Principal Resident Magistrate Wilbard Mashauri ruled against the Arusha-based tycoon (Lema) and Yusufali, popularly known as ‘Mzee wa Milioni 7 kwa Dakika’, after rejecting the submissions presented by their advocates, on their behalf, that such count was defective.
In its submissions, the defence led by advocate Alex Mgongolwa had requested the court to strike out the money laundering charge because it was incurably defective for not containing essential ingredients, like showing the legal consequences the accused could face.
The advocate had attempted to convince the court to exercise its jurisdiction to scrutinise on the propriety, legality and correctness of the charge, citing section 129 of the Criminal Procedure Act (CPA) and two cases that were decided by the High Court.
“The defect goes straight to the particulars of the offence. Those particulars of the offence are fatal and cannot be cured under the law. Money laundering offence must contain four elements like illicit source placement, layering and integration,” he had argued.
The magistrate, however, desisted from dwelling so much on other arguments presented by the parties on the matter, except on the court whether it has jurisdiction to act on the invitation by defence over propriety, legality and correctness of the charge.
The magistrate noted that the two cases cited gave conflicting decisions one of them was pending for appeal. Therefore, he ruled, such cases were not binding upon the court to be relied upon.
In its counter submissions, the prosecution led by Assistant Director of Public Prosecutions Oswald Tibabyekomya had told the court that particulars of the offence were sufficient enough to enable the accused persons to know the offence.
“The particulars are sufficient and disclose all essential elements of the offence under section 12 of the Anti Money Laundering Act. So the arguments by the defence that the count is defective lacked legal basis and should be disregarded,” the senior trial attorney submitted.
To add more salt on the wound, Senior State Attorney Mutalemwa Kishenyi, who assisted Tibabyekomya in responding to the defence’s submissions, told the court that what the defence side was doing was shopping for counts under which their clients should be charged.
“The situation we have is bout striking count number 221. This can be interpreted as for defence to shop some counts their clients should be charged. It is our request that the court should not entertain this trend of one shopping counts to be charged,” he submitted.
He submitted further that section 132 of the Criminal Procedure Act provides how the charge should be framed. According to him, since the offence of money laundering is created under section 12 of the Act, the same has been cited and was sufficient to establish the offence.
“Under section 132 of CPA, information contained in the charge should enable the accused person to understand the nature of the offence charged. We did not leave any point whatsoever under section 12 (a) to frame the money laundering charge.
So the charge before you is proper,” he told the court. 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.
Mgongolwa had earlier submitted that 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 required 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. He told the magistrate that particulars of the offence do not disclose such essential element.
“By failure to state this essential part, you’re talking something else and not money laundering. Therefore, in absence of that, the offence does not disclose any offence recognised by law. The law imposes a duty to the court to reject such kind of charges,” the advocate submitted.
In the case, Yusufali, popularly known as Mzee wa Milioni 7 kwa Dakika, is charged jointly with prominent businessman from Arusha, Samwel Shanshasen Lema on charges of conspiracy, forgery, money laundering, evading tax and occasioning loss of over 14bn/-.
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