Category: Justice

{Nine Tanzanians have been charged in connection with the murder of a British conservationist whose helicopter was shot down while he chased suspected poachers, a senior prosecutor has said.}

Roger Gower, 37, died when suspected poachers gunned down his helicopter during a patrol of the Maswa game reserve in northern Tanzania, close to the Serengeti national park, on 29 January.

Photographs of the crashed helicopter show twisted metal, apparent bullet holes in the fuselage and smears of blood on the pilot’s seat.

Without a solution to the poaching crisis, the death of conservationists will continue
Ben Fogle
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“Four of them are charged with murder, while others face charges of economic sabotage and unlawful possession of firearms,” senior government prosecutor Yamiko Mlekana told AFP by phone on Thursday.

The four men charged with murder have not yet entered any plea, as their case will be tried in the high court. The other five will be tried in a lower court.

“Some of the accused pleaded guilty to being in unlawful possession of firearms and elephant tusks, while others denied the charge,” Mlekana said.

Gower, who worked for the Friedkin Conservation Fund, had been tracking poachers after spotting the carcasses of recently killed elephants.

‘Total of five people arrested’ over killing of British pilot in Tanzania
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It is estimated that more than 30,000 elephants are killed for their tusks every year across Africa.

Their ivory is prized for jewellery and decorative objects and much of it is smuggled to China, where many increasingly wealthy shoppers are buying ivory trinkets as a sign of financial success.

Tanzania’s natural resources and tourism minister, Jumanne Maghembe, this week announced the government would set up a special task force for anti-poaching operations.

“Poaching is now done using sophisticated machinery and heavy weapons including AK-47s,” Maghembe said. “We are going to set up a force comprising different security forces and the army.”

Source:The Guardian:[Nine charged over Tanzania murder of British conservationist->http://www.theguardian.com/world/2016/feb/11/nine-charged-tanzania-murder-british-conservationst-roger-gower-]

{Deputy President William Ruto will know this Friday if the International Criminal Court (ICC) will admit recanted evidence in the case against him.}

Last evening, the Appeals Chamber of the court said it would deliver its ruling on Friday at 6.30pm Kenyan time.

Kenya has been mobilising the international community — including the Assembly of States Parties — to stop the use of recanted evidence in the Ruto case, saying the amendment to Rule 68 of the Rome Statute was made after the case had started. Kenya has been pushing to block the amendment from being used retroactively.

After hearing submissions, Appeals Chamber judges Piotr Hofmaski (presiding), Silvia Fernández de Gurmendi, Christine Van den Wyngaert, Howard Morrison and Péter Kovács will make the ruling that has three potential outcomes for the case against Mr Ruto.

WEAKEN CASE

The court could weaken the case made by Prosecutor Fatou Bensouda if it rules that Rule 68 cannot be applied retroactively.

If it rules otherwise, then it will weaken Mr Ruto’s defence. It is also possible that the ruling will have no impact on the case, depending on what the judges decide.

Mr Ruto and his co-accused, former radio presenter Joshua arap Sang had appealed a ruling by Trial Chamber V(A) that allowed the prosecutor to have renounced testimony readmitted.

Mr Ruto and Sang are facing charges of crimes against humanity in connection with the 2007-2008 post-election violence in which 1,113 people were killed and more than 600,000 displaced.

A verdict in favour of Prosecutor Fatou Bensouda will offer her new standing to strengthen her case, now that all her witnesses have testified. If judges agree with the defence team, however, it would boost the defence argument that the case was built on quicksand.

The judges may side with the prosecutor but allow her witnesses to be challenged by the defence team, which means that they could rebut Ms Bensouda’s earlier submissions in the trial.

Ms Bensouda has in the past argued some of the witnesses pulled out or recanted their testimonies possibly because they were influenced to do so.

Earlier in the trial, Ms Bensouda had asked Trial Chamber V(A) to allow evidence submitted to the court and recanted to be used. She based her argument on Rule 68, which was amended during the 12th Assembly of States Parties (ASP) meeting at The Hague in 2013. The court agreed with her.

The ASP, composed of member states of the ICC, acts like a parliament for the court. It makes rules and regulations to guide the judges.

HOSTILE WITNESSES

Ms Bensouda had convinced judges Chile Eboe-Osuji, Olga Herrera Carbuccia and Robert Fremr that five of the witnesses in the case were influenced — through bribes or intimidation — to recant their statements. She had also argued that a sixth witness had disappeared.

However, Mr Ruto’s lawyer raised 11 issues about admitting testimony from witnesses considered hostile.

“The admission of hearsay evidence, which is central to the OTP’s (office of the prosecutor) case, will significantly affect the fair conduct of proceedings because it will not only affect the defence’s ability to properly test the OTP’s case but to adequately make its case,” argued his legal team, led by Mr Karim Khan.

After the judges ruled to allow the use of recanted evidence, the Kenyan government immediately wrote a protest letter to the presidency of the ICC.

In the letter to the court’s president, Ms Silvia Alejandra Fernández de Gurmendi, and the president of the Assembly of States Parties, Mr Sidiki Kaba, Kenya’s ambassador to the UN, Mr Macharia Kamau, described the judges’ decision as “regrettable and improper”.

“We wonder why the court would take this course of action when it is surely aware of the understanding and decisions of the assembly.

“The legal and moral hazard of such action(s) ought to be self-evident as it undermines the legislative oversight of the assembly,” he wrote on August 25.

Kenya complained that although it had supported the amendments in 2013, it had been promised by the assembly that the rule would not apply in the Kenyan cases already before the court.

“Kenya was duly assured, through consensus reached by states parties, that the proposed amendments to Rule 68 shall not be applied retroactively.

“Moreover, specifically and crucially, Kenya was expressly informed that there would be no attempt to apply the amended rule 68 in the trials under way before the court and more particularly so, in the trials relating to the situation in the Republic of Kenya,” argued Mr Kamau.

Kenya had agreed to the amendment as a give-and-take so that the assembly could also amend rules that would ensure cases go on even if the Kenyan suspects were not present in courts.

At the time, President Uhuru Kenyatta was also facing similar charges and it was feared there would be a vacuum if both he and Mr Ruto were required to appear in court.

The prosecutor later dropped Mr Kenyatta’s case.

Source:Daily Nation:[ICC to make key ruling in Ruto case Friday->http://www.nation.co.ke/news/ICC-to-make-major-ruling-in-Ruto-case/-/1056/3067962/-/f3pm27z/-/index.html]

{THE Court of Appeal has dismissed the appeal lodged by former employees of the defunct East African Community (EAC) for payment of more than 2.1 trillion/- as additional terminal benefits.}

Such legal feat has been achieved thanks to the Attorney General (AG) Chambers’ effort to rescue the government from disbursing such colossal amount after successfully defending the longest suit in the country’s judicial history.

Justices Nathalia Kimaro, Bernard Luanda and Batuel Mmilla ruled against 5,598 ex-EAC employees, who had been demanding additional payments of 2,178,588,653,941/- apart from the 117bn/- consented by the parties in an outof- court-settlement.

Such 117bn/- were to be paid to the workers as pension, additional pensions, provident fund, severance allowances, gratuity, redundancy payments in lieu of notice, one month salary in lieu of notice, loss of office benefit, outstanding leave and repatriation expenses, among others.

It was a result of a deed of settlement that had been entered by the parties in 2005 in respect of 31,831 workers. However, the said 5,598 ex-employees appeared to have been dissatisfied with such payments and filed an application for certificate involving additional payments of 416,166,090,304/30.

High Court Judge Fauz Twaib dismissed the application on May 23, 2011, ruling that a certificate must be issued to an applicant who has claims against the government and indicating the exact amount he/she is claiming for the purposes of enabling the Permanent Secretary to the Treasury to make payments. Five years later, the appellants decided to take the matter to the Court of Appeal. But this time around, the amount demanded was not 416,166,090,304/30 but 2,178,588,653,941/-.

But the justices of the appeals court dismissed the appeal because it lacked merits. “It makes no sense to issue a certificate to a party that had agreed to be paid a certain amount of money in settlement of his or her claim and then comes later on to claim additional payments, which did not even form part of the original agreement,” they observed.

The justices pointed out that if the appellant required a certificate that had to ask for one after the claim was settled and before the payments were effected — as that would have enabled them to know whether the amount of 117bn/- would have settled the amount they were claiming.

“Coming to court after the payments were made and after a period of five years had elapsed, questioning the deed of settlement and claiming that the payments was not made in accordance with the deed of settlements, amounts to asking the court to reopen the negotiations,” they ruled.

The determination of the case by the appellate court marks end of the matter that has been pending since 2003. Principal State Attorney Gabriel Malata, assisted by Senior State Attorneys Mtuli Mwakahesya, Harun Matagane and Alice Mtulo, had appeared for the AG.

In the appeal, the workers, who were appellants, were being represented by a team of seasoned members of the bar comprising advocates Jotham Lukwalo, Charles Semgalawa, Adronius Byamungu and Narindwa Sekimanga.

The dispute in question could be traced since June 30, 1977 when the countries of Tanzania, Kenya and Uganda disbanded from the members of a body of regional cooperation called East African Community. Prior to that, the three countries under the Community carried on many joint activities.

They included a common air carrier, a harbours corporation, railways, posts and telecommunications; and cargo handling services, just to mention a few.

However, in December 1976, the Community began to break up with the collapse of some of its corporations. From then on, the three countries took their different paths and each established its own entities to take over the places and functions of the many institutions of the defunct Community.

Due to its collapse, the employment relationship between the Community and its staff came to an end.

Even though most of its staff members were taken on board by the newly-established institutions, they were not paid the pensions and other benefits that they were earned as EAC employees. It took them many years of following up before a decision was finally made to pay them.

Source:Daily News:[Ex-EAC staff lose appeal on pay->http://www.dailynews.co.tz/index.php/home-news/46754-ex-eac-staff-lose-appeal-on-pay]

{The Court of Appeal has ordered three respondents, Max Village Limited, Uaridi (Warida) Beach Resort Limited and Massimiliano Bramucci to pay to Arabian Ventures Zanzibar Limited, who trades as Ocean Paradise Resort over 52m/- being accommodation charges for 30 tourists.}

A panel led by Chief Justice, Mohamed Chande Othman and Justices; Nathalia Kimaro and Kipenka Mussa, ruled in favour of Ocean Paradise Resort, the appellant, after partly allowing an appeal lodged against findings of the High Court of Zanzibar at Vuga dated October 31, 2014.

“Having found that the respondents made a request and committed themselves to pay for the bills of the guests who were booked at the appellants hotel, we are fully satisfied that the appellant established her claims on a balance of probabilities,” the panel declared.

The justices, thereafter, proceeded to reverse the verdict of the High Court and accordingly entered judgment in favour of the appellant with costs and directed the respondents to pay Ocean Paradise Resort 18,000 US dollars being charges for rental and services rendered to the guests.

They further directed the respondents to pay the appellant 8,000 US dollars being general damages for breach of contract and for loss of use of the outstanding monies by them.

Pleadings show that the appellant is a limited company incorporated in Zanzibar, owning and operating a beach hotel resort situated at Pwani Mchangani, in the island. Massimiliano Bramucci is the Managing Director with Max Village Limited.

It is shown further that Max Village Limited, which is also incorporated in Zanzibar, owns Uaridi (Warida) Beach Resort Limited, which is similarly situated at Pwani Mchangani.

The appellant’s claim against the respondents was with respect to hotel rentals and services rendered to a group of 30 visitors, whom he accommodated at the instance of Massimiliano Bramucci. Allegation by the appellant was that Massimiliano Bramucci requested the appellant to accommodate the visitors due to the fact that his hotel facility was not ready to provide the service.

This was in December 2009. The agreed rates were raised against Uaridi (Warida) Beach Resort Limited name and posted in two proforma invoices. The guests were received at the appellant’s hotel between December 24 and 29, 2009. In response to the invoices raised, Massimiliano Bramucci promised to settle the hotel bills.

However, after the visitors had departed he became dilatory and later transmitted an e-mail to the appellant’s hotel front office manager, advising the invoices to be redone and sent to him in the name of We Can Tour T.O Srl, an Italian Company, which was among defendants in the suit at the High Court.

That was done, but there was no positive response from Massimiliano Bramucci, who instead made a turnabout and proposed to the appellant to allow him to act as its agent in making follow ups for the payments of the bills from the Italian Company.

{The bribery allegations involving a Supreme Court Judge and the statement by Chief Justice Willy Mutunga that corruption was rife in the Judiciary have thrown the corridors of justice into unprecedented crisis of confidence.}

A number of leaders have now called for the dissolution of the highest court in the land to restore faith in the justice system.

Dr Mutunga on Thursday sensationally revealed that even the election of judges’ and magistrates’ representatives were riddled with corruption, with the officials bribing others to vote for them.

The Judicial Service Commission has formed a team to investigate claims against Justice Philip Tunoi that he received Sh200 million bribe from Nairobi Governor Evans Kidero in a Supreme Court case challenging his election.

Justice Tunoi has denied the allegations terming them as a scheme to oust him before the 2017 elections, but critics have termed the new developments an irreparable damage on the image of the Judiciary.

“It is not possible that Justice Tunoi could have influenced the decision alone in a seven-judge bench case. If these allegations are found to be true, a completely new Supreme Court should be set up and start afresh as we head to an election year,” said Law Society of Kenya Chief Eric Mutua.

The Supreme Court handles presidential petitions as the last place of recourse, and cannot afford a crisis in confidence.

International Commission of Jurists George Kegoro insists that what was at stake wasn’t just the actual happening of the adverse allegations, but a matter of perception.

“Whatever its eventual outcome, the effect of the Justice Tunoi affair on the Supreme Court and the Judiciary, remains profound. The accusation against Justice Tunoi is an accusation against the entire court,” argues Mr Kegoro.

JUDICIARY AUDIT
Dr Mutunga two weeks ago called for a lifestyle audit on Judiciary officers, barely a week after completion of vetting of the officials, dampening hopes that the graft dragon in hallowed grounds of justice as finally being slayed.

“I think the most honourable and sensible thing for Justice Tunoi now is to resign. Given the seriousness of the allegations, even if not true, he should not wait,” said Senior Counsel Ahmednasir Abdullahi.

The LSK had in October, last year, argued that the Supreme Court should be disbanded, and the Court of Appeal take its place.

Dr Mutunga leaves office in June and the graft allegations have threatened to taint the legacy of a man who came into the Judiciary so highly recommended.

“Dr Mutunga feels like a lame duck. He wants to act, but his time has come and he can only do so much now. The issue of retirement, the upcoming election and then the bribery scandal has conspired to taint his retirement plan,” a senior Judiciary official told Saturday Nation on Friday.

Justice Tunoi, Deputy Chief Justice Kalpana Rawal, and High Court Judge David Onyancha are embroiled in a case of their retirement ages.

The vetting team, led by top lawyer Sharad Rao, has unearthed disturbing cases of financial impropriety as well as instances of judicial officers not able to explain sources of their income.

WHEAT AND CHAFF
In one instance, a magistrate had failed to withdraw a single cent from his salary account for two years, instead saying he lived on his wife’s Sh15,000-a-month salary.

Some analysts have argued that corruption was so pervasive in the Judiciary that it did not only need an audit, but a whole new purge akin to the Judges and Magistrates Vetting Board and the 2003 radical surgery combined.

Though Senior Counsel Paul Muite agreed that the lifestyle audit was important, he said it should be done by international firms.

“Addressing corruption in the Judiciary must be concurrent and with addressing it holistically across the board. Spotlighting the Judiciary alone cannot work.”

Senior Counsel Nzamba Kitonga, who chaired the team that drafted the Constitution 2010, said that the audit will weed out those that might have passed through the vetting team net.

Source:Daily Nation:[Dissolve Supreme Court, top lawyers say amid crisis in Judiciary->http://www.nation.co.ke/news/Dissolve-Supreme-Court-top-lawyers-say/-/1056/3054708/-/p0ka8sz/-/index.html]