Prosecution pleas for dismissal of defence arguments in 14bn/- case

FAUSTINE KAPAMA

PROSECUTION asked the Kisutu Resident Magistrate’s Court in Dar es Salaam yesterday to dismiss arguments by the defence counsel, challenging money laundering charges against two businessmen in the 14bn/- tax evasion trial.

The multibillion trial involves Mohamed Yusufali, the prime suspect, and his accomplice, Arusha-based prominent businessman Samwel Lema.

The prosecution, led by Assistant Director of Public Prosecutions (DPP) Oswald Tibabyekomya, claimed before Principal Resident Magistrate Wilbard Mashauri that the disputed count is proper and any counter-argument was misconceived.

Advocate Alex Mgongolwa led defence team which had requested the court to strike out the money laundering charge, arguing that it was incurably defective for not containing essential ingredients like the legal consequences the accused could face.

“The defect goes straight to the particulars of the offence...they are fatal and cannot be cured under the law. Money laundering offence must contain four elements like illicit source, placement, layering and integration,” he argued.

But, in his counter submissions, assistant DPP argued that no where the Ant Money Laundering Act has words as proposed by the defence counsel. He submitted that the particulars of offence were sufficient to enable the suspects understand their offence.

“The particulars are sufficient and disclose all essential elements of the offence under section 12 of the Anti Money Laundering Act. So, the defence arguments lack legal basis and should be disregarded,” the senior trial attorney submitted.

Senior State Attorney Mutalemwa Kishenyi who assisted Mr Tibabyekomya in responding to the defence submissions, told the court that the defence team was only 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 shopping counts,” he submitted.

Money laundering, under the 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.

Mr 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 the offence particulars.

According to the advocates, looking at the count, the particulars of the offence were insufficient to meet the required legal test that defines the offence of money laundering and constituent acts provided for under section 12 (a) (b) (c) and (d) of the 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 was missing. He told the court 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 the absence of that, the charge does not disclose any offence under the law.

The law empowers the court to reject such kind of charges,” the defence team submitted. In the case, Yusufali, popularly known as Mzee wa Milioni 7 kwa Dakika, and Arusha businessman Lema are jointly charged with conspiracy, forgery, money laundering, tax evasion and occasioning the government over 14bn/- loss.

The prosecution claims that the accused persons and other persons not in court conspired to defraud the Tanzania Revenue Authority of 14,052,011,435.69 between January 1, 2012 and December 3, 2014 in Arusha and Dar es Salaam.