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Q&A – 29 May 2017

Police investigating bureau de change

I own a small bureau and have been asked to give documents for a certain transaction that I conducted in 2008. I have informed the officers that such records are not available because of lapse of time. Other bureau owners I have spoken to do not maintain records for more than six months. How am I supposed to operate? Is there no time period after which I do not need to maintain records?
IP, Arusha

As a bureau owner dealing in cash you are a reporting person under the Anti Money Laundering Act.

You are thus required to retain all transactional documents for a period of 10 years as provided for under the Regulations made under the Act. Regulation 30 states that (1) A reporting person shall retain records required by section 16 of the Act for a minimum period of ten years from the date- (a) when all activities relating to a transaction or a series of linked transactions were completed; (b) when the business relationship was formally ended; or (c) where the business relationship was not formally ended but when the last transaction was carried out. (2) where a reporting person is required by any enactment to release a record referred to in sub regulation (1) before the period of ten years lapses, the reporting person shall retain a copy of the record. (3) Where a report has been made to the FIU pursuant to the provisions of the Act or the reporting person knows or believes that a matter is under investigation, that person shall without prejudice to sub-regulation (1), retain all relevant records for as long as may be required by the FIU. (4) For the purpose of this regulation, the question as to what records may be relevant in the analysis process may be determined in accordance with the guidelines.

You can see that as a reporting person, under regulation 30, the transaction documents for 2008 are supposed to be retained for 10 years till 2018 and you are thus in breach of your obligations under these regulations.

Other reporting persons under the Act include banks and financial institutions, cash dealer, an accountant, real estate agent, dealer in previous stones work of arts or metals, a regulator, customs officer, attorneys, notaries and other independent legal professionals, auctioneers and any other person specified by the Minister.

Therefore the ten year retention rule applies to all such reporting persons.

Graphics designer copying designs

I know an independent graphics designer who copies designs of other companies that are protected under intellectual property laws. Is this a serious offence?
FG, Dar

Apart from certain breaches under the Trade and Services Marks Act, the graphics designer may be committing a criminal offence under the Cyber Crimes Act 2015. Section 24 of this Act states that (1) A person shall not use a computer system with intent to violate intellectual property rights protected under any written law. (2) A person who contravenes subsection (1) commits an offence and in case the infringement is on – (a) non-commercial basis, is liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or both; or (b) commercial basis, is liable to a fine of not less than twenty million shillings or to imprisonment for a term of not less than five years or to both, in addition, be liable to pay compensation to the victim of the crime as the court may deem just. Since the graphics designer is violating intellectual property rights for commercial basis, she or he can be imprisoned for a minimum of 5 years or a fine of twenty million or both.

Bilateral investment treaties

Why does Tanzania have bilateral investment treaties with certain countries when none of our companies invest in those countries? What is the main essence of having a bilateral treaty and how does it help the country? What if the host country needs to take over an asset in the interest of public policy?
RT, Dar

Depending on the drafting of the Bilateral Investment Treaty (BIT), such treaties are entered into between countries primarily for the promotion and protection of investments. They have clauses on how investments are to be made and automatically protect companies of such countries from expropriation and compensation for losses suffered in the country they have invested in.

Whilst it is true that we have entered into a number of bilateral investment treaties when our companies have not invested in those countries, you must note that these treaties also attract companies from outside the country to invest in Tanzania. Once signed, and once relied upon by foreign companies to come and invest, it is very hard for a state party to unilaterally terminate its obligations under a BIT.

Taking over an asset is also provided for in most BITs, be it expropriation or nationalisation, but this must follow due process of the law and be compensated adequately, fairly and quickly. In short no takeover can be undertaken without full compensation making it a very costly affair.

There are BIT arbitrations that have run into billions of dollars’ worth of compensation against state parties. Venezuela, amongst many other countries, have had to compensate billions of dollars for actions it took against various companies that had invested there and that were fully protected under BITs.

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