19 June 2017

Tanzania: High Court Throws Out Kitilya Petition

The High Court has dismissed a constitutional petition by former Commissioner General with the Tanzania Revenue Authority (TRA), Harry Kitilya and three others, challenging legal provisions denying them bail in the 12bn/- money laundering charges each faces.

Other losers are Shose Sinare, the former Miss Tanzania, and Sioi Graham Solomon, the Head of investment banking at Stanbic Bank, and former chief legal counsel to the Bank; other accused person was identified as Gideon Wasongo, who is facing a separate case of money laundering. Judges Sekiet Kihiyo, Crecencia Makuru and Sivangilwa Mwangesi ruled in favour of the AG, the DPP and Prevention and Combating of Corruption Bureau (PCCB) after holding that the petition was filed without any merits.

In the petition, Kitilya with his colleagues were challenging section 148 (5) (a) (v) of the Criminal Procedure Act (CPA) and section 36 (2) of the Economic and Organized Crime Control Act, that unconstitutionally 'prohibit' bail to persons charged with money laundering offences.

The petitioners had charged that such sections violated Articles 13 (6) (a), (b), 15 (1) and 17 (1) of the Constitution of the United Republic of Tanzania on the rights of the petitioners to a fair hearing, right to liberty, right to freedom of movement and the right to presumption of innocence.

In their judgment, however, the judges found that the highly contentious provisions "are 'constitutional' and, as such, the "petition before this court is therefore found to be wanting of merits and has to fail. We accordingly dismiss it in its entirety with the usual consequences as to costs."

Referring to several decided cases by the Court of Appeal, the judges were "sufficiently convinced" to reminding an accused person "to await trial" where the circumstances necessitate, saying "it is the situation in the case in hand" which didn't amount to treating the accused persons as convicts.

They said that in legislating the provision prohibiting bail to an accused person charged with 'an offence like money laundering' it categorized the offence in the same group with other 'notbailable' offences like murder, treason or armed robbery ... it does not necessarily mean the legislature takes over the judicial functions.

In regard to the validity of powers of the DPP -- of issuing certificate in terms of section 36 (2) of the Economic Act -- denying bail to accused persons, the judges noted in their judgment dated April 25, 2017, that such matter had since been tested and decided by the Court of Appeal.

In line with such Court of Appeal decisions, the judges found themselves bound by what was held and thereby differed with what was decided in the case of Jeremiah Mtobesya against the AG on a similar matter, which was reached per incuriam (literally translated as "through lack of care".)

The prosecution is charging Kitilya, Sinare and Solomon with money laundering, an offence allegedly committed between March 13 and September 2015 within the city of Dar es Salaam.

They are also alleged to have directly engaged themselves in a transaction involving six million US dollars by transferring, withdrawing and depositing money relating to that transaction in different bank accounts maintained by EGMA Limited at Stanbic Bank Tanzania Limited and KCB Bank Limited.

The prosecution told the court further that the accused persons ought to have known that the said money was the proceeds of a predicate offence, which is forgery.

Apart from money laundering count, the accused persons are also charged with conspiracy to commit an offence, forgery, uttering false documents and obtaining six million US dollars (about 12bn/-) by false pretences.

On diverse dates between August 2012 and March 2013, within the city of Dar es Salaam, the three accused persons allegedly conspired together and other people who are not in court to commit offence of obtaining money by false pretences from the government.

It is further claimed that on November 5, 2012, at Stanbic Bank in the city, all the three accused persons, with intent to deceit, made a false collaboration agreement purporting to show that the bank had established a consortium to collaborate with Enterprise Growth Market advisors (EGMA) Limited.

The purpose, according to the prosecution, was to arrange for financing in the amount of 550 million US dollars to the government of Tanzania under which EGMA would arrange for negotiation and meeting involving the financing to facilitate understanding on the technicalities of the financing to the government.

It is claimed further that the EGMA was also to arrange for review of finance documents and facilitate the provision of relevant documents or approval that would be required by relevant Tanzania authorities, the fact which the accused persons knew to be false.

According to the prosecution, in March 2013 in the city, Kitilya, Sinare and Solomon, with intent to defraud, jointly and together obtained from the government six million US dollars (about 12bn/-) by falsely pretending that the money was a facilitation fee payable to EGMA Limited.


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