be infringed may apply to the court to enforce that right

(i) The court concluded that none of the grounds raised in the constitutional application filed by Mr. Sope have succeeded and dismissed the matter accordingly.

DISCUSSIONS OF THE COURT ON DIFFERENT ISSUES SUBMITTED BY PARTIES

"ROLE OF OMBUDSMAN"

Section 34 of the Leadership Code Act No. 2 of 1998 provides as follows:

1) The Ombudsman must investigate and report on the conduct of a leader (other than the President):

a) if the Ombudsman receives a complaint from a person that a leader has breached this code;

or

b) if the Ombudsman has formed the view on reasonable grounds that a leader may have breached this Code.

2) The Ombudsman must give a copy of the report to the Public Prosecutor and where, in the opinion of the Ombudsman, the complaint involves criminal misconduct, to the Commissioner of Police within 14 days after forwarding his or her findings to the Prime Minister under Article 63 (2) of the Constitution.

3) Where an Act provided for the functions, duties, and powers of the Ombudsman, the provisions of that Act will apply when the Ombudsman is carrying out an investigation under this Act.

4) Notwithstanding subsection (3), for the purpose of fulfilling any function or duty lawfully conferred or imposed on the Ombudsman under this Act, the Ombudsman:

a) Shall have full access at all convenient times to Government contracts, documents, books, accounts and any other material that relates to and is relevant to the investigation; and

b) May, by notice in writing signed by the Ombudsman require any person having possession or control of any Government contract, documents, books, accounts or any other material that relates to and is relevant to the investigation to deliver such document or documents to the Ombudsman at such time and place as is specified in the notice; and 

c) May cause extracts to be taken from any Government contract, documents, books, accounts or any other material that relates to and is relevant to the inquiry without paying any fee therefore.

5) Where a person fails to comply with a notice or any other requirement under subsection (4) the Ombudsman may apply to the Supreme Court for an order requiring that person to do so.

6) Where the complaint is against the Ombudsman the investigation will be carried out by the Attorney-General in accordance with the procedure set out in this part as if the attorney-General were vested with all the functions, duties discretions and powers of the Ombudsman."

Even under S. 11 (2) (b) of the Ombudsman Act No. 27 of 1998 and Article 62 (1) (c) of the Constitution, the Ombudsman can exercise his functions on his own initiative. In this case the Ombudsman has elected to initiate the report on the applicant and his conduct and is in the process of carrying out an enquiry but has not yet made public the result of such enquiry under S. 34 (1) of the Ombudsman Act.

ROLES OF PUBLIC PROSECUTOR

The function of prosecution shall vest in the Public Prosecutor, who shall be appointed by the President of the Republic on the advice of the Judicial Service Commission. He shall not be subject to the direction or control of any other person or body in the exercise of his functions."

The recommendation as formulated in the report is merely that, a recommendation, and that is not, as the claimant would have it, a directive or a requirement for the Public Prosecutor to issue charges under the Leadership Code Act were the report published in those terms. The independence and integrity of the Public Prosecutor is preserved, and I cannot find that there is any direction or control contained in the working papers of the Ombudsman to curtail the exercise of the Public Prosecutor’s functions or discretion. A copy of the working paper was referred to the Public Prosecutor on 29 January 2004 and he quite rightly declined to comment. In addition the Public Prosecutor cannot issue a prosecution under the Leadership Code Act without a recommendation from the Ombudsman.

There is certainly no implied threat or suggestion that the Public Prosecutor would face further inquiry or public rebuke should he not exercise his discretion in favour of a prosecution under section 27.

Equally, I cannot find in either report that there is anything which would indicate that the Ombudsman is attempting to embarrass and ridicule Mr. Sope. The Ombudsman is simply carrying out his statutory functions. I do not find that there is anything sinister in the timing of the issue of the working papers that shows something of a vendetta against the applicant.

The Court also discussed "double jeopardy" and concluded that in Mr Sope’s case the elements to be proved and the evidence required for each prosecution in these circumstances are completely different. 

The Court went on to distinguish between a forgery prosecution as are set out in Section 139 (1) of the Penal Code as being:

(a) the making of a false document;
(b) knowledge of the falsely of the document; and
(c) an intention that the document be used or acted upon as genuine or that some person be induced by the belief that it is genuine to do or refrain from doing anything. 

For prosecution under Section 27 of the Leadership Code Act, the elements to prove are:

(a) that the defendant is a leader; and
(b) that the defendant has been convicted by the Court of an Offence under the Penal Code Act as listed in Section 27(2).

The Court concluded that in their view a Section 27 Prosecution is not the same offence nor is it any other offence of which he could have been convicted at his trial in terms of Article 5(2)(h) of the Constitution. 

The Court cited a decision of the Court in Pearce v R (1998) 194 CLR 610 that 
said this:-

"The expression "double jeopardy" is not always used with a single meaning. Sometimes it is used to encompass what is said to be a wider principle that "no one should be punished again for the same matter". Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment."

I consider that it would be wrong for this Court to rule that that process should be curtailed and I do not find that the applicant’s constitutional rights under Article 5 (1) (d), (k) or 5 (2) (h) have been infringed.

Refer to Annex D for full and detailed decision of the court.

6. FINDINGS

6.1 Finding 1: The Ombudsman found that Mr. Sope has committed a prima facie breach of section 27(1)(b) of the Leadership Code Act and is liable to receive additional punishment under sections 41 and 42 of the Leadership Code.

The Ombudsman has found that according to section 27 (1) (b) of the Leadership Code Act, Mr Sope is liable to be dealt with in accordance with sections 41 and 42 of the Code in addition to any other punishment that may be imposed under any other Act. In this case, the punishment referred to was the three years conviction that was imposed under the Penal Code Act.

7. RECOMMENDATIONS

The Ombudsman recommends that:

Recommendation 1: The Public Prosecutor must decide within 3 months of receiving this report, whether there are sufficient grounds or evidence to support a prosecution under this Code.

Recommendation 2: The Public Prosecutor commence a prosecution against Mr Sope under sections 27 of the Leadership Code Act for breach of the Leadership Code Act constituted by his conviction for forgery.

Dated the 3rd day of August 2004.

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Copy of judgment in Criminal Case No. 10, dated 19 July 2002.

B Copy of judgment in Civil Case No. 199, dated 13 February 2003.

C Copy of judgment in Civil Appeal Case No. 04, dated 9 May 2003.

D Copy of judgment in Civil Case No. 49 of 2004 dated 26 July 2004

F Relevant laws

APPENDIX F

THE CONSTITUTION OF THE REPUBLIC OF VANUATU

THE LEADERSHIP CODE
THE PENAL CODE (CAP 135)

CONSTITUTION OF THE REPUBLIC OF VANUATU 

CONDUCT OF LEADERS

66.	(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by sub-article (1).

DEFINITION OF A LEADER

67. For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

LEADERSHIP CODE ACT of 1998

DUTIES OF LEADERS

13. A leader must:

(a) comply with and observe the law;

(b) comply with and observe the fundamental principles of leadership contained Article 66 of the Constitution;

(c) comply with and observe the duties obligations and responsibilities established by this Code or any other enactment that affects the leader; and

(d) not influence or attempt to influence or exert pressure on or threaten or abuse persons carrying out their lawful duty.

MISUSE OF PUBLIC MONEYS

20. A leader must not use, or agree to the use of, any public money for a purpose other than the purpose of which it may lawfully be used.

OTHER OFFENCES PUNISHABLE UNDER THIS ACT

27. (1) A leader who is convicted by a court of an offence under the Penal Code Act [CAP 135] and as listed in subsection (2) is:

(a) in breach of this Code; and

(b) liable to be dealt with in accordance with sections 41 and 42 in addition to any other punishment that may be imposed under any other Act.

(2) The offences are:

(t) forgery or uttering forged documents;

OBEYING THE LAW

28. A leader acting in his or her capacity as a leader who fails to abide by an enactment that imposes on the leader a duty, obligation, or responsibility is in breach of this Code.

SPECIFICATION PROVISIONS

29. Without limiting the generality of section 28 a leader who fails to abide by the provisions of an Act that provides for:

(a) the public service; or

(b) public finance or economic management; or

(c) expenditure review committee or audit functions; or

(d) government contracts or tenders;

is in breach of this Code

DISMISSAL FROM OFFICE

41 (1) Where a leader is convicted of a breach of the Leadership Code the court may, if it regards the breach as serious, make an order dismissing the leader from office

(2) In determining whether the breach of this code is serious, the court may have regard to

(a) in the case of a breach involving a financial matter, the amount involved:

(b) whether the conduct of the leader was significantly below what would be expected of a leader

(c) where it is possible to discern, the motives of the leader,

(d) the extent to which the breach diminished the respect or public confidence in the leader’s position; and

(e) whether the leader has been previously convicted of a breach of this Code.

DISQUALIFICATION FROM FUTURE OFFICE

42. Where the leader is dismissed from office under section 41 the leader is disqualified from standing for election as, or being appointed as, a leader of any kind for a period of 10 years from the date of the conviction.

PENAL CODE (CAP 135)

FORGERY DEFINED

139. (1) Forgery is making a false document, knowing it to be false, with the intent that is shall in any way be used or acted upon as genuine, whether thin the Republic or not, or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything, whether within the Republic or not.

For the purposes of this section, the expression "making a false document" includes making any material alteration in a genuine document, whether by addition, insertion, obliteration, erasure, removal or otherwise.

(3) For the purposes of this section the expression "false document" mean a document:-

(a) of which the whole or any material part purports to be made by any person who did not make it or authorise its making; 

(b) of which the whole or any material part purports to be made on behalf or any person who did not authorise its making;

(c) in which, though it purports to be made by the person who did in fact make it or authorise its making, or purports to be made on behalf of the person who did in fact authorise its making, the time or place of its making, whether either is material, or any number or distinguishing mark identifying the document, whether either is material, is falsely stated;

(d) of which the whole or some material part purports to be made by a fictitious or deceased person, or purports to be made on behalf of any such person; or which is made in the name of an existing person, either by him or by his authority, with the intention that it should pass as being made by some person, real or fictitious, other than the person who makes or authorises it.

(4) It is immaterial in what language a document is expressed or in what country or place and whether within or beyond the Republic it is expressed to take effect. 

(5) The crossing of any cheque, banker’s draft, post office money order, postal order or other document the crossing of which is authorised or recognized by law, is a material part of such document.

PROHIBITION OF FORGERY

140. No person shall commit forgery.

Penalty: Imprisonment for 10 years

UTTERING FORGED DOCUMENTS

141. No person, knowing a document to be forged, shall;

(a) use, deal with, or act upon it as if it were genuine;

(b) cause any person to use, deal with, act upon it as if it were genuine.