Sometimes news is not really news. Tanzania provides a classic example. The Controller and Auditor General (CAG) of Tanzania has just released a report that shows the previous regime concocted and executed shakedowns from companies and individuals under the guise of plea bargains for cases described as economic crimes. Several examples of government extortion that targeted telcos have previously been covered by Commsrisk; see here, here and here. Having been through this process myself when I worked for Vodacom, I can confirm that little in the CAG’s report is surprising.
What is shocking is the offhand manner in which national and regional media houses have treated the contents of this report. As late as last Sunday, a respected columnist in Kenya penned an article advising the new Kenyan president to consider, before making decisions, what deceased former President John Magufuli (pictured) would do. The thrust of his article, ironically, was economic prudence.
Some of us know what exactly what Magufuli would do. It is now stated in black and white within audit reports that allow us all to know. It makes one shudder that this should be recommended as a blueprint for other countries. We are better off with other established standards, even if they are mediocre.
Unfortunately for the wider audience, the report is in Swahili but below are a few highlights:
- It covers plea bargains from 1st July 2019 to 31st March 2022. Personally, I wish the report had looked at happenings before this, but I am not surprised it did not. When the April 2019 Vodacom case happened, no law supported plea bargaining. Zitto Kabwe, the vocal opposition leader (and himself a regular guest at Segerea prison) raised the matter in parliament, asking under which law were companies and individuals being forced to enter plea bargains, and citing the example of Vodacom. It was awkward. In a matter of weeks, President Magufuli’s administration hastily crafted laws for this purpose.
- In the period under audit review, 380 agreements were signed. These affected 893 individuals. From this pool, a total of TZS55.87bn (USD24mn) was collected. Some of this money, TZS8.26bn (USD3.5mn) was collected without evidence of a signed agreement. That is interesting. Why would anybody do that? How do we know that only the USD3.5mn loosely changed hands this way?
- Some defendants have not paid the amounts they agreed to pay and the Director of Public Prosecutions (DPP) has not followed up. The CAG notes this affects 352 cases (93%). In summary, TZS170bn (USD73mn) is pending. Now it gets even more interesting. By law, the DPP has the right to reopen cases in court but he has not done so. Neither has he moved to court to attach any property. Did his office receive money in other ways? That is not entirely unreasonable to assume. The new President, Samia Hassan, recently said that much of the money that was gathered in this charade was stashed away in China. Was she on to something?
- Bizarrely, some defendants paid money into the plea bargain account despite their cases having been conducted and concluded in court. One wonders again: why would anybody do that? What exchange took place here and did the able DPP’s office give away something for this money? If so what was it?
- The DPP also collected TZS1.62bn (USD700K) from an identified beneficiary of economic crime but there was no case in court against this individual. Neither was there a plea bargain agreement, of course. So, was former DPP Biswalo Mganga running an “end-to-end service” i.e. identify, prosecute, rule, and collect funds without a paper trail. Effectively, the DPP had dispensed even with the impression of due process. He did it, if for no other reason because he could. Having thrown the rule book out, the wheels of justice seem to have turned very fast along the Magufuli-Mganga axis.
- The audit team also interviewed some defendants, though the sample size was not disclosed. What is not news is that they signed the agreements because they were forced to.
- Court administration fees to the tune of TZS2.11bn (USD900K) also found their way into the plea bargain account instead of being remitted to the nominated court accounts. It could be a minor administration issue but with the foregoing, one does wonder if it is not symptomatic of the decay in processes that attended this whole exercise. The DPP office simply ran amok, trashing procedures, squashing individuals and ignoring other institutions.
- The CAG notes that documents were missing from 100 files. In Africa, documents routinely take a walk when something is being covered up. The CAG also notes some documents had evidence of forgeries but not much is given by way of detail. Still, one wonders how a process that was designed to speed up justice ends up having fake documents. Some process that is.
- There was a lack of consistency in the exercise. Some defendants sought extensions to the payment deadlines. They received a response after close to two years. Per the rules, the DPP should respond within 31 days. He seems to have been busy attending to other matters.
Finally, the CAG recommends what the new President should already have done: the formation of an independent commission of inquiry into the possibility of breach of procedures, abuse of office, and lack of accountability at the DPP’s office. Such a commission should investigate the claims of coercion and failure to adhere to regulations, and recommend improvements to the conduct of plea bargaining in Tanzania.
I am not holding my breath for that.
In the aftermath I hope telcos operating in Tanzania realise that as long as the constitution of the country and the penal code has these loopholes, all it takes is the election of another Magufuli to begin the slide back to round-robin shakedowns.
