Q&A – 19 April 2021
Bail in money laundering and economic offences
I keep on hearing that the so called economic offences are unbailable. Is it true that when a person is charged with such offences he/she can be detained in remand prison indefinitely or until the prosecutor decides to commence the trial and the case is decided on merits. The other option I hear for early release is for the accused to enter a plea bargaining agreement with the Prosecutor. What needs to be done to challenge such unbailability of offences? Can you clarify.
The notion that all economic offences are unbailable is a serious misconception of the law. The First Schedule to the Economic and Organised Crimes Control Act [Cap. 200 R.E 2019] contains a long list of economic offences created under different penal statutes. The Economic and Organised Crime Control Act does not as such create economic offences. It only specifies offences created under other laws to be economic. Some of the economic offences are minor in the statutes creating them though once an offence is specified in the First Schedule as an economic offence it is regarded as a serious offence because in view of section 60(2) of the Act, the minimum sentence for any economic offence is 20 years imprisonment unless the accused and the prosecutor enter into a plea bargaining agreement in which case the parties may, in the final agreement, propose a penalty to be imposed as provided for under rule 21(1) of the Criminal Procedure (Plea Bargaining Agreement) Rules, 2021. It should be noted that under rule 21(2) a magistrate is not bound by the penalty recommended by the parties in the plea agreement.
Section 36(4) of the Act which prescribes the circumstances for bail denial does not provide that all economic offences are unbailable. It is section 148(5)(a)(ii)(iii)(iv)(v) of the Criminal Procedure Act which makes some offences listed in the First Schedule to the Act unbailable. It is not the Act which makes economic offences unbailable as it is misconceived by many people and therefore it is the Criminal Procedure Act which needs to be reviewed in order to widen the scope of bail in economic offences. For example there are economic offences which are bailable such as corruption offences, wildlife offences and others.
Economic offences which are listed under section 148(5)(a) of the Criminal Procedure Act as unbailable are illicit trafficking in narcotic drug, terrorism and money laundering. It is money laundering which is being used by prosecutors to make many bailable economic offences become unbailable. Section 3 of the Anti-Money Laundering Act [Cap. 423 R.E 2019] contains a long list of predicate offences whose proceeds constitutes money laundering. When someone is charged with such predicate offences, prosecutors may conjunctively decide to charge the same accused with laundering the proceeds of the predicate offence. Once that is done, the accused is automatically disqualified from admission to bail on the grounds that money laundering charged is unbailable under section 148(5)(a)(v) of the Criminal Procedure Act irrespective of the weight of evidence proving the laundering of the proceeds of the predicate offence charged.
For example. tax evasion is not an economic offence but it is a predicate offence. So a person accused of tax evasion may be charged with money laundering of the tax allegedly evaded conjunctively with tax evasion. Since money laundering is unbailable under section 148(5)(a)(v) of the Criminal Procedure Act, the accused charged with tax evasion and money laundering of the proceeds of tax cannot be admitted to bail, not because the offence of tax evasion charged is economic or unbailable but because the offence of money laundering charged along with tax evasion is unbailable under the Criminal Procedure Act. We must admit that this law is very strange, since most of the primary offences are bailable, but the secondary offence of money laundering when added to the primary offence, means one is denied bail. Sadly, the addition of money laundering can effectively make any offence unbailable, and that is the genuine outcry out there.
Another strange thing to note in the Act is that when someone is charged in the Magistrate’s Court with an economic offence involving a property worth TZS 10M or more, the accused will definitely be remanded in custody for sometime until he or she is released on bail by the High Court, if at all. Section 29(4) of the Act gives exclusive jurisdiction to the High Court to admit the accused to bail pending committal to the High Court or pending trial by the High Court or Magistrate’s Court as the case maybe. This is what makes people erroneously believe that all economic offences are not bailable because many economic offences charged involve properties whose value exceeds TZS 10M and people charged with such offences must stay in remand prison awaiting the hearing of their bail petitions by the High Court. However, this does not change the fact that money laundering when added even to a minor offence is unbailable and the outcry is that it is being misused to detain persons.
Lastly, you ask what can be done to ensure offences are bailable. First, it is for parliament to address this and quickly change the law. Second is for the Courts to strike down such repressive laws, although the Courts have been quite reluctant to do so.
Representation by advocate in disciplinary hearing
I work for a private company and have been summoned to appear in a disciplinary hearing to answer accusation of gross negligence. Am I entitled to engage and appear before the committee with my advocate?
Under paragraph 4(4)(5) of the Disciplinary Procedure prescribed under the Employment and Labour Relations (Code of Good Practice) Rules, 2007, the employee accused of a disciplinary offence has the right to appear before the disciplinary hearing committee with a co-worker or a trade union representative if he or she is a union member. The law does not give the right to appear before a disciplinary inquiry committee with an advocate. However, the disciplinary inquiry committee may allow an employee to be represented by an advocate but the employee cannot demand, as a right, to be represented by an advocate.