Section 34(1): effect of repeal on a pending prosecution
As is clearly evident from Section 34(1) of Act 792, the legislature intended, and did expressed clearly, that the repeal of an enactment may not lead to the automatic cessation of the enactment if any of the conditions afore-referred to under Section 34(1) of Act 792 is present. In simple terms, per the facts at hand, there is an ongoing prosecution of the Appellant, albeit under the repealed enactment. Since the prosecution had already commenced; same does not become unlawful to continue in the absence of a legislative proscription by the repealing legislation. Further, the continuance of the prosecution will not defeat the constitutional prohibition against the non-existence of a written penal law defining a specific offence for which an accused stands trial as per Article 19(11) of the 1992 Constitution.
Section 34(1)(d): saving of an offence committed against a repealed enactment
I find force in the argument that the new provision in Act 792 evinces an intention by the legislature to now go beyond punishment incurred in respect of an offence under the repealed enactment to saving the offence itself committed under it. In this way, Parliament filled the gap that the Supreme Court detected in British Airways v Attorney-General. Of course, the saving could have been provided for in the repealing enactment itself but there is no law that says that it cannot be done otherwise. In this case, if the saving was not done in Act 1038, then the general saving in section 34(l)(d) of Act 792 would apply, unless a contrary intention appears from the language of Act 1038.
The first thing to note in article 19(2)(d) of the 1992 Constitution is the fact that it is mandatorily couched. This is confirmed by the use of the word “shall” appearing in the provision. Section 42 of the Interpretation Act requires the Court to place a mandatory meaning on the word “shall” wherever it appears in a statutory provision unless the context otherwise requires.
