Court rules Mahalu, co-accused innocent

KARAMA KENYUNKO

Former Tanzanian Ambassador to Italy Professor Costa Ricky Mahalu and his co-accused Grace Martin were acquitted yesterday of charges of conspiracy and theft of Euro 2 million from the government by using two separate contracts to purchase an embassy building.

Reading the judgment, the Kisutu Senior Resident Magistrate Ilvin Mugeta said that the prosecution side has failed to prove beyond reasonable doubt the allegations against the accused.

He also said that co-accused Grace Martin was not supposed to be included in the trial because there were no evidences that she participated in the abuse of office.

Magistrate Mugeta said there was no sufficient evidence to prove that the stolen money was deposited in the account of the accused Prof Mahalu, adding that there was also no evidence that the accused stole the money.

The Magistrate said that the prosecution evidence over the issue was not straight forward, adding that no direct evidence was obtained that the accused persons stole the money.

“The evidence available which is based on documents used to purchase the chancery is evidence of that nature which just suggest that the accused person possibly stole the money,” Magistrate Mugeta said.

He said in order to prove the offence two things must be established: Firstly that the account into which the alleged stolen money was paid into belongs to the accused person. Secondly the accused person used the money for personal gain.

Mugeta further said that the prosecution failed to interview the vendor on whether he received the money or not and since there was no evidence that the accused person retrieved the money, the offence of stealing cannot be proved.

On using two separate contracts to purchase the building, Magistrate Mugeta said that the prosecution has also failed to prove that the contracts were a conspiracy and if Prof Mahalu breached the law by using two contracts.

Magistrate Mugeta said that he found the issue to be relevant to the facts of the case but both parties, prosecution and defence brushed it aside, concentrating on the issue whether there was permission to use two contracts or not.

“I do not think this is a relevant fact under the circumstance of this case. This is because if use of two contracts is an offence, no permission can legalise it except the change of the relevant law,” the magistrate said.

According to the Magistrate, there is no evidence which shows the money used to buy the Embassy building in Rome Italy was about 3 million Euros as claimed by the prosecution side, adding that about 2,065,827.60 Euros was sent to the vendor’s account as the evidence showed.

On the offence of pecuniary loss, magistrate Mugeta said that the loss alleged to have been occasioned of Euro 2,065,827.60 was different from the amount stated in exhibit P1 and P6.

On the charge that the accused person used documents containing erroneous material particulars intended to mislead the principal, he said the documents support the payment of Euros 3,098,741.40 to the vendor adding that for that matter the said document does not contain any misleading particular, hence both the documents would have been relevant if any or both charges were proved.

He said that lack of such proof renders the documents genuine and the transactions involved proper.

Earlier the case was scheduled for ruling on June 11th, this year but it was adjourned to yesterday.

The prosecution side brought in court seven witnesses who testified against the accused while the defence side brought three witnesses including the former President Benjamin Willim Mkapa.

Mkapa testified that the purchase had his government’s blessings, adding he wasn't aware that 3,098,741.58 Euros was equivalent to 2.9bn/-.

As first witness, Mahalu told the court that the then Minister of Foreign Affairs and International Cooperation Jakaya Kikwete (now President of the United Republic of Tanzania) was aware of the process of purchasing the embassy along with two draft contracts.

Prof Mahalu was arraigned in January 2006 along with Martin on charges of conspiracy to steal from the government.

SOURCE: THE GUARDIAN (10/09/2012): http://www.ippmedia.com/frontend/index.php?l=44593