DPP’s role in Magufuli fish case verdicts: A revisit

13Mar 2016
Emmanuel Ntabaye
Guardian On Sunday
DPP’s role in Magufuli fish case verdicts: A revisit

FOLLOWING his appointment by President Jakaya Kikwete in 2008 as Minister for Livestock Development and Fisheries (waziri wa mboga), John Pombe Magufuli was from day one determined to put an end to the wanton illegal fishing in Tanzania’s Exclusive Economic Zone (EEZ).

Former Minister for Livestock Development and Fisheries, President John Magufuli (3rd r) express to the former PM Mizengo Pinda (black suit) on fishes caught from illegal fishing.

Indeed, the minister had a very good reason to worry about the way the nation’s marine resources were being looted by foreigners.

According to European Union (EU) sources, Tanzania was reported to be losing a fortune to illegal fishing, with estimates putting the number of ships illegally scooping fish stocks from Tanzania’s territorial waters at 70.

The pirate fishermen reportedly targeted tuna, kingfish, lobsters and prawns. To get a grasp of the enormity of the looting bonanza, it was further estimated that legally operating foreign trawlers caught between 4,000 and 5,000 tonnes of tuna per day!

To end this looting spree, Magufuli announced in the National Assembly in early 2009 that the government would use military vessels to arrest illegal fishermen in the EEZ, including impounding the offending ships and gear.

So, on March 2009, in a well-coordinated operation mounted jointly by Tanzanian and South African forces, a pirate ship, Warariq 1, was caught red-handed fishing in the EEZ, along with 38 people of various nationalities who were on board.

The suspects were shortly thereafter arraigned at the Kisutu Resident Magistrates’ Court in Dar es Salaam for preliminary hearing, after which the case was committed to the High Court for hearing.

In the meantime, the consignment of fish totaling 296.5 kilogrammes impounded during the operation was sold off by the government at discounted prices because it was proving costly to safely maintain in a refrigerated environment.

On the other hand, the offending ship was docked at Dar es Salaam port.
All the accused faced two charges: illegal fishing in the EEZ, and water pollution and degradation of the marine environment.

Slowly as the wheel of justice moved, as it notoriously usually does, finally, on July 14, 2011 Judge Augustine Mwarija, who was presiding over the case, gave his ruling on who had and who did not have a case to answer among the accused.

It must have been a big disappointment to the prosecution - that is, to the office of the Director of Public Prosecutions (DPP).

The judge found 31 of the 36 accused with no case to answer and promptly discharged them. Only five of the accused, including the ship’s captain, Hsu Chin Chai, and the engineer, Cai Dong Li, remained in the dock.

The judge, in setting free the 31 accused, remarked that the charge sheet did not specify who was engaged in the actual fishing, adding that most of the released accused were doing jobs quite unrelated to fishing on the ship, such as cooks, etc.

This was blow number one to the prosecution. What is clear here is that, purposely or inadvertently, some lawyers in the DPP’s office proved very inept at drafting the charges.

If you ask me, in view of the high-profile nature of the case, I tend to believe that it wasn’t ineptitude per se at play here.

The case was the talk of Dar es Salaam for many months. It had also earned Minister Magufuli admiration and special respect from his admirers and detractors alike.

He was viewed by many as a rare species of a minister in the cabinet in that he appeared to be led by selfless and patriotic principles to a fault.

So, it must have looked like some conspiracy to him that the court found the majority of the accused – culprits who had been caught red-handed – with no case to answer! Unfortunately, however, worse was to come.

The prosecution decided to carry on with the case, this time only the ship captain, Hsu Chin Tai, and an agent, Zhao Hanquing, being in the dock. The two were convicted by Judge Mwarija on February 23, 2012 and sentenced to pay a fine of Sh1billion each, or go to jail for 10 years in default.

Tai was however also found guilty of a separate offence of water pollution and degradation of the marine environment, for which he was fined Sh20billion or 10 years in jail in default.

Dissatisfied with both their conviction and sentence, the two appealed to the Court of Appeal of Tanzania which, upon going through the record of proceedings, came up with a shocker.

The court, on March 28, 2014, set free the appellants on a purely technical ground - that the DPP had not given his consent before the accused were arraigned in the lower court!

For you and me, who are (unlearned) lay people in the legal corridors, this omission by the DPP has the effect of rendering the case proceedings null and void, and hence any court orders arising from them absolutely null and void.

To paraphrase this in the layman’s language, it simply means that there was no case whatsoever to begin with, and hence no judgement having any legal effect.

Once again, it is incomprehensible that the DPP could have ‘forgotten’ to give his consent to charge the accused in court, considering the sensitivity and people’s interest in the case.

This, of course, is besides his ineptitude at drafting the charges for the accused, which, as we have already seen, resulted in the discharge of most of them by the High Court.

Following their release by the Court of Appeal, they two were charged again at the Kisutu Resident Magistrates’ Court.

However, the case didn’t take long before the DPP entered a nolle prosequi, following which they were discharged again, the lucky blokes.

Since their release their counsel, Ibrahim Bendera, has gone to court to demand return of the property belonging to his clients which the government had retained as exhibits in evidence, i.e. the ship, which he claims is valued at US dollars 2.5million, and the consignment of fish (which has since been sold off) he says is worth US dollars 700,000 (US dollars 3.2 million in total).

On August 26, 2014 the Kisutu Resident Magistrates’ Court ordered the government of Tanzania to refund the two foreign nationals their property.

Which means that the government is now saddled with about a Sh7 billion debt which it owes people who were caught red-handed stealing its resources!

This is, to say the least, the height of injustice, for, however you look at the matter, it is insult on injury, pure and simple.

And all this thanks to our own DPP! Ni jipu.