Tanzania: Tansort Officer's Bail Request Flops

THE High Court has refused to grant bail to the Director of Tanzania Sorting Company (TANSORT), Archard Kalugendo, who is charged alongside government diamond valuer, Edward Rweyemamu, with occasioning 2.5bn/-loss to the government at Kisutu Resident Magistrate's Court.

Judge Kulita reached the decision after dismissing the application for bail lodged by Kalugendo.

The judge took into consideration the submissions presented by counsel for both prosecution and defence on the certificate lodged by the Director of Public Prosecutions (DPP) to oppose the application.

"I find the DPP's certificate to object bail against the applicants fulfils all legal requirements for that purpose. That being the case, I hereby dismiss the bail application," the judge declared.

Kalugendo had petitioned the High Court to grant him bail in the economic trial he is facing.

However, the DPP filed a certificate under Section 36(2) of the Economic and Organized Crime Control Act, objecting the accused to be granted bail and certified that the safety and interests of the Republic will be prejudiced.

In the ruling, however, the judge pointed out that the current position of law is that once the DPP has filed certificate to object bail, the court can no longer inquire into the application to determine whether the applicant can be released on bail, but it should only determine the validity of the DPP's certificate.

According to the judge, the validity test of the DPP's certificate is to fulfill certain conditions, including certifying in writing and effect that the safety or interests of the Republic are likely to be prejudiced by granting bail in the case and the certificate must relate to a criminal case either pending trial or pending appeal.

The prosecution, led by State Attorney, Candid Nasua, had submitted that there is no doubt that the DPP's certificate filed before the court passed the validity test, while defence counsel Francis Makotta had challenged that there is no pending case against his client at the High Court being found incredible.

In his submissions, Mr Makotta also challenged the certificate; that it had been filed to abuse the court process. He also challenged the constitutionality of Section 36 (2) of the Economic and Organised Crime Control Act.

However, the judge ruled that the defence counsel failed to establish how the said certificate abuses the court process.

As for the issue of constitutionality of the provision, he was of the view that it was not a proper forum for that purpose.

In the trial, the two accused persons are alleged to have committed the offence on diverse dates between August 25 and 31, 2017, at different places in Dar es Salaam and Shinyanga Regions.

By their willful acts, being government diamond valuers employed by the Ministry of Energy and Minerals, jointly and together, the two accused persons allegedly caused the government of the United Republic of Tanzania to suffer a pecuniary loss of 1,118,291.43 US dollars, which is 2,486,397,982/54.

The arraignment of the two came after a Parliamentary Select Committee on diamonds presented its report to National Assembly Speaker Job Ndugai, revealing gross irregularities in the supervision and regulation of the 100 billion US dollar business.

According to the report, while the Ministry of Energy and Minerals documents show that the country had extracted diamond minerals weighing 1.47 million tones, the statement is contradicted by the report from the Tanzania Mineral Audit Agency (TMAA) which recorded 1.51million tones.

The minerals were valued at 367.3million US dollars, against 374.6million US dollars.

Despite the value of the mineral, Tanzania is the only country in Africa trading diamond at a low price of around 300 US dollar per carat compared to Botswana that trades the same at an average of 1900 US dollars.

Select Committee Chairman, Mr Mussa Zungu, revealed when presenting the report further that the committee had also found the record regarding royalties between 2007 and 2016.

The ministry's report shows that about 18 million US dollars was paid against 15 million US dollar registered in TMAA statement.

"There was no explanation from both parties regarding differences in the statements, although they are all government offices," Mr Zungu is quoted as saying when presenting the report in question.

Surprisingly, however, he said, the TRA records indicated that between 2007 and 2016, diamonds weighing 942,099 tons were extracted, contrary to the 1.51 million tons reported by TMAA.

This means that the TRA did not account for about 198.743 million US dollars or 437.23bn/-, according to the report.

The committee, however, accused Petra Diamonds Company Limited, which succeeded the Williamson Diamond Mining Company in Mwadui, Shinyanga, for forgery and hiking equipment costs, to deny the government its legitimate revenues.

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