Deferred Prosecution Agreement: Another Missing Law In Tanzania
March 15, 2022

Introduction.

Normally when people are charged with or suspected to have committed a crime, the first thing that comes in mind is to look for the alternative option to settle or solve the matter without going through a long trial sessions. In some other jurisdictions, the prosecution having this concept in mind, have innovated the arrangements in which the accused person may enter into agreement and dispose the charges without going through the long trial sessions. The most common arrangements are Deferred Prosecution Agreement (DPA) and Plea Bargaining Agreement (PBA).

Despite the efforts made by the Government of Tanzania to introduce the Plea Bargaining Agreement by amending section 194 of Criminal Procedure Act, [Cap 20 R.E. 2019] “the CPA” whereby the accused person may enter into plea deal with the prosecution and in exchange the prosecution may substitute some of the charges with less charges. Yet, from the recent practice of some agency of the Government it is clear that the DPA is inevitable. With high level of strict compliance and growth of economy, the large multinational corporations would not risk to damage their image by exposing themselves to lengthy criminal proceedings. They would therefore, whenever possible, prefer DPA deal.

However, despite that development, there is still a need to introduce another arrangement known as the Deferred Prosecution Agreement in Tanzania. This is because, although this arrangement is not formal, we have witnessed several occasions in which the prosecution machineries and other government agencies opt not to prosecute the accused instead they agree that the accused should pay compensation and cooperate with prosecution in preventing the future commission of the offence. This is typically the Deferred Prosecution Agreement which needs to be formalized by enacting specific law, or otherwise amending the CPA, to accommodate it in the same manner as the Plea Bargaining Agreement.

 

The Meaning of Deferred Prosecution;

Deferred Prosecution Agreement is the agreement between the prosecution and the suspect of the alleged crime whereby the prosecution agrees to suspend the prosecution of the said suspect subject to the terms and conditions agreed. The prosecution may suspend the charges of the said suspect and in exchange thereof, the suspect may commit himself to cooperate with investigation machinery and pay agreed compensation.

Normally, the Deferred Prosecution Agreement is entered for a specific period of time. Within that specific time, the offences which the accused is being charged with, will be suspended. The accused will be required to observe the conditions prescribed in that agreement for the whole period set therein. If the accused strictly observes those conditions within the period set, the prosecution will refer a motion to the court pleading that, since the accused has observed the required conditions, his charges should be dismissed. Thereafter the charges will be dismissed and there will be no conviction records. This is one of the advantages of this arrangement as it leaves no criminal record. A typical example of Deferred Prosecution Agreement can be drawn from the United States of America. It is one of the most remarkable Deferred Prosecution Agreement which involved a company known as  HSBS Holdings Plc .HSBC Holdings Plc had various charges and committed herself to cooperate with the investigation machinery to ensure that  the offence of money laundering, among other offences, is reduced and/or eliminated. This Agreement was set to last for the period of five years and it was further agreed that, if HSBS lived her commitments, the charges suspended under this arrangement would be dismissed.

HSBC Holdings Plc (“HSBC”) recently announced that its five-years Deferred Prosecution Agreement (“DPA”) entered on 11 December 2012 with the US Department of Justice had expired. HSBC lived up to all of the commitments and, therefore, under the DPA, the Department of Justice will file a motion with the US District Court for the Eastern District of New York seeking the dismissal of the charges deferred by the agreement.

 

The Difference between Deferred Prosecution Agreement and Plea Bargaining Agreement.

It is important at this point to make a clear distinction between Deferred Prosecution Agreement and Plea Bargaining Agreement. We have already discussed herein above that the Plea Bargaining Agreement has already been introduced in our legal regime vide the amendment of section 194 of the CPA.

With a deferred prosecution, the accused individuals do not plead guilty, but rather agree to participate in a program that allows them to seek counseling or other treatment instead of facing prosecution. Upon successful completion of the treatment one is released from liability by dismissal of the charges against him. With a plea bargain agreement, the accused pleads guilty in exchange for a lighter sentence, and the Court decided whether or not to approve this agreement. Incriminating statements made during the plea agreement discussions cannot be used against the accused if later on the accused decides not to accept the agreement.

 

Pros of Deferred Prosecution.

  • Costly and lengthy trial is avoided
  • Accused avoids a longer sentence in the event he is convicted of the crime
  • The court dismisses the case after a specific agreed time if the accused satisfies the requirements and  completes the treatment as directed
  • The accused avoids criminal conviction, upon successful completion of the deferred Prosecution Agreement within the prescribed time.

 

Cons of Deferred Prosecution

  • The accused waives his right of a fair trial out of which the court might find one not guilty of the offence.
  • Deferred Prosecution Agreement requires not less than 5 years intensive commitment
  • Failure to observe the terms and conditions set in the agreement may lead to conviction of the accused person.
  • In most cases the accused is responsible to cover the costs related to program agreed in Deferred Prosecution Agreement

 

Conclusion.

It is high time for the Government of Tanzania to enact the law governing Deferred Prosecution Agreement by amending the CPA in more or less the same manner it did to accommodate the Plea Bargaining Agreement. This will help the Government to reduce prosecution and prisoner’s maintenance costs. The arrangement will also supplement the existing arrangement of Plea bargaining which has been very useful in economic offences.

 

Authored by:

Rayson Elijah Luka & Benedict Alex Ishabakaki,
Victory Attorneys & Consultants,
IT Plaza Building 1st Floor,
Ohio Street/Garden Avenue,
P.O. Box 72015,
Dar es Salaam, Tanzania.
+255 752 089 685
[email protected]

Victory Attorneys & Consultants © 2022

Augustine Dominic Shio

Managing Partner

Augustine Dominic Shio is also known as Mr Shio is a highly sought-after and widely recognized criminal law expert with more than 30 years of experience advising and assisting corporations and individuals charged with white-collar crimes.

Overview

Before founding the firm Mr Shio held several positions in the public sector, he served as a Principal State Attorney at the Attorney General’s Chambers, Legal Advisor at the President’s Office (Commission for Enforcement of the Leadership Code), Director of Legal Services and Complaints at the Ministry of Home Affairs and retired as a Deputy Director of Public Prosecutions at the Directorate of the Public Prosecutions.

Mr Shio is a recipient of the Presidential Medal for his distinctive public services and ethics of the highest order. His distinguished aptitude in handling complex criminal cases, particularly money laundering, economic and organized crimes has enabled the firm to handle high profile criminal cases in Tanzania.

Practice Focus

As the firm’s head of the Financial & Organized Crimes Department, Mr Shio represents corporations and individuals in the telecoms, media & ICT, mining, oil & gas and banking sectors in high profile criminal cases. He has advised and prepared legal compliance models and for large scale agribusiness operators, public listed companies and securities dealers and brokers in line with sector-specific laws.

He possesses vast experience in advising multinational corporations on money laundering and tax evasion throughout the life span of their commercial transactions.

Mr Shio has represented clients in major plea bargaining negotiations at the office of the Director of Public Prosecutions. He is renowned for closing some of the best pleas deals in the country on behalf of many locals and expatriates charged with money laundering, economic and organized crimes and cybercrimes. Additionally, Mr Shio consults and assists criminally charged individuals to secure pre-trail and post-trial bail on serious criminal charges.

Education

Mr Shio holds a Bachelor’s Degree (LL.B Hons) from the University of Dar es Salaam, Certificate in Criminal Justice and Treatment of Offenders from the United Nations Institute (Fuchu, Japan). He is a certified criminal law expert in Money Laundering and Terrorism.

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