Q&A with Isidora & Company: Statutory bar for bail in money laundering cases in Tanzania

Saturday August 10 2019



PAUL KIBUUKA

tax@paulkibuuka.com

PAUL KIBUUKA tax@paulkibuuka.com 

The offence of money laundering is the “talk of the nation” even though Tanzania’s Anti- Money Laundering Act, 2006 has been in existence for 13 years now. Concern is rife over the lack of understanding of this law amongst the public, especially as it relates to applications for bail. Kindly throw some light on the ban of bail in money laundering cases in Tanzania. Mkude, A-Town.

 

In order to understand the ban of bail in money laundering offenses in Tanzania, you have to understand how the Anti-Money Laundering Act, 2006 defines the generic term “Money Laundering”.

Under section 3 of the Act, money laundering means “engagement of a person or persons, directly or indirectly in conversion, transfer, concealment, disguising, use or acquisition of money or property known to be of illicit origin and in which such engagement intends to avoid the legal consequences of such action, and includes offences referred in Section 12”.

This definition tells us that money laundering is a secondary offence to the principal (underlying) offense, that’s to say the predicate crime.

The definition also raises the important questions of whether criminal liability for money laundering requires proof of predicate criminal conduct; whether an accused person should have requisite knowledge of such underlying offense; whether it is sufficient for the accused person to know that the property he acquired or used or had possession of is proceeds of a crime; and whether the accused person is deemed to be aware that his intention existed when engaging in the laundering process.

Advertisement

All of these are complex issues—which criminal investigation bodies and courts in Tanzania have noted.

To complicate matters more, money laundering offences are made statutorily unbailable. Most underlying offenses that generate proceeds of crime are bailable, but the secondary offense of money laundering is not bailable.

Recently, in the case of James Burchard Rugemalira vs Republic,Criminal Appeal No.391 of 2017, the Court of Appeal of Tanzania said that since the offence of money laundering has not been removed from the list of unbailableoffences under section 148(5)(a)(iv) of the Criminal Procedure Act, it is still unbailable.

Many people are questioning the wisdom of statutorily barring bail in a money laundering offense in Tanzania, when in the US and the UK—both countries being backers of the money laundering legal regime—the offense is bailable.

In the African economic powerhouses of Ghana and Nigeria, money laundering offenses are bailable.

Even in India, a country with a long history of ties with Africa, the Supreme Court recently declared as unconstitutional section 45 of the Prevention of Money Laundering Act, 2002 stipulating exceptionally stringent bail conditions.

It’s difficult to feel anything other than bewilderment at the statutory bar for bail in money laundering offenses in Tanzania.

Is the bar supported by research indicating that the incidence of money laundering offenses in the country is high?  In what is being deduced in some quarters as a harbinger of change, Tanzania’s Chief Justice, Prof Ibrahim Juma, was reported a week ago by state-owned media to have decried tough bail restrictions in the country. Will the nation, therefore, be keeping its ears to the ground?

        

What are the key changes and developments introduced recently in Tanzania’s civil procedure law relating to institution of suits and service of summons? Best regards, Angelica.

In light ofthe Tanzanian Judiciary’s adoption of an e-justice system for case management and tracking, Rules 1(1) and 1(3) of Order IV of the Civil Procedure Code, Cap 33 have been amended in order to allow suits to be instituted by presenting a plaint electronically or manually to the court.

Suits instituted in court are required to be assigned to a specific judge or magistrate electronically or manually by the judge or magistrate in-charge of the court.

In short, the presentation of a suit and the assignment of the same to a particular judge or magistrate can be done either electronically or manually.

This means there is no obligation to file electronically once a litigant chooses to file manually. However, to avoid risks of delays in filings, it is recommendable for a litigant to find out beforehand what method a specific court registry prefers. 

In relation to summons, summonsto file a defence may be electronically signed by a judge or magistrate (Rule 2 of Order V).

This shows that the Judiciary in Tanzania is keen tostay abreast with today’s technological developments and innovations and to improve justice service delivery for the people.

Moreover, the new Rule 29 allows a court to order the service of summons through email/facsimile to the other party’s “previously disclosed addresses through their transactions”.

But this is subject to failure of physical serviceand to the court being copied in on email/facsimile such service.

Finally, the 21 days to effect service of summons have been reduced to 14.

Paul Kibuuka (tax@paulkibuuka.com) is a tax and corporate lawyer, tax policy analyst and chief executive of Isidora & Company.