Help us make TanzLII better. Take this short 5 minute survey and tell us about how you use TanzLII and how we can improve it. All information shared is confidential.

Take the survey

Proceeds of Crime Act

Chapter 256

Citation
Chapter 256
Date
30 November 2019
Language
English
Type
Act
Tanzania

Proceeds of Crime Act

Chapter 256

  • Commenced on 1 May 1994
  • [This is the version of this document at 30 November 2019.]
  • [Note: This legislation has been thoroughly revised and consolidated under the supervision of the Attorney General's Office, in compliance with the Laws Revision Act No. 7 of 1994, the Revised Laws and Annual Revision Act (Chapter 356 (R.L.)), and the Interpretation of Laws and General Clauses Act No. 30 of 1972. This version is up-to-date as at 31st July 2002.]
[G.N. No. 299 of 1994; Acts Nos. 25 of 1991; 9 of 1995; 21 of 2002; 2 of 2007; 6 of 2012; 7 of 2018; 11 of 2019]An Act to make better provisions for dealing with proceeds of crime.

Part I – Preliminary provisions

1. Short title

This Act may be cited as the Proceeds of Crime Act.

2. Application

(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.

3. Interpretation

(1)In this Act, unless the context otherwise requires—"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 Director of Public Prosecutions 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;"bank" has the meaning ascribed to it under the Banking and Financial Institutions Act;[Cap. 342]"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;"document" has the meaning ascribed to it under the Evidence Act;[Cap. 6]"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 institutions" has the meaning ascribed to it under the Banking and Financial Institutions Act;[Cap. 342]"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;(f)receiving or making a monetary or financial gift;(g)selling and buying of gold, foreign currency and negotiable instruments."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;[Cap. 254]"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;[Cap. 254]"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;[Cap. 254]"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" has the meaning ascribed to it under the Anti-Money Laundering Act;[Cap. 423]"monitoring order" means an order made under section 65;"the Mutual Assistance Act" means the Mutual Assistance in Criminal Matters Act;[Cap. 254]"narcotic or and psychotropic substances" means—(a)a prohibited drug in terms of the Drugs and Prevention of illicit Traffic in Drugs Act;[Cap. 95](b)a substance declared by or under any written 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;"premises" includes—(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, and the term "proceeds of an offence" or "profits of crime" shall be construed accordingly;[Cap. 4 s. 8]"proceeds of crime" means any property is derived or realized directly or indirectly by any person from out of the commission of a serious offence and includes—(a)at a proportional basis, property derived or realized directly from the commission of that offence or was later successively converted, transformed or intermingled into another property; and(b)capital, income or other economic gains derived or realized from such property;"production" includes growing and manufacture;"production order" means an order made under section 62;"property" includes—(a)assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible;(b)legal documents or instruments in any form, including electronic or digital, evidencing title to or interest in such assets; or(c)bank credits, travelers cheques, bankers cheques, money order, shares, bonds and other securities, drafts and letters of credits, and any interest, dividends or other income on or value from or generated by such assets whether situated in or outside the United Republic;"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 an offence against provisions of any law in United Republic or in a foreign state for a conduct which, had it occurred in United Republic would constitute a serious offence the punishment of which is either death or imprisonment for a period of not less than twelve months and includes any offence in which property has been used or proceeds generated or benefit derived;"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 crime; 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,[Cap. 254]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 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.[Acts Nos. 9 of 1995 s. 66; 2 of 2007 s. 4; 6 of 2012 s. 16; 7 of 2018 ss. 93, 94; 11 of 2019 s. 31]

4. Meaning of "conviction", etc., of offence

(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.

5. Meaning of "absconding"

For the purposes of this Act, 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.
[Act No. 6 of 2012 s. 17]

6. ***

[Repealed by Act No. 11 of 2019 s. 32]

7. Meaning of "dealing with property"

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.

8. Appropriate court in relation to serious offence

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.

Part II – Forfeiture and confiscation

(a) Application for forfeiture and confiscation orders

9. Application for confiscation order

(1)Where a person is convicted of a serious offence, the Director of Public Prosecutions may, subject to subsection (2), apply to the convicting court, or to any other appropriate court, not later than twelve 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)forfeiture order against any property of corresponding value; or."
(c)a pecuniary penalty order against the person in respect of any benefit derived by the person from the commission of the offence.
(2)The Director of Public Prosecutions 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)if the application has been finally determined on the merits.[Cap. 4 s. 8]
(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)The period provided for making an application in subsection (1) may be extended by the court when there is good cause for such extension.[Acts Nos. 7 of 2018 s. 93; 11 of 2019 s. 33]

10. Notice of application

(1)Where the Director of Public Prosecutions 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—
(a)the Director of Public Prosecutions shall within thirty days give written notice of the application to the person or to any other person he has reason to believe may have an interest in the property;
(b)the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and
(c)the court may, at any time before the final determination of the application, direct the Director of Public Prosecutions to give notice of the application to a specified person or class of persons who appear to have an interest in the property in a manner and within such time as the court considers appropriate.
(2)Where the Director of Public Prosecutions makes an application for a pecuniary penalty order against a person—
(a)the Director of Public Prosecutions shall within thirty days give the person written notice of the application; and
(b)the person may appear and adduce evidence at the hearing of the application.
[Acts Nos. 2 of 2007 s. 6; 7 of 2018 s. 93; 11 of 2019 s. 32]

11. Amendment of application

(1)Subject to subsection (2), where the Director of Public Prosecutions applies for a confiscation order, the court hearing the application may amend the application at the request, or with the consent, of the Director of Public Prosecutions.
(2)The court may not amend an application so as to include additional property in an application for a forfeiture order or an additional benefit in an application for a pecuniary penalty order unless it is satisfied that—
(a)the property or the benefit was not reasonably capable of identification when the application was originally made; or
(b)necessary evidence became available only after the application was originally made.
(3)Where the Director of Public Prosecutions requests to amend an application for a forfeiture order and the amendment has or would have the effect of including additional property in the application for the forfeiture order, then—
(a)the Director of Public Prosecutions shall within fourteen days give written notice of the request to amend to any person who he has reason to believe may have an interest in the property to be included in the application for the forfeiture order; and[Cap. 4 s. 8]
(b)any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the request to amend.
(4)Where the Director of Public Prosecutions applies to amend an application for a pecuniary penalty order against a person and the effect of the amendement has or would be to include an additional benefit in the application for the pecuniary penalty order, he shall within fourteen days, give that person a written notice of the application to amend.[Acts Nos. 2 of 2007 s. 7; 7 of 2018 s. 93]

12. Making of confiscation order where person has absconded

Where a person is, by reason of section 4(1)(c), taken to have been convicted of an arrestable offence, a court shall not make a confiscation order in reliance on the person’s conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and—
(a)a person was under investigation for the offence;
(b)the person has been committed for trial for the offence; or
(c)the court is satisfied that having regard to all the evidence before it, a reasonable court could lawfully find the person guilty of the offence.
[Act No. 6 of 2012 s. 18]

13. Procedure on application

(1)Where an application is made to a court for a confiscation order in respect of a person’s conviction of a serious offence, the court may, in determining the application, have regard to the transcript record of any proceedings against the person in relation to the offence.
(2)Where an application is made for a confiscation order to the court before which the person was convicted and the court has not, at the time the application is made, passed sentence on the person for the offence, the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order.
(3)Where a person is to be taken to have been convicted of an offence by reason of section 4(1)(c), and application is made to a court for a confiscation order in respect of the conviction, the reference in subsection (1) to a proceeding against the person for the offence shall include a reference to a proceeding against the person for the other offence referred to in that paragraph.[Act No. 2 of 2007 s. 8]

13A. Confiscation order where person has died

(1)Where a person dies while under investigation or after being charged but before a conviction, the Director of Public Prosecutions may apply to the court for a confiscation order.
(2)The court may grant an application for confiscation order where it is satisfied, on balance of probabilities, that—
(a)a person was under investigation when he died and reasonable steps have been taken to conduct investigation of an offence alleged to have been committed;
(b)a person has been charged but dies before the conclusion of the trial, and there are reasonable grounds to believe that a confiscation order would have been issued against that person if he was alive.
[Acts Nos. 6 of 2012 s. 19; 7 of 2018 s. 93]

(b) Forfeiture orders

14. Forfeiture orders

(1)Where the Director of Public Prosecutions applies to a court for a forfeiture order under section 9 against property in respect of a person’s conviction of an offence and the court is satisfied that the property is tainted property in respect of the offence, the court may if it considers it appropriate, order that the property or such of the property as it may specify in the order, be forfeited to the United Republic.
(2)Where the court orders that property other than money is forfeited to the United Republic, it shall specify in the order the amount that it considers to be the value of the property at the time the order is made.
(3)In granting an application for a forfeiture order in respect of any property, the court may have regard to—
(a)any hardship that may reasonably be expected to be caused to any person by the operation of such an order;
(b)the use that is ordinarily made, or was intended to be made, of the property; and
(c)the gravity of the offence concerned.
(4)Any evidence given at the hearing of the application for a forfeiture order in respect of any property that the property concerned was in the possession of the convicted person at the time of, or immediately after, the commission of the offence and no evidence is given to show that the property was not used in, or in connection with, the commission of the offence, the court shall assume that the property was used in, or in connection with, the commission of the offence.
(5)In granting an application for a forfeiture order, the court may give any directions necessary or convenient for giving effect to the order, including, without limiting the generality of the foregoing, directions to an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of any property subject to registration in the Registry of Titles.
(6)In granting a forfeiture order the court may, if it is satisfied that it would be in the public interest for a person’s interest in the property to be transferred to him, determine the nature, extent and value of the interest and declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged in accordance with section 30.[Act No. 7 of 2018 s. 93]

14A. Forfeiture of property of corresponding value

(1)Where a property that is subject to forfeiture—
(a)cannot be located upon exercise of due diligence;
(b)has been transferred or sold to a third party who at the time of acquisition was unaware that it was being disposed of to avoid prosecution or confiscation;
(c)has been placed in foreign jurisdiction and cannot be recovered;
(d)has been substantially diminished in value; or
(e)has been commingled with other property such that it becomes difficult to distinguish,
the court may order forfeiture of any other property of corresponding value of a person convicted of an offence.[Act No. 11 of 2019 s. 35]

14B. Voiding actions

(1)The court may, before making a forfeiture order, in the case of property in respect of which a restraining order was made and notice of it was given in accordance with this Act, set aside any conveyance or transfer of the property or interest therein that occurred in the circumstances that give rise to a reasonable inference that the property was conveyed or transferred for the purposes of avoiding the forfeiture order.
(2)The provisions of subsection (1) shall not apply where the transfer or conveyance was made for sufficient value to a person acting in good faith and without notice.[Act No. 11 of 2019 s. 35]

15. Effects of forfeiture order

(1)Subject to subsection (2), where a court makes a forfeiture order against property, the property shall vest in the United Republic.
(2)Where a forfeiture order is made against property subject to registration in the Registry of Titles, any rights in the property shall lie with the United Republic until the registration is effected.
(3)The Permanent Secretary in the Ministry responsible for Treasury shall be registered as owner of any property subject to a forfeiture order and the Minister shall do or authorise to be done anything necessary or convenient to obtain the registration of the Permanent Secretary in the Ministry responsible for Treasury as owner, including the execution of an instrument required to be executed by a person transferring an interest in property of that nature.[Act No. 7 of 2018 s. 93]

16. Effect of forfeiture order on third parties

(1)Where an application for a forfeiture order is made against property, any person who has an interest in the property may, before the forfeiture order is made, apply to the court for an order under subsection (6).
(2)Subject to subsections (3) and (7), where a forfeiture order against property has been made, any person who has an interest in the property may apply to the court for an order under subsection (6).
(3)A person who was given notice of an application for a forfeiture order or who appeared at the hearing of the application shall not make an application to court in terms of subsection (2) except with the leave of the court.
(4)The leave of the court referred to in subsection (3) may be granted if the court is satisfied that there are special grounds for granting the leave.
(5)Without limiting the generality of subsection (4), the court may grant a person leave to apply if it is satisfied that the evidence which the person intended to adduce in connection with the application under subsection (2) was not available to him at the time of the hearing of the application.
(6)Where a person applies to a court for an order under this subsection in respect of his interest in property against which an application for a forfeiture order or a forfeiture order has been made and the court is satisfied that—
(a)the applicant was not in any way involved in the commission of the offence concerned; or
(b)if the applicant acquired his interest at the time, or after the commission of the offence, the applicant did so—
(i)for sufficient value; and
(ii)without knowing and in circumstances such as not to arouse reasonable suspicion that the property was, at the time of the acquisition, tainted property,
the court shall make an order for the transfer of the interest by the Permanent Secretary in the Ministry responsible for Treasury to the applicant or for the payment by the Permanent Secretary in the Ministry responsible for Treasury to the applicant of an amount equal to the value of the interest, as the court thinks fit.
(7)Subject to subsection (8), an application under subsection (2) shall be made before the expiration of a period of six months commencing on the day on which the forfeiture order is made.
(8)Where a forfeiture order is made against property, the court that made the order may, on application being made to it, grant a person claiming an interest in the property leave to apply in terms of subsection (2), after the expiration of the period referred to in subsection (7) if it is satisfied that the person’s failure to make his application within that period was not due to any neglect on his part.
(9)Any person who makes an application in terms of subsection (1) or (2) shall notify the Director of PublicProsecutions.
(10)The Director of Public Prosecutions shall be a party to proceedings upon an application in terms of subsection (1) or (2).

17. Discharge of forfeiture order on appeal or on quashing of conviction

(1)A forfeiture order against property shall be discharged on the quashing of the conviction upon which the forfeiture order is based.
(2)Where a forfeiture order against property is discharged in terms of subsection (1) or on an appeal against the making of the order, the Director of Public Prosecutions shall—
(a)within fourteen days after the discharge of the order, give written notice of the discharge of the order to any person whom he has reason to believe had an interest in the property immediately before the making of the order; or
(b)if required by the court, publish in the Gazette a notice of the discharge of the order in such manner and within such time as the court considers appropriate.
(3)A notice referred to in subsection (2) shall specify, in accordance with subsection (4), the manner in which any person who claims an interest in the property shall apply for the transfer of the interest to the person.
(4)Where a forfeiture order is discharged in terms of subsection (1) or on appeal against the making of the order, any person who, immediately before the making of the forfeiture order, claimed an interest in the property may apply to the Director of Public Prosecutions , in writing, for the transfer of the interest to him and on receipt of the application, the Director of Public Prosecutions shall—
(a)where the interest is vested in the Permanent Secretary in the Ministry responsible for Treasury, arrange for the transfer of the interest to the person; or
(b)in any other case, pay to the person an amount equal to the value of the interest.
(5)Where the Director of Public Prosecutions is to arrange for the transfer of property to a person, he may do or authorise to be done anything necessary or convenient to effect the transfer, including the execution of any instrument and the making of an application for registration of an interest in the property.[Acts Nos. 2 of 2007 s. 9; 7 of 2018 s. 93]

18. Registered foreign forfeiture orders

(1)Where a foreign forfeiture order is registered with the High Court in terms of Part VI of the Mutual Assistance Act, this Part shall, mutatis mutandis, apply in relation to the foreign order.[Cap. 254]
(2)Any property in relation to which a foreign forfeiture order has been registered in terms of subsection (1) may be disposed of or otherwise be dealt with in accordance with any direction of the Director of Public Prosecutions or of a person authorised by the Director of Public Prosecutions in writing for that purpose.[Act No. 7 of 2018 s. 93]

Part III – Pecuniary penalty orders

19. Application of Part III

This Part shall apply to—
(a)property that comes into the possession, or under the control, of a person, whether within or outside the United Republic and whether before or after the commencement of this Act; and
(b)benefits that accrued to a person, whether within or outside the United Republic and whether before or after the commencement of this Act.

20. ***

[Repealed by Act No. 11 of 2019 s. 36]

21. Pecuniary penalty orders

(1)Where an application is made to a court for a pecuniary penalty order in respect of benefits derived by a person from the commission of an offence and the court is satisfied that the person derived benefits from the commission of the offence, the court may, in terms of section 22, assess the value of the benefits so derived and order that person to pay to the Permanent Secretary in the Ministry responsible for Treasury, subject to subsections (2) and (3), a pecuniary penalty equal to the value of the benefits assessed.
(2)Where property that is the proceeds of an offence has been forfeited in terms of this Act or any other enactment or a forfeiture order is proposed to be made against property that is the proceeds of an offence, the penalty referred to in subsection (1) shall be reduced by an amount equal to the value as at the time of the making of the pecuniary penalty order of the property forfeited.
(3)Where any amount of tax, whether under the law of Tanzania or a foreign country, has been paid by a person and that tax is attributable in whole or in part to the benefits in respect of which the pecuniary penalty order is being made, such amount may, if the court so directs, be deductible from the penalty assessed in terms of subsection (1).
(4)The court may reduce the amount payable by a person under a pecuniary penalty order made in relation to an offence by an amount equal to the amount paid by the person by way of restitution, compensation, damages or a fine in relation to the offence.
(5)In calculating the amount payable under a pecuniary penalty order, if the court took into account a forfeiture of, or a proposed forfeiture order in respect of, property and an appeal against the forfeiture order is allowed or the proceedings for the proposed forfeiture order are terminated before the order is made, the Director of Public Prosecutions may apply to the court for a variation of the pecuniary penalty order to increase the pecuniary penalty by the value of the property concerned and the court may vary the order accordingly.
(6)In calculating the amount payable under a pecuniary penalty order, if the court took into account an amount of tax paid by the person and an amount is repaid or refunded to the person in respect of that tax, the Director of Public Prosecutions may apply to the court for a variation of the pecuniary penalty order to increase the pecuniary penalty by the amount repaid or refunded and the court may vary the order accordingly.
(7)Any amount payable by a person to the United Republic in terms of a pecuniary penalty order shall be a civil debt due to the United Republic and shall be recoverable by civil process.[Act No. 7 of 2018 s. 93]

22. Assessment of pecuniary penalty

(1)For the purposes of a pecuniary penalty order against a person (hereinafter referred to as "the respondent"), the value of the benefits derived by the respondent from the commission of an offence shall be assessed by the court having regard to—
(a)the amount of money or value of property that came into the possession or under the control of—
(i)the respondent; or
(ii)any other person at the request or direction of the respondent,
by reason of the commission of the offence;
(b)the value of any other benefit gained by—
(i)the respondent; or
(ii)any other person at the request or direction of the respondent,
by reason of the commission of the offence;
(c)if the offence consisted of the doing of an act or thing in relation to narcotic drugs and psychotropic substances—
(i)the market value, at the time of the offence, of similar or substantially similar narcotic drugs and psychotropic substances; and
(ii)the amount that was, or the range or amounts that were, ordinarily paid for doing a similar or substantially similar act or thing;
(d)the value of the respondent’s property before and after the commission of the offence; and
(e)the respondent’s income and expenditure before and after the offence.
(2)In assessing the value of a benefit for the purposes of this section the court may treat as the value of the benefit the value that benefit would have had if the benefit derived at the time the valuation is being made and may have regard to any decline in the purchasing power of money between the time the benefit was arrived at and the time the valuation is being made.
(3)Where an application is made for a pecuniary penalty order against a person’s property in respect of a serious offence other than a serious offence—
(a)if evidence is adduced that the value of the person’s property after the commission of the offence exceeded before the commission of the offence, then the court shall for the purposes of subsection (1) of section 23 but subject to paragraph (b) and subsection (7), treat the value of the benefits derived by the person from the commission of the offences as being not less than the amount of the excess;
(b)if, following the evidence referred to in paragraph (a), the person satisfies the court that—
(i)the whole of the excess was due to causes unrelated to the commission of the offence, paragraph (a) shall not apply; or
(ii)a part of the excess was due to causes unrelated to the commission of the offence, paragraph (a) shall apply only to that part of the excess which is related to the commission of the offence.
(4)Where an application is made for a pecuniary penalty order against a person's property in respect of a serious offence, all the property in the possession or under the control or direction of that person—
(a)at the time the application is made; and
(b)at any time between the day the offence or the earliest offence was committed and the day on which the application is made, shall be presumed, unless the contrary is proved, to be property that represents a benefit received by the person by reason of the commission of the serious offence.
(5)The presumption under subsection (4) shall not be rebutted by merely stating that the property was obtained from the offence that was not prosecuted.
(6)A benefit shall not be taken into account for the purposes of this section if a pecuniary penalty has been imposed in respect of the benefit in terms of this Act or any other enactment.
(7)For the purposes of this section, where the property of a person has vested in a trustee of the person’s insolvency, the property shall be taken to continue to be the property of the person.
(8)At the hearing of an application for a pecuniary penalty order, a police officer who has experience in the investigation of narcotic drugs and psychotropic substances offences may testify, to the best of his information, knowledge and belief—
(a)as to the market value of narcotic drugs and psychotropic substances at a particular time or during a particular period;
(b)as to the price, or range of prices, paid at a particular period for the doing of an act or thing in relation to narcotic drugs and psychotropic substances,
notwithstanding any law or practice relating to hearsay evidence, and the testimony shall be prima facie evidence of the matters testified to.[Acts Nos. 7 of 2018 s. 93; 11 of 2019 s. 37]

23. Court may lift corporate veil

(1)In assessing the value of benefits derived by a person from the commission of any serious offence, the court may treat as property of the person any property that, in the opinion of the court, is subject to the effective control of the person whether or not the person has—
(a)any legal or other interest in the property; or
(b)any right, power or privilege in connection with the property.
(2)Without limiting the generality of subsection (1), the court may have regard to—
(a)shareholdings in, debentures over or directorships of any company that has an interest, whether direct or indirect in the property;
(b)any trust or any other registered entity that has relationship to or interest in the property; and
(c)any family, domestic or business relationships between persons having an interest in the property, or in any company or trust referred to in paragraph (a) or (b), and any other persons.
(3)Where for the purposes of making a pecuniary penalty order against a person, a court treats particular property as that person’s property pursuant to subsection (1), it may on application by the Director of Public Prosecutions make an order declaring that the property is available to satisfy the order.
(4)Where the Director of Public Prosecutions makes an application in terms of subsection (3)—
(a)he shall give written notice of the application to the person and to any other person whom he has reason to believe may have an interest in the property; and
(b)any person referred to in paragraph (a) may appear and adduce evidence at the hearing of the application.
[Acts Nos. 21 of 2007 s. 10; 7 of 2018 s. 93; 11 of 2019 s. 38]

24. Amounts paid in respect of registered foreign pecuniary penalty orders

Where a foreign pecuniary penalty order is registered in a court in the United Republic under the Mutual Assistance Act, any amount paid, whether in the United Republic, in the foreign country in which the order was made or elsewhere, in satisfaction of the foreign pecuniary penalty order, shall be taken to have been paid in satisfaction of the debt that arises by reason of the registration of the foreign pecuniary penalty order in that court.[Cap. 254]

Part IV – Forfeiture in respect of specified offences1

1 Having regard to the definition of "specified offence" as introduced by section 94(a) of Act No. 7 of 2018 and bearing in mind that Part IV generally deals with forfeiture and recovery of property associated with foreign offences, and for the avoidance of ambiguity, the general amendment of section 94(a) of Act No. 7 of 2018 is not considered under Part IV.

25. Forfeiture of restrained property in relation to specified offences

(1)Subject to section 43(4), if at the expiration of six months from the day of conviction a restraining order issued in respect of the property of a person convicted of a specified offence is still in force, the property shall be forfeited to the United Republic.
(2)Subject to subsection (3), property forfeited to the United Republic under subsection (1) shall vest in the Permanent Secretary in the Ministry responsible for Treasury.
(3)Where immovable property or other property whose ownership passes through registration is forfeited to the United Republic, the Permanent Secretary in the Ministry responsible for Treasury shall be entitled to be registered as the owner of the property and the Minister shall have power to do, or to authorise to be done, anything necessary or convenient to effect the registration of the Permanent Secretary in the Ministry responsible for Treasury as the owner, including execution of any instrument required to be executed by a person transferring an interest in property of that kind.
(4)Where property is forfeited to the United Republic in accordance with this section—
(a)the property shall not, except with the leave of the court that issued the restraining order and in accordance with any directions the court may make, be disposed of or otherwise dealt with by or on behalf of the Permanent Secretary in the Ministry responsible for Treasury until any appeal instituted in relation to the matter has been determined or the time for instituting an appeal has lapsed without any appeal being instituted; and
(b)if, at the end of the period referred to in paragraph (a), the conviction has not been quashed, the property may be disposed of, or otherwise dealt with, in accordance with any direction of the Minister or of a person authorised by the Minister for the purposes of this paragraph.
(5)Any direction in terms of paragraph (b) of subsection (4) may include a direction that the property shall be disposed of in accordance with any enactment specified in the direction.[Act No. 7 of 2018 s. 93]

26. Recovery of property to which section 25 applies

(1)Where property is forfeited to the United Republic in terms of section 25, any person who claims an interest in the property may, subject to subsections (2) and (4), apply to the court which issued the restraining order for an order under subsection (6) or (7).
(2)The application referred to in subsection (1) shall, subject to subsection (3), be made before the expiry of the period of six months commencing on the day on which the property is forfeited to the United Republic.
(3)The court may grant a person leave to apply after the expiry of the period referred to in subsection (2) if it is satisfied that the delay in making the application was not due to neglect.
(4)An application for an order under subsection (6) or (7) in relation to an interest in property shall not, except with the leave of the court, be made by a person who was given notice of the proceedings at the time of the application for the issue of the interdict.
(5)The court may grant a person leave in terms of subsection (4) if it is satisfied that his failure to have the property excluded from the restraining order was not due to any neglect on his part.
(6)Where a person applies for an order in respect of an interest in property and the court is satisfied—
(a)that the applicant was not in any way involved in the commission of the relevant specified offence;
(b)where the applicant acquired the interest at the time of or after the commission of the offence, that he did so lawfully and for sufficient value; and
(c)that the property was acquired in circumstances such as would not arouse a reasonable suspicion that the property was tainted property,
the court may make an order declaring the nature, extent and value of the interest of the applicant and direct the Permanent Secretary in the Ministry responsible for Treasury to transfer the interest to the applicant or order the payment to the applicant by the Permanent Secretary in the Ministry responsible for Treasury of an amount equal to the value of the interest.
(7)Where a person applies for an order in respect of an interest in property and the court is satisfied that it would not be contrary to public interest for the interest to be transferred to the person and that there is no other reason why the interest should not be transferred to the person, the court may—
(a)determine the nature, extent and value of the interest; and
(b)order that section 25 shall cease to operate in relation to the interest if payment for the interest is made in terms of section 29.
[Act No. 7 of 2018 s. 93]

27. Effect of quashing of conviction

(1)Where a conviction in respect of property forfeited to the United Republic in terms of section 25 is quashed, the Director of Public Prosecutions shall—
(a)as soon as practicable after the quashing of the conviction, give notice of the quashing of the conviction to any person whom the Director of Public Prosecutions has reason to believe may have had an interest in the property immediately before the property was forfeited; and
(b)if ordered to do so by the court, give written notice or publish a notice in the Gazette of the quashing of the conviction to a specified person or class of persons within such time as the court may fix.
(2)A notice in terms of subsection (1) shall include a statement to the effect that a person claiming an interest in the property may apply in terms of subsection (3) for the transfer of the interest to the person.
(3)Any person who claims to have had an interest in property immediately before it was forfeited to the United Republic may apply to the Minister, in writing, for the transfer of the interest to himself and on receipt of application, the Minister shall—
(a)if the interest is in respect of property which is still vested in the United Republic, arrange for the transfer of the interest to the person;
(b)in any other case, arrange for the payment to the person of an amount equal to the value of the interest.
(4)In arranging for the transfer of any property in terms of paragraph (a) of subsection (3), the Minister shall have power to do, or authorise to be done anything necessary or convenient to effect the transfer, including the execution of any instrument.[Act No. 7 of 2018 s. 93]

28. Person with interest in forfeited property may buy back interest

(1)Where a court makes an order in terms of subsection (6) of section 16 in respect of an interest in property, the payment to the Permanent Secretary in the Ministry responsible for Treasury of the amount specified in the order as the value of the interest shall discharge the forfeiture order to the extent to which it relates to the interest.
(2)Where a court makes an order in terms of subsection (7) of section 26, and a payment to the Permanent Secretary in the Ministry responsible for Treasury of an amount specified in the order as the value of the interest is made, section 25 shall cease to apply in relation to the interest.
(3)The Minister shall arrange for the interests referred to in subsections (1) and (2) to be transferred to the person in whom they were vested immediately before the property was forfeited to the United Republic and shall have power to do, or authorise to be done, anything necessary or convenient to effect the transfer, including the execution of any instrument.[Act No. 7 of 2018 s. 93]

29. Buying out other interests in forfeited property

Where a person is, in terms of this Part, authorised to take transfer of any interest in property which is forfeited to the United Republic, he may, on giving notice to any other person otherwise interested in the property immediately before the forfeiture took place, purchase that other interest from the Permanent Secretary in the Ministry responsible for Treasury; save that the persons served with the notice may, within twenty-one days of the receipt of the notice, lodge with the Minister a written objection to the purchase of that interest.[Act No. 7 of 2018 s. 93]

30. Forfeiture where person cannot be brought before court

(1)Where the Director of Public Prosecutions suspects on reasonable grounds that any person has acquired, holds or is dealing with tainted property and it is not possible—
(a)for any reason to bring the person before the court on a charge for any serious offence; or
(b)for a foreign pecuniary penalty order or a foreign forfeiture order to be made in respect of the person,
he may apply to the High Court for an order to declare the property forfeited to the United Republic.
(2)The Director of Public Prosecutions shall name as respondents to an application under subsection (1) only those persons who own, possess or control the tainted property.
(3)Notice prescribed under section 10 shall apply mutatis mutandis in the application made under this section.
(4)The High Court may require notice to be given to any person who in the opinion of the Court appears to have an interest in the property.
(5)A person, who claims an interest in the property may appear and adduce evidence at the hearing of the application.
(6)Where the High Court is satisfied that a tainted property which is the subject of the application is the property referred to in subsection (1), the Court shall order that the property be forfeited to the United Republic.
(7)Where the Court refuses an application under subsection (1), the Court shall make an order that describes the property and declare that it is not the property referred to in that subsection.
(8)Where the Court is satisfied that the owner of the tainted property referred to in subsection (6)—
(a)has an interest in the property which is the subject of the application; and
(b)has exercised reasonable care to ensure that the property would not be a tainted property;
the Court shall make the order that the interest shall not be affected by forfeiture order.
(9)A person who claims an interest in property that has been forfeited and who has not been given notice under subsection (4), may make an application to the High Court to vary or set aside an order made under subsection (6) not later than sixty days after the day on which the forfeiture order was made.[Acts Nos. 6 of 2012 s. 20; 7 of 2018 s. 93; 11 of 2019 s. 39]

Part V – Control of property liable to confiscation

(a) Powers of search and seizure

31. Powers to search for and seize tainted property

(1)Subject to subsection (2), a police officer may search a person for, and seize, any property which he believes, on reasonable grounds, to be tainted property.
(2)The search or seizure referred to in subsection (1) shall be made—
(a)with the consent of the person concerned;
(b)under warrant issued under section 32; or
(c)in emergencies in accordance with section 34.
(3)Subject to subsection (2), a police officer may enter upon any land or upon or into premises, search the land or premises for tainted property and seize any property found in the course of the search which the officer believes, on reasonable grounds, to be tainted property.
(4)In conducting a search in terms of this section, a police officer may also search the clothing that is being worn by the person and any property under or apparently under the person’s immediate control; save that nothing contained in this section shall be construed as authorising a police officer to carry out a search by way of an examination of body cavities.[Act No. 2 of 2007 s. 11]

31A. Freezing of bank account

(1)Where the Inspector General of Police or the Director of Criminal Investigation suspects on reasonable grounds that any person has been involved in the commission of a serious offence, he may authorise and direct a police officer of the rank of Assistant Superintendent of Police or above to freeze a bank account and seize any document from that bank or financial institution for fourteen days during which leave of the court for continued seizure and freezing shall be obtained.
(2)Upon application, the court may order extension of a period of seizure or freezing an account where there are reasonable grounds to suspect that the money held in the account is related to the commission of a serious offence.
(3)Where the court orders an extension of period of seizure or freezing of an account under sub section (2), it may, at any later time vary or set aside that order where the continued seizure or freezing is no longer required or upon production of additional evidence, and where the court is satisfied that money held into the account is not related to the commission of a serious crime.[Act No. 7 of 2018 s. 95]

31B. Collecting information or document relating to property

(1)For the purpose of collecting information about the property under this Act or any other law, an investigation officer may summon, interrogate and record a statement from any person who has information or document relating to the property.
(2)Any person who fails without reasonable cause to appear before the investigation officer for interrogation or to produce a document or any other thing relevant to investigation of the property under subsection (1) or being a witness at such investigation refuses to answer any question put to him or to produce any document or any other thing relevant to investigation commits an offence and upon conviction shall be liable to a fine of not less than one million shillings or to imprisonment for a term of not less than three years or to both.[Act No. 7 of 2018 s. 96]

31C. Disclosure of investigation information

(1)Any person who discloses to a suspect or unauthorised third party the information relating to an ongoing or impending investigation under this Act or any other law with the intent to interfere or otherwise frustrate the investigation commits an offence and upon conviction shall be liable to a fine of not less than ten million shillings or to imprisonment for a term of not less than five years or to both.
(2)Where a person who contravenes the provisions of subsection (1) is a body corporate, such person shall be liable to a fine of not less than five hundred million shillings or three times the value of the property under investigation, whichever is greater.[Act No. 7 of 2018 s. 96]

32. Search warrants in relation to tainted property

(1)Where a police officer has reasonable grounds for believing that there is tainted property of a particular kind on a person, his clothing or under his immediate control, or upon any land or upon or in any premises, he may apply to a magistrate for the issue of a search warrant for the tainted property.
(2)On an application in terms of subsection (1), a police officer shall lay before the magistrate information on oath setting out the grounds upon which the warrant is sought and the magistrate may, subject to subsection (4), issue a warrant authorising a police officer—
(a)in the case of a search warrant in respect of land or premises, to enter upon the land, or upon or into the premises;
(b)to search for the tainted property; and
(c)to seize property found in the course of the search which the police officer on reasonable grounds believes to be tainted property.
(3)A search warrant may be issued in terms of subsection (2) in relation to tainted property whether or not information has been laid before the magistrate in respect of the relevant offence.
(4)A magistrate shall not issue a warrant in terms of this section unless he is satisfied that—
(a)there are reasonable grounds for issuing the warrant; and
(b)where information has not been laid before him in respect of the relevant offence at the time of the application for the warrant—
(i)the property is tainted property; and
(ii)information will be laid before him in respect of the relevant offence within forty-eight hours.
(5)A warrant issued in terms of this section shall specify—
(a)the purpose for which the warrant is issued, including the nature of the relevant offence;
(b)the kind of property authorised to be seized;
(c)the date on which the warrant shall cease to have effect; and
(d)the time during which entry upon any land or premises is authorised.
(6)If in the course of searching under a search warrant issued in terms of this section for tainted property in relation to a particular offence, a police officer finds—
(a)property which he believes on reasonable grounds to be tainted property in relation to the offence, although not of a kind specified in the warrant; or
(b)tainted property relating to another serious offence; or
(c)anything that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence,
and the police officer believes, on reasonable grounds, that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction, or its use in committing or continuing or repeating the offence or any other offence, the warrant shall be deemed to authorise the police officer to seize that property or thing.
(7)A police officer acting in accordance with a warrant issued in terms of this section may require a person to remove any clothing that the person is wearing but only if the removal of the clothing is necessary and reasonable for an effective search of the person.
(8)A person shall not be searched in terms of this section except by a person of the same sex and with strict regard to decency.

33. Search warrant may be granted by telephone

(1)Where, by reason of circumstances of urgency, a police officer considers it necessary to do so he may apply for a search warrant to a magistrate by telephone.
(2)Before making the application referred to in subsection (1), the police officer shall prepare the information referred to in section 32(2).
(3)On an application in terms of subsection (1), a magistrate may, if satisfied after considering the information referred to in subsection (2) or any other information he may receive concerning the grounds upon which the issue of the search warrant is sought, that there are reasonable grounds for issuing the warrant, he shall issue the warrant and record thereon the reason for granting it.
(4)Where a magistrate has issued a warrant in terms of subsection (3), he shall inform the police officer of the terms of the warrant and the date on which and the time at which it was signed and the police officer shall in turn complete a form of warrant in terms furnished by the magistrate, including the name of the magistrate.
(5)Not later than the day next following the date of the execution of the warrant or the expiry of the warrant, whichever is the earlier, the police officer shall give the magistrate who authorised the warrant the form of the warrant completed by him and the information in connection with the warrant, duly sworn.
(6)On receipt of the documents referred to in subsection (5), the magistrate shall attach to them the warrant signed by him and deal with the documents in the manner in which he would have dealt with them had the application been made in terms of section 32.
(7)A form of warrant duly completed by a police officer in accordance with subsection (4) shall be authority for any search, entry or seizure.

34. Searches in emergencies

A police officer may search a person for tainted property or enter upon land or into premises and search for tainted property and may seize any tainted property he finds in the course of the search if—
(a)he believes on reasonable grounds that it is necessary to do so in order to prevent the concealment, loss or destruction of the tainted property; and
(b)the search, entry or seizure is made in circumstances of such seriousness and urgency as to require and justify immediate search, entry or seizure without the authority of an order of the court or a warrant issued in terms of this Act.

35. Responsibility for seized property

Where property is seized in terms of this Part, the Inspector-General of Police or other officer authorised by him in writing, shall arrange for the property to be kept and shall ensure that all reasonable steps are taken to preserve it while it is so kept until it is required for the purposes of this Act or disposed of in terms of this Act.

36. Return of seized property

(1)Where property has been seized in terms of this Part and—
(a)it appears that the property was seized otherwise than because it may afford evidence of the commission of an offence;
(b)at the end of the period of forty-eight hours after its seizure, the matter has not been laid before a magistrate; or
(c)no forfeiture order is made in respect of the property within fourteen days after the conviction of a person in connection with the property,
any person who claims an interest in the property may apply to the court for an order that the property be returned to him.
(2)Where an application for an interdict or a forfeiture order in respect of property seized in terms of this Part is refused, the Inspector-General of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the refusal of the application.

37. Search for and seizure of tainted property in relation to foreign offences

(1)Where a police officer is authorised under the Mutual Assistance Act to apply to a magistrate for a search warrant under this Act in relation to tainted property in respect of a foreign serious offence, the provisions of this Part shall, mutatis mutandis, apply in relation to the application for the search warrant.
(2)If, in the course of searching for tainted property in relation to a foreign serious offence, a police officer finds—
(a)any property which he believes, on reasonable grounds, to be tainted property in relation to the foreign serious offence although not of the kind specified in the warrant;
(b)any property which he believes, on reasonable grounds, to be tainted property in relation to another foreign serious offence in respect of which a search warrant is in force; or
(c)anything which he believes, on reasonable grounds—
(i)to be relevant to criminal proceedings in the foreign country in respect of the foreign serious offence; or
(ii)will afford evidence as to the commission of a criminal offence,
and he believes, on reasonable grounds, that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or any other offence, the warrant shall be deemed to authorise the police officer to seize that property or thing.
(3)Any person who claims an interest in property seized under a warrant issued in respect of a foreign serious offence may apply to court for an order that the property be returned to him.
(4)On an application in terms of subsection (3), if the court is satisfied that—
(a)the person is entitled to the property; and
(b)the property is not tainted property in relation to the foreign serious offence,
the court shall order the Inspector-General of Police to return the property to that person.
(5)Where property has been seized in respect of foreign serious offence and, at the end or thirty days after the day on which the property was seized—
(a)neither a foreign interdict nor a foreign forfeiture order in relation to the property has been registered in accordance with the Mutual Assistance Act; and[Cap. 254]
(b)an interim restraining order has not been issued in terms of this Act in relation to the foreign serious offence,
the Inspector-General of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the expiry of that period.[Act No. 7 of 2018 s. 93; Cap. 254]

(b) Restraining orders

38. Restraining orders

(1)The Director of Public Prosecutions may make an ex parte application to the court for a restraining order against the property of a person who—
(a)is under investigation or has been charged with or convicted of a serious offence including the property of a person other than the person who is under investigation or has been charged with or convicted of a serious offence; or
(b)cannot be brought to court but his property is subject to forfeiture under this Act or any other law including the property of any other person in which he has interest or the property which is under his control or direction.
(2)On an application in terms of subsection (1), the court may, subject to section 39—
(a)order that the property specified in the application shall not be disposed of, or otherwise dealt with, by any person except in the manner and in the circumstances specified in the order;
(b)if it is satisfied that the circumstances so require, direct that the property or such part of the property as is specified in the order, be taken into the custody and control of a trustee appointed for that purpose by the court; or
(c)order the Administrator-General or any other public trustee to take care and control of property under restraint
(3)A restraining order against a person’s property may be granted subject to such conditions as the court thinks fit and may make provision for meeting out of the property—
(a)that person’s reasonable living expenses, including the reasonable living expenses of his dependants and reasonable business expenses;
(b)that person’s reasonable expenses in defending a criminal charge; and
(c)a specified debt incurred by that person in good faith, being a debt to which neither paragraph (a) nor (b) applies.
(4)A court shall not make any provision referred to in subsection (3) unless it is satisfied that the respondent cannot meet the expense or debt concerned out of property that is not subject to the interdict.
(5)Where a trustee takes charge of any property in terms of this section, he may do anything that is reasonably necessary for the purpose of preserving the property, including—
(a)becoming a party to any civil proceedings affecting the property;
(b)ensuring that the property is insured; and
(c)if the property consists, in whole or in part, of a business, employing or terminating the employment of persons in the business.
(6)In appointing a trustee in terms of subsection (2)(b), the court shall have regard to the qualifications of a trustee of the property which is under restraining order.
(7)In addition to the order granted under subsection (2), the court may order—
(a)disposal of any property under restraint which is subject to natural decay, wear and tear, depreciation or whose maintenance may cause substantial expenses;
(b)proceeds of sale of the property disposed to be kept in a special interim management account until forfeiture application in respect of that property is concluded or the court orders otherwise.
(8)A property to which a restraining application has been made shall not be disposed until the application or an appeal as the case may be has been determined.[Acts Nos. 6 of 2012 s. 21; 7 of 2018 ss. 93, 97; 11 of 2019 s. 40]

39. Grounds for issuing restraining order

(1)Where an application for a restraining order is made against a property, the court shall, subject to this section, issue a restraining order against the property.
(2)Where the application is made before a person is charged, the court shall not issue a restraining order unless the court is satisfied, having regard to the matters contained in the affidavit, that reasonable steps have been taken to investigate the offence and the person is likely to be charged with the offence.
(3)Where the respondent has not been convicted, the court shall not issue a restraining order unless the court is satisfied that—
(a)there are reasonable grounds to believe that the respondent committed the offence; and
(b)the property is tainted or the respondent derived benefit from the commission of the offence.
(4)Where the respondent has been convicted, the court shall not issue the restraining order unless—
(a)it is satisfied that the respondent has been convicted of a serious offence; and
(b)the respondent derived a benefit, directly or indirectly from the commission of the offence.
(5)Where a restraining order is sought against property of a person other than the respondent, the court shall not issue the restraining order unless there are reasonable grounds to believe that—
(a)the property is tainted; or
(b)the respondent has an interest in the property or the property is under control or direction of the respondent who derived a benefit, directly or indirectly, from the commission of a serious offence.
(6)Where a restraining order is sought against property of a person who cannot be brought to court, the court shall not issue the restraining order unless there are reasonable grounds to believe that the property shall be forfeited under this Act or any other law.
(7)A restraining order shall be granted in respect of property whether or not there is any risk of the property being disposed of or otherwise dealt with in a manner that would defeat the operation of any forfeiture or pecuniary penalty order made under this Act.
(8)A restraining order issued before charging under subsection (2) shall operate for twelve months provided that the court may extend the period of twelve months upon application by the Director of Public Prosecutions.
(9)Where a person is charged within the period of twelve months or time so extended, the restraining order shall remain in force until it ceases to have effect in terms of the provisions of section 52.
(10)An application for a restraining order shall be supported by an affidavit of the investigator setting out grounds of his belief under subsection (2) to (4).[Acts Nos. 6 of 2012 s. 22; 7 of 2018 s. 93; 11 of 2019 s. 41]

40. ***

[Repealed by Act No. 7 of 2018 s. 98]

41. ***

[Repealed by Act No. 7 of 2018 s. 98]

42. Notice of restraining orders

(1)Subject to subsection (2), where a restraining order is made against a person’s property, the Director of Public Prosecutions shall give the person written notice of the order.
(2)Where a court makes a restraining order, but it is satisfied that it would be in the public interest to delay giving notice of the order to a person, the court may order that giving the person notice of the restraining order be delayed for such period as is specified in the order under subsection (1) and the Director of Public Prosecutions shall give the person notice of the restraining order as soon as practicable after the end of the period specified.
(3)Any person affected by the restraining order may, within fourteen days after being served with notice of the restraining order, apply to court for variation or rescission of the restraining order or any other order which the court may issue under section 43.[Act No. 7 of 2018 ss. 93, 99]

43. Court may make further orders

(1)Where a court grants a a restraining order, it may, at the time it makes the order or at any later time, make any ancillary order which it may consider necessary, including—
(a)an order varying the property to which the restraining order relates;
(b)an order varying any condition to which the restraining order is subject;
(c)an order for the examination on oath of the person (in this section called the "respondent") whose property is subject to the restraining order, or any other person, concerning the affairs of the respondent, including the nature and location of the property of the respondent;
(d)an order for the carrying out of any undertaking given by the United Republic in relation to the payment of damages or costs arising from the granting of the restraining order; or
(e)where the property is in the custody or under the control of a trustee—
(i)an order directing the manner in which the trustee may exercise his powers or perform his duties in relation to the property;
(ii)an order determining any question relating to the property including any question relating to the liabilities of the respondent; or
(iii)an order directing the respondent to furnish the trustee, within a specified period, with a statement setting out such particulars of the property as the court may think proper.
(2)An order under subsection (1) may be made on application by—
(a)the Director of Public Prosecutions;
(b)the respondent;
(c)the trustee; or
(d)with the leave of the court, any other person,
and every person with an interest in the matter shall be notified by the applicant, in writing, of the application.
(3)The court may, upon application by a person affected by the restraining order, vary or rescind a restraining order where it is satisfied that—
(a)the property involved is not tainted; or
(b)the interest in the property was acquired for sufficient value, without knowledge, and in circumstances such as not to arouse suspicion that the property was tainted..
(4)An application in terms of subsection (3) may be granted by the court if the court is satisfied that it is in the public interest to do so having regard to all the circumstances of the case including—
(a)any financial hardship or other consequence of the interest remaining subject to the restraining order;
(b)the seriousness of the offence; and
(c)the likelihood that the interest may be subject to a forfeiture order or to section 25 or be required to satisfy a pecuniary penalty order.
(5)A person who has been convicted of or has been charged or is about to be charged with, a serious offence and whose property is subject to a restraining order may apply to a court for the exclusion of any property from the restraining order and the court shall grant the application if it is satisfied that—
(a)the property was not used in, or in connection with, the commission of the offence; and
(b)the interest in the property was lawfully acquired.
(6)Where a person is examined before a court pursuant to an order under subsection (1), the person shall not be excused from answering any question on the ground that the answer might tend to incriminate him or make him liable to a penalty.
(7)Where a person other than a person against whom charges have been or are to be laid is examined before a court pursuant to an order under subsection (1), a statement or disclosure made by that person in answer to a question put in the course of the examination, and any information, document or thing obtained as a direct or indirect consequence of the statement or disclosure, shall not be admissible against him in any criminal proceedings except proceedings for giving false testimony in the course of examination.
(8)For the purposes of subsection (7), proceedings on an application for a restraining order, a forfeiture order or a pecuniary penalty order shall not be regarded as criminal proceedings.
(9)Where the Director of Public Prosecutions applies to court for an order under subsection (1), a witness shall not be required to answer a question or to produce a document if the court is satisfied that answering of the question or production of the document may prejudice the investigation of, or the prosecution of any person for, an offence.[Act No. 7 of 2018 ss. 93, 100]

44. Trustee to discharge pecuniary penalty order

(1)Where a court has made a pecuniary penalty order against a person whose pecuniary property is in the custody or under the control of a trustee, the court may direct the trustee to pay to the United Republic an amount equal to the penalty amount out of the property held by him.
(2)The court may, for the purposes of subsection (1), direct the sale or otherwise dispose of any of the property in the custody of the trustee or under his control and authorise him to execute any deed or instrument in the name of the person who owns or has an interest or right in the property.
(3)The trustee shall not apply any money in terms of subsection (1) or dispose of any property in terms of subsection (2) until any appeal lodged in relation to the matter has been determined or the time for lodging any appeal has lapsed without any appeal having been lodged.

45. Charge on property subject to restraining order

(1)Where—
(a)a pecuniary penalty order is made against a person in reliance on his conviction of an offence; and
(b)a restraining order is or has been made against his property or the property of another person in relation to which an order under section 23(3) is, or has been, made in reliance on his conviction of the offence or a related offence or in reliance on his being charged, or proposed charging, with the offence or a related offence,
then, upon the making of the later of the orders there shall be created, by virtue of this section and without any further assurance, a charge on the property to secure the payment to the United Republic of the penalty amount.
(2)Where a charge is created by subsection (1) on property of a person, the charge shall cease to have effect in respect of the property—
(a)upon the quashing of the conviction in reliance on which the pecuniary penalty order was made;
(b)upon the discharge of the pecuniary penalty order or the restraining order by a court hearing an appeal against the making of the order;
(c)upon payment to the United Republic of penalty amount in satisfaction of the pecuniary penalty order;
(d)upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge, whichever occurs first.
(3)A charge created on property by subsection (1)—
(a)shall be subject to every encumbrance on the property that came into existence before the charge and that would, apart from this subsection, have priority over the charge;
(b)shall have priority over all other encumbrances; and
(c)subject to subsection (2), shall not be affected by any change of ownership of the property.
(4)Where a charge is created by subsection (1) on property of a particular kind and the provisions of any law in the United Republic provide for the registration of title to, or charges over, property of that kind, the Public Trustee or the Director of Public Prosecutions, as the case be, may cause the charge so created to be registered under the provisions of that law and, if the charge is so registered, a person who purchases or otherwise acquires an interest in the property after the registration of the charge shall, for the purposes of subsection (2)(d), be deemed to have notice of the charge at the time of the purchase or acquisition.[Act No. 7 of 2018 s. 93]

46. Registration of restraining orders

Where a restraining order has been of granted in respect of immovable property or any property or interest in property that is subject to registration, the Director of Public Prosecutions shall apply to the appropriate registrar for a recording in the register of the particulars of the restraining order.[Act No. 7 of 2018 s. 93]

47. Contravention of restraining orders

(1)Every person who disposes of, or otherwise deals with, property which to his knowledge is subject to a restraining order commits an offence and is liable on conviction—
(a)in the case of an individual, to a fine not exceeding five hundred thousand shillings or the value of the property, whichever is the greater, or to imprisonment for a period not exceeding fifteen years, or to both that fine and that imprisonment; or[Act No. 7 of 2018 s. 93]
(b)in the case of a body corporate, to a fine not exceeding five million shillings or three times the value of the property, whichever is the greater.
(2)Any unauthorised dealing with property which is subject to a restraining order may be set aside by the court at the instance of the Director of Public Prosecutions.

48. Duties of trustee

(1)If, after a trustee has been directed to pay a pecuniary penalty out of the property of a person, the trustee is given notice in writing of proceedings in terms of the law for the time being in force in relation to insolvency against the person, he shall not take any action to sell or otherwise dispose of any property or pay the United Republic any money until the proceedings have been disposed of.
(2)Where a person whose property is in the custody or under the control of a trustee becomes insolvent, the property shall be deemed to be in the possession or under the control of the trustee as, or on behalf of, the trustee of the estate of the insolvent person.

49. Protection of trustee from personal liability

(1)A trustee shall not be personally liable for—
(a)any loss or damage arising from his having taken custody or control of the property which is sustained by any person claiming the property or an interest in the property unless the court in which the claim is made is of the opinion that the trustee is guilty of negligence in respect of the taking of custody or control of the property; or
(b)the cost of proceedings instituted to establish a claim to the property or an interest in the property.
(2)A trustee shall not be personally liable for any rate or tax due under any enactment in respect of property which is in his custody or under his control.

50. Remuneration and expenses of trustee

(1)A trustee shall be entitled to remuneration and expenses in respect of the performance of his duties in relation to property in his custody or under his control.
(2)The Minister shall by regulations published in the Gazette provide for or in respect of the qualifications, supervision, remuneration and expenses of a trustee in relation to the performance of his duties under this Act.[Act No. 7 of 2018 s. 101]

51. Court may revoke restraining orders

(1)A court may, on application by a person against whom a restraining order has been issued, revoke the order if the person gives security to the satisfaction of the court for the payment of any pecuniary penalty that may be imposed upon him.
(2)A person who makes an application in terms of subsection (1) shall notify the Director of Public Prosecutions and, where the property is in the custody or under the control of a trustee, the trustee.[Act No. 7 of 2018 s. 93]

52. When restraining order ceases to have effect

(1)A restraining order shall cease to have effect if the charge against the person in relation to whom the order was issued is withdrawn or if the person is acquitted.
(2)Where a court has made a confiscation order, a restraining order shall cease to have effect once the confiscation order is satisfied or otherwise discharged.

53. Interim restraining order in respect of foreign offence

(1)Where the Director of Public Prosecutions is authorised under the Mutual Assistance Act to obtain the issue of a restraining order in terms of this act in respect of a foreign serious offence, the provisions of this Part relating to the application for a restraining order shall, mutatis mutandis, apply in relation to the application for a restraining order in respect of the foreign serious offence.
(2)A restraining order, granted in respect of a foreign serious offence shall cease to have effect on the expiry of a period of thirty days commencing on the day on which the order was granted.
(3)On application by the Director of Public Prosecutions before the expiry of the period referred to in subsection (2), a court may extend the period of operation of the restraining order.
(4)Where a foreign restraining order is not registered the High Court in terms of the Mutual Assistance Act, before the expiry of the period referred to in subsection (2) or (3), the order referred to in subsection (1) shall cease to have effect.[Act No. 7 of 2018 s. 93; Cap. 254]

54. Registered foreign restraining orders

Where a foreign restraining order has been registered with the High Court in terms of the Mutual Assistance Act, the provisions of this Part relating to restraining orders shall, subject to sections 55 and 56 mutatis mutandis, apply in relation to registered foreign restraining orders.[Act No. 7 of 2018 s. 102; Cap. 254]

55. Trustee to take control of property in relation to registered foreign restraining order

(1)Where a foreign restraining order has been registered in the United Republic, the court may, upon application by the Director of Public Prosecutions, direct that the property, or any part of the property, be taken into the custody of or under the control of a trustee appointed by the court.
(2)The owner of the property or any other person whom the Director of Public Prosecutions has reason to believe may have an interest in the property shall be notified in writing of any application in terms of subsection (7).
(3)The court may, before making a direction in terms of subsection (1), direct the Director of Public Prosecutions to give or publish notice of the application to a specified person or class of persons, in such manner and within such time as the court considers appropriate.
(4)Any person who claims an interest in property in respect of which an application in terms of subsection (1) has been made may appear and adduce evidence at the hearing of the application.
(5)Where a direction in terms of subsection (1) has been made, the court may at any time make any one or more of the following orders—
(a)an order regulating the manner in which the trustee may exercise his powers or perform his duties;
(b)an order determining any question relating to that property; or
(c)an order directing the owner of the property to furnish the trustee with such particulars relating to the property as the court thinks fit.
(6)A trustee may do anything that is reasonably necessary for the purpose of preserving the property, including—
(a)becoming a party to any civil proceedings relating to or affecting the property;
(b)ensuring that the property is insured; and
(c)if the property consists, in whole or in part, of a business, employing or terminating the employment of persons in the business.
[Act No. 7 of 2018 s. 93]

56. ***

[Repealed by Act No. 11 of 2019 s. 42]

57. Discharge of registered foreign pecuniary penalty

(1)Where—
(a)a foreign restraining order is registered in the United Republic in respect of property of a person convicted of or alleged to have committed, a foreign serious offence;
(b)a foreign pecuniary penalty order against the person is registered in the United Republic in relation to the matter; and
(c)the property is in the custody, or under the control, of a trustee,
the court in which the foreign pecuniary penalty order is registered may direct the trustee to pay to the United Republic an amount equal to the penalty amount out of the property.
(2)For the purposes of subsection (1), the court may—
(a)direct the trustee to sell or otherwise dispose of such of the property under his control as the court may specify; and
(b)authorise the trustee to execute any deed or instrument in the name of the person who owns or has an interest or right in the property.
[Act No. 7 of 2018 s. 93]

Part VI – Information gathering powers

(a) Production orders

58. Production orders

(1)Where a person has been convicted, or is reasonably suspected of having committed, a serious offence and a police officer has reasonable grounds for suspecting that any person has possession or control of any property-tracking document in relation to that offence he may apply to a court for an order directing the person, subject to subsection (5), to produce to a police officer any document described in the order which is in that person’s possession or control.
(2)An application in terms of subsection (1) shall be supported by an affidavit setting out the grounds upon which the suspicion is based.
(3)Where, in an application for an order in terms of subsection (1), a police officer includes in the affidavit referred to in subsection (2) information that he has reasonable grounds to believe that the person concerned derived a benefit, directly or indirectly, from the commission of the offence and that the property specified in the affidavit is subject to the effective control of the person, the court may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence for the purposes of this section.
(4)In determining in terms of subsection (3) whether to treat a document as a property-tracking document in relation to an offence, a court may have regard to matters referred to in subsection (2) of section 25.
(5)An order for production of documents shall not be made unless the court is satisfied that there are reasonable grounds for making the order.
(6)Where a document is produced to a police officer, the police officer may—
(a)inspect the document;
(b)take extracts from the document;
(c)make copies of the document; or
(d)retain the document if, and for as long as, retention of the document is reasonably necessary.
(7)A police officer referred to in subsection (6) shall, at the request of the person to whom the order was addressed—
(a)give the person a copy of the document certified by the police officer in writing to be a true copy of the document; or
(b)permit the person to—
(i)inspect the document;
(ii)take extracts from the document; or
(iii)make copies of the document.
(8)A person shall not be excused from producing a document on the ground that its production—
(a)might tend to incriminate him or make him liable to a penalty; or
(b)would be in breach of any obligation or privilege not to disclose the existence or contents of the document.
(9)The production of a document in terms of this section or any information, document or thing obtained as a direct or indirect consequence of the production of the document, shall not be admissible against any person, other than the person against whom charges have or are to be laid, in any criminal proceedings except proceedings relating to—
(a)a contravention of an order of the court; or
(b)the production of a document known to the person to be false or misleading in a material particular.
(10)For the purposes of subsection (9) proceedings on an application for a restraining order, a forfeiture order or a pecuniary penalty order shall not be regarded as criminal proceedings.[Act No. 2 of 2007 s. 12]

59. Variation of production order

Where a court makes a production order requiring a person to produce a document to a police officer, that person may apply to the court for a variation of the order and if the court is satisfied that the document is essential to the business activities of the person, it may vary the production order so as to require the person to make the document available to the police officer for inspection.

60. Failure to comply with production order

(1)Where a person is required by a production order to produce a document to a police officer or make a document available to a police officer for inspection, that person commits an offence under this section if he—
(a)contravenes the order without reasonable excuse; or
(b)in purported compliance with the order produces or makes available a document known to them to be false or misleading in a material particular without—
(i)indicating to the police officer to whom the document is produced or made available that the document is false or misleading and the respect in which the document is false or misleading; and
(ii)providing correct information to the police officer if the person is in possession of, or can reasonably acquire, the correct information.
(2)An offence against subsection (1) shall be punishable, upon conviction, by—
(a)if the offender is a natural person, a fine not exceeding one million shillings or imprisonment for a term not exceeding five years, or both that fine and imprisonment; or
(b)if the offender is a body corporate, a fine not exceeding five million shillings.

61. Production orders in relation to foreign offences

(1)Where a police officer is authorised in terms of the Mutual Assistance Act to apply to court for a production order under this Act in respect of a foreign serious offence, he may apply for an order and sections 63 and 64 shall, mutatis mutandis, apply in respect of the foreign serious offence.
(2)Where a police officer takes possession of a document under a production order made in respect of a foreign serious offence, he may retain the document for a period of one month pending a written direction from the Director of Public Prosections as to the manner in which the document is to be dealt with, which may include a direction that the document be sent to an authority of the foreign country which requested obtaining of the production order.[Act No. 7 of 2018 s. 93; Cap. 254]

(b) Search powers

62. Powers to search for property-tracking document

(1)A police officer may enter upon any land or into any premises and—
(a)search the land or premises for any property-tracking document in relation to a serious offence; and
(b)seize any document found in the course of the search which he believes, on reasonable grounds, to be a property-tracking document in relation to the serious offence.
(2)Entry by a police officer shall be made with the consent of the occupier of the land or premises or under a warrant issued in terms of section 68.

62A. Disclosure of information about property

(1)An investigation officer may, by notice in writing, require any person under investigation or suspected to have committed a serious offence to furnish, within such time and in such manner as may be specified in the notice, a full and true account of all or any property which he—
(a)possesses, controls, directs or is entitled to the benefit from; or
(b)had in his possession, control, direction or was entitled to the benefit from.
(2)A person who is required to furnish information pursuant to the provisions of subsection (1) may, in addition to the requested information, provide details of the basis upon which he asserts that the property is not the benefit of criminal activity.
(3)A person responding to a request under subsection (1) shall provide the information requested to the investigation officer within thirty days from the date of request unless he satisfies the investigation officer that more time is required to comply with the request.
(4)In any application for a confiscation order under this Act a response to a request under subsection (1) may be admitted in evidence to the confiscation proceedings.
(5)A person who in compliance with a request under subsection (1) gives false information commits an offence and upon conviction shall be dealt with in accordance to the provisions of section 122 of the Penal Code.[Cap. 16][Act No. 7 of 2018 s. 103]

63. Search warrant for property-tracking document

(1)Where a person has been convicted of, or is reasonably suspected of having committed, a serious offence, and a police officer has reasonable ground for suspecting that there is upon any land or upon or in any premises, a property-tracking document in relation to the offence, that police officer may apply to a court for a search warrant in respect of the land or premises and the court may subject to subsection (5), issue a search warrant authorising a police officer, with such assistance as is necessary—
(a)to enter upon the land or into premises specified in the warrant to search for documents described in the warrant; and
(b)to seize any document found in the course of the search that the police officer believes, on reasonable grounds, to be a property-tracking document.
(2)An application in terms of subsection (1) shall be supported by an affidavit setting out the grounds upon which the suspicion is based.
(3)Where, in an application for a warrant in terms of subsection (1), a police officer includes in the affidavit referred to in subsection (2) information that he has reasonable grounds to believe that the person concerned derived a benefit, directly or indirectly, from the commission of the offence and that the property specified in the affidavit is subject to the effective control of the person, the court may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence for the purposes of this section.
(4)In determining, in terms of subsection (3), whether to treat a document as a property-tracking document in relation to an offence, the court may have regard to the matters referred to in subsection (2) of section 23.
(5)A search warrant shall not be issued in terms of this section unless the court is satisfied that—
(a)the document concerned cannot be identified or described with sufficient particularity for the purposes of obtaining a production order;
(b)a production order has been given in respect of the document and has not been complied with;
(c)a production order is unlikely to be complied with;
(d)the investigation for the purposes of which the search warrant is sought might be seriously prejudiced if the police officer does not gain immediate access to the document without notice to any person; and
(e)there are reasonable grounds for issuing the warrant.
(6)The search warrant shall state—
(a)the purpose for which it has been issued, including the nature of the serious offence which has been or is believed to have been committed;
(b)the time during which entry is authorised;
(c)a description of the kind of documents authorised to be seized; and
(d)a date, being not later than thirty days after the date of issue of the warrant, on which the warrant shall cease to have effect.
(7)If, in the course of searching for a particular document in relation to an offence, a police officer finds—
(a)another document which is not of the kind described in the warrant but which he believes, on reasonable grounds, to be a property-tracking document in relation to the offence concerned or a property-tracking document in relation to another serious offence; or
(b)anything that he believes, on reasonable grounds, will afford evidence as to the commission of an offence,
he may, if he believes on reasonable grounds that is necessary to seize the document or thing in order to prevent its concealment, loss or destruction, seize the document or thing.

63A. Investigation of bank account

(1)Notwithstanding the provisions of any other written law, the Inspector General of Police may, where he considers that any evidence of the commission of serious offence, predicate offence or money laundering by a person is likely to be found in a bank account kept by that person, spouse or child or any person reasonably believed to be a trustee or agent of such person, and that procedure for obtaining an order of the court is likely to defeat the course for investigation, authorize in writing, any police officer of or above the rank in of Assistant Superintendent of Police, either alone or with any other officer, to investigate the bank account and such authorization shall be sufficient to warrant the production of the bank account for scrutiny by that police officer and such officer may take copies of any relevant entries from that account.
(2)Where in the course of investigation, it appears necessary that the bank account be held for a period exceeding seven days, the police officer referred to under subsection (1) shall be required to obtain leave of the court for continued holding of such bank account.
(3)Any person who, pursuant to the provisions of subsection (1), fails to produce a bank account when required to do so or obstruct a police officer from scrutinizing the bank account or taking copies of any relevant entries from that bank account commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding two years or to a fine of not less than one million shillings or to both.[Cap. 4 s. 8]
(4)In this section, "bank account" includes any ledger, log book, cash book and any other document used in the ordinary course or business by any person carrying on, whether on his own behalf or as an agent for another, and whether exclusively or otherwise, any banking business whatsoever, whether or not such person is a bank within the meaning of Banking and Financial Institutions Act.[Cap. 342][Act No. 2 of 2007 s. 13]

63B. Placing under surveillance

For the purposes of obtaining evidence in relations to serious offences, predicate offences or money laundering, a police officer of the rank of Assistant Superintendent of Police or above authorized as such be the Inspector-General of police or the Director of Criminal Investigations may with leave of the court—
(a)have access to computer data systems, networks and services;
(b)place under surveillance means of preservation of information including facsimile machines, electronic transmission and communication facilities;
(c)make audio or video recording of acts and behaviors or conversations; and
(d)have access to notarial and private deeds or financial institutions and commercial records.
[Act No. 2 of 2007 s. 13]

63C. Protection of investigators

No punishment shall be imposed to any person investigating a serious offence, predicate offence or money laundering who, for the sole purpose of obtaining evidence, performs in the manner specified, acts which would rather be construed as elements constituting a serious offence predicate offence or money laundering or a conspiracy or to commit a predicate offence or money laundering.[Act No. 2 of 2007 s. 13]

63D. Leave of court

For purposes of obtaining leave of the court pursuant to the provisions of sections 63A and 63B, it shall be sufficient for the Inspector General of Police or the Director of Criminal Investigation to file chamber application supported by affidavit whether or not there is a pending case in the court.[Act No. 2 of 2007 s. 13]

64. Search warrants in relation to foreign offences

(1)Where a police officer is authorised in terms of the Mutual Assistance Act, to apply to a court for a search warrant under this Act for a property-tracking document in respect of a foreign serious offence, the police officer may apply for the warrant and section 63 shall, mutatis mutandis, apply in respect of the application.
(2)Where a police officer takes possession of a document under a warrant in respect of a foreign serious offence, he may retain it for a period not exceeding thirty days pending a written direction from the Director of Public Prosecutions as to the manner in which the document is to be dealt with, which may include a direction that the document is to be sent to an authority of the foreign country that requested the issue of the warrant.[Act No. 7 of 2018 s. 93; Cap. 254]

(c) Monitoring orders

65. Monitoring orders

(1)The Director of Public Prosecutions may apply to a court for a monitoring order directing a financial institution to give information to the Inspector-General of Police about financial transactions conducted through an account held by a particular person with that financial institution.
(2)A monitoring order shall apply in relation to financial transactions conducted during the period specified in the order.
(3)A court shall not make a monitoring order unless it is satisfied that there are reasonable grounds for suspecting that the person in respect of whose account the information is sought—
(a)has committed or is reasonably suspected of having committed a serious offence;
(b)was involved in the commission of or is reasonably suspected of having been involved in the commission of, a serious offence; or
(c)has benefited, directly or indirectly, from the commission of a serious offence.
(4)A monitoring order shall specify the name or names in which the account is believed to be held and the type of information that the financial institution is required to give.
(5)Any financial institution which contravenes a monitoring order or provides false or misleading information commits an offence and is liable on conviction to a fine not exceeding one million shillings.[Act No. 7 of 2018 s. 93]

66. Existence and operation of monitoring order not to be disclosed

(1)A financial institution that is or has been subject to a monitoring order shall not disclose the fact to any person except a legal practitioner for the purpose of obtaining legal advice or representation in relation to the order.
(2)The Inspector-General of Police shall not disclose to any person other than a member of the Police Force in the performance of his duties, the existence of a monitoring order.
(3)The Inspector-General of Police shall not be required by any court to disclose the existence of a monitoring order.
(4)Any person who contravenes this section commits an offence and liable to—
(a)in the case of an individual, a fine not exceeding two hundred thousand shillings or to imprisonment for a period not exceeding ten years or to both that fine and imprisonment;
(b)in the case of a body corporate, to a fine not exceeding one hundred thousand shillings.

67. Monitoring orders in relation to foreign offences

(1)Where a police officer is authorised in terms of the Mutual Assistance Act, to apply to a court for a monitoring order under this Act in respect of a foreign serious offence, section 66 shall, mutatis mutandis, apply in respect of the foreign serious offence.
(2)Where the Inspector-General of Police is informed pursuant to a monitoring order made in relation to a foreign serious offence, he shall forthwith pass the information on to the Director of Public Prosecutions.[Act No. 7 of 2018 s. 93; Cap. 254]

(d) Obligations of financial institutions

68. ***

[Repealed by Act No. 2 of 2007 s. 14]

69. ***

[Repealed by Act No. 2 of 2007 s. 15]

70. ***

[Repealed by Act No. 2 of 2007, s. 16]

Part VII – Miscellaneous provisions

71. Obstruction of justice prohibited

Any person who uses physical force, threat, intimidation, promises, offers or gives an undue advantage in order to—
(a)induce false testimony;
(b)interfere with the giving of testimony or the production of evidence in a proceeding; or
(c)interfere with the exercise of official duties by a magistrate, judge, public prosecutor, state attorney or any law enforcement official in relation to the commission of offences under this Act,
commits an offence and shall, on conviction, be liable to imprisonment for a term of not less than five years.[Act No. 2 of 2007 s. 17]

72. Prohibition in dealing in tainted property

(1)No person shall acquire, hold or in any other way deal in any tainted property.
(2)Any tainted property in relation to a foreign serious offence acquired, held or dealt with in contravention of this section shall be liable to be forfeited to the United Republic by order of the High Court on application by the Director of Public Prosecutions.[Act No. 7 of 2018 s. 93]

73. Conduct of directors, officers, employees or agents

(1)For the purposes of this Act, where it is necessary to establish the state of mind of a body corporate in respect of conduct engaged in or deemed, in terms of subsection (2), to have been engaged in, by the body corporate, it shall be sufficient to show that a director, officer, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in the course of his employment, had that state of mind.
(2)Any conduct engaged in on behalf of a body corporate by—
(a)a director, officer, employee or agent of the corporate body in the course of his employment; or
(b)any other person at the direction or with the consent, whether express or implied, of a director, employee or agent of the body corporate, where the giving of the direction or consent is within the scope of authority of the director, officer, employee or agent,
shall, for the purposes of this Act, be deemed to have been engaged in by the body corporate.
(3)Any conduct engaged in on behalf of a person other than a body corporate by—
(a)an employee or agent of the person within the scope of his authority; or
(b)any other person at the direction or with the consent, whether express or implied, of an employee or agent of the first-mentioned person, where the giving of the direction or consent is within the scope of authority of the employee or agent,
shall, for the purposes of this Act, be deemed to have been engaged in by the first-mentioned person.
(4)Where it is necessary to establish the state of mind of a person in relation to conduct deemed in terms of subsection (3) to have been engaged in by that person, it shall be sufficient to show that the employee or agent of that person, being an employee or agent by whom the conduct was engaged in within the scope of his authority, had that state of mind.
(5)Any reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of that person and that person’s reasons for that intention, opinion, belief or purpose.

74. Dealings with forfeited property

(1)A person who knows that a forfeiture order has been made in respect of registrable property shall not, unless the forfeiture order has been discharged, disposed of, or otherwise deal with the property before the interest of the United Republic has been registered in the appropriate register.
(2)A person who contravenes or fails or refuses to comply with subsection (1) shall commits an offence and is liable on conviction—
(a)if he is an individual to a fine not exceeding two hundred thousand shillings or imprisonment for a period not exceeding five years or to both the fine and imprisonment;
(b)if the person is a body corporate, to a fine not exceeding five million shillings.

75. Standard of proof

Subject to section 12, any question of fact to be decided by a court on an application under this Act shall be decided on a balance of probabilities.

76. Appeals

(1)Any person aggrieved by the order of the Court made under this Act may appeal against that order.
(2)Where an appeal is preferred under subsection(1), the execution of the order shall be stayed until the appeal is determined.
(3)The appeals under this Act shall be governed by the provisions of the Criminal Procedure Act.[Cap. 20][Act No. 7 of 2018 s. 104]

77. Costs

Where a person brings, or appears at, proceedings under this Act before a court in order to—
(a)prevent a forfeiture order or restraining order from being made against his property; or
(b)to have his property excluded from a forfeiture order or restraining order,
if he is successful in those proceedings, and the court is satisfied that that person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made, then the court may order the Government to pay all costs incurred by that person in connection with the proceedings or such part of these costs as is determined by the court.

78. Operation of other laws not affected

Nothing in this Act shall be taken as limiting or restricting—
(a)the operation of any law of the United Republic or of the Revolutionary Government of Zanzibar providing for the forfeiture of property or the imposition of pecuniary penalties; or
(b)the remedies available to the Government, apart from this Act, for the enforcement of its rights and the protection of its interests.

79. Regulations

The Minister may make regulations for the better carrying out of the purposes and provisions of this Act, and prescribing matters which are—
(a)required or permitted by this Act to be prescribed;
(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act.
▲ To the top

History of this document

30 November 2019 this version
Consolidation
01 May 1994
Commenced

Cited documents 1

Act 1
1. Written Laws (Miscellaneous Amendments) (No. 2) Act, 2018 10 citations

Documents citing this one 47

Judgment 38
1. Director of Public Prosecution (DPP) vs Jackson Sifael Mtares (Criminal Appeal No. 2 of 2018) [2018] TZCA 393 (13 September 2018) 33 citations
2. Jackson Sifael Mtares & Others vs The Director of Public Prosecutions (Criminal Appeal No. 180 of 2019) [2021] TZCA 612 (28 October 2021) 18 citations
3. Samo Ally Issack & Others vs Republic (Criminal Appeal No. 136 of 2021) [2021] TZCA 649 (4 November 2021) 10 citations
4. James Burchard Rugemalira vs Republic (Criminal Appeal No. 391 of 2017) [2019] TZCA 188 (28 June 2019) 7 citations
5. Director of Public Prosecutions vs Julieth Simon Peleka (Criminal Appeal 94 of 2019) [2020] TZCA 350 (14 July 2020) 6 citations
6. Director of Public Prosecutions vs Muharami Mohamed Abdallah @ Chonji & Another (Criminal Appeal No. 284 of 2017) [2021] TZCA 82 (12 March 2021) 4 citations
7. Novatus Anselimi Moshy vs Republic (31 of 2021) [2022] TZHC 9535 (13 May 2022) 1 citation
8. Rashid Ahmed Kilindo vs Attorney General (Misc. Civil Cause 30 of 2018) [2020] TZHC 3261 (31 August 2020) 1 citation
9. The Director of Public Prosecution vs. Zhiling Jiao (Criminal Appeal No. 74 of 2022) [2023] TZHC 17929 (27 February 2023) 1 citation
10. The Director of Public Prosecutions (Criminal Application 6 of 2023) [2023] TZHC 19915 (7 August 2023) 1 citation
11. silvanus Vedastus Mkingira versus Republic (DC Criminal Appeal 1 of 2023) [2023] TZHC 1 (18 October 2023) 1 citation
12. Amon Nikolaus @Ntiluka and 3 Others vs DPP (Consolidated Criminal Appeal Nos. 91 & 92 of 2022) [2023] TZHC 20023 (11 August 2023)
13. Anacecylia Saidi Shangari vs Republic and 2 Others (Criminal Revision No. 6 of 2022) [2023] TZHC 19102 (14 July 2023)
14. Baraka Papaa Pania vs Republic (Criminal Appeal No. 406 of 2024) [2024] TZHC 1782 (3 May 2024)
15. Bashiri Fenal Abdi Ali Awale vs Director of Public Prosecution & Another (Criminal Application 99 of 2022) [2022] TZHC 13226 (23 September 2022)
16. DPP vs Francise Izayas@francise (Criminal Application 84 of 2020) [2022] TZHC 11773 (9 March 2022)
17. DPP vs Julius Mahangaiko Chasama (Economic Application No. 24326 of 2024) [2024] TZHCCED 30 (2 September 2024)
18. DPP vs Mohamed Issa Simon (Criminal Application No. 000021676 of 2024) [2024] TZHCCED 28 (12 August 2024)
19. Director Of Public Prosecution vs Cuthbert Napengwa Kishaluli & 2 Others (Criminal Application No. 78 of 2022) [2023] TZHC 369 (22 February 2023)
20. Director of Public Prosecution versus Abraham Elimringi Macha (Economic Application 6 of 2023) [2023] TZHC 19811 (4 August 2023)
21. Director of Public Prosecutions vs Magreth Kobelo Gonzaga & Another (Criminal Appeal No. 300 of 2022) [2024] TZCA 682 (30 July 2024)
22. Director of Public Prosecutions vs Abdukadri Hussein Lwassa (Economic Application No. 40398 of 2023) [2024] TZHCCED 26 (28 June 2024)
23. Director of Public Prosecutions vs John Mwaseba Mwasikili (Economic Application No.23511 of 2024) [2024] TZHCCED 29 (21 August 2024)
24. Director of Public Prosecutions vs Magreth Kobelo Gonzaga and Another (Economic Application 1 of 2019) [2022] TZHCCED 27 (15 July 2022)
25. Director of Public Prosecutions vs Yanga Omary Yanga (Economic Application No.1 of 2021) [2023] TZHCCED 10 (30 June 2023)
26. Director of Public Prosecutions vsYanga Omary Yanga (Economic Application 1 of 2021) [2023] TZHCCED 3 (17 March 2023)
27. Director of Public Prosecutons vs Samo Ally Isaack and 4 Others (Misc. Criminal Application 107 of 2020) [2021] TZHC 2120 (10 February 2021)
28. Gembula Mwanjaa vs Director Of Public Prosecutions & Another (Criminal Application No. 3 of 2023) [2023] TZHC 327 (14 February 2023)
29. Joseph Mashimba @ Dogo J. vs Republic (Criminal Appeal No. 172 of 2021) [2024] TZCA 785 (21 August 2024)
30. Kairo @ Kerio S/O Nginya Sammy vs The Republic (Economic Cause 4 of 2023) [2024] TZHC 209 (9 February 2024)
31. Laurent Alfred Shilima Vs. The Republic (Criminal Revision No. 03 Of 2022) [2023] TZHC 17844 (12 June 2023)
32. Rashid Rahim @ Said vs Joshua Laizer (Economic Case 3 of 2023) [2024] TZHC 1751 (2 May 2024)
33. Sinjore Ngeseyan Laizer and Another vs DPP and Another (Criminal Revision 1 of 2022) [2022] TZHC 11111 (22 July 2022)
34. The Attorney General versus Mirage Lite Ltd & another (Misc. Civil Application no. 476 of 2023) [2023] TZHC 21614 (29 September 2023)
35. The Director of Public Prosecutions (Criminal Application 5 of 2023) [2023] TZHC 19914 (7 August 2023)
36. The Director of Public Prosecutions (Criminal Application 7 of 2023) [2023] TZHC 19916 (7 August 2023)
37. The Director of Public Prosecutions (Criminal Application 8 of 2023) [2023] TZHC 19946 (7 August 2023)
38. Vitalis Sindano & 7 Others vs The Republic (Criminal Appeal No. 61 of 2023) [2024] TZHC 177 (6 February 2024)
Act 2
1. Drugs and Prevention of Illicit Traffic in Drugs Act 331 citations
2. Mutual Assistance in Criminal Matters Act 13 citations
Gazette 2
1. Tanzania Government Gazette supplement dated 2022-01-31 number 2
2. Tanzania Government Gazette supplement number 2 dated 2022-03-08 number 2
JOT Documents and Guidelines 2
1. Execution Guidelines 2020
2. The Tanzania Sentencing Guidelines, 2023
Guidelines 1
1. Asset Forfeiture, Recovery and Management Guidelines
Journal 1
1. The Tanzania Lawyer, Vol. 1, 2015, Number 2
Manual 1
1. Criminal Prosecutions Case Manual