PROSECUTING THE ICT INDUSTRY: MONEY LAUNDERING AND PROCEEDS OF CRIME ACT (“POCA ”)

1. PROSECUTING THE ICT INDUSTRY:MONEY LAUNDERING AND PROCEEDS OF CRIME ACT (“POCA”) • Purpose of POCA. Why bother the CSZ & ICT industry ? • Who/what are now targeted ? Financial Institutions & DNFBPs - Duties of -STRs • What is prohibited ? Transactions & Wire Transfers • How ? Instrumentality • Penalties - Powers of NPA - Criminal + Civil liabilities- Defences • Powers of Ministers + RBZ • What should CSZ do now?

3. FI ‘s + DNFBP’s , called “dodgies”, aresubjected to AML/CFT regulation because their services render them vulnerable to abuse by criminals for “dodgy transactions ” enabling ML or TF purposes

4. “ FI ” Section 2 • “”means any person who conducts as a business any of the following • for or on behalf of a customer— • (a) acceptance of deposits and repayable funds from the public, including private banking • (b) lending, consumer credit, mortgage credit, factoring ,f inancingof commercial transactions • (c) financial leasing • (d) transfer of money or value • (e) managing means of payment, credit and debit cards, travellers’ cheques, money orders , bankers’ drafts, and electronic money; • (f) issuing financial guarantees and commitments;

5. money market instruments • forex • money transfer agencies • bureaux de change. • interest rate and index instruments • transferable securities • commodity futures trading • participation in securities g)Trading in

6. Banks Building Societies RBZ. Infrastructure Development Bank AFC POTRAZ Asset managers. Moneylenders Collective Investment Schemes POSB Any person providing any financial service declared to be a financial service

7. Designated Non-Financial Business or Professions • casino licensee, lottery licensees “gaming operator” • estate agent • precious stones dealer • precious metals dealer • any person engaged in mining or exportation of, or dealing in  platinum • Legal Practitioners • Chartered Secretaries • Public Accountants and Auditors • Chartered Accountants • Estate Administrators

8. who do :-(j) safekeeping & administration of cash or liquid securities on behalf of other persons;(k) investing, administeringof money on behalf of other persons;(l) underwriting ,placement of life insurance and other investment-related insurance, (m) currency changing;(n) the provision— A. or cession of a life insurance policy or the provision of reinsurance B. of investment-related insurance services; or C. of insurance underwriters or brokers;

9. WHAT IS MONEY LAUNDERING? • variously defined as the process of – • concealing illicit gains from criminal activity; • cleaning-up dirty money; • taking the proceeds of criminal activity and making them appear legal; • Criminals want their illegal funds laundered because they can then move their money through society freely, without fear that the funds will be traced to their criminal deeds. • laundering prevents the funds from being confiscated by the police…

10. Sect 8 Money laundering offences • (1) Any person who converts or transfers property— (a) knowing, believing or suspecting that it is the proceeds of crime; and (b) for the purpose of concealing or disguising the illicit origin of such property, or of assisting any person who is involved in the commission of a serious offence , to evade the legal consequences of his or her acts or omission; • (2) ..who conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing or suspectingthat such property is the proceeds of crime… • (4)  Participation in, association withor conspiracy to commit, an attempt to commit, and aiding, abetting, facilitating and counselling the commission of any of the offences referred to in subsections (1), (2) and (3) • commits an offence.

11. Section 8 penalties Money laundering offences • Fine $ 5 k or 2x value of ppty • Prison 25 years • – both

12. 9 Terrorist financing offences • (1) Any person who by any means, directly or indirectly, • provides or collects funds, or attempts to do so, with the intention that they should be used or in the knowledge that they are to be used in whole or in part— • (a) in order to carry out a terrorist act; or • (b) by a terrorist to facilitate that person’s activitiesrelated to terrorist acts or membership in a terrorist organization; or • (c) by a terrorist organisation; • commits an offence. • (3)  It shall also be an offence to— • (a) participate as an accomplice in an offence within the meaning of subsection (1); • (2)  An offence is committed— • (a) even if the terrorist act there referred to does not occur or is not attempted; and • (b) even if the funds were not actually used to commit or attempt the terrorist act there referred to; and • (c) regardless of the State or territoryin which the terrorist act is intended or does occur.

13. Section 9 penaltiesTerrorist financing offences • Fine $ 5 k or 2x value of ppty Prison 35 years • – both

14. Since 1989 180 countries • set 40 Recommendations which all countries (whether FATF members or not) are expected to implement for combating ML, TF and Proliferation. • who are either members of the FATF itself or members of FSRBs. • FSRBsare associate members of the FATF. include: • Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG) • of which Zimbabweis a member;

15. “ Grey List “ of 23 countries committed to the FATF standard, but have not yet implemented it. addressing AML/CFT deficiencies are…. • Namibia • Nepal • Nicaragua • Sudan • Tajikistan • Trinidad and Tobago • Turkmenistan • Venezuela • Zimbabwe • Algeria • Angola • Antigua and Barbuda • Argentina • Bangladesh • Brunei Darussalam • Cambodia • Kyrgyzstan • Mongolia • Morocco

16. The role of FIU established in 2004 within RBZ • receive STRs from “dodgies”, analyze the data and pass on financial intelligence on suspected ML, TF or other crime to law-enforcement agencies. • oversee AML/CFT compliance by “dodgies” and their reporting institutions’ supervisory bodies. • coordinate formulation and implementation of AML/CFT policies at national level and act as the national contact point for AML/CFT coordination and cooperation with relevant external organizations such as FATF, ESAAMLG and other FIUs. • under POCA “competent supervisory authorities” ieCSZ are required to co-operate with the FIU to ensure compliance by the respective institutions or personswhom they regulate and/or supervise. • levy monetary and administrative penalties against non-compliant / uncooperative “dodgies” and their competent supervisory authorities CSZ.

17. Financial Institutions & DNFBPs - Duties of –PENALTY us$ 700 or prison for 3 years or both • Customer identification and verification requirements: Sections 15-23 • Cross- border correspondent relationships • - if unable to validate, immediate report to FIU • Record-keeping requirements: Section 24 • kept for 5 years after business relationship ended • Putting in place internal programmes to combat ML and TF: Section 25 • (d) policies and procedures to prevent the misuse of technological developments including those related to electronic means of storing and transferringfunds or value; • Compliance officer shall be designated at management level and • Requirements for ongoing due diligence & monitoring of special transactions: Section 26 • STR obligation Section 30

18. What is prohibited ? STR’s red flags for IT Agents Employees & Consultants of “dodgies” • Neither the FATF Standards, nor POCA define what a “suspicious transaction” is. • Examples of “red flag indicators” that should commonly raise suspicion of possible ML/TF include:- • Moving funds to and from a “dodgy” employer’s Client account without any underlying legal transaction backed up with instructions to/provision of services by the “dodgie’s” • Egfunds being deposited into the “dodgie”client account, from which the funds are subsequently transferred to 3rdparties, with no apparent underlying transaction/instruction. • Unexplained aborted transactions / instructions • ITshould be wary of clients who, after depositing funds with the “dodgie”for a specified purpose, make an unexplained u-turn and ask the funds to be paid back to the client or 3rd parties, without rational explanation for the u-turn. • In such cases, the “client” simply used their “dodgie” client account to place dirty money in the financial system and clean it up. Cash purchases of high value assets e.g. real estate, in circumstances where the amount of funds is inconsistent with the client’s known or apparent legitimate sources of income. • In Zimbabwe, where mortgage finance is difficult, cash purchases of immovable property are common and, very often the legal practitioner, accountant and estate agent involved never carry out client due diligence to ascertain who their client really is and what the source of funds is. They want their fees + their Commissions

19. Wire Transfers Section 13 • “ any transaction exceeding us1000 • carried out on behalf of an originator through a financial institution Section 15(c) (including an institution that originates the wire transfer and an intermediary institution that participates in completion of the transfer) by electronic means with a view to making an amount of money available to a beneficiary person at another financial institution.

20. OBLIGATIONSREGARDINGWire Transfers • Verification of identity of originator; • Obtain or maintain the account number or unique reference number of originator; • Verification of the originators address, place of birth and national registration; • Include the above information in records and also in the message accompany transfer. • ??? ECOCASH MPESA ??? • ?? ZIMSWITCH • ? HOMELINK

21. shell banks Section 14 • (1)  No FI shall establish or maintain any anonymous account, or an account under fictitious names. • (2)  No shell bank may be established or permitted to operate in or through the territory of Zimbabwe. • (3)  No person shall enter into or continue business relations with a shell bank or a respondent FI in a foreign country that permits any of its accounts to be used by a shell bank • (4)  No DNFBP shall effect or facilitate a transaction where any director, principal, officer, partner, professional, agent or employee“dpoppae” of the business or profession knows or has reasonable grounds to suspect that a party to the transaction is acting anonymously or under a name that is not his or her own, unless the dpoppae concerned in the transaction is satisfied as to the true identity of the party and that there are legitimate reasons for the party so to act. • (5)  Where a DNFBPhas effected or facilitated a transaction in which a party is acting anonymously or under a name that is not his or her own, the dpoppaeconcerned in the transaction shall, on behalf of the business or profession of which he or she is the dpoppae, record its reasons for doing so and shall keep the record for at least 5 years after the completion of the transaction. • (6)  Any person who intentionally or by gross negligence— imprisonment for 10 years, or both .

22. Penalties - Powers of NPA - Criminal • interdictsapplicable for twelve (12) months unless renewed before expiry; • property seizure orders where there is likelihood of dissipation or alienation of property; • confiscation orders after conviction, or before conviction when accused absconds or dies; • benefit recovery orders to recover to the State all proceeds of crime; • civil forfeiture order where the property is tainted/terrorist property or used as an instrumentality for such purposes. • Property freezing orders to preserve tainted, terrorist property or property used as an instrumentality for such purposes • Monitoring order for information where a defendant has carried out or is carrying out suspicious transactions • Customer Information Order where information of a certain customer is required from financial institution • Production order where information concerning nature, identity, ownership and location and appurtenant documents will be required to enable transfer and conveyancing • Compensation order made against NPA by a court as compensation of defendant for property previously under confiscation, property, benefit recovery order etcwhere it has been subsequently proven that the defendant was not guilty in a criminal trial

23. Powers of Director of FIU Civil liabilities Sects 4(1),(6) (8) , and 5 and 6 • may issue Directive(s) for the best administration of the objectives of POCA, providing for civil penalties , upon application to High Court/Administrative Court/other superior courts be confirmed, varied ,or set aside. – directing : • certain individuals shall no longer be allowed to be employed entirely or in certain institutions, professions or capacities; • revocation and cancellation of licenses ,registration, permits etcof the named individual or institution; • sanctions against errant individuals or persons. • Fine not exceeding US$ 5OO per day of default of compliance • how adequate / actionable /legal are the means of enforcement? • ? Declaration of Rights of the new Zimbabwe Constitution

24. What should CSZ do now ? IT is in control • Training Members and non-members • Creating awareness of global provisions of ML laws , • or face designation by the Minister as a DNFPB • - like the Law Society already is • – claiming client privilege as a “defence” for non compliance with STR’s • Applied globally - IF RBZ & FIU DO THEIR WORK • Therefor SELF –REGULATE ? To create good e-government practices ?

28. AFRICAN PROVERB If you want to go fast go alone If you want to go far go together

29. ICT Policy ? • IMPLEMENTATION • By CSZ ? • STRATEGY • DECLARATION • e – Government ZIMBABWE ? • Legislation • Regs to be drafted • Draft ICT Act ?

30. Every tech religion must have a high priest

31. Lawyers lost their clout ?Law breakers now in control ?

32. Law makers playing catch-upLegal practitioners in front

33. Law enforcers 2 steps behind

34. Law publishers going nowhere w/o ICT policydraft ICT Bill now with Minister who opened this Summerschool ?