ARRANGEMENT OF SECTIONS
1. Short title.
4. Meaning of "conviction", etc., of offence.
5. Meaning of "absconding".
6. Meaning of "serious offence".
7. Meaning of "dealing with property".
8. Appropriate court in relation to serious offence.
Application for Confiscation Order
9. Application for confiscation order.
10. Notice of application.
11. Amendment of application.
12. Making of confiscation order where person has absconded.
13. Procedure on application.
14. Forfeiture orders.
15. Effects of forfeiture order.
16. Effect of forfeiture order on third parties.
17. Discharge of forfeiture order on appeal or on quashing of conviction.
18. Registered foreign forfeiture orders.
PECUNIARY PENALTY ORDERS
19. Application of Part III.
20. Special provision relating to specified offences.
21. Pecuniary penalty orders.
22. Assessment of pecuniary penalty.
23. Court may lift corporate veil.
24. Amounts paid in respect of registered foreign pecuniary penalty orders.
FORFEITURE IN RESPECT OF SPECIFIED OFFENCES
25. Forfeiture of restrained property in relation to specified offences.
26. Recovery of property to which section 25 applies.
27. Effect of quashing of conviction.
28. Person with interest in forfeited property may buy back interest.
29. Buying out other interests in forfeited property.
30. Forfeiture where person cannot be brought before court.
CONTROL OF PROPERTY LIABLE TO CONFISCATION
Power of Search and Seizure
31. Powers to search for and seize tainted property.
32. Search warrants in relation to tainted property.
33. Search warrant may be granted by telephone.
34. Searches in emergencies.
35. Responsibility for seized property.
36. Return of seized property.
37. Search for and seizure of tainted property in relation to foreign offences.
38. Restraining orders.
39. Grounds for issuing a restraining order.
40. Notice of application for restraining order.
41. Persons who may appear and adduce evidence.
42. Notice of restraining orders.
43. Court may make further orders.
44. Trustee to discharge pecuniary penalty order.
45. Charge on property subject to restraining order.
46. Registration of restraining orders.
47. Contravention of restraining orders.
48. Duties of trustee.
49. Protection of trustee from personal liability.
50. Remuneration and expenses of trustee.
51. Court may revoke restraining orders.
52. When restraining order ceases to have effect.
53. Interim restraining order in respect of foreign offence.
54. Registered foreign restraining orders.
55. Trustee to take control of property in relation to registered foreign restraining order.
56. Undertaking by the Attorney-General.
57. Discharge of registered foreign pecuniary penalty.
INFORMATION GATHERING POWERS
58. Production orders.
59. Variation of production order.
60. Failure to comply with production order.
61. Production orders in relation to foreign offences.
62. Powers to search for property-tracking document.
63. Search warrant for property-tracking document.
64. Search warrants in relation to foreign offences.
65. Monitoring orders.
66. Existence and operation of monitoring order not to be disclosed.
67. Monitoring orders in relation to foreign offences.
Obligations of Financial Institutions
68. Retention of records by financial institutions.
69. Register of original documents.
70. Communication of information to law enforcement agencies.
72. Prohibition in dealing in tainted property.
73. Conduct of directors, officers, employees or agents.
74. Dealings with forfeited property.
75. Standard of proof.
78. Operation of other laws not affected.
THE PROCEEDS OF CRIME ACT
An Act to make better provisions for dealing with proceeds of crime.
[1st May, 1994]
[G.N. No. 299 of 1994]
25 of 1991
9 of 1995
PRELIMINARY PROVISIONS (ss 1-8)
This Act may be cited as the Proceeds of Crime Act.
(1) This Act shall apply to Tanzania Zanzibar as well as to Mainland Tanzania.
(2) This Act, other than section 57, shall not apply to the conviction of a person of an offence if he was convicted of it before the commencement of this Act.
(1) In this Act, unless the context requires otherwise–
"account" means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for–
(a) a fixed term deposit box; or
(b) a safety deposit box;
"agent" includes, if the agent is a body corporate, the officers and agents of that body corporate;
"appropriate officer" means the Attorney-General or a person in a category of persons declared by the regulations to be within this definition;
"approved" means approved by the Minister in writing for the purposes of the provision in which the term occurs;
(a) the Bank of Tanzania;
(b) the People's Bank of Zanzibar; or
(c) a bank within the meaning ascribed to it by the Banking and Financial Institutions Act *;
"benefit" includes a service or an advantage;
"building society" means a society registered or incorporated as a building society, co-operative housing society or similar society under a law for the time being in force relating to such societies;
"confiscation order" means a forfeiture order or a pecuniary penalty order;
"corresponding law" means a law that is declared to be a law that corresponds to this Act;
"director" in relation to a financial institution or a body corporate means–
(a) if the institution or body corporate is incorporated for a public purpose by an Act of Parliament or House of Representatives, a constituent member of the institution or body corporate;
(b) any person occupying or acting in the position of director of the institution or body corporate by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and
(c) any person in accordance with whose directions or instructions the directors of the institution or body corporate are accustomed to act;
"encumbrance" in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property;
"executive officer" in relation to a financial institution or body corporate, means any person, by whatever name called and whether or not he is a director of the institution or body corporate, who is concerned, or takes part in the management of the institution or body corporate;
"financial institution" means–
(a) the Bank of Tanzania;
(b) the People's Bank of Zanzibar;
(c) a building society;
(d) a financial institution within the meaning ascribed to it by the Banking and Financial Institutions Act *;
"financial transaction" means–
(a) the opening, operating or closing of an account held with a financial institution;
(b) the opening or use of a deposit box held by a financial institution;
(c) the telegraphic or electronic transfer of funds by a financial institution on behalf of one person to another person;
(d) the transmission of funds between the United Republic, and foreign countries or between foreign countries on behalf of any person; or
(e) an application by any person for, or the receiving of, a loan from a financial institution;
"foreign forfeiture order" means a forfeiture order made under the law of a foreign country and registered in the United Republic in terms of section 32 of the Mutual Assistance Act *, for enforcement against property believed to be located in the United Republic in respect of a foreign serious offence;
"foreign pecuniary penalty order" means an order made under the law of a foreign country and registered in the United Republic in terms of section 32 of the Mutual Assistance Act *, and which imposes a pecuniary penalty in respect of a foreign serious offence, but does not include an order for the payment of money by way of compensation, restitution or damages;
"foreign restraining order" means an order made under the law of a foreign country and registered in the United Republic in terms of section 32 of the Mutual Assistance Act * for enforcement against property believed to be located in the United Republic in respect of a foreign serious offence;
"foreign serious offence" means a serious offence committed against the law of a foreign country;
"forfeiture order" means an order made in terms of section 14;
"the Government" means the Government of the United Republic or the Revolutionary Government of Zanzibar, as the case may be;
"interest" in relation to property means–
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property, whether present or future and whether vested or contingent;
"law enforcement agency" means the Police Force, and includes any person authorised in writing by the Inspector-General of Police to perform investigative or monitoring duties under this Act;
"magistrate" means a resident magistrate;
"Minister" means the Minister for the time being responsible for legal affairs;
"money-laundering offence" means the offence of money-laundering referred to in section 71;
"monitoring order" means an order made under section 65;
"the Mutual Assistance Act" means the Mutual Assistance in Criminal Matters Act *;
"narcotic drugs and psychotropic substances" means–
(a) prohibited drugs in terms of the law for the time being in force relating to narcotic drugs and psychotropic substances;
(b) a substance declared by or under any law to be a substance to which this definition applies;
"officer" means a director, secretary, executive officer or employee;
"ordinary arrestable offence" means an arrestable offence that is not a serious offence;
"penalty amount" in relation to a pecuniary penalty order against a person, means the amount that the person is liable to pay under the order;
"pecuniary penalty order" means an order under section 22;
"police officer" means any member of the police force of or above the rank of corporal;
(a) a structure, building, aircraft, vehicle or vessel;
(b) a place, whether enclosed or built upon or not; and
(c) a part of premises, including premises of a kind referred to in paragraph (a) or (b);
"proceeds" in relation to an offence, means any property that is derived or realised, directly or indirectly by any person from the commission of the offence;
"proceeds of an offence" or "profits of crime" shall be construed accordingly;
"proceeds of crime" means any property that is derived or realised, directly or indirectly, by any person from–
(a) the commission of any serious offence;
(b) any act or omission which–
(i) occurred outside the United Republic;
(ii) related to narcotic drugs and psychotropic substances; and
(iii) would, if they had occurred in the United Republic, have constituted an arrestable offence or a serious narcotic drugs and psychotropic substances offence; and
"production" includes growing and manufacture;
"production order" means an order made under section 62;
"property" means real or personal property of every description, whether situated in the United Republic or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property;
"property-tracking document" means a document relevant for–
(a) identifying, locating or quantifying the property of a person who committed a serious offence;
(b) identifying or locating any document necessary for the transfer of the property of a person who committed a serious offence;
(c) identifying, locating or quantifying tainted property in relation to a serious offence; or
(d) identifying or locating any document necessary for the transfer of tainted property in relation to a serious offence;
"registrable property" means property the title to which is passed by registration on a register kept pursuant to a provision of any law;
"relevant application period" in relation to a person's conviction of an arrestable offence, means the period of six months after–
(a) where the person is to be taken to have been convicted of the offence by reason of section 4(1)(a), the day on which the person was convicted of the offence;
(b) where the person is to be taken to have been convicted of the offence by reason of section 4(1)(b), the day on which the person was discharged without conviction;
(c) where the person is to be taken to have been convicted of the offence by reason of section 4(1)(c), the day on which the court took the offence into account in passing sentence for the other offence referred to in paragraph (c); or
(d) where the person is to be taken to have been convicted of the offence by reason of section 4(1)(c), the day on which the person is to be taken to have absconded in connection with the offence;
"relevant offence", in relation to tainted property, means an offence by reason of the commission of which the property is tainted property;
"restraining order" means an order made under section 38;
"serious narcotic drugs and psychotropic substances offence" means any offence relating to narcotic drugs and psychotropic substances–
(a) which is punishable in the United Republic or in a foreign country by imprisonment for a period of not less than three years or by a more severe punishment; or
(b) the market value of the property derived or obtained from the commission of which is or is likely to be not less than two million shillings or such greater or lesser amount as may be prescribed;
"serious offence" means any offence prescribed as such by or under section 6 and includes a specified offence;
"specified offence" means–
(a) serious narcotic drugs and psychotropic substances offence;
(b) money-laundering contrary to section 71;
(c) any other offence which the Minister may, by order published in the Gazette, prescribe as such, subject to approval by resolution of the National Assembly;
(d) conspiracy to commit, or aid, abet, counsel or procure the Commission of an offence referred to in paragraphs (a), (b) or (c);
(e) assisting another person to dispose of the proceeds of an offence referred to in paragraph (a); or
(f) attempting to commit an offence referred to in paragraphs (a), (b) or (c);
"tainted property", in relation to a serious offence, means–
(a) any property used in, or in connection with, the commission of the offence;
(b) any proceeds of the offence; or
(c) any property in the United Republic which is the proceeds of a foreign serious offence in respect of which an order may be registered in terms of Part VI of the Mutual Assistance Act *,
and when used without reference to a particular offence means tainted property in relation to an arrestable offence;
"trustee" means a trustee appointed by the High Court in terms of paragraph (b) of subsection (2) of section 38;
"unlawful activity" means an act or omission that constitutes an offence against any law for the time being in force in the United Republic.
(2) Any reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence whether or not–
(a) summons to require the attendance of the person to answer the information has been issued; or
(b) a warrant for the arrest of the person has been issued.
(3) A reference in this Act to a benefit derived, directly or indirectly, by another person at the request or direction of the first person.
(4) Any reference in this Act to the property of a person includes a reference to property in respect of which the person has a beneficial interest.
(5) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property or the interest.
(6) For the purposes of this Act, a person shall not be regarded as a director within the meaning of paragraph (c) of the definition of "director" in subsection (1) by reason only that the director acts on advice given by him in the proper performance of the functions attaching to his professional capacity or to his business relationship with the directors of the financial institution or body corporate, as the case may be.
(1) For the purposes of this Act a person shall be taken to be convicted of an offence if–
(a) he is convicted, whether summarily or otherwise, of the offence;
(b) he is charged with, and found guilty and convicted of the offence but is discharged conditionally or unconditionally or pardoned; or
(c) the person absconds in connection with the offence.
(2) This section shall not apply to a foreign serious offence.
For the purposes of this Act, except section 4, a person shall be taken to abscond in connection with an offence if and only if–
(a) an information is laid alleging the commission of the offence by the person;
(b) a warrant for the arrest of the person is issued in relation to that information; and
(c) one of the following occurs, namely–
(i) the person dies before the warrant is executed;
(ii) at the end of a period of six months from the date of issue of the warrant–
(aa) the person cannot be found; or
(bb) the person is, for any other reason, not amenable to justice and, if the person is outside the United Republic, extradition proceedings are not instituted;
(iii) at the end of the period of six months from the date of issue of the warrant–
(aa) the person is, by reason of being outside the United Republic, not amenable to justice; and
(bb) extradition proceedings are instituted, and subsequently those proceedings terminate without an order for the person's extradition being made.
In this Act, the expression "serious offence" means–
(a) any dealing which amounts to drug trafficking under the law for the time being relating to drugs;
(b) any specified offence;
(c) any offence which the Minister may, by order published in the Gazette, prescribe as such, subject to approval by resolution of the National Assembly.
For the purposes of this Act, dealing with property of a person includes–
(a) if a debt is owed to that person, making payment to any person in reduction of the amount of the debt;
(b) removing the property from the United Republic;
(c) receiving or making a gift of the property.
Where a person is convicted of a serious offence before any court other than a Primary Court that court shall be the appropriate court in relation to the conviction.
CONFISCATION (ss 9-18)
Application for Confiscation Order (ss 9-13)
(1) Where a person is convicted of a serious offence, the Attorney-General may, subject to subsection (2), apply to the convicting court, or to any other appropriate court, not later than six months after the conviction of the person, for–
(a) a forfeiture order against any property that is tainted property in respect of the offence; or
(b) a pecuniary penalty order against the person in respect of any benefit derived by the person from the commission of the offence.
(2) The Attorney-General shall not, except with the leave of the court, make an application in terms of subsection (1) for a forfeiture order or a pecuniary penalty order–
(a) if an application has previously been made under that subsection or in terms of any other enactment; and
(b) the application has been finally determined on the merits.
(3) The court shall not grant leave in terms of subsection (2) unless it is satisfied that–
(a) the tainted property, or the benefit to which the new application relates was identified only after the first application was determined;
(b) necessary evidence became available only after the first application was determined; or
(c) it is otherwise in the interests of justice to grant the leave.
(4) An application may be made under this section in relation to one or more than one arrestable offence.
(5) An application may be made in terms of this section for a pecuniary penalty order in respect of an offence even if section 26 applies to the offence.
(1) Where the Attorney-General makes an application in terms of subsection (1) of section 9 for a forfeiture order against property in respect of a person's conviction of an offence–
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