PROMINENT Advocate Jerome Msemwa has withdrawn from defending three senior officials with the Tanzania Football Federation (TFF), President Jamal Malinzi, his General Secretary Mwesigwa Selestine and Accounts Officer Nsiande Mwanga, charged with fraud and money laundering of about 800m/-.
In his letter sent yesterday to the Principal Magistrate-inCharge at the Kisutu Resident Magistrate’s Court in Dar es Salaam, Msemwa was so brief in his dramatic turn of event. He said, “I pray for leave of this court to withdraw from representing the accused persons in this case for want of proper instructions.”
The withdrawal of the advocate in the trial comes few days after Principal Resident Magistrate Wilbard Mashauri, who is hearing the matter, refused to grant bail to the accused persons and warned the advocates from seeking public sympathy and prosecuting their clients’ case through the media.
Reacting to a concern raised by the prosecution, the magistrate said he was surprised to hear some advocates arguing their case in the media contrary to the procedure. “Advocates are officers of the court. They know the procedure. They should not use the media to mislead the public,” he said.
The magistrate went on to warn the advocates for giving feeble and misleading arguments thinking that the court would buy their position. “If you don’t know the law don’t come here and leave such duty to others,” he said.
Magistrate Mashauri was little bitter to some advocates who think that after being admitted to the bar could do or say anything even where it is illegal and unprofessional. “This is not acceptable.
Our role here is to enforce justice, so advocates should follow what the law requires,” the magistrate said. Through their advocates James Bwana, Jerome Msemwa and Aloyce Komba, the accused persons had invited the court to consider them bail under Article 13 (6) (b) of the Constitution of United Republic of Tanzania.
The lawyers had said that their clients are presumed innocent until proved guilty by the court. However, the magistrate agreed with prosecution led by Senior State Attorneys Mutalemwa Kisheni, Pius Shila, Christopher Msigwa, Nassoro Gatuga and Leonard Swai from the Prevention and Combatting of Corruption Bureau (PCCB), that the money laundering counts accused persons are facing are unbailable.
The magistrate pointed out that the provision of section 148 (5) (v) of Criminal Procedure Act (CPA), was very clear and prohibits accused persons facing money laundering charges to be granted bail. He noted further that there were contradicting positions on part of the advocates themselves on the matter.
While advocate Msemwa admitted in his submission that the offences are not bailable and thus, pushed the court not to allow the prosecution to seek adjournment of the trial on basis of incomplete investigations, counsel Bwana had a different view and sought for his clients to be granted bail.
According to the magistrate, advocate Bwana relied under Article 13 (6) (b) of the Constitution to support his position. But the magistrate pointed out that the Constitution, being the mother law of the land could not be used as an enabling provision to move the court to consider bail to accused persons.
Referring to several cases decided by the higher courts, the magistrate explained section 148 (5) (v) of CPA has not been tested on its unconstitutionality and thus, was still a good law that could be relied upon to determine whether accused person facing money laundering was entitled to bail.
Furthermore, the magistrate pointed out that Article 30 of the Constitution of the United Republic of Tanzania also empowers other organs or bodies, like the Parliament, to make laws with substantive and procedural nature in order to safeguard interests of the public or other individuals.
Magistrate Mashauri further described as baseless the arguments by defence that the accused persons have not properly charged with the offence of money laundering as the elements contained therein were mere forgeries and that the money laundering has been inserted to deny bail their clients.
He said that section 12 of Anti-Money Laundering Act was very clear and disclosed several ingredients forming money laundering offence, including convert, transfer, transport or transmits property, engage, conceals, disguises or impedes, acquires, possesses, uses or administers property, aids and abets.
The magistrate, therefore, concluded that the accused persons have been properly charged. But immediately after delivery of the ruling, the prosecution raised a complaint towards the conducts of seeking public sympathy and arguing their case in the media, which was illegal and not acceptable.