alexa How TZ officials used ruse to arrest Don Bosco - Daily Nation

How TZ officials used ruse to arrest Don Bosco

Sunday June 26 2016

Don Bosco Gichana (left) in a court during a past hearing. He says the Kenyan government has not showed any concern about my case for the last three years. FILE PHOTO | NATION MEDIA GROUP

Don Bosco Gichana (left) in a court during a past hearing. He says the Kenyan government has not showed any concern about my case for the last three years. FILE PHOTO | NATION MEDIA GROUP 

NATION CORRESPONDENT
By NATION CORRESPONDENT
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On March 29, 2013, three people, among them a city lawyer in Nairobi, travelled to Arusha to visit an Arusha-based lawyer who had by then been in detention since August 2011 over various charges, among them money laundering which is a non-bailable offence.

The following day we visited him in Arusha Central Prison. On our way back at the Tanzania Immigration office in the Namanga Border Point, they raised an issue purporting to be a fake passport.

Immediately I crossed over to the Kenyan side of the border I went to inquire why the Tanzanians were questioning my passport. 

They made phone calls and I was then told to wait. After 30 minutes, Tanzania Immigration officials came with two policemen who handcuffed me from the Kenyan side.

I was booked at Tanzania’s Namanga Police Post where I spent three nights without being informed of any charges or reason for my arrest. I was also not allowed to inform anyone of my arrest.

On April 2, 2013, I was transferred to Arusha Central Police Station where I spent a night.

The following day, I was taken by bus to Dar es Salaam where I was locked up at Kilwa Road Police Station with firm instructions not to be visited by anyone or allowed any form of communication.

On the sixth day, I was taken to the Financial Crime Office and later to an office in Mikocheni, which I now understand belongs to the Tanzania Intelligence Service.

There I met several police officers and was taken to a smaller room for interrogation with six people, including police officers and someone from the prosecutor’s office.

It was then that I realised I had been arrested on suspicion on money laundering. I gave them a condition that for them to have any sort of statement from me, a lawyer needed to be present.

The following day my statement was taken.

On April 10, I was arraigned in the Kisutu Resident Magistrate’s Court charged with conspiracy to commit an offence of money laundering, and money laundering. The offence allegedly took place in Nairobi, Arusha and Dar es Salaam.

The case filed against me in Kisutu Resident Magistrate Court was preliminary inquiry 10/2013. Preliminary inquiry cases are triable by High Court under the Tanzania anti-Money Laundering Law (amendment) of 2012.

The section that makes the case triable by High Court says: “For a foreigner a crime committed outside the United Republic of Tanzania should be tried by High Court if they fail to extradite that person to the country the alleged crime was committed or with consent of the DPP”.

There was no extradition attempt to Kenya nor was I arraigned with a charge sheet containing the DPP’s consent.

FREQUENT DELAYS
On October 11, 2013, I was released and re-arrested immediately. I was taken to Mikocheni then booked at Stakshari Police Station incommunicado. I requested them to take me to hospital for treatment as I had a bad wound on my leg, a request they refused.

The following day, I was taken back to Mikocheni for interrogation but I told them I had nothing further to add. They took me back to the police station. 

On October 14, I was taken to Julius Nyerere International Airport. That is when I learnt I was en route to Arusha to be enjoined in the ongoing case with three others.

There were alterations in the charges as the alleged money laundering was said to have happened in Nairobi and Arusha — there was no mention of Dar es Salaam. 

It was said that I transmitted US Treasury cheques to Arusha and they were deposited in CRDB Meru branch. I wonder how transmitting cheques amounts to money laundering, leave alone evidence that I did so.

I won’t go into the evidentiary part not to jeopardise the trial as the case is still “ongoing”.

The new case was made a preliminary inquiry triable by High Court because I was a foreigner.

That means the magistrate at the lower court has no jurisdiction and the police can claim even for 10 years that investigations are not complete and the court will have no power to dismiss the case.

From October 15, 2013 to December 2014 the prosecution kept saying the investigations were not complete. The presiding magistrate threatened to release us — even if he had no jurisdiction.

In early December, they declared investigations were complete but the DPP needed time to go through the files and make a decision.

This became the new song until the end of January when the magistrate gave them a deadline to either file at the High Court or he would dismiss the case. 

The information was filed late on the deadline day at around 5pm after the magistrate gave orders that the Registry should stay open up to 7pm.

The preliminary hearing was done late February at a High Court session in Monduli, Arusha, before Lady Justice Fatuma Masengi.

The prosecution came up with new demands, including not being comfortable with a judge from Arusha. They said there were two witnesses from outside Tanzania — one from Dubai and another from the USA — who would not physically appear but needed video conferencing facilities.

Trial was scheduled for April 2015 but this was not to be as the Judiciary said the video link facility was too expensive.

But in mid-October 2015 we were told that the funds were now available, and got summons for trial which was scheduled to start from mid-November to December.

A week prior to commencement of the trial, a pre-trial meeting was held between our lawyers, state attorneys and Justice Gadi Mjemmasala, the presiding judge.

The prosecution suddenly changed their story and said the witnesses would not need a video link after all, but would come in person.

RE-ARRESTED

The million-dollar question is why did they stall the trial while all along they knew that the said witnesses were going to come in person?

In a subsequent meeting the prosecution was asked if they had any other issues and they said there was none.

Come the trial date, however, they said that during the preliminary hearing the presiding judge had erred so they were seeking to enter a nolle prosequi (a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action) so as to go back to the lower court to start everything afresh.

The prosecution had a similar request during the preliminary hearing in the High Court at Monduli before Lady Justice Fatuma Masengi, but this was rejected.

Fast forward to the trial and the judge allowed the nolle prosequi to be entered. And we were released only immediately to be re-arrested and taken to the Arusha Central Prison.

The following day we were taken to the lower court to start the proceedings afresh. Much to our dismay, the overall charge sheet had more counts and new or revised documentary evidence different from earlier committal proceedings in February 2015.

Days later we were arraigned in the High Court. During trial, the second witness came with a set of exhibits in form of documents from USA, affidavits, correspondences and extracts from a case in the US that had taken place earlier.

They requested that the documents be admitted as evidence but our defence team objected. Submissions from both sides were made.

It took the trial judge five days to make a ruling, mostly in our favour.

The prosecution promptly appealed to the court of appeal, something a defence lawyer said was a delaying tactic.

The big argument was on Mutual Legal Agreement on criminal matters and requirements for admitting exhibits requested from a foreign country.

Luckily, we got a quicker date for appeal on February 26, 2016 but there was a setback when a judge withdrew from the case without giving a reason. A new appeal date in Arusha was set for May 24.

The appeal, which was attended by former Vice-President Kalonzo Musyoka in his capacity as a lawyer, went well and we are still waiting for the verdict.

The Kenyan government has not showed any concern about my case for the last three years. I don’t want them to intervene to set me free, rather I want them to protect my rights as a Kenyan citizen who is entitled to speedy and fair trial.

These are universal basic human rights. Are ordinary citizens bound by a different Constitution? Or is it our political alignments?