DPP: State to appeal in Mahalu case

FAUSTINE KAPAMA

THE Director of Public Prosecutions (DPP) has lodged a notice of appeal to challenge the acquittal of Prof. Costa Ricky Mahalu and counsellor Grace Martin, on the alleged 2.5bn/- theft case following purchase of an embassy building transaction in Italy.

"We filed the Notice of Appeal at the Kisutu Resident Magistrate's Court (in Dar es Salaam) last Friday (August 10)," the DPP, Eliezer Feleshi, told the 'Daily News' on Tuesday. He did not go into detail on the issue.

This is the first case in the Tanzanian Judiciary since independence that has opened a new chapter with a former Head of State being called to the witness box. Ex-President Benjamin Mkapa, who inaugurated the embassy building in 2003, testified for Mahalu in the matter.

In brief, he told the court that his government sanctioned the use of two contracts to purchase the building for the best interest of the nation. He described the ambassador as a person of impeccable character, sincere, honest, obedient and hard working.

Last Thursday, the Principal Resident Magistrate in Charge of the Court, Ilvin Mugeta, found the former ambassador to Italy (Mahalu) and Martin not guilty of all six offences they were charged with after the prosecution failed to prove them beyond reasonable doubts.

"The prosecution has failed to present tangible and cogent evidence. It instead came up with circumstantial evidence and failed to prove its case," the magistrate declared when delivering the judgment in the case.

During the trial, the prosecution had alleged that on September 23, 2002 at the Tanzania Embassy in Italy, being persons employed by the government, the two used payment vouchers containing false particulars that the embassy building in Rome cost 3,098,741.58 euros.

It was further alleged that Prof. Mahalu used two contracts with one showing that the sale price of the chancery's building was 1,032,913 Euros and the second one putting it at 3,098,741 Euros "in a deliberate move to steal the government's money."

But in the judgment, Magistrate Mugeta said he had found no direct evidence to substantiate allegations that the use of the two contracts amounted to a criminal offence. "The argument was self-defeating," said the magistrate.

He added on that point, "Prosecution might have deliberately omitted to tender some crucial exhibits which confirmed the price to avoid the price based on a valuation report done by a Tanzanian officer."

A Tanzanian valuation expert was dispatched to Rome to inspect the building. The magistrate wondered why the prosecution did not  tender as evidence the report of a person who was sent to Rome where he allegedly discovered that the price had been inflated.

"By failing to tender the documents the prosecution failed to produce very crucial documents in this case. Their claims cannot be substantiated and the use of two contracts did not amount to a criminal offence in this case," he said.

The prosecution had also alleged that the former diplomat was aware that the Tanzanian law did not allow him to use two contracts to purchase the building but proceeded with the transaction for ill purposes.

However, Magistrate Mugeta noted: "Available evidence shows that the embassy in Rome was ordered to negotiate the price with the broker by the foreign ministry basing on the report of a special valuer from the lands ministry who put the price at over 5m Euros."

He further ruled that there was no evidence showing that the money actually came back into possession of the accused after it was deposited in the two accounts of the building's landlord.

"To say that the procedures were not followed in the process of purchasing the chancery in Rome is like pulling the trigger of a cocked pistol with a barrel pointing at your chest," he concluded.

Concerning Grace Martin, the magistrate said he has failed to understand why she was charged in the first place as there wasn't any evidence linking her with the charges.   "I have failed to appreciate why the second accused was charged and that is why, throughout this judgment, I have refrained from touching on her evidence in defence," he said.

Source: Daily News (15/08/2012): http://dailynews.co.tz/index.php/local-news/8598-state-to-appeal-in-mahalu-case