How DPP lost sexual exploitation case against Canadian businessman
Mombasa businessman Asif Amirali Alibhai Jetha in a Shanzu court on April 15, 2019. He is accused of human trafficking. PHOTO | NATION MEDIA GROUP
Valid passports and lack of evidence to support claims of sexual exploitation of 12 Nepalese dancers employed at a bar saw Canadian businessman Asif Amirali Alibhai Jetha escape a 60-year-jail term.
Mr Jetha, who also holds a UK passport, had been jailed and fined Sh1 million for trafficking the foreigners into Kenya for exploitation.
But he is now a free man after the High Court quashed the conviction and set aside the sentence last week.
To determine whether the main offences of human trafficking and promoting trafficking in persons were proved as required by law,
Justice Ann Ong'injo turned to the foreigners' travel history and how they found themselves in Kenya.
The finding was that nine of the 12 women had been informed by a friend of a dancing job in Kenya while the other three knew of the job directly from Mr Jetha.
They got interested and the businessman facilitated their travel by sending them a month’s salary in advance.
Court records show that some of the women used the money to buy cosmetics and dresses.
The records also indicated that at the Immigration department, the businessman facilitated some of them through the immigration desk while others paid the required $50 by themselves.
Only one of them came to Kenya from Uganda and was brought by her former boss.
“From the evidence on record, the 12 victims entered Kenya at different times, save for one who came from Uganda. The rest had come from Nepal and entered the country on tourist visas, which were legal,” noted the judge. It, therefore, means that they were in the country legally.
Main offences collapsed
Here, the two main offences collapsed as the Office of the Director of Public Prosecutions could not prove that the women were trafficked against their will, because they came by themselves.
On the issue of forced labour and exploitation, the court said the women were all aware of the nature of the work that they were to do upon landing in Kenya, and when they did arrive, that is what they were employed to do, so they were not deceived.
Eleven of them earned Sh60,000 per month, save for one who negotiated a slightly higher amount of Sh80,000.
“This was significantly above the Kenyan national minimum wage of Sh15,120,” the judge noted.
They also danced happily at the club, so the court said there was no evidence that the foreigners were subjected to forced labour.
The prosecution had said that Mr Jetha used means of deception by sending one month’s salary in advance to facilitate their travels, and taking advantage of their financial vulnerability for the purpose of exploitation.
“The prosecution failed to prove the element of deception to the required standard," said the judge.
The 12 women were consistent in their evidence that Mr Jetha was their boss at Rangeela Bar and Restaurant and paid them an average of Sh60,000 per month.
Back in Nepal
They sent some of this money to their parents back in Nepal and saved the rest, they testified.
Evidence showed that five of the women directly gave Mr Jetha their passports for safe keeping, and the rest had theirs kept elsewhere.
When the police asked for the documents when the women were arrested, they were provided.
The DPP, therefore, according to the judge, failed to prove the charge of confiscation, concealment, destruction and alteration of the documents made against the businessman.
Their evidence played a key role in exonerating Mr Jetha from the main charges that would have seen him spend his remaining productive years in jail.
They testified that there was no sexual exploitation of any kind at the club, adding that they were happy and satisfied with their job.
Court records also show their communication was somewhat limited to the company phone between 3pm and 6pm, and when they needed to go outside the compound, a housekeeper would accompany them.
However, they had no issue with the confinement as they testified that they saw no need to walk around or socialize in Mombasa.
A waitress at the club who also testified in the case said the women were happy with their work.
On the Sh69,050 and $1,382 that the police seized from the bar, and which they claimed were proceeds of the crime of human trafficking and tax evasion, the court noted these were tips placed in the tins for the 12 dancing women as rightly stated by witnesses.
Labelled with the names
The tins had been labelled with the names of the 12 women, and at the end of the dancing, records were kept as to how much each dancer had received or made in tips from the customers.
“There is an explanation that the money produced as exhibits were tips for the dancing girls,” the judge said.
“Being that the court has found that the offences of trafficking in persons and promoting trafficking in persons was not proved, the offence of being in possession of proceeds of crime as a result of trafficking cannot be sustained."
Another error noted by the judge in the charge sheet used to jail the businessman also contributed to the collapse of the prosecution's case.
The judge noted that the trial magistrate referred to the charges contained in the amended charge sheet dated May 23, 2019 instead of the one amended and lodged in court on August 21,2020.
According to the judge, the error affected the dates contained in six charges.
Offence IX
For instance, offence IX in the charge sheet dated May 23, 2019 indicated that it was committed on diverse dates between January 1, 2019 and March 13, 2019, whereas in the charge sheet dated August 21, 2020, the offence in the same count (IX) indicated that it was committed on diverse dates between June 1, 2018 and April 13, 2019.
Neither Mr Jetha and his lawyer nor the prosecution noticed this error, so the court asked whether this caused the businessman an injustice.
“The view of this court is that the trial magistrate ought to have confined the judgment to the correct charge sheet as amended on August 21, 2020 and not revert to the one that had been expunged,” added Justice Ong'injo.
Last year, a Shanzu court jailed Mr Jetha after finding him guilty of the offences of trafficking in persons, promoting human trafficking, interfering with travel documents, being in possession of proceeds of crime, engaging in business without a permit, and unlawfully employing foreign nationals.
But after reviewing the evidence in the matter upon appeal, the High Court ruled that key elements of exploitation were not proved to the required standard as the 12 Nepalese women were neither forced into labour, sexually exploited, forced into marriage, subjected to slavery nor kept in a state of slavery.
The only offences upheld were those of engaging in business without a permit, and unlawfully employing foreign nationals that attracted a lesser sentence of a Sh200,000 fine or a year’s imprisonment, and Sh1 million the High Court has ordered that he be refunded is enough to settle the fine.
