"Fiat Justitia Ruat Caelum"

Kenyan Presidential Election 2017: Supreme Court quashes Uhuru Kenyatta's re-election

Supreme Court - Nairobi, Kenya.

Summary:

Kenya's Supreme Court on Friday declared the results of last month's presidential poll "invalid, null and void" and ordered the election be re-run within 60 days.

Supreme Court majority decision:

1. IEBC failed to conduct the election in compliance with constitutional provisions.

2. IEBC committed irregularities and illegalities.

3. The irregularities and illegalities affected the integrity of the Presidential election.

..................................

A six-judge bench, by majority decision, on Friday indicted the Independent Electoral and Boundaries Commission (IEBC), saying it conducted the elections contrary to the dictates of the Constitution and poll laws.

4 JUDGES

Chief Justice David Maraga agreed together with Deputy Chief Justice Philomena Mwilu, Smokin Wanjala and Isaac Lenaola that the electoral body messed up transmission of poll results.

“A decision is hereby issued that the elections held on August 8, were not conducted in accordance with the Constitution and the applicable law. The results are therefore invalid, null and void,” Chief justice David Maraga said.

"Elections is not an event but an process. After considering the totality of the entire evidence, we are satisfied that the elections were not conducted in accordance to the dictates of the Constitution and the applicable principles."

Judges Jackton Ojwang and Njoki Ndung'u dissented while judge Mohammed Ibrahim, who fell ill on the second day of the case hearing, did not take part in the decision because he is still in hospital.

LAWYERS

Justices Ojwang’ and Ndung'u said the petitioner, National Super Alliance (Nasa) leader Raila Odinga, had failed to prove claims that the polls were rigged in favour of Mr Kenyatta.

The two said the polls were free, fair and credible as described by international observers.

Justice Ndung’u said challenges face every election and if they occurred, they were not deliberate or in bad faith.

The top court in Kenya, in a bold move, ordered the IEBC to conduct a fresh presidential election within strict confines of the law within 60 days.

Lawyers who represented President Kenyatta and the IEBC protested the judgment and sought explanations and clarifications from the judges.

Lawyer Ahmednasir Abdullahi, for Mr Kenyatta, faulted the court, saying it had made a political decision because no one is disputing that the voter made his decision.

RIGGING

According to him, Lady Justice Ndung'u upheld the wishes of Kenyans.

But Justice Maraga said, in due time, they would be able to demonstrate why they reached their decision.

Nasa lawyers, led by James Orengo, were happy with the decision and thanked the court for agreeing with them that IEBC flouted electoral laws.

“The decision is history. The first judgement in Africa that has upset a presidential election. Supreme Court has done Kenya proud and lived up to the principle and law regarding election,” he said.

“The decision by the court means well have new presidential election within 60 days. We hope this time around, they will not make the mistake of generating elections through computers.”

IEBC

“What IEBC did was treasonable because they wanted to declare the presidency against the Constitution. I don't think IEBC will preside over the election.

The decision has is a big win for Mr Odinga and his running mate Kalonzo Musyoka, who accused the IEBC of rigging the election in favour of Mr Kenyatta.

The two rejected the results even before they were announced on August 10, accusing the commission of imposing "computer-generated leaders" on Kenyans.

The quashing of Mr Kenyatta's victory is particularly important to Mr Odinga because it has granted his political career a lifeline.

Aged 72, Mr Odinga had promised his opposition co-principals that it was the last time he was running for State House after previous three barren attempts.

'CANAAN'

After the vederct, Mr Odinga told his supporters that their march to what he has branded "Canaan" , the famed promised land, was unstoppable.

“This is a historic day for Kenyans and Africa. For the first time in history of democratisation in Africa, ruling made to nullify a presidential eletion,” he said

‘’Our journey is unstoppable. IEBC committed criminal act and belong to jail.”

Mr Musyoka, on his part, said Friday was a historic day not just for Kenya but Africa.

“The dignity of Supreme Court has been established. I am happy to be a Kenyan today. We will have to look deeply into the conduct of IEBC. We do not have faith that they can conduct a credible election,” he said.

After issuing the verdict, Mr Maraga, who is also the president of the court, urged Kenyans to maintain peace, saying an election is a process and not an event.

He pleaded with lawyers to help the country in maintaining the peace.

Source: Daily Nation Kenya (01/09/2017).

Dar es Salaam: Five foreigners pay 53m/- fine, escape jail term

Dar es Salaam, Tanzania.

Five officials with CI Group Co Ltd on Monday escaped a three-year custodian sentence by paying a 52.5m/- fine after being convicted over illegal stay and engaging into unlawful occupation.

The convicts were two Executive Graphic Designers Shashi Shankar Upadhay (31) and Mohan Gaikwad as well as Marketing Officer Ashish Joshi (24), both Indian nationals. Others were an Accountant, Didar Karim (39) and Project Manager Manzoor Islam (31), Pakistan nationals.

Principal Resident Magistrate Cyprian Mkeha convicted the illegal immigrants on their own plea late on Monday before the Kisutu Resident Magistrate’s Court in Dar es Salaam. On the count of unlawful stay in the country, each of the accused was ordered to pay 500,000/- or serve a three-year jail term.

And, in the second count of working illegally, the court subjected each of the accused to the 10m/- fine or one year in prison. Prosecutor with the Immigration Department Method Kagoma had earlier alleged that on July 20, 2017 at CI Group Co Ltd in Kinondoni District in Dar es Salaam, the accused were found staying in the country without valid passes.

It was further alleged that at same place, the accused were found working without the working permit. Meanwhile, hearing of a drug abuse case against Video Vixen Agness Waya (28), alias Masogange, for the second time failed to kick off yesterday due to illness.

Previously, the matter was adjourned on grounds that the accused was sick. This time, it was the prosecutor’s child who was reported sick. Principal Resident Magistrate Wilbard Mashauri adjourned the case to August 9, this year.

The court was earlier informed that the matter had come up for hearing and two witnesses were present for the session to start. Masogange appeared before the court for the first time on February 22, this year and denied the charges.

It was alleged that the accused committed the offence on February 7, this year at unknown area and district, but within Dar es Salaam city.

The Video queen is alleged to have used narcotic drugs, namely Heroin (Diacety Imophine and Oxazepam types). Her arraignment came after being in police custody for several days having been suspected of dealing in narcotics.

She is among people the Dar es Salaam Regional Commissioner, Paul Makonda, named publicly as drug dealers.

Source: Daily News (26/07/2017).

Dar es Salaam: James Rugemalira and Mr Harbinder Singh Sethi arraigned for Tegeta Escrow Account Scandal

Dar es Salaam, Tanzania.

The Director of VIP Engineering and Marketing Mr James Rugemalira and Mr Harbinder Singh Sethi of Pan Africa Power Solutions Tanzania Limited (PAP), appeared at the Kisutu Magistrate Court yesterday (19/06/2017) facing six counts of economic sabotage and occasioning a loss to the government of US $ 22.1 million dollars and 309 bn/-.

State Attorney Paul Kadushi read the charges against them after which they were remanded since the lower court has no jurisdiction to prosecute such charges unless they get an approval from the Director of Public Prosecutions.

Resident Magistrate Huruma Shaidi explained further that economic sabotage crimes can only be heard at the High Court but that the DPP can in some instances issue an approval for the lower court to hear the charges.

The State Attorney informed the court that between October 18, 2011 and March 19, 2014, in Dar es Salaam, the duo conspired to commit offences in South Africa, Kenya, India and elsewhere.

During a session of parliament in November 2014, the august House had made eight resolutions one of which was for investigations and arrest of all people who were involved in the scandal.

The resolution followed a report by a special committee of the Parliamentary Public Accounts Committee (PAC) which was formed to probe the affair.

The court heard yesterday that between November 28 and 29, 2011 and on January 23, 2014 at the Stanbic Bank headquarters at Kinondoni and Mkombozi Bank, St Joseph Branch, the two businesspersons, through deceit, received the said amount from the Bank of Tanzania (BoT).

Before the arraignment of the duo yesterday, the Director General of Prevention and Combating of Corruption Bureau (PCCB), Mr Valentino Mlowola, told a news conference that the agency had all along been investigating the scam which rocked the country in 2014.

“The two will initially be brought before the Kisutu court before some judicial arrangements are made to transfer the case to the Corruption and Economic Crimes Division of the High Court,” Mr Mlowola explained to journalists.

The scandal involved the transfer of 309bn/- from an escrow account at the Bank of Tanzania (BoT), where it was jointly opened by Tanzania Electric Supply Company (TANESCO) and IPTL pending legal wrangles over capacity charges between the parties before domestic and international courts. IPTL, which operates dieselfired turbines at Tegeta in Dar es Salaam, was initially founded through a joint venture between a Malaysia company, Mechmar (70 per cent) and Mr Rugemalira’s VIP Engineering and Marketing Limited (30 per cent).

It is still unclear how Mechmar sold off its shares to another company, PiperLink of British Virgin Island, which later allegedly sold its stake to Mr Sethi’s PAP.

Billions of shillings were then paid to Mr Sethi from the account after he convinced officials that he had acquired a 70 per cent stake in IPTL. He then proceeded to acquire the 30 per cent stake which was owned by VIP Engineering and Marketing.

To seal a deal with Mr Rugemalira’s company, it is said that Mr Sethi had to pay a whopping US $75 million dollars (about 165bn/-) to acquire the 30 per cent.

As the scandal ravaged on with calls for actions from the parliament and subsequent investigations by PCCB and audits by the Controller and Auditor General (CAG), several top government officials were sacked while others resigned.

Among those who resigned were the then Minister for En ergy and Minerals, Prof Sospeter Muhongo and Attorney General Fredrick Werema, while Prof Anna Tibaijuka, then Minister for Lands, Housing and Human Settlements Development, was fired by former President Jakaya Kikwete.

The former UN Habitat boss was fired after it emerged that she had been paid 1.6bn/- by Mr Rugemalira. The funds were suspected to be part of monies from the escrow account.

The list of other individuals said to have pocketed some of the funds include former Minister for Energy and Minerals William Ngeleja and former Attorney General Andrew Chenge. President Kikwete also dropped the then Permanent Secretary in the Ministry of Energy and Minerals, Mr Eliakim Maswi.

Source: Daily News Tanzania (20/06/2017).

Dar es Salaam: TBS official in court over illegal stay

Dar es Salaam, Tanzania.

The Tanzania Bureau of Standard (TBS) Principal Legal Officer, Baptister Bitaho (54), a Burundian national, has appeared before a Dar es Salaam court facing three counts, including working in the country without a valid permit.

The other charges comprise unlawful presence in the country, without a valid visa, and making false statement which allowed him to obtain a Tanzanian passport. Before the Kisutu Senior Resident Magistrate, Victoria Nongwa, the accused pleaded not guilty to all the charges and was granted bail on condition that he avails two sureties, who are citizens and will have to sign a bond of 20m/-.

A Prosecutor with the Immigration Department, Mr Novatus Mlay, informed the court that investigations into the matter were yet to be completed. Bitaho requested the court to grant him bail.

It was alleged that on May 19, 2017 at Kinondoni District Immigration Office in the city, the accused being a citizen of the United Republic of Burundi, was found to be unlawfully present in the country.

According to the Prosecutor, Bitaho committed the offence knowing that he was breaching immigration laws. Mr Mlay also alleged that during the same occasion in Kinondoni District, the accused was found engaging in occupation, as Principal Legal Officer for TBS, without a valid work permit.

In the third count, the accused on July 6, 2011 at the Dar es Salaam Immigration Office in Ilala District in the city, being a foreigner made a false statement regarding his personal particulars on the passport application form CT (5)(Ai).

Source: Daily News Tanzania.

Kampala: Kabaka protests High Court order over Bank Statement

Kampala, Uganda.

The Buganda administration have said the kingdom’s bank accounts details should remain secret and have petitioned High Court to halt its orders compelling Kabaka Ronald Muwenda Mutebi to produce financial statements of the kingdom’s bank accounts.

On Monday, High Court judge Patricia Basaza granted a request by a petitioner Mr Kiwanuka Mabirizi, for the Kabaka to reveal to him bank statements detailing the money the Mengo administration has collected from people living on the kingdom land. The Kabaka was ordered to present the bank details by June 30.

Mr Mabirizi is challenging the Kabaka’s decision to levy fees against people living on the kingdom land. The registration fees range from Shs100,000 and Shs600,000.

“We are not contented and we have moved to the High Court to ask for the stay of execution of the judgment,” city lawyer and Buganda Kingdom attorney general Daudi Mpanga told a press conference in Kampala yesterday.

“Like other organisations, the kingdom or Kabaka need privacy to their accounts. We must preserve our dignity,” Mr Mpanga said.

Source: Daily Monitor Uganda.

Dar es Salaam: Legal controversies mar Mwingira’s case

Dar es Salaam, Tanzania.

KISUTU Resident Magistrate’s Court was yesterday compelled to adjourn the 7.5bn/- adultery case against Prophet Josephat Mwingira and Phillis Nyimbi over legal controversies.

Principal Resident Magistrate Thomas Simba was scheduled to start hearing the suit but pushed the session forward to July 18 to allow advocate Respicius Ishengoma to discuss with his client, an American Doctor William Morris, who lodged the case, on certainty of the sought prayers.

In the prayers, Dr Morris is pleading with the court to order Mwingira, the Chief Executive Officer of Efata Ministry, to pay him 7.5bn/- as general damages for allegedly committing adultery, unlawfully cohabiting with his wife, Dr Nyimbi.

The plaintiff also seeks orders for HIV tests on all three parties, himself, Mwingira and Dr Nyimbi as well as orders of DNA test between the child and the two defendants. He is also pressing for payments of punitive and exemplary damages, interests and costs of the suit.

But, in yesterday’s court proceedings, the magistrate questioned the rationale behind the prayers on HIV and DNA tests, as they will have no use at the end of the trial. He questioned where the results will be taken to after the tests as the file will already be closed after determining the suit.

“The HIV and DNA testing are reliefs that have been asked to be given at the end of the trial. Assume we grant these two prayers, where will the results be taken to?

How this court will benefit from the results adduced after determining the suit,” the magistrate questioned. Prophet Mwingira and Dr Nyimbi are alleged to have entered into love affairs at unknown date despite the lady being the lawful wife of Dr Morris, the plaintiff.

It is further alleged that when the plaintiff enquired on the issue, the wife claimed to have been raped by Mwingira. The alleged rape did not only result into pregnancy but also other serious medical complications.

It is claimed that on December 28, 2001, Dr Morris contracted a Christian marriage with Dr Nyimbi at St Albans Anglican Church, Upanga, in the city. According to the suit, in the course of alleged love affairs between the defendants, the couple got an issue aged nine years now and a series of medical complications on the wife.

It is claimed further that the plaintiff reported the case to Coast Regional Police in Kibaha but the police informed him that the act was adultery or defamation, which did not fall under the criminal cases because there was love affairs and was advised to pursue the civil case.

“The act of second defendant (Dr Nyimbi) having love affairs with the first defendant (Rev. Mwingira) is the betrayal to the valid marriage between the plaintiff and the second defendant...the same has frustrated all the plaintiff’s future plans to the extent of losing the taste of living,” the plaint reads.

It is alleged that acts of the two has also ashamed and or defamed and lowered the reputation of the plaintiff not only in Tanzania but also in the world. The act has allegedly not only ruined the plaintiff’s social life but also psychologically and economically.

“This resulted in the damage and loss of business to his international NGO due to loss of sponsorships from individuals and institutions from around and the possibility of a legal action by one of the organization’s main supporters,” it is further stated in the plaint of the suit.

The plaint show that the plaintiff has been living and practicing in Texas in the USA as an Obstetrician Gynaecologist, a Lecturer and Health Program Director for over 20 years.

The couple was living in peace and harmony and Dr Morris managed to acquire a Multi-national Executive or manager Visa status for his wife.

Source: Daily News Tanzania

Court dismisses Museveni defamation case against Otunnu

Kampala, Uganda.

Court in Kampala has dismissed the case in which former Uganda People’s Congress (UPC) party president Olara Otunnu was accused of defaming President Museveni.

Buganda Road Court grade one magistrate, Ms Joan Aciro dismissed the case on grounds that the prosecution had failed to produce sufficient evidence against Mr Otunnu.

"The only prosecution witness brought to court was Mr Gideon Tugume, a journalist working with Top Television. However, Mr Tugume who appeared in court once was never cross examined by the defence as was required in this case.

Prosecution was put on notice to bring him for cross examination but in vain. Prosecution failed to produce him therefore such testimony is of no value on court record," Ms Aciro said.

The trial magistrate also noted that Mr Tugume in his testimony had informed court that he captured Mr Otunnu making the defamatory statements against the president. However, he did not submit in court any recording to prove the allegations.

“Court can not only base on only witness’s allegations to convict someone,”Ms Aciro added. 
After the court ruling, Mr Otunnu through his lawyer Mr Asuman Basalirwa said he would sue the government over malicious prosecution.

The case arose from Mr Otunnu’s January 16, 2013 press conference in which he allegedly questioned the deaths of what he called President Museveni’s allies since the Front for National Salvation’s (Fronasa) struggles to date, saying they should be investigated.

Prosecution had stated that on January 16, 2013 at UPC party headquarters at Uganda House, in Kampala, Mr Otunnu, with intent to defame President Museveni, allegedly caused a publication of a defamatory matter.

The said incidents include: atrocities in Luwero while Museveni commanded rebellious forces between 1981 and 1986; the massacres of Muslims in Ankole in 1979 when Museveni was commander of the Western Axis of anti-Amin forces composed mainly of his FRONASA contingent.

Others are; the massacre at Ombaci in West Nile in 1981; the scorched-earth counter-insurgency operations and genocide in northern and eastern Uganda between 1986 and 2006; and the wanton killing of unarmed demonstrators on the streets of Kampala, in September 2009.

Otunnu reportedly pointed out that a lot of disappearances and mysterious deaths had occurred under Museveni’s watch and authority since the Front for National Salvation’s (FRONASA) struggles to-date, saying they should be investigated.

His remarks prompted the Attorney General to write to the then UPC president giving him five days to make a public apology for his comments, or face legal action. Mr Otunnu has since declined to make any apologies.

The State further claimed that on February 28, 2013 without reasonable excuse, the UPC leader also ignored a police summon to appear before the Media Crime Department at CIID despite acknowledging receipt of the summon at a press conference he convened at Uganda House.

Source: Daily Monitor (28/04/2017)

Kenya: MCAs to still receive salaries after General Election

Nairobi, Kenya.

Ward representatives will continue receiving salaries eight months after the August 8 General Election, even if they lose their seats.

The High Court ruled today that the members of the county assembly be paid for their full five-year tenure.

Justice Edward Muriithi however said the reps will be paid monthly and not as a lump sum to ease the burden on taxpayers.

LEGAL BACKING

The judge ruled that the five-year tenure for ward reps ends on March 2018 because the Constitution provides that they should serve for five years.

He however said the exact amount of compensation still needs to be determined since there are emoluments that will not remain payable since they will not be actively working.

“The county assembly members suffer a reduced opportunity to remain in office for the full term of their constitutional tenure consistent with their right to hold office and, for that reason, they are entitled to compensation for the lost income for that period,” Justice Muriithi ruled.

REVISE CONSTITUTION

However, the judge pointed out that the Constitution needs to be amended to align the tenure of ward reps with that of members of Parliament and other elective state officers of the national and county governments.

But the judge categorically stated that he had not been asked to determine the issue of amendment of the date of the General Election, and so he had not.

“For avoidance of doubt, this judgment does not affect the holding of the General Election scheduled for August 8 and the payment of salary as well as other applicable emoluments shall be per month in arrears at the end of every month for the period,” he said.

COMPENSATION ISSUE

Since the verdict has a direct effect on all MCAs, the judge further said that parties in the case are now at liberty to move back to court to have a decree as to the payable emoluments, consistent with circumstances of when the reps are not working.

Two voters, Mr Andrew Kiplimo Sang and Mr Richard Ouma, and the County Assemblies Forum sued the electoral commission and the attorney-general.

They challenged the setting of the date of the General Election and sought an interpretation of the law on when the term of county assembly members end, as well as whether they are entitled to compensation for the reduced period.

There are 2,526 county assembly members earning a basic monthly salary of Sh165,000 each, which amounts to Sh416 million.

TENURE OF OFFICE

They were elected in the March 2013 General Election.

The bone of contention that saw the matter land in court is the fact that the terms of the President and county governors come to an end when a new one is sworn in, as per the Constitution.

The law also states clearly that the term of MPs ends on the date of elections.

However, the Constitution only indicates that county assembly members have a fixed five-year term in office.

Source: Daily Nation (27/04/2017).

Government reads riot act to investors over labour laws

Dodoma, Tanzania.

The government, yesterday, sternly warned investors who do not observe the country’s labour laws, including blacklisting workers and using humiliating methods when searching their employees.

The Deputy Minister in the Prime Minister’s Office (Policy, Parliamentary Affairs, Labour, Employment, Youth and the Disabled), Mr Anthony Mavunde, said his office has received numerous complaints of workers being humiliated during searching, while some are blacklisted, making it difficult for them to get work in other mines.

“When investors express interest to invest in the country, they are usually availed information on the country’s laws and regulations. Mr Mavunde said labour laws do not allow blacklisting of workers or using humiliating methods to search them such as making them strip and inspect their private parts.

“This is violation of human rights and measures will be taken against those found doing this.” The Deputy Minister was responding to a supplementary question from Joyce Mukya (Special Seats--Chadema) who wanted to know if there was an alternative method of searching workers instead of humiliating them such as what is currently being done at Tanzanite One in Arusha.

Mr Mavunde confirmed that he received such reports when he visited Tanzanite One in Arusha and issued directives, and a report by a committee formed to investigate mines in the country will shade more light on weather that method is still being used or not.

Earlier, the Deputy Minister said his office continues to oversee implementation of labour laws through conducting inspections at workplace. “Labour law education is also dispensed to workers and workers’ unions in an effort to increase their knowledge on the issue.

Measures have been taken including dragging to court, employers who go against the laws,” he explained. Mr Mavunde was responding to a basic question from John Kadutu (Ulyankulu – CCM), who wanted to know when the government will conduct inspection of contracts of companies contracted by mines and if the government will remove employers who humiliate their employees.

The Deputy Minister said the government formed a taskforce comprising officers from the PMO, National Social Security Fund, Social Security Regulatory Authority, OSHA, Tanzania Revenue Authority and Tanzania Minerals Audit Agency (TMAA) to conduct in-depth assessment on whether labour laws are being implemented, among other issues, in the Lake Zone and Northern mines.

“The government recognizes the importance of investors in increasing job opportunities to Tanzanians as well as contributing to the country’s economic growth. We will continue to ensure labour laws are implemented at workplaces,” he stressed.

Source: Daily News (28/04/2017)

African court to hear 84 cases

Dar es Salaam, Tanzania.

THE African Court on Human and Peoples’ Rights (AfCHPR) is set to determine 84 cases in its 45th Ordinary Session to be held in Arusha City starting early next month, it has been announced.

According to a statement issued in Dar es Salaam yesterday, during the session to be held from May 8 to 24, this year, the judges of the court will, among others, examine about 80 applications and four requests for Advisory Opinion.

The Court is composed of 11 judges who are nationals of Member States of the African Union elected in their individual capacity.

It meets four times a year in Ordinary Sessions and may hold Extra-Ordinary Sessions. Until April 25, this year, the Court had received 138 applications and has finalized 32 cases.

The AfCHPR was established by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights.

The main reason for its establishment was to complement the protective mandate of the African Commission on Human and Peoples’ Rights to enhance the protection of human rights on the continent.

Since the adoption of the Protocol in June 1998, about 30 of 55 African Union Member States have ratified it and only eight state parties to the Protocol have made the declaration under Article 34(6).

Tunisia signed the declaration on April 13, this year, becoming the eighth country to do so.

Other countries that have previously signed it are Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali and Tanzania. Rwanda, which had signed, formally withdrew from the declaration last month, although the African Union Summit has urged the East African country to reconsider its position.

Meanwhile, the Republic of Ivory Coast has reiterated its commitments and full support of the African Court mandate. President Alassane Ouattara has invited the Court’s leadership to host their 47th Ordinary Session and the third Judicial Dialogue in Abidjan in November, this year.

According to a statement, the president of the West African country pledged his government’s readiness to work hand in hand with the Court to put in place all necessary arrangements to make the two activities memorable events.

President Ouattara had met with AfCHPR President, Justice Sylvain Orė, who called on him at his Palace in Abidjan recently. During their meeting, the two leaders discussed a range of issues, including the work of the African Court and the protection of human rights on the continent.

Source: Daily News (28/04/2017).

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