THE defence in the trial of former Commissioner General of the Tanzania Revenue Authority (TRA), Harry Kitilya, and two others, asked the Kisutu Resident Magistrate’s Court in Dar es Salaam to reject the money laundering count of over 12bn/- payments.
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.