FINAL DRAFT PROCEDURE MANUAL - KAMPALA

197 Warning an offender. -X 198 Assuming the character of an officer. -X 199 Master of an aircraft or a vessel or a person in charge X X of a vehicle found with concealed goods or who has designed a way of concealing goods. 200 Being found with prohibited, restricted and - X uncustomed goods. 202 Importing or exporting concealed goods -X 203 Use of false documents -X 204 Refusal to produce documents -X 205 Interfering with Customs gear -X 208 Aiding or abating in contravening the Customs law - X 206 Failure to report uncustomed goods. XX 207 Pretence that goods are uncustomed and offered for X - sale. 211 A vessel, vehicle, animal or other thing used to X X conveyance of uncustomed goods. 234 Failure to translate documents into English language. - X 235 Failure to produce documents for audit purposes - X 244 Used of an unlicensed vehicle or vessel to convey - X goods. 3. Procedure to be followed when an offence is detected Where an offence has been detected the investigating officer shall submit the EACCM report to the compounding officer, with the investigation officer s A s. 219 recommendation on the action desired to be taken. The report should be supported with all relevant documents and exhibits including a charge sheet which is a statement of both facts and law constituting the offence; the offender must be given the option to admit to the offence in a prescribed form (C.35) and to elect to have it compounded i.e. dealt with administratively. This is Page | 451

called compounding of offences. Before the offence can be compounded, the offender must agree to complete EACCM and sign the request for settlement in Form(C 35). This form must be fully R 196 explained to the offender and, where necessary, may be translated because by signing the form the offender: - admits that he or she is guilty of the offence as specified by the officer; - requests that the offence be dealt with by the officer; and - confirms and records his or her understanding that by so electing he or she is forfeiting his right of appeal against any Customs order or decision that is thereafter made As the consequences of the admission of guilt and election to be dealt with EACCM administratively, are fairly severe, the above conditions must be fulfilled before A s. any compounding can take place. The compounding is valid only if the 219(2) offender makes the voluntary decision to that effect. Thus, any admission made “under protest” should be taken as rejection of the administrative procedure and the offender should be prosecuted in court. Where the offender is not a natural person the compounding order must reflect this position and must be signed by a person duly authorized to do so in accordance with the entity’s Articles of Association. After applying his or her mind to the details of the offence, taking into account any mitigating circumstances and penalty guidelines (under paragraph 17), the designated officer must impose what he or she considers to be an appropriate penalty by issuing the compounding order on Form (F1). Such a penalty may not exceed the maximum prescribed in the relevant provision of the Act. Where the penalty guidelines so require, the compounding orders, together with the full report and supporting documents, must be forwarded to the Commissioner for confirmation. All compounding orders must be complied with immediately Compounding orders are enforceable in the High Court. Thus, if an offender EACCM ignores or refuses to comply with the order for any reason, including inability A to pay the fine, the matter should be reported to the Commissioner who will s.219(3)( make application to the High Court for the execution of the order. e) 4. Who may compound offences? The compounding of offences has far reaching consequences not only for the EACCM Page | 452

offender but also for Customs in that once compounded Customs cannot A. proceed against the offender on the same charge in court. 219(3)(d ) Accordingly, the compounding of offences is restricted to officers who are authorized to exercise this power on behalf of the Commissioner. The Commissioner may not delegate compounding powers to the following officers: o Trainees or other officers with no official standing in the rank for which they are being trained, have no authority to compound offences; or o An officer who investigated the offence in respect of which the fine is EACCM imposed ER 61 A proper officer who investigates an offence shall not recommend a fine for that offence. In exceptional cases however, where the officer authorized to compound offences is not immediately available, an unauthorized officer nearest in rank to the authorized officer may compound an offence against the following certificate: “I certify that: I was not in any way involved in the investigation of this case; and No officer authorized to compound cases under part XVIII of the East African Community Customs Customs Management Act , 2004 was available on ______ (date) ______ to compound this case. Name ______________________________________________ Designation ______________________________________________” 5. Offence reports Where an offence involves seizure of goods a detailed offence report must be prepared. The report, which must be forwarded to the designated officer without delay, must contain the following particulars: - Name and address of offender; - Date of offence; - Place of offence; Page | 453

- Description of Offence; - Sections of the law contravened; - Full Description and quananties of goods that are the subject matter of the offence and seized or liable to forfeiture; - Details of the seizure notice (number, date, place of seizure and location and/or custody of the seized goods) - Where applicable Customs entry details, consignment notes, details of means of transport involved; - Where applicable the date and place where court proceedings will be held (if already fixed). 6. When cases go to court Except for the most serious cases which must be referred to the Commissioner , officers empowered to compound offences can also decide when to take offenders to court based on the following considerations: - The seriousness of the offence; - The need to deal with repeat offenders; and - To achieve deterrence through publicity (1) Preparing cases for court The following steps should be followed when preparing a case to go to court: - A statement of complaint supported by a charge sheet should be presented to the magistrate in the name of the State; - The magistrate will sign the charge sheet if the charge is accepted; - When the accused person is not in custody, an application should be made for the issue of a summons for him or her to appear in court on the specified date; - Where it is considered necessary to get the person into custody the application should be made for a warrant of arrest; When an accused person has been arrested and cannot be immediately brought before a magistrate, and there is no reason to suspect that he will abscond if released on bail, he should be taken to the nearest police station and released on bail in a sum considered sufficient to guarantee his Page | 454

appearance in court (2) Case files All Case files must be meticulously prepared to ensure that they contain all the documents relating to the offence. A list of these documents should be endorsed on the left-hand inside file cover in the order of their insertion. Where the case file relates to a case which has been compounded the case file must contain the following documents, details of which must be endorsed on the left-hand inside file cover: - - The offence report (Form F.9); - Invoices, Bill of Lading and all documents lodged with the declaration entry; - Charge sheet; - Statements of offender and witness (if any). - Form No.(C35) duly completed and signed; - Manuscript record of proceedings; - The order of settlement ( Form F.1) in original; - Receipt for penalty; - Receipt for duty, if payable; - Seizure notice ( C.37 ) if any; - Customs warehouse keeper’s receipt (if any); and - Any other pertinent documents. Under normal circumstances documents must not be removed from a case file. Where this becomes necessary for any reason, such withdrawal and details of the subsequent disposal must be annotated on the file. On completion, case files should be sent to the Commissioner for confirmation and possibly further action. Copies of reports considered as warranting no action or no penalty must also be forwarded to the Commissioner who may confirm the decision and/or advise otherwise. Page | 455

7. Retentions, Seizures and Penalties (1) Circumstances under which goods become liable to seizure In addition to the many circumstances outlined in the various provision of the EACCM Act under which the goods involved become liable to forfeiture, the Act A s.210 specifies the following goods as being liable to forfeiture (and therefore liable to seizure): - prohibited goods; - restricted goods which are dealt with contrary to the restrictions - uncustomed goods; - goods packed so as to deceive - goods which do not correspond to the application to load or offload - goods subject to Customs control which are tampered or interfered with in any way; - goods which are the subject matter of a false declaration of any kind; and - goods that are the subject matter of any false claim for rebate, drawback, refund, etc Note: Liability of goods for forfeiture is not affected by the fact that the EACCM owner of the goods was not in any way involved in the commission of A s.217 the offence in question. Thus as soon as goods have been dealt with contrary to the provisions of the Act or an offence has been committed in respect thereof, goods become liable to forfeiture wherever they may be and regardless of who owns them or who may have committed the offence in question (2) Service of Seizure Notice EACC MA s. 214 Unless the goods are seized in the presence of the owner, or other person falling within the definition of owner, the seizing officer is required to give a written notice of that seizure to the owner within one month of the seizure. The following rules applies in respect of this notice: It becomes unnecessary to give notice if the offender is prosecuted for the relevant offence within one month; Page | 456

A notice of seizure issued or forwarded to any person falling within the definition of the owner, is deemed to be notice given to all other persons falling within the ambit of that definition; The requirement to give notice of seizure does not apply where the owner is unknown It is necessary, whenever possible, to secure proper acknowledgment of receipt of seizure notices. Accordingly, seizure notices must be delivered to the person from whom goods are seized in the following ways: Method of delivery Evidence of delivery Handing it over to such a Delivery details endorsed on the duplicate of the notice as follows: person if he is present at the moment of seizure “Original handed to (Full personal details of the person receiving it) on (date) at (place) Signed: (signature of the receiving person) Leaving it at the usual or last Notice may be handed to anyone available at the address and details and known place of address of signature recorded on the duplicate as outlined above such person Sending it by registered post Registered post receipt to be stapled to the duplicate copy of the seizure addressed to the person at his notice usual or last known place of address Through the agency of the Notice may be handed to the Police details and signature of the Police Police/ Local Councils Officer accepting the notice recorded on the duplicate as outlined above Electronically Where an enabling Law exists in a Partner State. (3) Further guidelines on seizure of goods The following guidelines must be followed when seizing goods under the various circumstances outlined below: a. Identification of seized goods All seized goods, when appropriate and necessary, should be stamped, initialled or otherwise marked by the seizing officer. If such action is not possible or appropriate all reasonable measures, including taking photographs, Page | 457

should be taken to facilitate their positive identification in court. Whenever possible a second officer should be present to witness the seizure and marking of the goods in the presence of the owner. b. Seizure of restricted and prohibited goods Where prior reference to other interested parties is necessary officers should nevertheless proceed to effect such seizure. (see paragraph 164 for Notification form) c. Seizure of perishable goods If any animals or other perishable goods are seized, the seizing officer must immediately report such seizure to the Commissioner for disposal instructions. The report, which should include full details of the circumstances that led to the seizure, must be e-mailed, faxed or otherwise dispatched using the fastest means possible to facilitate speedy decision. d. Seizure of postal parcels When any goods imported by parcel post are seized, the number of the postal parcel is to be endorsed on all copies of the seizure notice while the number and date of the seizure notice is to be endorsed on all the postal parcel advice forms available. The seizure notice must be handed to the appropriate postal official against his signature on the duplicate copy of the seizure notice. e. Seizure of goods packed with goods liable to forfeiture EACCM A s.211 The vehicle, vessel, aircraft or any other means of transport (except aircraft or vessels weighing 250 tons or more) used in the commission of the offending act may also be seized. This seizure extends to tackle, apparel, furniture or gear which was part of the means of transport at the time the offence was committed. Whilst aircraft and vessels weighing 250 tons or more may not be seized, the Master or person in charge is liable to a fine and until such fine is paid or security given the means of transport may be seized or detained. Where the designated officer considers that action need to be taken in terms of any of these provisions full details of the case must be immediately forwarded to the Commissioner for guidance before any action is taken. Where seized goods are packed in a package which contains other goods, then Page | 458

that package and those other goods also become liable to forfeiture and may be seized It is not mandatory that the provisions of this section be evoked each time goods are seized. The designated officer will have to apply his or her judgment and discretion to decide whether the offence is serious enough to warrant depriving the person of the other goods. f. Seizures by other persons EACCM A s.213 Police officers or other persons may seize goods liable to forfeiture. The seized goods together with a full report of the circumstances that led to the seizure must be presented to nearest Customs. However, where the goods are seized by a Police Officer and are required to be presented in court as evidence, the Police officer may keep them for the purpose Failure to deliver seized goods to the nearest Customs office is an offence. g. Claims for seized goods EACCM A s.214 and 215 The owner or person from whom goods are seized has a right to claim the release of the seized goods. The claim must be made in writing and within one month from the date of seizure. If the person fails to make the claim within this period the goods are automatically condemned, become the property of the State and may be disposed of as directed by the Commissioner. Any claims made after the expiry of one month from the date of seizure or the date of the notice of seizure, as the case may be, should be rejected. The date of the claim is the date it was received by Customs. Claims made by persons other than the known owner of the goods should not be rejected unless investigations have established that the claimant is not the owner as defined in section 2 of the Act. When a claim in writing has been made by the owner, it must be forwarded together with all documents, including the offence report, for consideration by the Commissioner who will direct further action. Action thereafter must be strictly in accordance with those instructions. Owners of seized goods sometimes send protest letters without actually claiming the goods. Such cases should be referred to the Commissioner who Page | 459

will make a determination as to whether such correspondence can be considered as claims as envisaged in section 214 of the Act. Automatic condemnation of seized goods that are not claimed in time, as outlined above, does not apply to goods in respect of which court proceedings are pending or underway. In such cases the seized goods are only automatically condemned on conviction of the offender. Where the offender is acquitted, the fate of the goods will be as directed by the court. h. The effect of a claim for seized goods EACCM A s.216 Upon receipt of the claim for the release of seized goods the Commissioner must, within two months from the date of that claim, either request the person to institute proceedings for the recovery of the goods or institute proceeding to have the goods condemned by a competent court. Failure to give this notice within this period means the goods, if not prohibited, will be automatically released to the owner whilst failure by the owner to institute proceedings leads to automatic condemnation of the goods. (4) Retention of Goods It often becomes necessary to withhold release of goods and retain them to ascertain that all legal requirements relating to their importation or exportation have been complied with. Where there are not yet sufficient grounds to establish the commission of a wilful offence, release should be simply withheld and the port or postal authorities instructed to keep the goods in their physical custody until release or seizure is ordered. However, in the case of other goods, e.g. un manifested packages or unaccompanied baggage, the goods should be detained on a Notice of goods deposited in a Customs Warehouse (Form F.2) and removed to a Customs warehouse for safe keeping. The Notice of goods deposited in a Customs Warehouse (Form F.2), which must reflect the full description, exact quantities and the reason for their retention, copies must be distributed as follows: - Original - Owner of the goods or his representative. - Duplicate - Attached to the goods as a stack card. - Triplicate - copy to remain in the book. Note: A deposit notice is not to be used to replace a seizure Notice. The procedure deprives the owner of free enjoyment of his property in the Page | 460

same way as a seizure. Courts are, therefore, not likely to adopt a favourable view of retentions made ‘pending enquiries’ so as to buy some time for Customs officers to make up their minds as to whether or not an offence has been committed. Accordingly, the use of the (Form .........) procedure should only be used where a seizure is not contemplated (such as safe keeping) or where retention is necessary to allow the importer to clear the goods. a. Locking of Deposited Baggage Travellers who request to pack their retained goods in the deposit box and keep the key may be allowed to do so. However, care should be exercised to ensure that all the goods listed on the deposit notice are actually deposited in the box. Officers must be on the guard to prevent travellers secretly coming and removing small articles from the box whilst repacking. A register of Goods Deposited in Customs Warehouse must be maintained (Short Title - Deposit Register No. 1 ). Deposit Registers are to be maintained at all stations. Details in the Deposit Register are to be entered with the same care as entries in the Seizure Register. If any deposited goods recorded in the Deposit Register are subsequently seized, the number of the seizure notice is to be entered in the disposal column and particulars of the goods recorded afresh in the Seizure Register (Register 4). b. Release of Deposited Goods. If goods for which a deposit notice has been issued have been released, a receipt therefore is to be obtained on the reverse of the original deposit notice, which must be surrendered by the owner of the goods, and the original deposit notice will be filed with the relevant triplicate copy in the Deposit Receipt Book. If the owner of the goods has lost the original deposit notice his receipt for the goods is to be obtained on the triplicate deposit notice in the book and in addition he should be requested to complete and sign an indemnity note (Form F.4) The indemnity note will then be filed with the triplicate deposit notice. The release of the goods is to be recorded in the appropriate column of the deposit Register. Page | 461

(5) Replacement of the Deposit Notice with seizure Where an offence or attempted offence rendering the goods liable to forfeiture is established or where the goods are found to be uncustomed a seizure notice must be issued and handed to the owner of goods (or person from whom the goods are seized). Where it is not possible to hand the seizure notice to owner or to his representative, the notice must be forwarded to the owner’s last known address (see paragraph 97) a. Issuing of the Seizure Notice The prescribed seizure notice Form C.37 must be completed carefully to ensure that the following details are accurately reflected: - Name and address of the owner of the goods (or person from whom the goods are seized); - Full description and quantities of goods seized; - The correct reason for seizure complete with the appropriate section of the Act or other relevant legal provision that has been contravened. Note: Only the section, not the subsection, should be quoted in the reasons for seizure. The seizure notice is issued in quadruplicate and distributed as follows: - Original To the person from whom the goods have been seized. - Duplicate To be attached to the Offence Report and included in the relevant Case File. - Triplicate To Customs warehouse keeper for record purposes and for preparation of stack card in the Customs Warehouse. - Quadruplicate To remain in the pad as the permanent record at the office of issue Pads of seizure notices are sequentially numbered and are to be accounted for in the same way as receipt books. Accordingly they should be handled as follows: - They should be issued out from the stationery office against signature; - Recipients must maintain a register indicating the numbers of pads received and the dates when first and last Notices were used; - The stock of both used and unused Notices is to be included in the handover/takeover of stations and subject to audits during office Page | 462

inspections; - Issued notices must be numbered sequentially in an annual series for ease of reference; and - Application for destruction of the exhausted seizure notice pads (i.e. quadruplicates of the seizure notice) must be made 5 years after the date of issue of the last notice. In addition to notifying the person from whom the goods are seized, it is also necessary to inform any other affected authority of the seizure. The notification should take the following format: NOTIFICATION OF SEIZED GOODS “You are hereby notified that the goods in the Schedule hereunder, have been seized under the East African Community Customs Management Act, 2004 and are now in Customs custody. Station. Date. SCHEDULE Consignment Note Consignee Description of goods Seizure notice number and date details: (including number of e.g. Bill of Lading, Air packages, marks and waybill, Parcel No, etc number) b. Signing of Seizure Notices Notices of seizure are normally signed by the officer in charge of the station. However, officers must use their judgment in these matters. An officer other than the Officer-in-Charge may proceed to seize goods with or without the guidance of the Commissioner where the circumstances so demand. In view of the fact that it is easier to release goods seized in error than to seize goods already released, it is safer to act quickly to seize goods. (6) Procedure on receipt of claim As soon as a claim is received the designated officer should send a Page | 463

letter signed “for Commissioner” to the claimant notifying that he or she is required in terms of section 216 of the Act to institute legal proceedings for the recovery of seized goods within two months of the date of that letter. This letter should be copied to the Commissioner for information. If notification is received that legal proceedings have, in fact, been instituted, immediate report with all the supporting case details must be forwarded to the Commissioner for action. (7) Disposal of Seized Goods Seized goods that have become the property of the State through condemnation may only be disposed in accordance with rules established for the disposal of such goods or as otherwise instructed by the Commissioner. Goods are to be considered condemned under the following circumstances: - - On the conviction of the person from whom the goods EACCMA were seized; s. 215 - By order of the Court on the acquittal of the person from whom they were seized; - At the expiry of one month from the date of seizure or the date of the notice of seizure, if no claim is made for the seized goods; - At the expiry of two months from the date on which the Commissioner required the claimant of seized goods to institute proceeding for the recovery of such goods, if proceedings have been instituted accordingly; - By order of an officer who has compounded the offence; EACCMA s.219 a. The legal effect of condemnation EACCMA s.217 Condemnation constitutes legal confirmation of the liability for seizure of the goods and therefore their forfeiture. Thereafter the goods become State property and may be disposed of in such manner as the Commissioner may authorise. In the absence of an appeal; condemnation under any of the above circumstances is final and no application or proceedings for restoration is possible. Page | 464

b. Seizure of Vehicles Whenever goods or vehicles are seized and criminal proceedings in court ensue the court should be requested to find, as a fact, that the goods and vehicles were used in the commission of the offence. It should be noted that the court has power, to order condemnation by virtue of Section 215 of the Act as an automatic result of conviction or to order for release or bond collection, as a result of acquittal. It is, however, necessary that there should be a clear record of what goods and vehicle were actually concerned in the offence, and the court should therefore be asked to make a note on the record accordingly. c. Reasonable Grounds for Seizure (section 227(2) ) Officers are protected against any liability arising out of their legitimate actions provided there were reasonable grounds to justify their intervention. Accordingly, seizures and any other penal actions must be taken with great care to ensure that any reasonable persons can find such actions based on reasonable grounds. Accordingly, in every case where a conviction is not obtained, the court should be asked to make a pronouncement confirming that there was reasonable cause for the seizure. This finding will be necessary to protect the Customs Administration against any claims for damages or costs. d. Delivery of seized goods against Security If any person has made a claim in writing for the return of any seized goods and offers to give security for the payment of the value of the seized goods in the event of their condemnation, the designated officer should immediately submit the request to the Commissioner with his or her recommendations. Where this arrangement is authorized the security must be taken and the goods released against signature on the original of the notice of seizure or if the owner has misplaced the original against an indemnity signed by him. The register and case file must also be annotated accordingly. e. Cancellation of Seizure Prior to Condemnation Page | 465

The Commissioner may, under the terms of section 213, at any time prior to the commencement of any proceedings under the Act, release any goods and return them to the person from whom they were seized. Such release can only be made prior to the condemnation of the goods. Once goods are condemned, restoration is only possible under section 218 of the Act . f. Appeals against condemnation of goods Court decisions to condemn goods are appealable in the normal EACCMA judicial process whilst condemnations by the Commissioner are s.217 and not appealable. However, in terms of section 218 of the Act, the 218 Council has power, under such conditions it deems fit, to restore seized or condemned goods to the owner or the person from whom they were seized. g. Removal of Seized Goods Where for any reason seized goods have to be moved from one place to another the seizure register must be annotated accordingly. Additionally, a handover/takeover certificate must be prepared showing the full description and quantities of goods collected by the person removing the goods. Where feasible and if considered necessary the goods must be sealed. The sending station must notify the receiving station of the dispatch of the goods by any appropriate means immediately. h. Destruction of Seized Goods Seized goods may only be destroyed in accordance with Appendix D or after receipt of authority from the Commissioner. All destructions must be witnessed by at least one other officer and a certificate of destruction (form F.26) must be issued in duplicate to cover the destroyed goods. i. Important legal considerations The following guidelines should be carefully observed: - Where the section contravened refers to the \"proper officer\" care must be taken to ensure that if an officer is referred to in the charge he is referred to correctly as \"proper officer\" and not as \"officer\" or “Customs Officer\". Page | 466

In cases of allegedly uncustomed goods found during a vessel rummage undertaken after the master has rendered the necessary Customs arrival reports, evidence must be led to prove:- - the arrival and report of the vessel - the importation of the goods; - the liability of the goods to import duty and the rate and amount thereof. Where statements are taken from illiterates, the record must be read over to him and his understanding of the statement assured. The officer concerned must give a certificate to the effect that the statement has been read over to and understood by the illiterate at end of the statement. Cases can be seriously prejudiced when Officers complete documents which should have been completed by members of the public. Officers are warned that they must under any circumstances complete any document on behalf of any person as long as it is a document that that person is required to submit. Officers may afford reasonable assistance but this must always be in the form of general advice as opposed to directive as to what information the person must put on the document. If it is considered desirable to prosecute under more than one section then the contravention of each section should be the subject of a separate charge or count. Officers of all ranks must always bear in mind that there is always a possibility that they may be required to give evidence in court. Thus, when on duty, each officer should exercise his or her judgment to determine the incidents that are likely to end up in court in order to be extra careful and vigilant when performing or assisting others to perform their duties. Officers are often to give clear and convincing evidence on: - What was actually said or done by himself and/or the defendant; - What documents were taken by or produced to him; - What happened to documents whilst in official custody; - The identity of documents produced or taken by him or of goods seized; Page | 467

- The identity of samples and the manner in which they were drawn or disposed of, etc In cases where an officer may be required to give evidence regarding what has been said or done, he should immediately after any incident or conversation, make a full and detailed report on what was done on a notebook and report the situation on an incident report. (8) Seizure of Documents EACCMA s. 159 Documents handed over to Customs or found during physical examination of cargo or baggage may be seized. Customs can also search premises specifically to look for the documents where there are reasonable grounds to believe that such documents are on the premises. To avoid questions being raised about the authenticity of documents produced in court as evidence, all documents (including letters, books, etc) that come into the possession of an officer and that are likely to be used in court should be stamped and initialled on every page by the officer. Where practical the person from whom the documents are seized must also be asked to likewise initial each document. Care should be taken to ensure that no additional markings whatsoever are added to the documents and that no original writing or printing thereon is defaced by these endorsements. A receipt to be issued for all documents detained must specify each document seized and must include a statement describing the endorsements described above as follows: \"The above documents have been initialled by (specify by name the person from whom the documents were taken) as follows (specimen initials of the person concerned) and by (specify name of detaining officer) in the following manner (specimen of detaining officer's initials).” Loss of any documents or goods required in court will certainly prejudice the success of a case and officers must not lose sight of the real possibility unscrupulous defendants endeavouring to arrange for documents and goods to \"disappear\". Accordingly all documents and goods likely to be required in a case must be kept under lock and key. Page | 468

The question of authenticity does not only apply to documents but also to goods. The exact characteristics of goods may be material to the establishment of the commission of an offence. In such cases samples must be drawn for analysis or subsequent production in court. 8. Sampling EACCMA S.241 Where this procedure becomes necessary, the samples must be drawn in the presence of the owner of the goods or his representative. Three samples must be drawn and where possible or appropriate sealed and initialled by both, the owner (or his representative) and the sampling officer. A reference to the date and place of sampling must also be included on the endorsement. When sampling from a consignment of bulk cargo e.g. flakes, granules, powders, etc the final must be a mixture of smaller samples drawn from various packages and different levels as opposed to merely from the top of each package opened. The same representative sampling methods must be used when sampling liquids. One sample must be handed to the owner or his representative and either a receipt obtained or hand over witnessed by a second officer. The second sample is to be sent for analysis while a third is secured in Customs custody. The responsibility for tariff determination lies with the expert(s) EACCMA designated for that role within the Customs administration. Thus s.223 the Government chemist, analyst or other laboratory must, as far as possible, confine their findings only to the nature of the substance and its chemical composition, leaving the actual determination to those classification expert(s) who will base their decisions on the technical findings of the analysis. 9. Powers to prosecute Proper officers are authorized under the provisions of S.228 of the EACCMA, 2005 to prosecute cases in subordinate Courts subject to the national Criminal Procedures Laws in each Partner State. 10. Finalisation of cases and closure of case files As soon as a case has been settled in court, the following steps Page | 469

must be followed: An application for a copy of the judgment must be made to the court as soon as the judgment is pronounced; On receipt of the copy of the judgment, details thereof should be endorsed in the case file; The case file should be dispatched to the Commissioner for review; 11. Payments of rewards The Commissioner may award any person for information EACCMA received or, in the case of officers, for exceptional work that s.242 contributes or leads to: - - seizure of goods; - Arrest of offenders; or - Conviction of offenders. Awards are extended where an officer or a team of officers display exceptional vigilance or initiative above the standard normally expected in the routine Customs work. Thus no rewards will be considered for results arising from routine activities such as checking of manifested cargo, postal parcels, passengers baggage, etc Awards will also not be applicable in cases where investigating officers seize goods or secure convictions as a result of information given by an informer unless there are special circumstances which necessitated particular initiative or excessive extra work. Recommendations for payments of rewards to informers may be made and should be based on the merits of each individual case. In all cases when a conviction is secured or the goods are condemned, the reward payable will be in accordance with guidelines and may not be more than the value of the goods seized or revenue recovered. Where an officer is solely responsible for the intervention warranting a reward, he or she will receive payment of the whole amount. However, where other officers contributed to the Page | 470

intervention, the seizing officer(s) will receive 20 per cent of the total award with the remaining 80 per cent being shared between the rest. 12. Monthly Returns Officers in-charge of all Customs stations and airports are to submit a monthly summary of all offences detected during the month to the Commissioner; - total number of offences detected; - total number of offences compounded; - number of cases referred to Court; - number of cases under dispute and nature of dispute; - number of cases completed and fines paid; - total amount of penalties collected; - total amount of duties collected; - number of cases still outstanding and reasons thereof; - total number of consignments seized; - total number of consignments condemned and disposal particulars; - total number of exhibits retained for court cases outstanding; and - total number of goods sent to the Customs warehouse Page | 471

APPENDIX A (CHARGE SHEET) IN THE COURT OF ______________ (Name and location of court) ____________ Criminal Case No _______________________________________________ STATE versus JOHN JONES CHARGE: Making a false entry contrary to section 148 of the Customs Management Act, 2004 PARTICULARS OF OFFENCE: John Jones of _________(address) on or about ______ (day)______ of ______ (month) ______ at ______(place) ______ did make an entry for ten cases of cotton piece goods, which were imported by ______ (airline, shipping line, vehicles, post, etc) ______ from ______ (country) ______ valued at ______ (incorrect Customs value) ______ on which import duty of ______ (amount paid) ______ was payable, whereas in fact the goods were found to be silk piece valued at ______ (correct Customs value) ______ on which fiscal entry and import duty of ______ (correct amount) ______ was payable. _______________ ________________ _____________ Signature Date Seal (Prosecutor) Page | 472

APPENDIX B DETAILS TO BE RECORDED IN RESPECT OF CUSTOMS OFFENCES LIKELY TO RESULT IN PROSECUTION OR CIVIL SUIT AGAINST THE DEPARTMENT Particulars of the offence Date of offence. Place of offence Description of offence Sections of law contravened Details of goods seized: Seizure Notice number Full description of the goods Marks, numbers and other distinguishing features Value and quantities Details of the offender: Owner's name and address (if known) Owner’s representative (if any) If criminal proceedings are taken against offender, state: - o Court o Case Number o Charge o Sentence o Seizure condemned or released Details of action taken against Customs (if any) Date of claim. Claimant's name and address (and legal representative, if any) Reference and date of Department's letter requiring claimant to institute proceedings If summons issued to Customs attach copy of summons and indicate: o Place and court. o Date of appearance. o Plaintiff s name address (and legal representative if any) o If first appearance already made, state by whom and date of hearing Page | 473

APPENDIX C SPECIAL INSTRUCTIONS RELATING TO THE DISPOSAL OF CERTAIN TYPES OF SEIZED GOODS Animals and birds To be on receipt of instructions from the Commissioner subject to being passed by the Veterinary Department. Arms and Ammunition The disposal of any animal or bird will be arranged by the Birds Eggs Veterinary Department Cigarettes and Tobacco Any arms or ammunition, the importation of which is prohibited are to be handed over to the Inspector-General of Police. To be destroyed immediately as perishable goods Any brands of cigarettes or tobacco manufactured for export must not be sold but must be destroyed Condensed Milk To be destroyed unless re-exportation is allowed by the Commissioner Currency Notes, Gold, To be transferred to a bank in normal circumstances, but Securities, Non-Restricted prior confirmation of such action is to be obtained from Bearer Cheques, Endorsed the Commissioner travellers Cheques, etc Dangerous Drugs If not required by the Ministry of Health, to be destroyed or kept as evidence. Fruit, Dried and Fresh To be destroyed immediately by burning if possible, as perishable goods Plants and fodder False money, counterfeit To be destroyed immediately by burning if possible or Currency Notes and coins kept as evidence. Hides and Skins To be handed over on condemnation to the Veterinary Department for inspection, destruction of rejected stock and sale on behalf of this Department, notification of proceeds being given by the Veterinary Department Indecent Literature such as To be destroyed immediately by burning if possible prints, books, articles, etc Ivory and Game The directions of the Game Warden are to be sought in regard to disposal Manufactured Articles To be destroyed immediately by burning if possible and not required for evidence. which Contravene Items 4,5 Page | 474 and 6 of the Second

Schedule to the Act Military uniforms. To be destroyed if not required by military authorities Medicines If not required by the Ministry of Health, to be destroyed or kept as evidence Non-Negotiable To be destroyed by burning in the presence of a witness and if not required as evidence. Instruments, i.e. Unendorsed Travellers’’ Cheques, Bankers Draft and the like. Offensive Printed Matter. To be destroyed by burning if possible. Poisons If not required by the Medical Department to be sold, Bids are only to be accepted from authorized importers. If the poisons cannot be sold to an authorized importer they are to be destroyed. Spirits, prohibited and those To be destroyed immediately or offered to other which contravene items 6 of competent authorities. the Second Schedule Part A to the Act. Page | 475

APPENDIX D Notes on the preparation of evidence, the taking of statement & power of arrest Preparation of evidence When questioning a person suspected of having committed a criminal liability offence, i.e. an offence such as ‘smuggling’ which requires the prosecution to prove beyond reasonable doubt that the offender committed the acts of omissions with the intention of evading Customs control or defrauding revenue, the following points should be established. Are the goods the property of the suspect, or if not his goods, what is the name and address of the owner? Did the suspect have the goods in his possession, or kept or concealed them knowing them to be uncustomed? Can it be shown that the goods were imported e.g. was the suspect seen crossing the border or leaving an incoming means of transport with the goods? Was the suspect given an opportunity to declare the goods? Taking of statements Whilst it is desirable that a suspect makes a written statement it may only be submitted in evidence if the statement is purely a voluntary one and the suspect has been cautioned. A voluntary statement may be written by the suspect himself or taken down by an officer. However, under no circumstances must any cross-examination or persuasion take place during recording of the statement. Only the words dictated may be recorded, although it is permissible to make suggestions which will remove ambiguities, particularly as to date and times. The completed statement must be read back to the suspect who, if he agrees with the wording, should sign after the last word on each page. The officer who recorded the statement after the endorsement: \"Taken down, read over, corrected and signed in my presence\" If an interpreter has been used, he or she should also make and sign the following endorsement: \"Interpreted from (say) Arabic into English, and read over as correct.\" Finally an official witness who should where possible, be present throughout the making of the statement, must endorse his or her name and designation and sign as witness. Page | 476

Form of Caution Before charging a suspect with an offence he or she should be cautioned as follows: - \"You are not obliged to say anything but anything you say may be given in evidence\" Note any reply to this initial; caution on the charge sheet. The charge may then be read to the accused and this further caution delivered: - \"Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be taken down in writing and given in evidence.\" \"I ______ (name of offender) ______ having been cautioned that I need not say anything unless I wish to do so but that anything I say may be used against me as evidence, make the following voluntary statement.\" Power of Arrest Section 156 of the EACCMA,2004 empowers an officer to arrest a person provided he or she has reasonable grounds to believe that a person is committing an offence. To effect an arrest the suspect is to be advised in the following manner: - \"You are arrested under the authority of Section 156 of the EAC Customs Management Act, 2004, for an offence against that Act.\" Release on bond After arrest, the custody of the accused is in strictness the concern of the police, but the arresting officer will be required to say whether he has any official objection to the release of the accused against a bond. Such objections will be made only when there is reason to believe that the accused may abscond or that his release may prejudice further investigation of the offence. Page | 477

APPENDIX E Text of notice to be sent to a person who has claimed seized goods in terms of section 214 of the Act Reference: - Seizure Notice No ______ dated ______ I acknowledge receipt of your letter dated ______ (date of letter) ______ and have to inform you that it has been accepted as a claim for the recovery of ______ (details of Goods) ______ in terms of section 214 of the EAC Customs Management Act 2004. In accordance with the provisions of said section 214 I hereby require you to institute proceedings against me for the recovery of the goods within two months of the date of this letter. In the event of your failure to institute such proceedings, the goods, by virtue of terms of the same said provision, shall be deemed to be condemned in law, forfeited to the State and may thereafter be sold or otherwise disposed of in such manner as I may direct. Signed by or for the COMMISSIONER APPENDIX F OFFENCES, PENALTIES, FORFEITURES AND SEIZURES 16 Interfering in any way with goods under Customs control 3yrs or USD1000 & goods liable to forfeiture 33 Unloading imported goods before entry, at a place not approved for Goods liable that purpose or in such other manner that is in any way contrary to to forfeiture prescribed procedures or failure to remove unloaded goods to places directed by an officer 36 Undertaking may be given for goods for which entry can be made Fine not within forty eighty hours, anyone who contravenes undertaking exceeding Page | 478

commits an offence five thousand dollars 44(4) Any person who disembarks in a place not duly appointed Fine not exceeding 45(4) five thousand dollars 48(5) 51(2) Person who does not take baggage to examination place Fine not 53(2) exceeding 55(3) five thousand 59(2) dollars 59(3) 61 Failure to remove goods into the respective bonded warehouse within Goods liable 62(8) 14 days of clearance for warehousing to forfeiture 64(3) Carrying on of operations not permitted in warehouse Goods liable to forfeiture Delivery from warehouse in special circumstances Goods liable to forfeiture Delivering non-duty paid goods ex-warehouse for use as stores on a Goods liable means of transport that is either not foreign going or of a registered to forfeiture mass of less than 250 tons Opening a bonded warehouse or gaining access to warehoused goods 2yrs or fine without the permission of the proper officer not exceeding USD1 000 Entering a bonded warehouse or refusing to leave a warehouse against 1yr or fine not the instructions of a proper officer exceeding USD250 Failure to deposit into a warehouse goods entered for such 2yrs or 25% warehousing, unlawfully removing a warehouse or wilfully damaging of the duty the warehoused goods without lawful excuse payable on the goods Using or allowing a bonded warehouse to be used contrary to the Fine not conditions of the license exceeding five thousand dollars Failure to observe the duties and obligations of a keeper of a bonded Fine not exceeding Page | 479

warehouse USD1 000 65(3) Stowage and storage of goods in bonded warehouse Fine not exceeding 67(2) 1000 USD Goods liable 67(3) to forfeiture 73(3) Warehouse keeper to produce goods deposited 10% of 74(3) dutiable value of goods not 75(2) produced 76(2) 77(2) Taking from a warehouse or substitution of warehoused goods by the 25% of the 78(5) warehouse keeper dutiable value 78(7) of the goods involved Entry of cargo for export Goods liable to forfeiture Entry outwards of aircraft or vessel Fine not exceeding five thousand dollars Loading of goods Goods liable to forfeiture Provisions relating to personal baggage Goods liable to forfeiture Goods for export not to be discharged in partner state Goods liable to forfeiture Goods entitled to drawback Goods liable to forfeiture Failure to load ex-warehouse goods cleared for export onto the foreign Goods liable going means of transport and failure to report within 24 hours; to forfeiture; or not exceeding USD5000 or 3yrs Page | 480

79 Stores for aircraft and vessels Goods liable 80 to forfeiture 82 83(3) Short shipment of non bonded goods Fine not 84(5) exceeding 89(8) USD 500 90(2) 92(2) Goods liable to export duty Goods liable 99(2) to forfeiture 100 Vehicles departing overland Goods liable to forfeiture 101 Departure overland other than by vehicle Goods liable to forfeiture Grant of clearance Fine not exceeding five thousand dollars Clearance certificates to be produced Fine not exceeding five thousand dollars Aircraft or vessel to bring to at boarding station Fine not exceeding five thousand dollars Loading coastwise and transfer of cargo Fine not exceeding USD 250 goods liable to forfeiture Departing on a coastwise voyage without a grant of transire and/or Not exceeding making a false declaration on or in respect of goods covered by a USD500 and transire vessel involved may be detained till fine is paid Failure to present a transire in respect of an arriving coasting vessel Not exceeding Page | 481

and/or, in case of vessels less than 250 tons, unloading goods before USD500 such a transire is presented to Customs Goods liable to forfeiture; vessel involved may be detained till fine is paid 104 Coasting vessel not to deviate from voyage Goods liable 105(4) to forfeiture vessel 117(6) detained till 119(3) fines are paid 131(7) 150 Examination of coasting vessel and goods Fine not exceeding 152(3) USD250 Seized or detained until fine is paid Exemption from duty of temporary imports 20% of dutiable value and goods liable to forfeiture Goods imported duty free liable to certain duties on disposal Goods liable to forfeiture Agency notices USD 2500 or 2”yrs or both Power to require vessels or aircrafts to depart; USD 2000 a) Vessels less than 250 tonnes b) Vessels more 250 tonnes and aircraft liable to forfeiture USD 5000 liable to forfeiture or detained until fine paid Power to board vessel and search Not exceeding USD 1000 Page | 482

152(7) Accounting of goods on board a vessel or aircraft by a master 10% of dutiable value of the goods 153(3) Power to stop vehicle suspected of conveying unaccustomed goods Not exceeding USD 5000 157(4) Power to search premises USD 2500 or 3yrs 157(5) Owner or occupier of premises who tampers with the goods 25% of value of goods or 5 yrs 160(6) Using or permitting the use of a bonded factory without a license or USD5000 operating it in contravention of the terms and conditions of an existing and/or 3yrs. license Goods liable to forfeiture 161(3) Entry of premises as bonded warehouse Fine not exceeding five thousand dollars 163(2)(3) Manufacturer failing to provide facilities as the proper officer may Manufacturer reasonably require. ceases operations until he or she has complied with the provisions to the satisfaction of the Commissioner 164(3) Importation of equipment, machinery, raw materials, etc for a bonded Not exceeding factory 5000 dollars 166(3) Entry of goods from bonded factory for home consumption Fine of 5000 dollars or 50% of ex- factory value of raw materials or Page | 483

manufactured goods whichever is higher or to imprisonment not exceeding 3 years or both; goods liable to forfeiture 168(4) Removal of goods or waste for home consumption without the Fine of 5000 authority of the Commissioner 175(3) dollars or 191 50% of ex- 192 factory value of goods whichever is higher or to imprisonment not exceeding 3 years or both; goods liable to forfeiture Goods in unaltered state or Compensating products entered for home Goods liable consumption upon payment of duties to forfeiture Unauthorised access or improper use of Customs computerised Imprisonment systems not exceeding 2 years or a fine not exceeding 5000 dollars for an individual or a fine not exceeding 25000 dollars for a corporate body Interference with Customs computerised systems Imprisonment Page | 484

not exceeding 3 years or a fine not exceeding 10000 dollars 193 Conspiring to contravene provisions of this Act. Imprisonment not exceeding 5 years 194 Shooting at an officer or any means of transport used by the officer Imprisonment not exceeding 20 yrs Using weapons to commit a Customs offence or being armed whilst in Imprisonment possession goods liable to forfeiture under this Act not exceeding 10 yrs committing a Customs offence whilst being disguised or whilst found Imprisonment in possession of goods liable to forfeiture whilst being disguised; not exceeding 3yrs Staving, breaking, destroying, etc goods to prevent either their seizure Fine not or being taken into Customs custody after seizure exceeding 5000 dollars Rescuing any person arrested for a Customs offence or in any way Fine not obstructing an officer in the execution of his or her duty exceeding 5000 dollars Note: Offences in this section are considered as offences involving violence where “violence” is defined as force, harm or criminal mischief (or threat thereof) to any person or property or the carrying of a weapon or behaving in a manner likely to cause terror or reasonable apprehension 195 Removing a Customs, altering, defacing, obliterating or imitating any Fine not mark placed by an officer on any. exceeding 2500 dollars or imprisonment not exceeding 3 years; or both Page | 485

196 Inducing another to commit offence Imprisonment not exceeding 1 year 197 Warning a person in the process of committing an offence to prevent Fine not his or her apprehension by Customs exceeding Notes: It matters not that the person so warned was not in a position to 2500 dollars heed that warning; or imprisonment The onus of proving innocence falls on the person charged; not exceeding A person taking action to prevent another from warning an 2 years; or offender shall not be liable for prosecution for his or her both actions 198 Assuming the character of an officer Imprisonment Note: In addition to the term of imprisonment the offender will also not exceeding be liable to any penalties that may be applicable to the offence 3 years but committed whilst the person was impersonating the officer any other punishment to which he or she may be liable 199 Being in charge of means of transport specially adapted for smuggling - Aircraft or or carrying goods liable for forfeiture or on or from which such goods vessel is less than 250 are staved, destroyed, thrown overboard, etc tons: Fine Note: A vessel or aircraft that is less than 250 tons involved in this not offence is also itself liable to forfeiture but those that are larger exceeding than this can only be detained for purposes of securing the USD 7000; penalty. goods and means of All vehicles involved in this kind of offence are liable to transport forfeiture liable to forfeiture; - Aircraft or vessel is 250 tons or more: Fine not exceeding USD 10 000, goods are liable to forfeiture Page | 486

and means of transport may be seized or detained until the fine or security is paid; - Vehicles: Fine not exceeding USD 5 000; goods and vehicle liable to forfeiture 200 Possessing, importing, exporting, carrying coastwise or Imprisonment loading/offloading of any prohibited goods or restricted goods not exceeding contrary to the terms of the restriction 5 years, or fine equivalent to 50% of any duty payable; or both 202 Importing goods that are concealed, packed in such a way as to Imprisonment deceive or falsely declared not exceeding 5 years, or fine equivalent to 50% of any duty payable; or both 203 Making any kind of false declaration in anything material including: Imprisonment o submitting false documentation not exceeding 3 years, or o refusing to answer legitimate questions or making a false statement fine not exceeding o making a false claim for refund, drawback, rebate, etc 10000 USD o fraudulently evading the payment of any duty; or o making unauthorized altering or otherwise interfering with goods under Customs control o importing or being in possession of any blank invoices or Page | 487

similar documents o falsifying or using falsified documents 204 Refusing to produce any document or to performance any act required Fine not under the Act exceeding 5000 dollars 205 Destroying or tempering in any way with any Customs gear or means Fine not of transport used by Customs or for Customs purposes exceeding 2500 dollars 206 Failure to report uncustomed goods found Fine not Note: The goods in question are liable to forfeiture exceeding 2500 dollars Page | 488