Criminal Matters (Mutual Assistance) Act (Chapter 9:06)

Chapter 9:06

Criminal Matters (Mutual Assistance) Act

Act 13/1990, 22/2001 (s. 4)

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

1. Short title.
3. Application of Act.
4. Aspects of mutual assistance.
5. Act not to prevent other provision of mutual assistance.
6. Refusal of assistance.
7. Assistance may be conditional.
8. Requests by Zimbabwe.
9. Request for assistance by foreign country.

PART II

ASSISTANCEIN RELATION TO TAKING OF EVIDENCEAND PRODUCTION OFDOCUMENTS OROTHERARTICLES

10. Requests by Zimbabwe.
11. Request for evidence, etc., by foreign country.

PART III

ASSISTANCE INRELATION TO SEARCHANDSEIZURE

12. Requests by Zimbabwe for search and seizure.
13. Requests by foreign countries for search and seizure.

PART IV

ARRANGEMENTS FOR PERSONS TO GIVEEVIDENCE ORASSIST IN INVESTIGATIONS

14. Request for removal of certain persons to Zimbabwe.
15. Arrangements between Attorney-General and the Minister in relation to custody of certain persons.
16. Custody of certain persons.
18. Status of person prosecuted for offence committed after departure from foreign country.
19. Limitation on use of evidence given by certain persons.
20. Conditions of imprisonment.
21. Release of certain persons upon request by foreign country.
23. Arrest of person who has escaped from custody.
24. Requests for giving of evidence at hearing in foreign countries.
25. Requests for assistance in relation to investigations in foreign countries.
26. Effect of removal to foreign country on prisoner’s term of imprisonment.

PART V

CUSTODY OF PERSONS INTRANSIT

29. Arrest of person in transit.

PART VI

PROCEEDSOF CRIME

30. Requests for enforcement of orders.
31. Requests for issue of orders in foreign countries.
32. Registration of orders.
33. Requests for search and seizure warrants in respect of tainted property.
34. Requests for interim interdicts.
35. Requests for information gathering orders.

PART VII

GENERAL

36. Service of documents.
38. Authentication of documents.

AN ACT to provide for mutual assistance in criminal matters between Zimbabwe and Commonwealth countries and other foreign countries; to facilitate the provision and obtaining by Zimbabwe of such assistance, and to provide for matters connected therewith or incidental thereto.

[Date of commencement: 1st April, 1991.]

PART I

PRELIMINARY

1    Short title

This Act may be cited as the Criminal Matters (Mutual Assistance) Act [Chapter 9:06].

                       2    Interpretation

(1) In this Act—

“appropriate authority” means the authority of a foreign country which is authorized in terms of its law to make requests;

“dealing with property” includes removing the property from Zimbabwe or receiving or making a gift of the property;

“financial institution” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“foreign forfeiture order” means an order registered in Zimbabwe in terms of subsection (1) of section thirtytwo for the forfeiture of property located in Zimbabwe in respect of a foreign specified offence;

“foreign interdict” means an order registered in Zimbabwe in terms of subsection (2) of section thirty-two in respect of a foreign specified offence and restraining any person from dealing with any property referred to in the order;

“foreign pecuniary penalty order” means an order imposing a pecuniary penalty in respect of a foreign specified offence and registered in Zimbabwe in terms of subsection (1) of section thirty-two but does not include an order for the payment of money by way of compensation, restitution or damages;

“foreign specified offence” means a specified offence against a law of a foreign country;

“interdict” means an order restraining any person from dealing with property;

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“money-laundering offence”, in relation to the proceeds of a serious narcotics offence, means an offence involving—

• the engaging, directly or indirectly, in a transaction which involves money or other property which is, in terms of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17] proceeds of the serious narcotics offence; or
• the receiving, possessing, concealing, disposing of or bringing into a country of money or other property which is, in terms of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17], proceeds of the serious narcotics offence;

“monitoring order” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“pecuniary penalty order” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“police officer” means any member of the Police Force of or above the rank of inspector;

“production order” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“property-tracking document” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“serious narcotics offence” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“serious offence” means an offence the maximum penalty for which is death or imprisonment for not less than twelve months and “criminal matter” shall be construed accordingly;

“specified offence” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“tainted property” has the meaning assigned to it in the Serious Offences (Confiscation of Profits) Act [Chapter 9:17].

• A reference in this Act to a law of a foreign country shall include a reference to a law of a part of, or a law in force in a part of, the foreign country.
• For the purposes of this Act—
• a colony, territory or protectorate of a foreign country; or
• a territory for the international relations of which a foreign country is responsible; or
• a ship or aircraft of, or registered in, a foreign country; shall, unless a contrary intention appears, be deemed to be part of that country.

                       3    Application of Act

• Subject to subsections (2) and (3), whenever the Minister is satisfied that reciprocal provisions have been made by any foreign country to facilitate the provision to Zimbabwe of assistance in criminal matters, he may, by statutory instrument, declare that this Act shall apply in relation to any such foreign country.
• The Minister may, by statutory instrument, direct that the application of this Act in relation to a specified foreign country shall be subject to such conditions or modifications as may be specified in the statutory instrument, and thereupon this Act shall apply accordingly.
• This section shall not apply to Part II.

                       4    Aspects of mutual assistance

For the purposes of this Act, mutual assistance in criminal matters shall include—

• the obtaining of evidence, documents or other articles;
• the provision of documents and other records;
• the location and identification of witnesses or suspects;
• the execution of requests for search and seizure;
• the making of arrangements for persons to give evidence or assist in investigations;
• the forfeiture or confiscation of property in respect of offences;
• the recovery of pecuniary penalties in respect of offences;
• the interdicting of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences;
• the location of property that may be forfeited, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences; and (j) the service of documents.

                       5    Act not to prevent other provision of mutual assistance

Nothing in this Act shall be construed as preventing the provision or obtaining of assistance in criminal matters otherwise than as provided in this Act.

                       6    Refusal of assistance

(1) A request by a foreign country for assistance under this Act shall be refused if, in the opinion of the Attorney-General—

• the request relates to the prosecution or punishment of a person for an offence that is, by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; or
• there are reasonable grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character; or
• there are reasonable grounds for believing that the request was made for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s race, sex, religion, nationality or political opinions; or
• the request relates to prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Zimbabwe, would have constituted an offence under the military law of Zimbabwe but not under the ordinary criminal law of Zimbabwe; or
• the granting of the request would prejudice public safety, public order, defence or the economic interests of Zimbabwe; or
• the request relates to the prosecution of a person for an offence in a case where the person has been acquitted or pardoned by a competent court or authority in the foreign country, or has undergone the punishment provided by the law of that country, in respect of that offence or of another offence constituted by the same act or omission as that offence; or
• except in the case of a request under section eleven, the foreign country is not a country to which this Act applies.

(2) A request by a foreign country for assistance under this Act may be refused if in the opinion of the Attorney-General—

• the request relates to the prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Zimbabwe, would not have constituted an offence against the law of Zimbabwe; or
• the request relates to the prosecution or punishment of a person in respect of an act or omission that occurred, or is alleged to have occurred, outside the foreign country and a similar act or omission occurring outside Zimbabwe in similar circumstances would not have constituted an offence against the law of Zimbabwe; or
• the request relates to the prosecution or punishment in respect of an act or omission where, if it had occurred in Zimbabwe at the same time and had constituted an offence against the law of Zimbabwe, the person responsible could no longer be prosecuted by reason of lapse of time or any other reason; or
• the provision of the assistance could prejudice an investigation or proceedings in relation to a criminal matter in Zimbabwe; or
• the provision of the assistance would, or would be likely to, prejudice the safety of any person, whether in or outside Zimbabwe; or
• the provision of the assistance would impose an excessive burden on the resources of Zimbabwe.

                       7    Assistance may be conditional

Assistance in terms of this Act may be provided to a foreign country subject to such conditions as the Attorney-General may determine.

                       8    Request by Zimbabwe

Any request by Zimbabwe for assistance in any criminal matter in terms of this Act shall be made by the AttorneyGeneral.

                       9    Request for assistance by foreign country

• A request by the appropriate authority of a foreign country for assistance in a criminal matter shall be made to the Attorney-General.
• A request made in terms of subsection (1) shall contain or be accompanied by a document giving the following information—
• the name of the authority concerned with the criminal matter to which the request relates; and
• a description of the nature of the criminal matter and a summary of the relevant facts and laws; and
• a description of the purpose of the request and of the nature of the assistance being sought; and
• details of the procedure that the foreign country wishes to be followed by Zimbabwe in giving effect to the request, including details of the manner and form in which any information, document or thing is to be supplied to the foreign country pursuant to the request; and
• the wishes of the foreign country concerning the confidentiality of the request and the reasons for those wishes; and
• details of the period within which the foreign country wishes that the request be complied with; and
• if the request involves a person travelling from Zimbabwe to the foreign country, details of allowances to which the person will be entitled and of the arrangements for accommodation for the person, while the person is in the foreign country pursuant to the request; and
• any other information required to be included with the request under a treaty or other arrangement between Zimbabwe and the foreign country; and
• any other information that may assist in giving effect to the request; but failure to comply with this subsection shall not be a ground for refusing the request.