THERE WAS NO MALICE IN ACC SEIZING CHITOTELA’S PROPERTIES DURING INVESTIGATIONS – EFCC

THERE WAS NO MALICE IN ACC SEIZING CHITOTELA’S PROPERTIES DURING INVESTIGATIONS – EFCC

PAMBASHE member of parliament Ronald Chitotela’s legal woes have continued with the latest failure of stopping the Anti-Corruption Commission from placing his luxurious retirement house in Chongwe, under its control.

The Economic and Financial Crimes Court has ruled that the Anti-graft body is mandated to seize property during investigations for corruption, to prevent transactions on the same by interested parties.

It said the protection of fundamental rights including the right to privacy does not extend to assets whose source may be questionable.

Chitotela had  petitioned the ACC and its agents, former acting director general Silumesi Muchula, Gift Tembo and Kopano Chilembo in the Lusaka High Court for seizing his farm in Chongwe on reasons that it was acquired using ill-gotten wealth.

He argued that the seizure of his house and the  eviction of his family by the Commission was malicious and illegal as the matter was still pending determination before High Court Judge Mwape Bowa.

The Anti-Corruption Commission (ACC) in its reply had argued that there was no malice on the part of its agents to issue restriction and seizure notices on Ronald Chitotela’s property in Chongwe as it was part of procedural steps that could be taken in order to properly carry out an investigation.

Chitotela had argued that the mandate for individuals to declare their assets and liabilities represents a significant intrusion into their private affairs, without specifying the mandate.

He alleged that the seizure notice contravenes Article 18 of the Constitution because it contradicts the presumption of innocent until proven guilty as he has not been given an opportunity to defend himself against the allegations of acquiring property through suspected proceeds of crime.

The former minister of tourism sought a declaration that Sections 71 and 78 of the Forfeiture of Proceeds of Crime Act are unconstitutional as they shift the burden of proof on the accused person and further the standard of proof is on a balance of probabilities contrary to the established principle in criminal matters, which requires the prosecution to prove the offence beyond reasonable doubt.

ACC, in its response submitted that the warrant of seizure is merely an investigative tool and does not take away Chitotela’s legal ownership of the property.

Delivering judgment, judge Susan Wanjelani on behalf of Pixie Yangailo and Vincent Siloka said there is no basis to declare sections 58 and 59 of the ACC Act unconstitutional.

“We, however, note from the evidence on record that the Petitioner was called for interviews at the Commission’s office with respect to the subject property, he opted to remain silent under warn and caution,”she said.

“He stated that; that was because there was a Matter before Justice Bowa. We, therefore, do find that Chitotela was given an opportunity in the course of investigations to dispel the allegations that the property was acquired through suspected proceeds of crime.”

Judge Wanjelani said there is no evidence that Chitotela has been charged with any criminal offence and that he has been denied a fair trial.

She said Article 18 of the Constitution has been wrongly invoked as it only applicable where a person has been charged with a criminal offence.

Judge Wanjelani said in relation to the application to declare sections 71 and 78 of the Forfeiture of Proceeds of Crime Act unconstitutional because they contravene Article 18 (2) (a) and (7) of the Constitution; Chitotela has not been charged with any offence relating to the subject statute or suspected proceeds of crime nor has he alleged that his property is subject to a Forfeiture Order under the Sections in contention.

“ACC is carrying out investigations into how Chitotela acquired the subject Property based on a complaint that it has been acquired from proceeds of crime. It is our understanding that any action that may be taken against the petitioner can only be done after the investigations are concluded,”she said.

The court said the warrant of seizure
does not mean that the affected property owner loses his or her legal ownership or rights over the property.

“There is and has been no transfer of ownership or interest in the property or deprivation of the property let alone compulsory acquisition without compensation for the seizure warrant to fall foul of Article 16 of the Constitution,” Judge Wanjelani said.

“It is evident that the petitioner has misconstrued the intent of the warrant of seizure and the restriction notice and thus the issues of deprivation of property or compensation for loss of property do not arise.”

The Court said the declaration being sought lacks merit as it has already been dealt with.

“ACC in inviting the petitioner for interviews was part of the investigations the Commission is mandated to carry out, where the Director-General determines that an investigation is warranted after receipt of a complaint as per Section 52 (3) of the Anti- Corruption Act,” judge Wanjelani said.

“We also accept that the press statement was likely released in response to press queries as no doubt Chitotela is a public figure and such issues are bound to garner public interest in the matter.”

She said no evidence has been produced by Chitotela to prove that his family was thrown out of the house by ACC whilst he was away.

“We do not find any malice or negligence in the manner the ACC officers carried out their functions. We find that the petitioner has failed to prove misfeasance in public office to warrant being awarded damages against all the respondents. This claim is dismissed,”judge Wanjelani declared.

“We find the petitioner has failed to show that the impugned Sections 58 and 59 of the Anti- Corruption Act and Sections 71 and 78 of the Forfeiture of Proceeds of Crime Act are incompatible with the Constitution to warrant them being declared unconstitutional.”

The Court said Chitotela has failed to prove his claims on a balance of probabilities and dismissed them in their entirety.

It further condemned him to costs to be taxed in default of agreement.

Chitotela is currently confined to Mansa correctional facility awaiting to be cause listed for his 10 -year Jail sentence by the High Court,  following his conviction for arson by the Kawambwa magistrates Court last month.

Kalemba