Legal Update – 1 July 2019
Court of Appeal holds money laundering unbailable
- Confirms finding that correctness of charge sheet cannot be determined by High Court during bail application before accused is committed for trial
- States money laundering is a serious offence, Parliament did not intend it to be bailable
- Holds that since money laundering not removed from list of unbailable offences under the CPA, it is still unbailable
- Since accused not charged with money laundering as an economic offence under the EOCCA, application for bail could not lie under EOCCA
- Applicable law of bail for money laundering offences committed prior to Act No. 3 of 2016 is CPA
Background
In Criminal Appeal No. 391 of 2017, the Appellant was charged with six counts of money laundering and other counts of economic offences namely occasioning loss to a specified authority and leading organized crime, and a penal code offence namely obtaining money by false pretence. The offences were committed before money laundering became an economic offence.
The Appellant petitioned to the High Court for bail on two grounds that the counts of money laundering were added maliciously with intent to deny him bail, and secondly he claimed that the particulars of money laundering counts do not disclose such an offence. His application for bail at the High Court was denied, with the High Court holding that it had no jurisdiction to determine the correctness of the charge before the accused was committed to it for trial. As to the issue of malice, the High Court held that it was raised prematurely and was made in a wrong forum. Aggrieved, the Appellant appealed to the Court of Appeal.
In the course of hearing, the Court of Appeal raised the issue regarding the position of law after money laundering became economic, and whether the Economic and Organised Crime Control Act (EOCCA) or Criminal Procedure Act (CPA) were the law applicable to the Appellant’s application for bail.
The Judgment
The Court of Appeal confirmed the High Court’s findings that the correctness of the charge cannot be determined by the High Court during bail application before the accused is committed to the High Court for trial. It held that money laundering is a ‘serious offence’, so the Parliament could not intend it to be bailable.
The Court of Appeal also said that since the offence of money laundering has not been removed from the list of unbailable offences under section 148(5)(a)(iv) of the CPA, it is still unbailable. The Court, however, did not explain whether its position is restricted to the circumstances of this case, where the law applicable for bail was found to be CPA because offences of money laundering were committed before money laundering became economic offence, or it extends to offences committed after 8th July 2016 when money laundering became economic through Act No. 3 of 2016.
Further, the Court of Appeal held that since the Appellant was not charged with money laundering as an economic offence under the EOCCA, the Appellants application for bail could not lie under the EOCCA as the applicable law for bail for money laundering offences committed prior to Act No. 3 of 2016 is the CPA.
The Court of Appeal stated that section 4 of the CPA allows the CPA to be used to deal with all crimes unless the Act creating the offence charged provides otherwise. However, the Court of Appeal did not refer to the case of Edward Kambuga and another (1990)TLR 84 where it said that CPA does not apply to a bail application for an economic offence, which remains open for parties to explore.
Click here to read the full judgment.