VIP wins case over local courts competence to hear IPTL matters

A LOCAL investment company, VIP Engineering and Marketing Limited, has won a case in the United States against Standard Chartered Bank over competence of Tanzanian courts to determine disputes linking Independent Power Tanzania Limited (IPTL).

In its verdict of December 15, 2014, for the Second Circuit, the US Court of Appeals affirmed the decisions given by the United States District Court, Southern District of New York, in September and October last year, regarding Tanzanian jurisdiction courts in the matter.

“We have considered the arguments raised by SCB (Standard Chartered Bank) on appeal and find them to be without merit. For the reasons stated, the District Court’s ruling September 10, 2013, September 23, 2013 and October 4, 2013 are affirmed,” the verdict concludes.

Circuit Judges Jose Cabranes, Richard Wesley and Peter Hall, observed that the District Court found that the Bank, through its counsel, previously represented to the court that it considered Tanzania as an adequate alternative forum and would consent to jurisdiction in Tanzania.”

“Therefore, based upon the specific factual history of this case, the District Court’s reliance on SCB’s oral and written expressions of consent in granting SCB’s motion to dismiss on FNC grounds was not clear error,” they said.

In the appeal, the Bank was appealing from the District Court’s September 10, 2013 judgment, dismissing the complaint on forum non-convenience (FNC) grounds and two orders entered by the District Court on September 23, 2013 and October 4, 2013.

In the two orders, respectively, the court found SCB to have consented to four conditions associated with the complaint’s dismissal and stopped SCB from withdrawing that consent. We assume the parties’ familiarity with the underlying facts, the procedural history of the case.

On October 4, last year, the New York Court rejected the contention by SCB, seeking to challenge the jurisdiction of Tanzanian courts to determine IPTL disputes and reaffirmed its September 10, order and that of September 23, in dismissing the Bank’s action.

In its order of September 10, the New York Court, among others, directed Standard Chartered Bank to file a statement confirming its consent to jurisdiction in the Republic of Tanzania, while in that of September 23, the court refused to review its previous ruling on the matter.

Before issuing the orders in question while litigating a case lodged by the Tanzanian Company, the Bank had represented, both orally and in writing, that it considered Tanzania an adequate alternative forum for determining the case.

Such presentation were deemed to be an expression of the Bank’s consent to the adjudication of the action in Tanzania and to comply with any final judgment rendered by any court of competent jurisdiction there in connection with the parties’ underlying the dispute.

“Because Standard Chartered previously informed the court that Tanzania would be an adequate alternative forum and thus at least implicitly that it would consent to Tanzanian jurisdiction, the doctrine of judicial estoppels bar (it) from withdrawing that consent,” it was ruled.

Judge Victor Marrero added, “Judicial estoppels prevent a party from making a contradictory statement in a later stage of litigation based on the exigencies of the moment.”

He said permitting Standard Chartered to change its position on consent to Tanzanian jurisdiction after the court had already announced its reliance on the prior representations would have an adverse impact on the integrity of the judicial process.

According to the judge, Standard Chartered Bank’s inconsistent positions have imposed costs on VIP Engineering Company by delaying the resolution of the latter’s claims and imposing costs on them to continue litigating before the court in New York.

Source: Daily News (18/12/2014).

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European Court of Justice rules obesity can be a disability

[JURIST] The European Court of Justice (ECJ) ruled on Thursday that morbid obesity can be considered a disability under the Equal Treatment in Employment Directive if the employee is prevented from fully participating in professional life because of his or her weight. 

The case arose from the Retten i Kolding, a Danish court, where there was uncertainty on how to rule in the case of a fired child care provider who claimed his termination was a cause of his inability to perform because of his weight. The Danish court then posed two questions to the ECJ: whether the EU Treaty and Charter contains an independent prohibition on weight-based discrimination, and whether obesity can be classified as a disability, and as such, fall under the Equal Treatment in Employment Directive. 

With respect to the first question, the ECJ found that there was no stand-alone prohibition. In responding to the second question, the court noted that a disability implies "limitations which result from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person in professional life on an equal basis with other workers." The court found that a morbidly obese person could be classified as disabled. The court, stressing their commitment to protecting against all discrimination, stated that it is not necessary that the actual work being performed be hindered in order to see obesity as a disability. As long as an employee is being hindered from "full and effective participation on equal terms with others," then weight could very well be a disability.

The awareness of disability rights and the prevention of discrimination against the disabled has been a pertinent topic for many years. In September the UN Office of the High Commissioner for Human Rights celebrated Guyana's ratification of the disability convention, boosting it to 150 signatories. Just last month the US Supreme Court agreed to hear the question of whether the Americans with Disabilities Act requires the accommodation of mentally ill and violent suspects in custody by law enforcement.

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Bukoba priest arrested in US over prostitution

Dar es Salaam. 

A Catholic Church priest from Bukoba Diocese assigned to an east Mesa church in the United States is among five suspects arrested by police in an operation that targeted suspects of prostitution involving under-age girls.

He was arrested on Friday after Mesa police detectives posed as 16-year-old girls and advertised their services on a website known for trading in prostitution.

A statement released by the police said, men were supposed to come to a Mesa motel at a predetermined time to meet with prostitutes for sex.

Reached for comment yesterday, Bukoba Diocese Bishop Desderius Rwoma admitted to have received reports of the arrest of Fr Solomon Bandiho. He said, the priest was in the US for doctoral studies.

However, Bishop Rwoma desisted from commenting on the issue pending confirmation of the incident. “I can confirm to have heard about the arrest but I cannot comment further because we are yet to check and establish what actually happened,” he told The Citizen over the phone.

According to Mesa police, when the men agreed to have sex with the supposed prostitutes, even after being told they were 16, police arrested them on suspicion of child prostitution.

Detective Steve Berry, a Mesa police spokesman noted that the suspects include Fr Bandiho, 49, who is listed on the Holy Cross Catholic Church’s website as the east Mesa church’s parochial administrator.

The other four suspects were identified by police as Mr Eric Mohren, 34; Mr Christopher Sherman, 48; Mr Jose Flores Nunez, 31 and Mr Santiago Robles, 26.

“When you have people who are willing to prey upon our juveniles, those are some of the worse people in our society,” Berry said.

He said someone who is willing to have sex with a 16-year-old might be willing to victimize even younger children.

Rob DeFrancesco, a spokesman for the diocese, said the diocese learned about Fr Bandiho’s arrest on Friday afternoon. Bandiho’s faculties as a priest have been removed, meaning that he is barred from public ministry, he said. Other priests will be available at Holy Cross to say Mass and perform other ministerial duties.

Source: The Citizen

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Ugandan maid Jolly Tumuhirwe jailed for assaulting toddler

A Ugandan maid has been sentenced to four years in jail for assaulting a toddler, in a case which sparked national outrage after a video was released.

Jolly Tumuhirwe, 22, was filmed beating, kicking and stamping on the 18-month-old child.

On Friday, she said the attack was revenge after she was beaten by the child's mother.

The mother denied beating her. Earlier charges of torture were dropped.

Chief Magistrate Lillian Buchan told Tumuhirwe she had committed an "unjustifiable and inexcusable" crime.

She said the sentence was appropriate in light of the "ruthlessness exhibited" on an "innocent, helpless child", reports the AFP news agency.

The video footage, which prompted the case, came from a camera the child's father, Eric Kamanzi, had installed in his home after noticing his daughter was bruised and limping.

He reported the abuse to police last month and circulated the video online to family members. The footage was later shared more widely, provoking horror and upset internationally.

Psychological consequences

After the sentencing, Mr Kamanzi said: "It's not for us to decide the punishment for what she committed.

"We hope this has set an example for other maids out there, that you can't just go to someone's house and torture their baby and expect to walk out," AFP reports.

Another family member, Rose Zimulinda, said the child was physically well now but there were likely to be longer term psychological consequences.

In Uganda, there is no requirement for people paid to look after children to have qualifications.

Police have recommended that parents do background checks with friends, neighbours, local police, council and previous employers before taking on nannies or maids given these responsibilities.

Source: BBC News

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Top Chinese official gets life for $6m bribery

Langfang, China:

A former top Chinese economic planning official was convicted of bribery yesterday and sentenced to life in prison after a former lover went public with a litany of accusations against him.

The guilty verdict against Liu Tienan, once deputy director of the National Development and Reform Commission, China’s top economic planning agency, is the latest step of the Communist Party’s much-publicised anti-corruption campaign.

“Liu Tienan is sentenced to life in prison for bribery,” the Langfang Intermediate People’s Court said in a document handed to AFP.

He was convicted of taking $5.8 million in bribes, the document added.

It added that the case was “based on clear facts and concrete and sufficient evidence”.

Beijing authorities picked the court in Langfang, a desolate and bleak industrial city in Hebei province, an hour’s drive south of the capital, to hear the case.

State broadcaster China Central Television showed Liu facing the judge impassively in court as the verdict was read out. He wore a black jacket and trousers, and was flanked by two policemen.

Foreign media were not allowed in and there was a large police presence outside, where the road was blocked off and a parade of police vehicles drove up and down the street, while a group of protesters complained about local government wrongdoing.

Liu took bribes from various business people included cash and gifts for his son, among them a villa in Beijing and a Porsche, in exchange for project approvals and other favours, the court said during his trial in September.

He had accepted his guilt, it said then on a verified microblog account, quoting him tearfully expressing “deep repentance and remorse”.

“Every round of interrogation, every sentence and even every contact with the investigators has felt like whips slashing my soul,” he said.

“Faced with the facts, I have been asking myself every time I read the indictment, is this me? How did I end up being corrupted like this?”

Source: Daily Monitor Uganda:

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Uganda: Maid in torture video pleads guilty before court

The house maid who was recently captured on CCTV meting violence against a one-and half-year-old baby in Naalya, Wakiso district has been convicted by City Hall Court on her own plea of guilt.

Jolly Tumuhiirwe on Monday pleaded guilty to the charges of torture before asking for forgiveness from court, the parents of baby Arnella Kamanzi (her victim), the nation and all the people who were affected by her actions. She had appeared in court for mention of the case.

However, the trial magistrate, Mr Moses Nabende adjourned the case to Wednesday when he will pronounce an appropriate sentence for the 22-year-old maid after the state prosecutor told court that they did not have all the brief facts of the case.

This was the second time Tumuhiirwe was appearing before court.

Attempted murder 

Recently, police announced that the maid would be charged with attempted murder. 

However, Ms Jane Akuo Kajuga, the Directorate of Public Prosecutions spokesperson told Daily Monitor that they had not yet amended the charges as her file was still with police.

Ms Kajuga explained that the police have not exhausted investigations and would not rush to amend the charge sheet as more evidence is still being gathered to determine the appropriate charges to prefer against the maid.

Shortly after her conviction, Tumuhiirwe was taken back to Luzira prison where she is currently on remand.

In the video, which was recently circulated on social media, Tumuhiirwe is seen forcefully feeding a baby and torturing her.

Source: Daily Monitor Uganda

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Bensouda withdraws case against Uhuru Kenyatta

Prosecutor Fatou Bensouda has withdrawn the charges against Kenya's President Uhuru Kenyatta at the International Criminal Court.

"In light of the Trial Chamber’s 3 December 2014 “Decision on Prosecution’s application for a further adjournment”, the Prosecution withdraws the charges against Mr Kenyatta," the prosecutor said in her application to the court on Friday.

She said the evidence had not improved to an extent to which President Kenyatta's alleged criminal responsibility could be proved beyond reasonable doubt.

Ms Bensouda, however, noted that the notice for withdrawal was subject to the possibility of bringing new charges at a later date in case the prosecution obtained sufficient evidence.

"This withdrawal is without prejudice to the possibility of bringing new charges against Mr Kenyatta “at a later date, based on the same or similar factual circumstances, should [the Prosecution] obtain sufficient evidence to support such a course of action”.

On Wednesday, ICC judges directed the prosecution to either file a withdrawal notice within one week or provide justification, on the basis of evidence, for proceeding to trial.

The chamber noted that its decision to deny the request for adjournment, based on the "practical terms and in the circumstances of this case" was likely to have the consequence of ending the proceedings.

The chamber noted several factors that informed the rejection of the request, including the prosecution's own admission that evidence remained insufficient to support a conviction.

Source: Daily News

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IPTL, PAP want TRA chief jailed over contempt

THE Pan Africa Power Solutions Tanzania Limited (PAP) and Independent Power Tanzania Limited (IPTL) Company petitioned the Tax Revenue Appeals Board to arrest and commit to prison the Commissioner General of the Tanzania Revenue Authority (TRA) for contempt of court.

According to an application for contempt proceedings lodged before the board yesterday, the TRA boss is alleged to have withdrawn Capital Gain Certificates issued in favour of the two companies for transfer of shares in IPTL Company, contrary to the order dated November 26, 2014.

The Secretary to the Board, Mr Respicius Mwijage, had ordered that “it is apparent that immediate intervention of this Board is required. Therefore, the status quo should be maintained. The intended withdrawal of the Capital Gain Certificate issued by (TRA) as per letter dated November 19, 2014, addressed to the Registrar of Companies be stayed.” 

Lodged under the certificate of urgency by Advocate Joseph Sungwa from Bulwark Associates Advocates, for PAP and IPTL, the applicants; the application comes up for hearing today. The respondents in the matter are TRA Commissioner General and Registrar of Companies. 

TRA Commissioner General is alleged to have withdrawn the two certificates; numbers 0049656 and 0049657 on November 27, this year just a day after the board issued the interim decision pending hearing and determination of an application to challenge the move. 

“This board is pleased to issue an arrest warrant against the Commissioner General for being in contempt of the orders issued on November 26, 2014, for maintaining the status quo -- that is to say ordering (him) to stay the withdrawal of Capital Gain Certificates,” reads one prayer in the application. 

Following such arrest, the applicants also request the board to commit the Commissioner General to prison for contempt of the lawful order. The two certificates were issued for sale of shares between Mechmar Corporation (Malaysia) Berhard and Piper Links Investment Limited and between Piper Link and PAP. 

In addition, the two applicants request the board to lift and rescind the Commissioner General’s letter for the withdrawal of the certificates in question, pending hearing and determination of the application for injunctive orders and that he should be bound to comply with the order of the board. 

Director of Operations with IPTL, Parthiban Chandrasakaran, has filed an affidavit to support the application for contempt proceedings, stating that they had obtained from the TRA Commissioner General the two certificates on December 23, last year. 

Surprisingly, he stated, on November 19, this year, TRA issued a six-day notice to the Registrar of Companies, showing his intention to withdraw the certificates. 

The reason behind the withdrawal of the two certificates based on alleged false contract share sale agreement between Mechmar for seven share capital gain which is 70 per cent holding in IPTL to Piper Link and sale of share agreement between Piper Link to relinquish its 70 per cent holding in IPTL to PAP. 

Such move pushed the applicants to file an appeal before the board against TRA and applied for temporary injunctive orders restraining the Commissioner General from taking any action, pending determination of the appeal. He stated that the board issued the order on November 26. 

Despite the board’s orders, the TRA Commissioner General wrote to the Registrar of Companies, withdrawing the two certificates. Mr Chandrasakaran states that being a citizen, the commissioner was not only amenable to the jurisdiction by also being obliged to obey and observe the laws of the country. 

“Unless this board issues the orders being canvassed in the application, there will be perpetuation of impunity and lawlessness, which is abusive of Good Governance and the Constitution upon which rests the tenets of democratic taxation the (Commissioner) is supposed to inculcate and uphold in the country,” he stated.

Source: Daily News

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Uganda MPs seek to pass anti-gay bill as 'Christmas gift'

KAMPALA

Ugandan Members of Parliament have reignited the push for the reintroduction and passing of the Anti-homosexual Bill, with calls to pass it as a Christmas gift for the people of Uganda.

Raising a point of national importance, Kawempe North representative Latif Ssebagala — who described himself as a chief mobiliser of MPs who cherish Ugandan values, norms and religious beliefs — said the legislators are ready to pass the Bill before the House adjourns for Christmas.

He challenged the Speaker to explain to the House the stage at which the Bill is and what became of the committee that was set up to harmonise on its contents.

“What can we do to restart the Bill so that we assure our people that we have never backtracked? I have 256 signatures and I have kept them long enough. I want to lay them on table so that they become property of this Parliament,” Mr Ssebagala said.

“The ultimate problem is for us to go for the recess without handling this Bill. It is us MPs who did not do our work. Since we are nearing Christmas and the New Year, we can as well give it as a gift to the people,” he said.

The number shot to 261 after five legislators requested the Speaker that they be allowed to sign from the clerks table in the House because, “they were away when the signature book was being passed around”.

ABOUT NEW BILL

In contrast to the nullified Act, the new Bill that the MPs want to table, a copy of which Daily Monitor has seen, avoids any explicit references to homosexuality, but seems to co-opt sections of the Penal Code, which prescribe, among others, a life sentence for “unnatural sexual practices.”

Unnatural sexual practices are defined in the draft Bill as a sexual act between persons of the same sex, or with or between transsexual persons, a sexual act with an animal and anal sex.

The proposed legislation also expands the definition of “promotion of unnatural sexual practices” and proposes a prison sentence of up to seven years for the promotion of homosexuality.

Source: Daily Nation 

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White policeman kills unarmed black man in Arizona

A white police officer shot dead a black man in Arizona when he mistook some pills for a gun, authorities said Thursday, amid protests in New York triggered by a string of similar incidents.

The officer believed the 34-year-old suspect was reaching into his pocket for a gun in the flashpoint Wednesday in Phoenix, in which the man was shot twice in the chest after a struggle.

It was subsequently found that Rumain Brisbon had only pills in his pocket.

The shooting occurred when the officer went to investigate reported drug-related activity outside a convenience store.

"During the struggle Brisbon put his left hand in his pocket and the officer grabbed onto the suspect's hand, while repeatedly telling the suspect to keep his hand in his pocket," said Phoenix police department in a statement.

"The officer believed he felt the handle of a gun while holding the suspect's hand in his pocket," it said.

"The officer was unable to maintain his grip on the suspect's hand during the struggle. Fearing Brisbon had a gun in his pocket, the officer fired two rounds, striking Brisbon in the torso."

Paramedics treated Brisbon but he died at the scene. The officer was not injured.

Marci Kratter, a Phoenix attorney representing the family, said: "There are numerous witnesses that will challenge the police officer's account of what transpired."

"It was a senseless tragedy. He was unarmed and not a threat to anyone. We intend to pursue this to the full extent of the law," she told the Arizona Republic newspaper.

The incident happened as demonstrations continued in New York after a series of similar cases.

A grand jury declined Wednesday to charge a white police officer in the chokehold death of an unarmed black father-of-six in July on Staten Island.

The jury decision came a week after another grand jury also opted not to charge a white policeman in the fatal shooting in August of an unarmed black teenager in Missouri.

Source: Daily Monitor 

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Australian parliament backs migrant reforms

The Australian parliament has approved changes to immigration laws that include reintroducing controversial temporary visas for refugees.

The bill will allow refugees to live and work in Australia for three to five years, but denies them permanent protection.

It was passed by 34 votes to 32 in the senate and later backed by MPs.

Australia currently detains all asylum seekers who arrive by boat, holding them in offshore processing camps.

It says that those found to be refugees will not be permanently resettled in Australia, under tough new policies aimed at ending the flow of boats.

It also has a backlog of cases - about 30,000 - relating to asylum seekers who arrived before the current policies were put in place. Those people live in detention camps or in the community under bridging visas that do not allow them to work.

To secure enough support in parliament to pass the bill, the government made concessions. Children will be freed from detention on Christmas Island, an offshore camp where conditions have been strongly criticised.

The number of confirmed refugees Australia will agree to accommodate will rise by 7,500, from the current level of 13,750, by 2018 (reversing an earlier cut). Asylum seekers on bridging visas will be allowed to work while their claims for refugee status are processed.

The bill was narrowly approved in the senate after intense debate in a late-night sitting. It was then passed into law by the House of Representatives, where the government has a majority.

Prime Minister Tony Abbott described the move as "a win for Australia".

"We always said that three things were necessary to stop the boats - offshore processing, turning boats around and temporary protection visas, and last night the final piece of policy was put in place," he said.

Temporary visas were originally introduced under former Prime Minister John Howard but were criticised by rights groups and the UN for failing to meet Australia's obligations as a signatory to UN Refugee Conventions.

While refugees can live and work for a temporary period in Australia, the government can deport them to their country of origin after this period if it deems conditions there have improved.

Serious concern

The government won the vote in the senate - where it does not have a majority - with the support of the Palmer United Party (PUP) which had negotiated several changes, including the provision relating to children detained on Christmas Island.

Rights advocates and other experts have voiced serious concern about the effects of life in limbo in cramped detention conditions on children of all ages.

PUP leader Clive Palmer called the move the best option available.

"It's all very well for people to shake their head, but they're not locked up on Christmas Island," he told reporters.

But refugee advocates said the move was a "shattering blow for asylum seekers who face the grave risk of being returned to danger".

Unless current migration visa rules were changed, many of those identified as refugees would find themselves with "no pathway to permanent protection", said Paul Power, chief executive of the Refugee Council of Australia.

He welcomed the "long overdue" decision to release children from detention, but condemned their use by the government "as a bargaining chip for a destructive legislative package to seriously weaken refugee protection".

Opposition leaders had also accused the government of using asylum seekers as political pawns.

Speaking before the senate vote, senior Labor figure Tony Burke said Immigration Minister Scott Morrison was "effectively wanting to use people as hostages".

"He could have started processing [asylum seekers]. He chose to not do the processing, and is now saying unless we vote for his measures, then he'll continue to keep people in detention," he told ABC Radio.

Australia and asylum

• Asylum seekers - mainly from Afghanistan, Sri Lanka, Iraq and Iran - travel to Australia's Christmas Island by boat from Indonesia
• The number of boats rose sharply in 2012 and early 2013. Scores of people have died making the journey
• To stop the influx, the government has adopted hard-line measures intended as a deterrent
• Everyone who arrives is detained. Under a new policy, they are processed in Nauru and Papua New Guinea. Those found to be refugees will be resettled in PNG, Nauru or Cambodia
• Tony Abbot's government has also adopted a policy of tow-backs, or turning boats around
• Rights groups and the UN have voiced serious concerns about the policies and conditions in the detention camps. They accuse Australia of shirking international obligations.

Source: BBC News:

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