vietel tanzania plc vs republic 2021 tzhc 3610 17 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT PAR ES SALAAM CRIMINAL APPEAL NO. 55 OF 2021 (Originating from tne Resident Magistrate's Court of Dar es Salaam at Kisutu in Economic Crime Case No. 28 of 232C)

BETWEEN VIETEL TANZANIA PLC------------------------------------------ APPELLANT

VERSUS REPUBLIC--------------------------------------------------------- RESPONDENT

JUDGMENT L. M. MLACHA, J. The appellant, VIETEL TANZANIA PLC, with five (5) others namely; SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIER and NGUYEN THANH CONG were charged at the Resident Magistrates Court of Dar es Salaam at Kisutu in Economic Crime Case No. 28 of 2020 with ten (10] counts. The charges ore reproduced hereunder for easy of reference: - "IN THE RESIDENT MAGISTRATE S COURT OF DAR ES SALAAM

AT KISUTU ECONOMIC CRIME CASE JO. 28 OF 2020

REPUBLIC

VERSUS 1. SON ANH NGUYEN 2. NGUYEN BINH MINH 3. HA MINH TUAN 4. VU VAN TIEP 5. NGUYEN THANH CONG 6. VIETTEL TANZANIA PLC

CHARGE Ist COUNT FOR ALL ACC ISED PERSONS

STATEMENT OF OFFENCE LEADING ORGANISED CRIME: Contrary to paragraph 4(1) (a) of the Frit Schedule to, and sections 57(1) and 60(2) both of the Economic and Organised Crime Control Act, |Cc‘>. 200 R.E 2002] as amended.

PARTICULARS OF CFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN. VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC on divers between 8'h June, 2017 and 26!n March, 2020 at Mikocheni area within Kinondoni District in Dor es Salaam Region and at various places within the United Republic ot lanzania, jointly and together, with intent to reap profit, intentionally organised a criminal racket. 2nd COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE FAILURE TO OBSERVE ASSIGNMENT REQUIREMENTS: Contrary to section 117(1) of the Electronic ord Postal Communications Act, No. 3 cf 2010 as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC on divers between 2 8;n June, 2017 and 26,h March, 2020 at Mikocheni area within Kinondoni District in iOar es Salaam Region and at various places within the United Republic of Tanzania, jointly and together, used radio frequency spectrum to wit; microwave frequency channels 13442.5/19452.5MHz and 18497.5/19507.MHz without obtaining relevant individual assignment from the Tanzania Communications Regulatory Authority (TCRAj. 3rd COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE FRAUDULENT USE OF NETWORK FACILITY: Contrary to section 122(b) of the Electronic and Postal Communications Act, No. 3 of 2010 as amended, read together with paragraph 37 of the First Schedule to, and sections 57(1) ana 60(2) both of Economic and Organized Control Act, [Cap. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN. NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC on divers dates between 7,r' July, 2016 and 26th March, 2020 at Mikocheni area within Kinondoni District in Oar es Salaam Region and at various places within the United Republic of Tanzania end at unknown places within the Socialist Republic of Vietnam, jointly and together, created a system designed to fraudulently use network facility to wit; Virtual private Network I VPN). 4™ COUNT FOR ALL ACCUSED PERSONS STATEMENT OF O-FENCE FRAUDULENT TRAFFIC: Contrary to Regulation 7(1) (a) of the Electronic and Postal Communications (Tele-lraffic) Regulations, 2018 read together with paragraph 37 of the First Schedule to, and sections 3 57(1) and 60(2) of the Economic ana Organized Control Act, [Cap. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC on diverse dates between 7th July, 2016 and 26^ March, 2020 at Mikocheni area within Kinondoni District in Dar es Salaam Region and at various oiaces within the United Republic of Tanzania, jointly ana together, with intent to avoid payment to the Tanzania Communications Regulatory Authority (ICRA), fraudulently used telecommunication facilities by setting up a Virtual Private Network (VPN) connection between Vietfel I anzania PLC and Vietfel Vietnam. 5™ COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE OCCASSIONING LOSS TO THE SPECIFIED AUTHORITY: Contrary to paragraph 10(1) of the First Scnedule ro, and sections 57(1) and 60(2) of the Economic and Organized Control Act, (Cop. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC, on divers dates between 8’h June, 2017 and 26-n Marsh. 2020 at Mikocneni area within Kinondoni District in Dar es Saiaam Region and at various places within the United Republic of Tanzania, jointly and together, by their wilful acts, used radio frequency spectrum ro wit; microwave frequency channels 18442.5/19452.5MHz and 18497.5/19507.MHz without obtaining relevant individual assignment thereby causing the lanzonia Communications Regulatory Authority to suffer a pecuniary 4 loss of Seventy Five Billion Tanzania Shillings (TZS 75,000,000,000/=] only. 6™ COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE OCCASSIONING LOSS TO THE SPECIFIED AUTHORITY: Contrary to paragraph 10(1) of the First Schedule to, and sections 57(1) and 60(21 of the Economic and Organized Control Act, [Cap. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH. HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC, on diverse dates between 7fh July, 2016 and 26fn March, 2020 at Mikocheni area within Kinondoni District in Dor es Salaam Region end at various places within the United Republic of Tanzania, jointly and together, by their wilful acts, created a system designed to fraudulently use network facility to wit; Virtual Private Network (VPN) to Socialist Republic of Vietnam thereby occasioning loss of Three Billion, Thirty Six Million Tanzanian Shillings (TZS 3,036,000,000/=) only to the Tanzania Communications Regulatory' Authority (7CRA1. 7™ COUNT FOR 1st, 2nd 3rd, 4™ AND 5th ACCUSED PERSONS

STATEMENT OF OFFENCE MONEY LAUNDERING: Contrary to section 12(d) and 13(a) of Anti­ Money Laundering Act, read together with paragraph 22 of the First Schedule to, and section 57(1) and '.0(2) of the Economic and Organized Control Act, [Cap. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC, on diverse dates between 7* July, 2016 ar.d 26tf> March, 2020 of Mikochem area within 5 Kinondoni District in Dar es Salaam. Region and at various places within the United Republic of Tanzania, jointly and Together, acquired Three Billion, Thirty Six Million Tanzanian Shillings (TZS 3,036,009,000/=) only, while they Knew at the rime of acquisition that the said money is proceeds of predicate offence namely fraud and related offences and participating in an organised criminal group and racketeering. 8FH COUNT FOR 6™ ACCUSED PERSONS

STATEMENT OF OFFENCE MONEY LAUNDERING: Contrary to sec tor 12(d) and 13(b) of Anti­ Money Laundering Act, read together with paragraph 22 of the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Control Act, [Cap. 200 R.E 2^02] as amended.

PARTICULARS OF OFFENCE VIETTEL TANZANIA PLC, on diverse dates between 7,h July, 2016 and 26^ March, 2020 at Mikocheni area within Kinondoni District in Dar es Salaam Region and at various places within the United Republic of Tanzania, acquired Three Billion, Thirty-Six Million Tanzanian Shillings (TZS 3,036,000,000/=) only, while knowing at the rime of acquisition that the said mcney is proceeds of predicate offence namely fraud and related offences and participating in an organised criminal group and racketeering. 9th COUNT FOR 1st, 2nd 3rd, 4th AND 5th ACCUSED PERSONS

STATEMENT OF OFFENCE MONEY LAUNDERING: Contrary tc season 12(d) and 13(a) of Anti- Money Laundering Act, read together with paragraph 22 ot the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Control Act, [Cap. 200 R.E 2002] as amended. 6

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG, on diverse dates between 8lli June, 2017 and 26'h March, 2C20 at Mikocheni area within KinondoniDistrict in Dares Salaam Region ana at various places within the United Republic of Tanzania, jointly and togetner. acquired Seventy Five Billion Tanzanian Shillings (TZS 75,000,000,000/=) only, while they knew at the time of acquisition that the said money is proceeds of preaiccte offence namely participating in an organised criminal group and racketeering. 10th COUNT FOR 6th ACC USED PERSONS

STATEMENT OF OFFENCE MONEY LAUNDERING: Contrary to section I2fd) and 13(b) of Anti­ Money Laundering Act read together with paragraoh 22 of the First Schedule to, and seclion 57(1) and 60(2) of the Economic and Organized Control Act, (Cap. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE VIETTEL TANZANIA PLC, on diverse dates between 8,n June. 2017 and 26rn /March, 2020 at Mikocheni area within Kinondoni District in Dar es Salaam Region and at various places within the United Republic of lanzania, acquired Seventy Five BilFon Tanzanian Shillings (TZS 75,000,000,000/=) only, while knowing at the fime of acquisition that the said money is proceeds of predicate offence namely participating in ar- organised criminal group and racketeering. Dated at Dar es Salaam this 27{h day of March, 2020. SIGNED BY STATE ATTORNEY’’ 7 The charges were read over and ful.y explained to the accused through an interpreter one Do Thi Hien who interpreted English to Vietnamese and vice versa. They were no* allowed to plead for the court had no jurisdiction to try the offences at the time. The charges involved charges of money laundering which were not bailable. The first second, third, -'ourth and fifth accused were remanded in custody at Segera Prison. The case remained on mentions from 27/03/2020 when they first appeared in court, up to 04/05/2020 when Mr. Majuro Magafu, who appeared for the accused persons, informed the court that the accused had written a teller Io the Director of Public Prosecutions (the DPP) requesting to enter into a plea-bargaining agreement. Mr. Wankyo, Senior State Attorney who appeared for the Republic prayed for 14 days to allow the

parties to move into negotiations. The matter could not be finalized with’n 14 days. The case remained on mentions for some time. The interpreter, Ms. Do "hi Hien kept on attending the court interpreting English to Vietnamese anc vise versa for the benefit of the accused who did not understand English or Swahili. On 22/12/2020 Mr. Wankyo Simon, Senior State Attorney filed the consent of the Director of Public Prosecutions 3iswalo Europius Kachele Mcanga under section 26 (1) of the Economic and Organised Crimes Control Act, Cap. 200 R.E 2019 and the certificate thereof conferring jurisdiction to the court under section 12 (3) and (4) of the Act. Mr. T. K. Simba, PRM who had the conduct of the matter, received them and marked them to be part of the record. 8 Thereafter, Mr. Wankyo Simon informed the court that the DPP and the accused had entered into a plea Agreement. He prayed to submit it to the court for registration under section 194 (1) of the Criminal Procedure Act, Cap. 20 R.E 2C20 (the CPA). The accused were tnen addressed in terms of section 194 (1) (1) and (2) and 194E (a) of the CPA as emended by Act No. 4 of 2019 and were placed under oath. They told the court that they had voluntarily entered into the plea Agreement. The statement of the 6th accused who is a legal person was made by the first accused who is its Managing Director. They al signed to signify their

consent. Mr. Wankyo, Jacqueline Nyantori and Ester Martin signed for the Republ’c. The defence counsels Augustine Shio and Benedict Ishabakaki signed also. The court made an endorsement that it had complied to section 194D (2)(3)(4)(5) and section 194E and proceeded to register the Plea- Bargaining Agreement. Ms. Nyantori addressed the court saying that in line with the Plea Agreement, she prayed to substitute the charge uncer section 234(1) of the CPA. Mr. Shio had no objection so the charge was substituted. The court granted the prayer. A new charge was substituted in place of the original charge. The counts were reduced from 1D to 4. I will reproduce the charge for easy of reference as under: •‘IN THE RESIDENT MAGISTRATE'S COURT OF DAR ES SALAAM

AT KISUTU ECONOMIC CRIMES CASE NO. 28 OF 2020

REPUBLIC

VERSUS 9 1. SON ANH NGUYEN 2. NGUYEN BINH MINH 3, HA MINH TUAN 4. VU VAN TIEP 5. NGUYEN THANH CONG 6. VIETTEL TANZANIA PLC

CHARGE 1st COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE FAILURE TO OBSERVE ASSIGNMENT REQUIREMENTS: Contrary to section 117(1) of the Electronic and Postal Communications Act. No. 3 of 2010 os amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP. NGUYEN THANH CONG and VIETTEL TANZANIA PLC on divers dates between 8th June, 20)7 and 26fh March, 2020 at Mikocheni area within Kinondoni District in Dar es Soham Region and ar various places within the United Republic of Tanzania, jointly and together, used radio frequency spectrum to wit; microwave frequency channels 18442.5/ 19452.5MHz and 18497.5/19507. MHz without obtaining relevant individual assignment from the Tanzania Communications Regulatory Authority (TCRA). 2nd COUNT FOR ALL ACC USED PERSONS

STATEMENT OF OFFENCE FRAUDULENT USE OF NETWORK FACILITY: Contrary to section )22 (b) of the Electronic and Postal Communications Act, No. 3 of 2010 as amended, read together with paragraph 37 of the First Schedule to, and sections 57(1) and 60(21 both of Economic ana Organized Control Act. [Cap. 200 R.E 2002] as amended. 10

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PIC on divers dates between 7ir- July, 2016 and 26th March, 2020 at Mikocheni area within Kinondoni District in Dar es Salaam Region and at various places within the United Republic of Tanzania and at unknown places witiiin the Republic of Vietnam, jointly and togetner, created a system designed to fraudulently use network facility to wit: Virtual Private Network (VPN).

COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE FRAUDULENT TRAFFIC: Contrary to Regulation 7(1) (o) of the Electronic and Postal Communications (Tele-traffic) Regulations, 2018 read together with paragraph 37 of the First Schedule to, and sections 5711) and 60(2) of the Economic and Organized Control Act, [Cap. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH, HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG ana VIETTEL TANZANIA PLC on divers dates between 7^ July, 2016 and 26* March, 2020 at Mikocheni area within Kinondoni District in Dor es Salaam Region and at various places within 'he United Republic of Tanzania, jointly and together, with inlent to avoid payment to the Tanzania Communications Regulator/ Authority (TCRAj, fraudulently used telecommunication facilities by setting up a Virtual Private Network (VPN) connection between Viettet Tanzania PLC and Viet el Vietnam. 4™ COUNT FOR ALL ACCUSED PERSONS

STATEMENT OF OFFENCE OCCASSIONING LOSS TO THE SPECIFIED AUTHORITY: Contrary to paragraph 10(1) of lhe First Schedule to, and sections 57(1) ana 60(2) 11 of the Economic and Organized Control Act, [Cop. 200 R.E 2002] as amended.

PARTICULARS OF OFFENCE SON ANH NGUYEN, NGUYEN BINH MINH. HA MINH TUAN, VU VAN TIEP, NGUYEN THANH CONG and VIETTEL TANZANIA PLC on divers dates between 8- June, 2017 and 26-h March, 2020 at Mikocheni area within Kinondon! District in Oar es Salaam Region and at various places within tne United Republic of Tanzania, jointly and together, by their wilful acts., radio frequency spectrum to wit; microwave frequency channels 18442.5/19452.5MHz and 18497.5/19507.MHz without obtaining relevant individual osdgnment thereby causing the Tanzania Communications Regulatory Authority rc suffer a pecuniary loss of Seventy Five Bill'on Tanzania Shillings (TZS 75,000,000,000/=} only. Dated at Dor es Salaam this 22nd day of December, 2020. SIGNED BY STATE ATTORNEY” The accused persons pleaded guilty to the charge through the services of the interpreter. The magistrate recorded the ploa of each of them in English as “It is true”. A plea of guilty was entered accordingly. The facts were read to the accused who acceoted them. The Republic tendered two exhibits namely; Pecuniary Loss to the Government and Tanzania Communications Regulatory Authority on Fraudulent Termination of International Incoming Traffic and Pecuniary Loss to the Government end Tanzania Communication Regulatory Authority on case of unassigned frequency. They were received as Exhibits marked Exhibit “Pl and P2“ respectively. On

being satisfied that the plea was unequivocal, the court convicted the 12 accused on their own plea of guilty. If recorded previous records, mitigations and passed the sentence. For a better understanding of issues which are the subject of this appeal, I will reproduce the sentence and orders which followed as under: "SENTENCE The accused persons in this case have been convicted as stipulated in the charge sheet and !n these proceedings today. I have heard the submissions Pom the Republic and by ihe defence side. Indeed., the offences in which the accused persons have been convicted are very serious offences which in fact they have direct impact to the economy of the country. The sixth accused WETTEL TANZANIA PI C is on habitual offender as this is Ihe third time the company is being convicted of the same offences. After considering what I have stated herein above, I sentence the accused persons as follows: - Jst Count: Each accused to pay fine at the tune of Tanzania Shillings One Million (Tshs. I,000,000/=) or to serve a term of one year imprisonment in default. 2nd Count: Each accused to pay fine at the tune of Tanzania Shillings One Million (Tshs. 1,000,000/=) or to serve term of one year imprisonment in default. 3rd Count: Each accused to pay fine at the tune of Tanzania Shillings One Million (Tshs. 1,000,000/=) or tc serve term of one year imprisonment in default. 4th

Count: Each accused to pay fine al ihe tune of Tanzania Shillings One Million (Tshs. 1,000,000/=) or to serve term of one year imprisonment in default. 13 Court: Sentences of fine for the 6th accused VIETTEL TANZANIA PLC to be paid by the P? accused failure of which the Is' accused shall serve a term of one year imprisonment in default. Court: Sentences of fine to run consecutively and those of imprisonment to run concurrently. Sgd: T. K. Simba - PRM 22/12/2019 Court: The accused persons to pay compensation of Tanzanian Shillings Twelve Billion (Tshs. 12,000,000,030/-) in the Plea Agreement. The money has already been deposited in the account of the Director of Public Prosecutions as shown earlier in these proceedings. Sgd: T. K. Simba - PRM 22/12/2019 Court: The six accused to pay compensation of Tanzanian Shillings thirty Billicn {30,000,000,0001. The money Io be deposited in the account of the Director of Public Prosecutions. The money is to be paid within twelve months as from today. The 6th accused has to produce to the Director cf Public Prosecutions deposit slips showing his deposits of the money in the Account of the DPP maintained in the Bank of Tanzania and copy of receipt to be supplied to the court for records. Sgd: T. K. Simba - PRM 22/12/201” Court:Right of appeal explained. Sgd; T. K. Simba - PRM 22/12/2019" 14 The 6th accused (now the appellant) did not see

justice in the second order of compensation. They have now come to this court by way of appeal on the following grounds: - 1. That the trial Court erred in law by ordering the appellant to pay addition of Tanzania Shillings Thirty Billion (TZS 30,000,000,000/=) as compensation, thereby disregarding the Plea Bargain Agreement :hat was registered before the trial Court as per the provisions of section 194D of the Criminal Procedure Act, [Cap. 20 R.E 2019].

2. That tne trial court erred in law by failure Io inlerpret the provision of seclion 194B (c) of the Criminal Procedure Act. [Cap. 20 R.E 2019]. Mr. Benedict Ishabakaki and Augustine Shio Advocates appeared for the appellant, whrle the respondent Republic was represented by the DPP Mr. Biswalo Mganga. Hearing was done by oral submissions. Submitting for the appellant, Mr. Shio told the court that the appellant and the other accused persons entered into a Plea-Bargaining Agreement with the DPP which was duly registered by the court. The accused who are directors of the appellant company agreed to pay Tshs. 12,000,000,000/= as compensation to the Government due to crimes they committed. That was done after the DPP had agreed to change the charges. Counsel proceeded to say that the money was actually paid to the Government through the Bank of Tanzania (BOT) a day earlier, that is on 21/12/2020. The DPP acknowledged receipt of 15 the money and issued receipts Ncs. 28787620 end 28787619, he said. The court was fully aware and dully notified. It sentenced them to fine of Tshs. 1,000,000/= each which was dully paid. The first accused was ordered to pay for the appellant company and he paid. Counsel proceeded to say that they were surprised when they received a second order from the Magistrate which had a second compensation of Tshs. 30,000,000,000/= which was to be pcid by the

appellant. The money was to be paid within 12 months. Counsel does not see legal base of this second payment. He submitted ’hat it was made against section 194B (c) of the CPA. He went on Io say that the magistrate was functus officio, he had no mandate to make the order. Counsel proceeded to submit that, th 5 case was heard before the issue of the Criminal Procedure (Plea Bargaining Agreement) Rules, 2021, (GGN 180/2C21 pubished on 05/02/2021) but it was clearly against the rules. He said that the order was uncalled for and defected the purpose of sitting with the DPP. It discouraged the appellants wno are foreign investors. He requested the court to allow the appeal by vacating and setting aside the seconc order of compensation issued by the lower coud. Mr. B’swalo, the DPP, replied saying that, the case has a lot of public interest calling for his personal attendance. He made a reference to section 8 of the Natonal Prosecution Services Act and the provision of the Constitution which he said, contain, principles which should guide the DPP in the conduct of his duties. He proceeded to say that he entered into the Plea-Bargaining Agreement with the accused who were to pay Tshs. 12,000,000,000 as com pensation to the Government. 16 On whether payment of Tshs. 30,000,090,000/= was legal or not, the DPP had the view that it was not legal. He said that it was not proper for the

court to order double compensation. Instead, if the issue was that they had previous convictions, the court could sentence them Io a bigger fine than the others. He supported the appeal but argued the court to sentence the appellant to a higher sentence because it was not disputed that they were habitual offenders. Mr. Shio made a short rejoinder and joined hands with the DPP. That, if the court thought that they deserved a bigger punishment, it should have enhanced the sentence rather than ordering a second compensation. I have considered the background of the matter and the counsel submission carefully. I think I should star by revisiting the Law for this is a green a^ea. My research could not come across any decision of this court or the Court of Appeal on the matter. It is an area which is relatively new, making it important to make a general discussion before going to examine the grounds of appeal for guidance to the lower courts. According to an article oy John H. Langbein entitled Understanding the Short History of Plea Bargaining, available on line of https//www.jstor.org/3053252seq=l, Plea Bargaining was unknown in Common Law of England prior to the 1 century, h started to feature in court in the 19tn Century in England and America. The author s saying that it developed over the years and in Modern Times it has become the primary procedure through which vast proportion

of 17 cases o' serious crimes are disposed in England and the United States. See Lafler v. Cooper 566.US 156(2012; and Missouri v Frye 566 US. (2012) both decisions of the Supreme Court of the United States. My research has revealed that Plea Bargaining as part of the judicial system is new in Africa. Kenya and Uganda started earlier than Tanzania. See, State V Isaiah Goro Maloa, Criminal Case No. 8 of 2020 and Eddleld Mandi Jilani and 2 others V Republic, Criminal Case No. 24 of 2018 (High Court of Kenya) and Luwaga Suleiman Alias Katongole v Uganda, Criminal Appea: No. 88 of 2014 and Inesinko Adams V Uganda, Criminal Appeal No. 004 of 2017 (High Court Uganda) to mention a xew. In Kenya it is regulated by section 137A - O of their Criminal Procedure Code Ac*. In Uganda it is regulated by the Judicature (Plea Bargain! Rules, 2016 made under section 41 (1) (2) of their Jud’cature Act. In Tanzania plea bargaining came with the amendment of the Criminal Procedure Act which was done through The Written Laws (Miscellaneous Amendments) (No.4) Act 2019. This Act amended section 194 of the CPA by introducing new sections 194A, 194B, 194C, 194D, 194E, 194F, 19^-Gand 194H. In the exercise of his power given under section 194H, the Chief Justice have made The Criminal Procedure (Plea Bargain Agreement) Rules 2021, GN 180 of 2021. This shows clearly that Plea Bargaining as a means of

solving disputes in our courts is something which is relatively new. The relevant law is ’hus the CPA and the Rules. But history will tell us that this is not something new in the society. It has been in existence in many tribes long before colonialism and has 18 continued to exist in some tribes to-date. In Maasai and Kuria trioes for example, according to my own personal experience, plea bargaining is practiced to negotiate crimes, even serious crimes like murder. The offender pleads guilty to some elders and agrees to pay some compensation to the victim. The matter is solved and marked settled. If the police will not be in picture, they may end up not knowing if there was any crime committed. A Plea Agreement is defined under section 3 of the CPA (as amended) to mean an agreement entered into between the prosecution and the accused in a criminal trial in accordance to section 194A, 194B and 194C. On the oxher hand, a ‘Plea Bargaining' is defined to mean a negotiation in a criminal case between a prosecutor and the accused whereby the accused agrees to plead guilty to a particular offence or a lesser offence or to a particular count or counts in a charge with multiple counts or cooperate with the prosecutor in the provisions of information that my lead to a discovery of other information relating to the offence or count charged, in return for concession from the prosecutor

which may lead to a lenient sentence or withdrawal of other counts. It stars with o negation, a process of discussions between the prosecution and the accused. Both have an interest in the matter. The accused in most cases is looking for leniency in sentence and compensation while the Prosecutor is seeking for an early disposal of the matter and compensation to the victim of crime. The prosecution agrees to drop some charges or reduce the offence to a lesser offence to attract the accused to plead guilty. The accusec agrees 19 to plead guilty to some offences or to c; lesser offence in exchange of some favours, ’he accused may also agree to co-operate with the Prosecutor to volunteer some information for some purposes. In some cases, he may also agree to be converted to a prosecution witness. Negotiations will be done and the parties may reach an agreement. This is the plea barging agreement. Like all other agreements, this agreement is binding on the parties on the terms contained therein. The process slarls with section 194A. This section carries the Plea- Bargaining process. It gives r’ghts to tne Public Prosecutor and the accused to enter into the Plea- Bargaining arrangement. The process may start at any time before judgment The accused will act with his advocate or relative/friend. They will then jointly or any of them (Prosecutor or accused] inform the coud of their

intension to enter into the arrangement. If this happens, the c ourt must stay the proceedings (the practice is put the case on mentions) to allow the parties to enter into negotiations. Section 194A (3), unlike the position in Uganda, bars the court to participate in the negotiations. The parties will act without any influence from the court which will wait for the agreement. Subsection (4) provides that where the prosecution is conducted privately, there will oe no plea agreement without the written consent of the DPP. Section 194B carry the consequences of Plea Bargaining. That, following the agreement, the Public Prosecutor may charge the accused with a lesser offence, withdraw other counts or take any otner measure as it can be appropriate. The accused may then 20 plead to the lesser offence or to the new offence charged. He may also be ordered to pay compensation as was done in this case. Section 194C carry the requirements of the Plea Agreement. It snal state the terms and the relevant facts clearly. It must be read and explained to tne accused in the language he understands. It must then be accepted by the accused whose signature must be seen. The Prosecutor and the accused’s Advocate or relative must also sign. Section 194C(3) requires a prior written consent of the D^P or any other officer authorised by him in writing. All tha’ done, the court will register it under

section 194D. The court will satisfy itself that the agreement was entered voluntarily and that the accused was competent to enter the agreement before proceeding to register it. The court has power to reject the document under section 194D (3) on sufficient reasons which will be recorded but the rejection will not operate as a bar to subsequent negotiations by the parties. Subsection (4) carry the binding nature of the agreement. All being done, the court will then proceed to convict as provided uncer subsection (5). The registration procedure is regulated by section 194E. Section 194F carry offences which cannot be subjected to the Plea-Bargaining Scheme. They are i) sexual offences whose punishment exceed 5 years or involving victims under 18 years, ii) treason and treasonable offences, iii) possession or trafficking in narcotic drugs whose market value exceeds 20M, iv) terrorism, v) possession of Government trophy 21 whose value is above 20M without the consent ot DPP and vi) any offence which the Minister may prescribe. So far the Minister has not prescribed any offence. Section 194G shows the procedure of setting aside the agreement where there is fraud, misdirection or misrepresentation. Both DPP or accused can move the court to do so. Having said so, can we now say that, the orders of Simba, PRM making the second compensation of 30,000,090,000/= over and above

the 12,000,000.-000/= which was agreed by the DPP and the accused was legal? Both Mr. Shio and Mr. Biswalo who appeared before me are saying No. I agree with them. I will give my reasons as follows. The Law has directions or what should be done by the parties and the court at all stages. The duty of the court in the plea-bargaining process is this; one, to allow the parties to enter into Plea Bargaining discussions. This happens after being notified by the Prosecution, the accused or both of them. Once the court is informed of the intention to enter into the plea-bargaing, it has -o stay the proceedings or put the case on mentions to allow the parties to proceed with negotiations. There is no time limit in wnich it should be finished but I think the court should give a reasonable time. If it takes a long time so as to bring a picture that it has failed or render the discussion meaningless, it has the mandate, in its discretion to put the discussion Io an end and move the case to trial. Two, io receive and register the Plea Agreement. If the parties have reached an agreement voluntarily, the court on being moved and be satisfied tnal the 22 accused had capacity and entered in'o the agreement voluntarily, it will register the agreement. Three, to reject the agreement or decline to register it. This can happen when the court has the view that the accused did not have capacity to

enter into the agreement or did not enter into the agreement voluntarily. It can also happen in my view, where the interests of the victim and or the public were not taken into account properly. Here is where issues of the amoum of compensation comes public policy come in. The agreemenl must reflect the reality on the ground. If it fails short of that, in my view, it must be rejected. For example, the DP? is not expected to enter into ar agreement to set a person who has committed economic crimes or murder free without paying any compensation or paying something which does not reflect the reality. If it happens, the court may reject the agreement and refer the parties to further negot’ations. It is not correct to imagine, as it is sometimes taken to be, that the court should always agree with the DPP. II has a duty to examine the agreement and be satisfied that it meets the justice of the case. It must see that the comoensation amount meets the interests of the vic-im and the society. If it will not be properly convinced, it must exercise its powers of rejection without hesitation. Three, to convict the accused on the plea of guilty, record the previous records, mitigations and pass xhe sentence. The sentence is passed at the discretion of the court but must take into account the purpose behind the Plea Bargain, the previous records and mitigations. It is not expected to be

excessive. Four, to order compensation. Compensation unlike the sentence, is no’ done at the 23 discretion of the court. It is done according to the terms of the Plea Agreement. The court will make its order in accordance to the Plea Agreement which it has registered and which is part of its records. It is not expected therefore to make an order for compensation below or above what has been negotiated, agreed and registered by the same court. It is not also exoected to make additional orders. If it makes an order for compensation below or above what has been registered or if it makes additional orders for compensation, its orders will be illegal for it will bo against the law and defeats the purpose behind the Plea- bargaining process. In this case the magistrate made an order for compensation over and above what was agreed by the partie?. He made it as an additional order. He did not assign reasons for doing so. He did not say so, but I think, he hod the opinion that, the compensation cf Tshs. 12,000,000,000/= was far below taking into account that the accused had agreed to occasion loss to the tu ne o^ Tshs. 75,000,000,000. His intentions might have been good, taking into account the nature of the crimes and tne losswhich had been suffered by the government ond "anzania Telecommunication Authority, but with respect, he had no power to do so. He was olreadv fuctus officio and

had no jurisdiction to make the orders at that S'age. He ought to have acted at an eady stage by rejecting the agreement for he had power to do so. He could reject the agreement with a direction to the parties to sit again and consider the amount of compensation. The parties could be bound to go back to the negotiation table and come later to the court with a second agreement. 24 It is important to note that the court is not expected to act at the direction and or wishes of the DPP in Plea Bargaining issues. The DPP hos his role as defined under the Law and the court has its role. The court must act independently and impartial. It must maintain this status throughout. That said, the orders of the Resident Magistrate of Dar es Salaam at Kisutu making a compensation of Tshs. 30,000,000,000/= over and above the amount which had been agreed by the parties in the Plea Agreement and registered by the cou.t is declared to be illegal, null and void. It is vacated and set aside. It is ordered so. . L*. M. MlACHA

JUDGE 17/05/2021 Court: Judgment delivered in presence of Augustine Shio, Advocate for the Appellant and Veronica Matikila, Senior State Attorney for the Respondent. Right of appeal exp ained. 25