- And if one gets the license, he narrated that many of them face harassment and arbitrary arrest.
- "The cases have become a norm that every week there’s a new case but none ever reaches conviction because most of the cases should have been civil cases," he says.
Image: FILE
For some gold dealers in the country getting the license to run the business has been an uphill task.
A licensed gold dealer who sought anonymity told the Star that the process of seeking a licence has been a hell of sorts.
And if one gets the license, he narrated that many of them face harassment and arbitrary arrest.
"The cases have become a norm that every week there’s a new case but none ever reaches conviction because most of the cases should have been civil cases," he says.
Kenya is a giant in terms of gold export in the East African region. This is supported by the fact that most of the gold-producing nations are blacklisted abroad
"When arrested, authorities are quick to just point out the amount paid but no one ever checks the contract and the terms and conditions of it."
He questioned how the suspects will be compensated after they are acquitted as the cases destroy their reputation.
The dealer says even though the business has other fake gold dealers, the business is turning out to be a case of “the lion being hunted”.
In the words of Chinua Achebe in his book, Things fall apart, he says until the lion learns how to write, the tales of the hunt will always glorify the hunter.
"I think it’s high time Kenyans know the truth about all these cases that are normally justified before the courts can even get the statements from people being charged," he told the Star.
He adds that some authorities are against gold traders who are Kenyans but will not take the same steps against foreigners who run the business.
"Kakamega just discovered gold deposits of over 45,000 kilograms but someone will still say there’s no gold in Kenya, we have alot of gold which is an investment for the country," he adds.
He says having done the business for over 15 years, the traders go through the thorough process of getting a gold dealer's license but authorities will kill that dream with something that’s supposed to be a civil case.
He urged police to do thorough investigations before rushing gold traders to court to detain them.
He questioned why authorities are so fast to arrest gold traders when some cases have never had any convictions.
"Let the prosecution weigh on the evidence before charging culprits. Some of the cases are civil, this is the whole point why all these cases never get anywhere," he said.
He however said it is regrettable that most of those who have lost millions of shillings to the scammers did not follow the procedure set in the law.
Lawyer Moses Munoko, in an interview with the Star, cautioned against the tendency of charging people in criminal courts for matters emanating from breached commercial transactions.
"If parties enter into a contract for the supply of gold, there are terms and conditions thereto. Each party has to meet his/her obligation of the bargain. The purchaser has to pay while the seller delivers the goods", Munoko says.
"And the key to this is that the contract must have a remedy in case of any breach."
That remedy, he says, can include rescission-returning the innocent party to where he was before the contract or damages as compensation for the loss.
"Therefore, if any licenced gold dealer enters into a written contract with a buyer for the sale of gold, any breach to deliver should be treated as a breach of contract," he added
"The aggrieved party can move to a commercial court to seek redress."
Munoko adds that as long as a party can substantiate that there exists a written contract, the DCI should cease investigating that case.
In the event the DCI goes ahead, he says, the DPP should not clear such a case to court.
"The reason is; in the contract, there is an alternative method of resolution of that dispute. It could be by way of arbitration or commercial courts," he stated.
Munoko further explains that police arrests and detention coupled with high release terms are normally used for ulterior motives to circumvent the right process of the law to seek a refund.
He explains that cases involving foreigners do attract diplomatic attention which often leads to the detriment of locals.
"The push from the diplomatic representatives through the Ministry of Foreign Affairs is likely to put pressure on police to investigate and prosecute perpetrators," he said.
He further notes that receiving money for gold is not an offence but the intention to defraud or by false pretense is where the problem lies.
"It is trite law that a criminal process should never be used as a substitute for criminal remedy or as a means to settle a civil or commercial claim," he noted.
"Because this amounts to abuse and misuse of the criminal justice system for personal interests and will likely prejudice the suspect before the truth comes to light."