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DRC’s Vital Kamerhe Loses Fraud Case

After almost two months of an aggressive court battle, Vital Kamerhe the presidents chief of staff has lost a grand fraud case and has been sentenced to 20 years of forced labour.

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Detailed Judgement 

In question: Public Ministry and civil party DR. Congo

Against: The defendants:

  1. SAMIH JAMMAL, in detention;
  2. KAMERHE LWA KANYIGINI Vital, in detention;
  3. MUHIMA NDOOLE Jeannot, at large.

By his request for the fixing of hearing n ° 1698 / RMP 1641 / PG 023 / a / LUK / 2020 of 24/04/2020, the Public Prosecutor near the Court of Appeal of Kinshasa / Gombe seizes the Court of Great Instance of Kinshasa / Gombe against the defendants SAMIH JAMMAL, KAMERHE LWA KANYIGINI Vital and MUHIMA NDOOLE Jeannot for:

In charge of the defendants SAMIH JAMMAL and KAMERHE LWA KANYIGINI Vital

  1. Having, in Kinshasa, City of that name and capital of the Democratic Republic of Congo, without prejudice to a more precise date, but between the months of March 2019 and January 2020, period not yet covered by the statutory limitation period of the ‘public action, as co-authors by direct cooperation, being respectively, Director General of the Company SAMIBO SARL and Public agent of the State, in this case political staff of the Presidency of the Republic, diverted the global sum of 48,831,148 (US dollars forty-eight million eight hundred thirty-one thousand one hundred and forty-eight) which was given to the SAMIBO SARL Company for the purchase and erection of 1,500 prefabricated houses as part of the social housing project, for the benefit of five provinces of the Democratic Republic Congo, in this case those of Kinshasa, Kongo Central, Kasaï Central, Kasaï Oriental and Sud-Kivu, enrolled in the 100-day program initiated by the President of the Republic.

Facts provided for and punished by articles 21 and 23 of the Penal Code Book 1 and 145 of the Penal Code Book II.

  1. To have, in the same circumstances of the places as above, without prejudice to a certain date, but between the months of August and September 2019, as co-authors by direct cooperation, being respectively, Director General of the Company HUSMAL SARL and Public agent of the State, in this case political staff of the Presidency of the Republic, embezzled the sum of 2,137,500 SUS (US dollars two, million one hundred thirty-seven thousand five hundred) which was given to the HUSMAL Company SARL for the purchase and erection of 3,000 prefabricated houses for the police and military of the City of Kinshasa as part of the 100-day program initiated by the President of the Republic.

Facts provided for and punished by articles 21 and 23 of the Penal Code Book 1 and 145 of the Penal Code Book II.

2. To have, in the same circumstances of the places as above, without prejudice to a certain date, but between the months of August and September 2019, as co-authors by direct cooperation, being respectively, Director General of the Company HUSMAL SARL and Public agent of the State, in this case political staff of the Presidency of the Republic, embezzled the sum of 2,137,500 SUS (US dollars two, million one hundred thirty-seven thousand five hundred) which was given to the HUSMAL Company SARL for the purchase and erection of 3,000 prefabricated houses for the police and military of the City of Kinshasa as part of the 100-day program initiated by the President of the Republic.

Facts provided for and punished by articles 21 and 23 of the Penal Code Book 1 and 145 of the Penal Code Book II.

  1. Charged by the defendants KAMERHE LWA KANYIGINI Vital and MUHIMA NDOOLE Jeannot

Having, in Kinshasa, City of that name and capital of the Democratic Republic of Congo, on August 21, 2019, as co-authors by direct cooperation, being respectively, Public Agent of the State, in this case political staff of the Presidency of the Republic and Public official, diverted the sum of US $ 1,154,800 (US dollars one million one hundred fifty-four thousand eight hundred) which was given to MUHIMA NDOOLE Jeannot for the customs clearance of the containers of the prefabricated houses.

Facts provided for and punished by articles 21 and 23 of the Penal Code Book 1 and 145 of the Penal Code Book II.

  1. Paid by SAMIH JAMMAL
  2. To have, in the same circumstances of places and times as sub.A.1, fraudulently transferred to Lebanon, funds in particular more than 10,000,000 U$ (ten million US dollars), without going through a credit institution or by its intermediary.

Facts provided for and punished by articles 6 and 38 paragraph 9, point 2 of law n ° 04/016 of July 19, 2004 relating to the fight against money laundering and the financing of terrorism.

  1. Having, in the same circumstances of place and time as sub.A1, intentionally operated the transfer of more than 10,000,000 U$ (ten million US dollars) to Lebanon in order to conceal the embezzlement of public funds committed to the detriment from the Treasury.

Facts provided for and punished by articles I point I and 34 of Law n ° 04/016 of July 19, 2004 on Combating Money Laundering and the Financing of Terrorism.

  1. Charged by the defendant SAMIH JAMMAL
  2. To have, in the same circumstances of the places as above, on January 23, 2019, granted, indirectly through Mrs. SORAYA MPIANA, to Mr. KAMERHE LWA KANYIGINI Vital, Director of Cabinet of the Head of State, beautiful – father of the aforementioned, part of his concession measuring 50.00 meters x 100.00 meters located on Ngaliema Bay, in the Basoko District, in the Municipality of Ngaliema, in Kinshasa, with a view to winning on behalf of the SAMIBO Companies SARL and HUSMAL SARL, the public contracts for the construction of 1,500 and 3,000 prefabricated houses mentioned above, in violation of the tendering procedure and the thresholds set by law on the award of contracts by mutual agreement. thank you.

Facts provided for and punished by articles 147 bis, points 2 and 3, and 149 paragraphs I and 2, point 2a of the Penal Code Book II as amended and supplemented by Law n ° 05-006 of March 29, 2005.

  1. Having, in the same circumstances as above, on April 25, 2019, purchased, indirectly through Mrs. SORAYA MPIANA, for the benefit of Mr. KAMERHE LWA KANYIGINI Vital, Director of Cabinet of the Head of State, beautiful – father of the aforementioned, a concession measuring 70.00 meters x 100.00 meters located on Ngaliema Bay, in the Basoko District, in the Municipality of Ngaliema, in Kinshasa, for a value of 100,000 US $ (US dollars one hundred thousand ) in order to win, on behalf of the SAMIBO SARL and HUSMAL SARL companies, the public construction contracts for 1,500 and 3,000 prefabricated houses mentioned above, in violation of the tendering procedure and the thresholds set by the legislation in over-the-counter procurement.

Facts provided for and punished by articles 147 bis, points 2 and 3, and 149, paragraphs I and 2, point 2a of the Penal Code Book II as amended and supplemented by Law n ° 05-006 of March 29, 2005.

  1. Charged by the defendant KAMERHE LWA KANYIGINI Vital
  2. To have, in the same circumstances of place and time Sub.D.1, accepted, indirectly through Mrs. SORAYA MPIANA who is her daughter-in-law, the transfer of a part of 50.00 meters x 100 , 00 meters from the concession belonging to Mr. SAMIH JAMMAL, located on Ngaliema Bay, in the Basoko District, in the Municipality of Ngaliema, in Kinshasa, in order to abuse his real influence as Director of the Office of the Chief of the ” State and supervisor of the 100-day program initiated by the President of the Republic, to gain the latter, under the names of his Companies SAMIBO SARL and HUSMAL SARL, the public procurement and erection markets of 1,500 and 3,000 prefabricated houses mentioned above, in violation of the tendering procedure and the thresholds set by legislation on the award of contracts by direct negotiation.

Facts provided for and punished by articles 147 bis, point 1 and 149, paragraphs I and 2, point 2a of the Penal Code Book II as modified by Law n ° 05-006 of March 29, 2005.

  1. Having, in the same circumstances of place and time as Sub.D.2, accepted, indirectly through Mrs. SORAYA MPIANA who is her daughter-in-law, the purchase for her benefit of the concession measuring 70, 00 meters x 100 meters, located on Ngaliema Bay, in the Basoko district, in the Municipality of Ngaliema, in Kinshasa, in order to abuse its real influence as Director of the Office of the Head of State and supervisor of the program of 100 days initiated by the President of the Republic, to win to Mr. SAMIH JAMMAL under the names of his Companies SAMIBO SARL and HUSMAL SARL, the public markets for the purchase and erection of 1,500 and 3,000 prefabricated houses mentioned more above, in violation of the tendering procedure and the thresholds set by law on the award of contracts by direct negotiation. Facts provided for and punished by articles 147 bis, point I and 149, paragraphs I and 2, point 2a of the Penal Code Book II as modified by Law n ° 05-006 of March 29, 2005.

At the public hearing of 11/06/2020 during which the case was called, investigated, pleaded and deliberated, the civil party appeared represented by its counsel Maitre KALUBA DIBWA Dieudonné and the Bâtonnier KAYUDI MISAMU Coco, respectively barrister at the Court of Cassation and the Council of State and barrister at the Court of Appeal of Kinshasa / Matete; the defendants appeared in person assisted by their Counsels: For the defendant SAMIH JAMMAL by the Honorary National Bâtonnier MBU NE LETANG, Masters Nicodème MUKA, Serge LEPIGHE, Tshitsha BOKOLOMBE, Christian BEYA, Arlette ODIA KASHAMA, Patrick TAMBWE, Gervais KALONGAMA, Papy MALOBA and Jardel MULONGOY; the defendant KAMERHE LWA KANYIGINI Vital by the Bâtonnier Joseph GUHANIKA, Masters Roger THOTO, Jean Marie KABENGELA ILUNGA, Gérard KABEMBA, Giscard MUBIALA and Aimé MURUHUKA and the defendant MUHIMA NDOOLE Jeannot by Masters KALOMBO BETUITE William and NGON Albert-NGON all Lawyers.

The procedure thus followed being regular and contradictory, the Tribunal of this body therefore declared itself validly seized of them.

During the hearing on 11/06/2020, the defendant SAMIH JAMMAL raised a declination of jurisdiction, a dismissal and an objection of unconstitutionality;

Explaining the first plea, he argues, firstly, that the Tribunal is only competent, under article 89 of organic law number 13/011-B of 04/11/2013, only to know offences punishable by the penalty of more than 5 years of principal penal servitude and the death penalty; therefore, since the offence of embezzlement of public funds is punishable by the penalty of forced labour, the above-mentioned court does not have jurisdiction to deal with it; and, on the other hand, having a residence in the commune of Gombe, the Public Prosecutor’s Office near the Kinshasa / Matete Court of Appeal who arrested him and opened a judicial investigation against him is territoriality incompetent to seize the Tribunal of this;

Therefore, in doing so, this referral is irregular, because it was carried out in violation of articles 19 of the constitution which prohibits distracting someone from his natural judge and 104 paragraph 1 of the organic law mentioned above;

Addressing the second ground of inadmissibility, the defendant SAMIH JAMMAL argues that the feat of summoning the defendant he received is obscure in that, on the one hand, it does not allow him to understand why the organ of the the law accuses him of having embezzled $ 48,831,148 USD, while it was the sum of $ 57,500,000 USD that was given to him; and on the other hand, it does not specify the degree of participation of the defendants in the commission of the above-mentioned offence;

Thus, it infers the inadmissibility of the action under examination;

With regard to the exception of unconstitutionality, he observed that the General Prosecutor’s Office of Kinshasa / Gombe which had seized it had never taken any act of instruction and that the minutes which lay in the file had, rather , have been trained by the ministerial officers of the General Prosecutor’s Office of Kinshasa / Matete;

Consequently, he concludes, it is in violation of article 19 of the constitution which provides that no one may be removed or distracted against his will from the judge that the law attributes to him;

Also, he points out, the present action being moved in violation of the constitution, it falls to postpone its examination, while waiting for the constitutional court to rule on this;

In addition, he noted, the offence of embezzlement of public funds being charged with being punishable by the penalty of forced labour which, under article 17 of the constitution, is contrary to it;

Accordingly, he claims that the Court should stay proceedings under article 162 of the constitution, which provides that when an objection of unconstitutionality is raised before the trial judge, the latter stays the proceedings. to rule and seize, all cessating cases, the constitutional court;

For his part, the defendant KAMERHE also, during the same hearing, raised a ground of stay suspended from the exception of unconstitutionality in that the penalty of forced labour envisaged for the offence of embezzlement of public funds constitution of the Republic and therefore asked for a stay.

In law, from the examination of article 5 of the Criminal Code Book I, the penalties applicable to the offences are: the death penalty, forced labour, penal servitude, fine, special confiscation, the obligation to move away from certain places or a certain region; the imposed residence in a specific place and the provision of government surveillance;

In addition, organic law number 13/011-B of 04/11/2013 relating to the organisation, functioning and jurisdiction of the courts of the judiciary provides, in its article 89, that the Courts of First Instance know offences punishable by the death penalty and those punishable by a penalty exceeding five years of principal penal servitude;

It follows that the Courts of First Instance being competent to hear offences punishable even by the death penalty, they are also competent to hear those which are punishable only by the penalty of forced labour, since no legal provision exists. ” assigns this competence to no other jurisdiction;

Thus, for the Tribunal, the reasoning consisting in denying it jurisdiction on the ground that the offence of embezzlement of public money before it is punished with the penalty of forced labour is specious, the legislator not being able, moreover, to institute a incrimination without providing for the competent court to find out;

In addition, article 67 of the aforementioned law provides that in repressive matters, the Public Prosecutor’s Office searches for breaches of legislative and regulatory acts which are committed on the territory of the Republic;

In this regard, the doctrine teaches that the search for breaches of the various laws of the country committed throughout the territory is the responsibility of the Public Prosecutor (Gabriel KILALA, Attributions of the Public Prosecutor and Criminal Procedure, Volume I, ed. AMUNA, Kinshasa 2006 , p.92);

It follows that the Public Prosecutor’s Office is competent to arrest anyone, regardless of the place of his residence, who commits an offense at any place located on the territory of the Republic;

In addition, article 150 of the decree of judicial organization number 299/79 of 08/20/1979 relating to the internal regulations of courts, tribunals and prosecution provides that when a file is to be transmitted, for competence or disposition to a another public prosecutor’s office, it is, after being inventoried, communicated to the public prosecutor who verifies the need for it. If the transmission must be made to a prosecution service under the jurisdiction of another court of appeal, the file is sent to the Attorney General who ensures the transmission;

In addition, article 104 of the abovementioned organic law provides that the judge of the place where one of the offenses was committed, of the residence of the accused and of the place where the accused will be found are competent;

In the case under examination, the Court notes that the Public Prosecutor at the Kinshasa / Matete Court of Appeal has, on an injunction given to him by the Deputy Prime Minister and Minister of Justice and Keeper of the Seals by his letter of 10 / 02/2020, opened a judicial inquiry under which the accused SAMIH JAMMAL in particular was arrested and placed in detention;

The latter being of residence in the commune of Gombe, located in the jurisdiction of the General Prosecutor’s Office near the Court of Appeal of Kinshasa / Gombe, he transmitted the file thus opened to his office to his colleague who, by his request for the purposes to fix the hearing number 1698 / RMP 1641 / PG 023 / a / LUK / 2020 of 04/24/2020, sent it for fixing before the Tribunal of this case;

It follows that it is irrelevant that the defendant SAMIH JAMMAL disputes the competence of the public prosecutor as well as he heard during his arrest and therefore the regularity of the minutes by him drawn up on this subject than that of this Tribunal;

Consequently, this plea will be rejected for unfounded;

Furthermore, the Tribunal notes that article 57 of the CPC stipulates that the summons must indicate to the request who it is made of. It sets out the name, first name and residence of the city, the subject of the summons, the court before which the person named must appear, the place and time of the appearance. The summons to the defendant contains, moreover, the indication of the nature, the date and the place of the facts of which he will have to answer;

Also, it was held that if the elements contained in the summons to accused, such as the place, the month, the year of the commission of the facts, the nature of these, the victims, allow the accused to defend themselves, the obscuri libelli exception is unfounded (CSJ, RPA 376, 02/04/2010 in Odon NSUMBU, Supreme Court of Justice: Héritage de Demi-Siècle de Jurisprudence; Les Analyzes Juridiques, Kinshasa, 2015, p.327 );
It follows that such a dismissal can only be raised in limine litis, because it tends to safeguard the rights of the defense;

However, in the present case, the Court notes that, on the one hand, the summons to the accused received by the accused SAMIH JAMMAL who raises the plea under examination does indeed indicate the place, the date and the nature of the facts which he has to answer for; in this case Kinshasa, between March 2019 and January 2020; between August and September 2019 as regards the facts relating to the criminalization of embezzlement of public funds and as regards the facts relating to the prevention of corruption, Kinshasa on January 23, 2019 and April 25, 2019; finally, with regard to the facts likely to be qualified as money laundering, Kinshasa, between the months of March 2019 and January 2020; moreover, the aforementioned quotation indicates the degree of participation of the defendant named above in the commission of the offences charged against him in that it specifies, in each case where he is prosecuted with the defendant KAMERHE LWA KANYIGINI Vital that he is co- author ; and on the other hand, the above-mentioned plea was raised at the public hearing on 11/06/2020 devoted to pleadings, while throughout the previous hearings, the accused defended himself, without the slightest reservation, on the facts imputed to him;

For the Court, the impertinence of the present plea is unequivocal; therefore he will reject it;
In addition, the Tribunal notes that to make the prescription of article 162 of the Constitution of the Republic intelligible, the First President of the Court of Cassation, in his circular number 001 of 07/03/2017, stressed that the exception of unconstitutionality as a procedural incident may be raised either ex officio by the court itself, or by a defendant, or by

However, while significant funds have been disbursed, for several months, from the Treasury to deal with it; suspicions of embezzlement began to circulate in public opinion, because on the ground there were only timid signs of the execution of the aforementioned program;

It was then that during the Council of Ministers held in February 2020, the Government of the Republic instructed the Deputy Prime Minister and Minister of Justice and Keeper of the Seals to launch judicial inquiries to shed light on the situation ;

By his letter number 273 / Secab 12 / D / CAB / MIN / VPM / J and GS / 2020 of 02/10/2020, the latter gave an order to the Prosecutors General near the Courts of Appeal of Kinshasa / Gombe and Matete to conduct investigations.

The Prosecutor General at the Kinshasa / Matete Court of Appeal opened an investigation which led to the arrest of the defendants SAMIH JAMMAL, manager of the companies SAMIBO SARL and HUSMAL SARL, who had benefited from public funds for the supply of prefabricated houses in the framework the aforementioned program;

KAMERHE LWA KANYIGINI Vital, Director of the Office of the President of the Republic and authorizing officer of the disbursement of the above funds as well as MUHIMA NDOOLE Jeannot, Head of Division at the Presidency of the Republic in charge of Import-Export, having received, on injunction from the warned KAMERHE, funds to carry out customs formalities which would not, however, have required this disbursement;

Furthermore, the body of the law concludes on the one hand that the defendant SAMIH JAMMAL would have obtained the contracts in question by offering presents to the defendant KAMERHE LWA KANYIGINI Vital who would have allegedly accepted them and on the other hand, the defendant SAMIH JAMMAL allegedly, in violation of the relevant legislation, transferred significant sums abroad, allegedly from the alleged embezzlement;

After having closed its investigations, the General Prosecutor’s Office of Matete transmitted, for disposition and jurisdiction, because of the places of residence of the defendants, the file to the General Prosecutor’s Office of La Gombe which, without disturbing, seized, by the above-mentioned request, the Court here for the purpose of obtaining the conviction of the prequalified defendants.

For the civil party, the incriminations charged against the defendants are established and it is necessary to condemn the defendants SAMIH JAMMAL and KAMERHE LWA KANYIGINI Vital in solidum to the restitution of the sum of the equivalent in FC of 48,831,148 $ USD + 2.137.500 $ USD and to damages of the equivalent in FC of 100,000,000 USD and to condemn in solidum the defendants KAMERHE LWA KANYIGINI Vital and MUHIMA NDOOLE Jeannot to the restitution of the sum of the equivalent in FC of $ 1,154,800 USD as well as damages of the equivalent in FC of $ 50,000,000 USD;

For its part, the organ of the law requires the Court to declare established in fact and in law the offense of embezzlement of public funds relating to the amount of $ 48,831,148 USD payable by SAMIH defendants JAMMAL and KAMERHE LWA KANYIGINI Vital and to sentence them each to 20 years of forced labor, while also pronouncing the ban for 10 years after the execution of the sentence, the right to vote and the right to stand as a candidate concerns the defendant KAMERHE LWA KANYIGINI Vital;

The prohibition of access to public and parastatal functions regardless of the level of responsibility of the same defendant; the deprivation of the right to conviction or to parole and to rehabilitation by charge of both defendants and the final expulsion from the territory of the Republic after the execution of the sentence against the accused SAMIH JAMMAL; say established against the latter and the defendant KAMERHE LWA KANYIGINI Vital the offense of embezzlement of public funds relating to the sum of $ 2,137,500 USD and to sentence them each to the penalty of 10 years of forced labor, while pronouncing moreover the prohibition for 5 years after the execution of the sentence, the right to vote and the right to stand for election as regards the defendant KAMERHE, the prohibition of access to public and parastatal functions whatever the step of the same accused;

The deprivation, against two defendants, of the right to sentence or to parole and to rehabilitation as well as the final expulsion from the territory of the Republic after the execution of the sentence against the accused SAMIH JAMMAL; say established in fact and in law against the defendants KAMERHE LWA KANYIGINI Vital and MUHIMA NDOOLE Jeannot the offence of embezzlement of public funds relating to the sum of $ 1,154,800 USD and sentence them each to 2 years of forced labour, by pronouncing in addition against both: the ban for 5 years after the execution of the sentence of the right to vote and the right to stand as a candidate; the prohibition of access to public and parastatal functions at any level and the deprivation of the right to sentence or to parole and to rehabilitate

Arrested on the offense alleged against them, the defendants, after claiming their innocence by claiming that they are not established;

In fact, the defendant SAMIH JAMMAL, during the investigation hearings of 11/05, 25/05, 03/06 and 04/06/2020, argued that he had concluded in April 2018 with the civil party, through the Ministry of Rural Development, taken in the person of witness Justin BITAKWIRA, Minister in charge of said department at the time, a contract for the supply of prefabricated houses, which, by virtue of the endorsement of April 2019, was renewed by the parties;

Also, he continues, it is for this reason that he, on behalf of the SAMIBO SARL company of which he is the manager, received $ 57,500,000 USD to supply and erect 1,500 prefabricated houses in the five provinces here the Democratic Republic of Congo: Kinshasa, Kongo Central, Kasaï Central, Kasaï Oriental and Sud-Kivu;

Thus, he adds, in execution of the above-mentioned contract, concluded regularly, 211 houses have already been erected at Camp Tshatshi, in Kinshasa; site indicated by the civil party agents;

What is more, he observes, several containers containing prefabricated houses are blocked, for failure by the civil party to pay the related costs, in the ports of Dar-es-salam and Lobito;

In addition, some houses are already being erected in the town of Mbuji-Mayi in Kasai Oriental;

He concludes that, it is wrong for the Public Prosecutor to charge him with any diversion of the above-mentioned sum;

Furthermore, acknowledging having received, under the order sent to him by the Presidency of the Republic to erect, in favor of the military and police, 3,000 houses; $ 2,137,500 USD, as a deposit on the invoice for the aforementioned order of $ 57,000,000 USD, the defendant SAMIH JAMMAL claims to have already imported houses contained in 31 containers blocked at the port of Matadi, fault, for the part civil, to have paid the costs relating to customs clearance and transport;

He points out that the material act of diversion, required by law for this incrimination to be established in his head is in fact missing;

As regards the prevention of money laundering, while admitting having transferred large sums of money abroad, he maintains that these do not have a criminal origin since they are the product of the markets audiences regularly obtained and were intended to honor its commitments in the context of said contracts;

He infers that it is wrong for the organ of the law to retain him under the link of this incrimination and therefore request his acquittal;

With regard to the prevention of corruption, the defendant SAMIH JAMMAL maintains that he acted in good faith by rewarding, not the defendant KAMERHE nor his daughter-in-law, the witness SORAYA MPIANA whom, moreover, he never knew ; but rather the witness Daniel SHANGALUME NKINGI alias MASSARO, friend of his children; this, for the numerous markets which it procured to him;

He points out that during the first transaction dated 23/01/2019, the defendant KAMERHE was not yet appointed Director of Cabinet to the Head of State;

He continues that the second transaction took place on 04/25/2019 when he was already awarded the contract for 1,500 prefabricated houses;

He then invited the Court to find that a prior agreement had never taken place between him and the defendant KAMERHE and that, consequently, the offense of corruption could not be declared established against him.
For his part, the defendant KAMERHE also, during the same public hearings mentioned above, proclaimed his innocence;

Indeed, in relation to the facts of embezzlement of public funds imputed to him, he observed that he had acted, by virtue of his prerogatives as Director of Cabinet to the Head of State and one of the supervisors of the 100-day emergency program put in place by the President of the Republic in order to meet the numerous expectations of his voters after his investiture in the supreme magistracy;

Thus, he continues, it was only to deal with the urgency of the situation that he had to ensure speed in the disbursement of funds relating to the execution of the above program;

Also, he points out that, on the one hand, the contract under which 1,500 prefabricated houses were ordered, as part of the Habitat component of the abovementioned emergency program, is only the continuity of the one who, in April 2018, was concluded by the then Minister of Rural Development, Mr. Justin BITAKWIRA insofar as the addendum to the said contract was indeed signed by the contracting parties;

In addition, he maintains that the order for 3000 houses made to the company HUSMAL SARL of which the defendant SAMIH JAMMAL is manager, intended for the military and police being dictated by the President of the Republic, satisfied with the quality of the houses erected at Camp Tshatshi by the same JAMMAL, manager of SAMIBO SARL

Regarding the facts of corruption, he noted that he had never been aware of the transfer made by the accused SAMIH JAMMAL to his daughter-in-law, SORAYA MPIANA and observed that when he knew it, instruction was given so that the title relating thereto is canceled;

Also, he underlines that he never met the defendant SAMIH JAMMAL, neither at his place of work nor at his home, to talk about the contracts for which he was awarded;

He concludes that there are no elements constituting this incrimination, while maintaining that the contracts awarded to JAMMAL were so on a regular basis and that therefore, he cannot be retained under the link of the above incrimination.

The accused MUHIMA NDOOLE Jeannot, for his part, claims to have allocated the funds received from the public accountant of the Presidency of the Republic to operations aimed at obtaining the routing of 167 containers containing the prefabricated houses located at the port of Dars-es-Salam to Mwene-Ditu;

Also, he adds, to date, 77 containers have arrived at their destination, ie at Mwene-Ditu and 15 are at SNCC facilities in Lubumbashi; while 75 are still in Dar-es-Salam awaiting the second disbursement of funds;
Furthermore, he produced a detailed statement of the expenses he had incurred as well as the mission order signed by the defendant KAMERHE who had instructed the public accountant of the Presidency of the Republic to give him the funds in question, namely $ 1,154,800 USD;

Consequently, he infers that the Court should hereby acquit him.

Position of the Tribunal

A. OF THE MISUSE OF PUBLIC DENIERS RELATING TO THE SUM OF 48,831,148 $ USD PAID BY SAMIH JAMMAL AND KAMERHE LWA KANYIGINI VITAL

In law, article 145 of the Criminal Code Book II provides that any civil servant or public officer, any person in charge of a public or parastatal service, any person representing the interests of the State or of a state company within a private, parastatal or mixed economy company as administrator, manager, auditor or any other title, any representative or servant of the persons listed above, who will have embezzled public or private funds, effects in lieu of documents, titles, deeds, household effects which were in his hands, either by virtue of or on account of his office, will be punished with one to twenty years of forced labour;

It follows that the following elements must be present in order for the offence of embezzlement of public funds to be established: the quality of the agent, the object of the offence, the victim, the act complained of and the criminal intent;

Regarding the quality of the agent, the doctrine teaches that it must be a civil servant or public official or a person responsible for a public service (MINOR, Commentary on the Penal Code, p. 320);

Furthermore, Decree-Law number 017/2002 of 03/10/2002 on the code of ethics for public officials defines the public official of the State as any person who exercises a public activity of the State and or paid by the latter;

Also, it follows from its examination that the political and administrative staff of the Presidency of the Republic is considered to be a public official;

In addition, the doctrine specifies that by persons in charge of a public service is meant those who are depositaries or accountants who, without being civil servants or public officers, are established for a public interest and who receive money or effects in by virtue of their office (MINOR, op cit);

Also, it was judged that the quality of official or person in charge of a public service is an essential element to justify the application of article 145 of the Penal code (CSJ, RP 271, 27/06 / 1979 in Odon NSUMBU, op cit, p.80);
In the case under examination, the Court noted that the defendant SAMIH JAMMAL, manager of SAMIBO SARL, received from the public treasury on behalf of the latter, funds to erect, in favor of the underprivileged social strata, 1,500 prefabricated houses and this , as part of the Head of State’s 100-day emergency program;

In addition, he points out that, under the terms of the order of 01/25/2019, the defendant KAMERHE LWA KANYIGINI Vital was appointed Director of Cabinet of the President of the Republic;

It follows that the two defendants named above are invested respectively with the quality of person responsible for a public service and public agent;

Furthermore, for the offence of embezzlement of public funds to be established, it must be certain property, that is to say of a given nature, and that said property has been entrusted to the person who hijacked them;

Thus, it emerges from an examination of the legal provision relating to it that it is a question of money which has been handed over or entrusted to the public or similar agent who diverted it, and that this handing over took place because of the functions official or the job with which he was invested;

CORRUPTION AT THE CHARGE OF THE DEFENDANT KAMERHE LWA KANIGYNI VITAL

Without it being necessary to repeat the legal developments set out above, the Court observes that it follows from the documents in the file and from the investigation of the case that the witness KILANGALANGA stated that he received from Daniel SHANGALUME NKINGI alias MASSARO , cousin of the defendant KAMERHE, the full identity of SORAYA MPIANA to enable him to establish the titles consecutive to the transfers made by the defendant SAMIH JAMMAL and that these were given to a relative of the defendant KAMERHE, in this case Mr. Daniel KANYEMESHA;

It follows that the defendant KAMERHE, by his silence, did indeed accept these offers which, moreover, even pushed him not to observe the legal procedure prescribed in matters of public procurement, as demonstrated above;

Thus, for the Tribunal, the offense of aggravated corruption is also established in fact and in law against him; consequently, he will sentence him to 15 years of principal penal servitude and to a fine of 1,000,000 FC constant or 6 months of subsidiary penal servitude;

In addition, article 20 of the Criminal Code Book I provides that when the same act constitutes several offenses, the highest penalty will be pronounced alone. When there is a combination of several facts, each constituting one or more offenses, the judge will pronounce a penalty for each fact and he will cumulate the sentences pronounced, subject to the application of the following provisions in particular: the death penalty and penal servitude in perpetuity absorb any sentence depriving of liberty and the sum of the penalties of penal servitude in time may not exceed 20 years;

Thus, it is jurisprudence that are in material contest the infringements which are not related by the unit of intention (CSJ, RP 23 / CR, 26/01/1981, in Odon NSUMBU, op cit, p.23) ;

Also, notes the Tribunal, are only in ideal competition the money laundering offenses committed by the defendants SAMIH JAMMAL, because linked by the criminal intent unit; while all the other offenses are in material competition;

It follows that for those who are in ideal competition, the Court will apply the principle of the highest criminal expression, while for the others it will cumulate the penalties, without prejudice to the legal restrictions mentioned above;

Furthermore, the Court notes that from the provisions of Article 14 of the Penal Code Book I it appears that special confiscation applies to things that have been produced by the offense;

In this regard, the doctrine teaches that the things produced by the offense can always be confiscated, regardless of the owner and it specifies that on the one hand, the order of the confiscation is an obligation for the judge who cannot dispense with to impose it because there are extenuating circumstances and on the other hand, the confiscation is not subject to the existence of the prior seizure, the judge simply having to check whether the conditions which prescribe it are met (MINOR , op cit, p. 32 and 53);

In the case under examination, the Court noted that the defendants and their relatives were illicitly enriched by acquiring, concomitantly with the commission of the offenses, certain goods which undoubtedly, in view of the normal occupations and incomes of their owners that they can receive from them. procure, are the proceeds of said offenses;

Therefore, as required by the organ of the law, it will order their confiscation;

In addition, article 85 of the Code of Criminal Procedure provides that immediate arrest may be ordered if there is reason to fear that the convicted person will try to evade the execution of the sentence and that it will be at least 3 months of penal servitude;

In the present case, the Court noted that, being sentenced to 2 years of hard labor, the accused MUHIMA NDOOLE Jeannot risked evading the execution of this sentence;

Thus, he will order his immediate arrest;

From all of the above, he will receive the civil action, will declare it well founded and will award him the damages which he will fix in all equity of the equivalent in Congolese franc of 150,000,000 $ USD (one hundred and fifty million US dollars ) estimating the amount of $ 2,000,000,000 USD exorbitantly requested;

However, he will not order restitution as requested by the civil party, reason taken that the embezzled funds are not seized;

Indeed, it was held that is of public order and leads to partial cassation with reference, the means taken of the violation of article 15 of the Penal Code Book I in that the judgment ordered the restitution of the property not seized (CSJ, RP 360/361, 07/29/1980 in Odon NSUMBU, op cit., p. 50);

Regarding the counterclaim brought by accused SAMIH JAMMAL although admissible, will be declared unfounded in that the facts against him are established;

From all that has just been said, the Tribe

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