ARINSA News

High Court quashes nullification of money laundering count

FAUSTINE KAPAMA | 12 August 2016

THE High Court yesterday quashed the decision by Kisutu Resident Magistrate's Court to nullify the money laundering count against former Tanzania Revenue Authority (TRA) Commissioner General Harry Kitilya and two others.

Judge Edson Mkasimongwa ruled in favour of Director of Public Prosecutions (DPP), allowing most of the appeal grounds that were lodged to fault the ruling by Principal Resident Magistrate Elius Mchauru on April 27, this year.

"Presiding magistrate erred in law in striking the money laundering count. I see merits in this appeal, which I allow it. Consequently, I quash the decision of the lower court and order that the records be remitted back for continuation of other proceedings,” the judge declared.

The High Court's decision comes just a day after the Kisutu Resident Magistrate's Court in Dar es Salaam dismissed the request by two prominent businessmen, Samwel Shanshasen Lema and Mohamed Mustafa Yusufali to challenge the money laundering count in the 14bn/- tax evasion trial they are facing.

Judge Mkasimongwa ruled that the presiding magistrate erred in law when he "struck out” the charge without assigning reasons as to why he did not invoke the inherent powers he had to order amendments of the charge if at all it was found to be defective.

In his ruling, the presiding magistrate had said that the money laundering charge was defective and confusing, with the accused failing to understand clearly the offence they are specifically being charged with, to prepare their defence.

In his judgment, Judge Mkasimongwa noted that the money laundering count against the accused contained sufficient particulars and elements, enabling them to understand the nature of offence charged.

"If the charge is defective in form as alleged in this case, then the court had inherent powers to order amendments, alteration of substitution without going into the merits,” he ruled. The judge further pointed out that the lower court was right in holding that it had inherent powers to control proceedings before it. Including giving some orders when the need arises to in order to administer justice and prevent the abuse of court process.

"To dispose the court such constitutional powers is to make the court impotent,” he said. In the case, other accused persons are Shose Sinare, former Miss Tanzania and Head of Investment Banking at Stanbic Bank and Sioi Solomon, former Chief Legal Counsel to the bank.

During the hearing of the appeal, the prosecution led by Assistant DPP Oswald Tibabyekomya maintained that the magistrate had erred in interpreting the provisions of section 12 of the Money Laundering Act.

On the other hand, the advocates for the accused persons comprising Dr Ringo Tenga, Majura Magafu and Alex Mgongolwa, had submitted to the contrary, arguing that the money laundering count in controversy had not contained the required elements of the criminal offence.

Money laundering, under the Anti-Money Laundering Act, they said, includes engagement of person(s), direct or indirectly in conversion, transfer, concealment, disguising, use or acquisition of money or property known to be of illicit origin and in which such engagement intends to avoid legal consequence.

They had told the court that for an offence of money laundering to be committed, there must be intention on the part of the accused person to avoid the legal consequences of such action.

The intention therefore forms the basic element in the particulars of the offence. The prosecution charges the accused persons of money laundering allegedly committed the offence between March 13 and September, last year.

They allegedly 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 Enterprise Growth Market Advisors Limited at Stanbic Bank Tanzania Limited and KCB Bank Limited.

The prosecution claims before 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.