B Y M I C H A E L W A M A S E B U A S S I S T A N T D I R E C T O R O F P U B L I C P R O S E C U T I O N S T H I S P R E S E N T A T I O N W A S M A D E P R E E N A C T M E N T O F T H E A N T I M O N E Y L A U N D E R I N G A C T O F U G A N D A INVESTIGATION AND PROSECUTION OF MONEY LAUNDERING OFFENCES – UGANDA’S EXPERIENCE 1 DEFINITION OF ML S.30 (2) of the Financial Institutions Act (FIA); “ Money Laundering shall cover all activities and procedures designed to change the identity of illegally obtained money so that it appears to have originated from a legitimate source” 2 ALTERNATIVE DEFINITION S.2 Anti Money Laundering Bill 2009 defines money laundering as; “the process of turning illegitimately obtained property into seemingly legitimate property and it includes concealing or disguising the nature, source, location, disposition or movement of the proceeds of crime and any activity which constitutes a crime under S.3 of this Act.” 3 ELEMENTS OF A MONEY LAUNDERING OFFENCE (1) Prohibited action(s) – actus reus (2) The intent ( mens rea) The commission of an offence is complete where the suspect does or carries out the prohibited act or omits to do the required act intentionally. Intention may be inferred from objective factual circumstances – see S.5 of the AMB. 4 MONEY LAUNDERING IS A DERIVATIVE OFFENCE This means it is derived from another offence which is referred to as the PREDICATE OFFENCE. S.6 AMB expressly provides as follows A crime of money laundering under this Act is distinct from and in addition to other crimes under the laws of Uganda, including the crime generating the proceeds subject to the money laundering and may be charged without the person having been convicted of the predicate offence. 5 EXAMPLES OF PREDICATE OFFENCES Corruption Duty fraud Smuggling Robbery Small arms trafficking Drug trafficking Sale of contraband goods. Tax evasion 6 Some methods of concealing proceeds of crime Placement of proceeds in financial institutions like banks. Investment in real estate. Acquisition of high value goods. use of legal intermediaries like lawyers. Use of cash couriers and forex bureax in contravention of BOU guidelines. Investment in off shore havens. 7 Is there money laundering in Uganda? Mike Ezra at Emin Pasha Hotel 3/9/2010 8 KIRUHURA FRAUD 9 examples BAT lost 3b/= in 2005 to unlicenced tobaco traders and smugglers in west Nile. Fuel companies are grumbling about losing customers to illegal traders and smugglers of fuel into Uganda. Sugar companies are ever complaining of illegal and cheaper sugar imports. In the period 2005/2006 URA levied fines of 8b/= as penalties and fines against tax evaders. See weekly observer 27/04/2006. 10 Money Laundering case studies Uganda has not yet enacted a law against money laundering. Current law is for the time being restricted to prosecution of predicate offences. The BOU has issued administrative guide lines requiring accountable institutions to report cases of suspected money laundering. There is ample evidence to show that money laundering is rampant in the country. 11 Uganda vs Zimmwe and another In 2003 money stolen from a kenyan bank to the tune of 1,000,000 USD was laundered through a Ugandan business man Andrew Kasaga alias Zimwe. Police investigated the case. The file was submitted to Dpp. They were advised to close the file as the offence was committed out of jurisdiction and the money laundering aspect of the case could not be pursued in the absence of enabling law. 12 Uganda vs kalemera In 2003 an attempt was made to launder USD 2m through the account of the suspect a lawyer in crane bank. The suspect claimed the money had been wired to his account in Crane bank for him to purchase a piece of real estate for the client in Kampala. The bank filed a STR.Police took up the case and worked with the bank to arrest him when he came to withdraw the money.Dpp advised for the suspect to be charged with receiving suspected stolen money. The 2m USD was exhibited. 13 Case of ANANIAS TUMUKUNDE The suspect was a presidential advisor on science and technology. In 2007 he was assigned work related to procurement of security equipment worth USD 210,000. The supplier, a British firm CBRN TEAM LTD was found to have given the suspect a bribe of 83,000 USD as a gratification for the contract. The MD of the company and Tumukunde were tried and convicted in the UK for ML and corruption. They were given 5 month suspended sentence each. The court ordered forfeiture and return of the bribe cash to Uganda. On 9/12/2008 Brish High Commissioner to Uganda HE Martin Shearman handed to IGG the money in form of a cheque worth Ug shs 117,000,000/=. 14 CHALENGES IN INVESTIGATION AND PROSECUTION OF ML OFFENCES 15 Absence of an enabling legal framework Lack of investigation capacity in police. Limited technical capacity among prosecution and judicial ranks to handle financial and ML crimes. Bribery of law enforcement personnel High burden and standard of proof. The Presenter attending ML conference 16