Litigation and key cases: The unresolved issue in bail for money laundering
Simply put, money laundering is the process of disguising the proceeds of crime and integrating it into the legitimate financial system of a country. According to the Tanzanian Financial Intelligence Unit, money laundering can have significant effects on the attainment of Tanzania’s national goals. Money laundering can also erode the integrity of the financial system and threaten economic, political and social stability.
In Criminal Appeal No. 391 of 2017 James Burchard Rugemalira v. The Republic, the Appellant, Mr. Rugemalira, who was charged with, inter alia, money laundering, petitioned the High Court of Tanzania for bail on the basis that the counts of money laundering were included maliciously in the charge sheet to deny him bail and that the particulars of the money laundering do not reveal such an offense. It should be noted that the alleged offences were committed prior to money laundering becoming an economic offence. The High Court denied bail, holding that it had no jurisdiction to determine whether or not the charge before the accused was committed for trial. The High Court also held that the issue of malice was raised prematurely and in the wrong forum.
This led to Mr. Rugemalira appealing to the Court of Appeal of Tanzania which, on its own motion (“suo moto”), raised a point of law on whether the Economic and Organized Crime Control Act, Cap 200 (R.E. 2002) (“EOCCA”) or the Criminal Procedure Act, Cap 20 (R.E. 2002) (“CPA”) were the pieces of legislation that applied to Mr. Rugemalira’s bail application.
The decision
The Court of Appeal of Tanzania confirmed the decisions of the High Court, namely that the correctness of the money laundering charge cannot be determined by the High Court during the time of applying for bail prior to the accused person being committed to the High Court for trial. The Court of Appeal held that as a serious offence, money laundering was not intended by Parliament to be bailable.
The Court of Appeal observed that the money laundering offence has not been de-listed from the section 148(5)(a)(iv) of the CPA on unbailable offences and, consequently, held that money laundering is unbailable.
Moreover, the Court of Appeal held that because Mr. Rugemalira was not charged with money laundering as an economic offence under the EOCCA, he could not apply for bail under the EOCCA as the applicable legislation for bail in respect of money laundering offences allegedly committed prior to the introduction of Written Laws (Miscellaneous Amendments) Act No. 3 of 2016 is the CPA.
Under section 4 of the CPA, all offences can be dealt with unless the specific statute creating the offence with which an accused is charged states otherwise. This position was ratified by the Court of Appeal in Criminal Appeal No. 391 of 2017 James Burchard Rugemalira v. The Republic. In so doing, the Court of Appeal did not make reference to the earlier case of Edward D. Kambuga and Another v. The Republic [1980] TLR 84 in which it held that the CPA is inapplicable to bail applications for economic offences.
The unresolved issue
In this particular case, the CPA was the legislation applicable for bail as the offences of money laundering were allegedly committed before money laundering was declared an economic offence. The unresolved issue is: Does the Court of Appeal’s decision in Criminal Appeal No. 391 of 2017 James Burchard Rugemalira v. The Republic extend to offences committed July 8, 2016, when money laundering became an economic offence following the enactment of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016?
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Lilian Kyaruzi ([email protected]), a corporate lawyer and an international development enthusiast, is director at Isidora & Company and the Taxation and Development Research Bureau.
