Tanzania Daily News (Dar es Salaam)

29 March 2014

Tanzania: Appeal Court Quashes Illegal Fishing Trial

THE Court of Appeal nullified the proceedings in the illegal fishing trial, commonly known as "Samaki wa Magufuli" case involving two foreigners, who were convicted by the High Court and sentenced to ten years imprisonment or pay 21bn/- fine.

Zhao Hanquing, a Chinese and Hsu Chin Tai from Taiwan, were convicted of two counts relating to illegal fishing in the Exclusive Economic Zone of the United Republic of Tanzania by High Court Judge Augustine Mwarija on February 23, 2012.

But in their judgment, Appeals Court justices Salum Massati, William Mandia and Semistocles Kaijage found that the trial before the High Court was marred by several irregularities, including commencing the hearing without securing the consent of the Director of Public Prosecutions (DPP).

Following such irregularities, the justices quashed the High Court proceedings, comprising the judgment and any other orders therein.

They left open to the DPP, if he would think fit, to commence another trial against the duo, but before another High Court judge and assessors. During hearing of the appeal on February 4, this year, the panel had pinned down the prosecution as to why proceedings in the matter took off before the High Court without the DPP's Consent.

They had pointed out, "We think this may touch on the jurisdiction of the court." Deputy Director of Public Prosecutions, Biswalo Mganga, who resisted the appeal by the two foreigners during the hearing, had admitted that the DPP issued the consent to start the proceedings later on and proceedings prior to the issuance of such consent were irregular, but could not prejudice the trial.

In defending the two foreigners, advocates John Mapinduzi and Capt. Ibrahim Bendera, had requested the justices to quash the conviction of their clients and set aside the sentence, because the charges filed against their clients of illegal fishing and pollution were not proved to the required standard.

According to the advocates, there was no direct nor circumstantial evidence to prove that the two convicts engaged in illegal fishing and polluting water environments and that the provision of law under which their clients were charged with were not in operation at the time the offences were committed.

However, Mr Mganga countered the submissions presented by the defence, arguing that the charges against the duo were properly filed and the provisions relied upon were in operation. He further told the court that looking at the evidence on record, the trial judge was right to convict the two as charged.

The two foreigners were convicted in the trial famously known as "Kesi ya Samaki wa Magufuli" of unlawful carrying out fishing activities in the Exclusive Economic Zone of the United Republic of Tanzania and sentenced to pay a fine of 1bn/- each or go in jail for ten years in default of paying the fine.

Tai was convicted of another separate offence of water pollution and degradation of marine environment. He was sentenced to pay a fine of 20bn/- or imprisoned for 10 years upon failure to pay the fine in question. Both of the appellants defaulted to pay the fine.

When sentencing the two foreigners, the trial judge took into consideration the circumstances for which the offences were committed and in addition to the sentences provided, he also ordered the confiscation of the ship used in the illegal fishing.

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