Advocates Ringo Tenga, Joseph Tadayo,
Majura Magafu, Semu Anney, Alex Mgongolwa and Godfrey Nyaisa told Senior
Resident Magistrate Emilius Mchauru that the count in question was
fatally defective for not disclosing the offence of money laundering, as
stated in the law.
“The defect goes straight to the
particulars of the offence. Those particulars of the offence are fatal
and cannot be cured under the law. A money laundering offence must
contain four elements like Illicit source placement, layering and
integration,” argued advocate Mgongolwa, on behalf of his co-defence
counsel.
Submissions by the defence come after
the court refused to grant bail to the accused persons, who are facing a
total of eight counts. Other charges are forgery, uttering false
documents and obtaining six million US dollars (about 12bn/-) by false
pretences.
The magistrate ruled that there was no
doubt that the offence of money laundering was not a bailable offence
under the law. “Under such circumstances, this court may have no power
to entertain the application for bail.
The application for bail is, therefore,
dismissed,” the magistrate declared. Other accused persons comprise
former Miss Tanzania and head of investment banking at Stanbic Bank
Shose Sinare and Sioi Graham Solomon, the former Chief Legal Counsel to
the Bank.
After the court ruling, the defence team
came up with the request, attacking the money laundering count. Money
laundering, under the Anti-Money Laundering Act, is defined as
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.
From such definition, they submitted,
one could rightly say that for there to be an offence of money
laundering, there must be intention on the part of the accused person to
avoid the legal consequences of such action.
Hence, the intention forms a basic
element in particulars of the offence. According to the advocates,
looking at the count, the particulars of the offence were insufficient
to meet test requirement under section 3 which defines the offence of
money laundering and constituent acts provided for under section 12 (a)
(b) (c) and (d) of the Anti-Money Laundering Act.
In particular, the advocates submitted,
the element of intention on the part of the accused persons to avoid the
legal consequences of their action is missing. Particulars of the
offence show that the three accused persons committed the offence
between March 13 and September last year within the city.
The accused persons allegedly engaged
themselves directly 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 alleges further that the
accused persons ought to have known that the said money was the
proceeds of a predicate offence, which is forgery.
In response to the defence submissions,
the prosecution, led by Principal State Attorney Oswald Tibabyekomya and
Senior State Attorneys Christopher Msigwa and Shadrack Kimaro asked the
court to dismiss the application in question because it lacked legal
merits.
They told the court that money
laundering offence is constituted with only three elements of placement,
layering and integration and not four as alleged by the defence. All
such elements, according to the prosecution, were contained in the count
in question.
“Therefore, the count is proper and
contains all the necessary elements. The grounds submitted by defence in
tacking the count are baseless and should be ignored and the court
finds that the accused persons have been properly charged,” leading
prosecutor Tibabyekomya submitted.
After hearing the submissions from both
parties, the magistrate adjourned the case to April 22, for delivering
of a ruling on the contentious matter.
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