By Ernest Chanda
CONSTITUTIONAL law professor Muna Ndulo says laws on unexplained wealth are constitutional and an important tool in fighting corruption.
Ndulo is a William Nelson Cromwell professor of International and Comparative Law, and director of the Berger International Legal Studies Programme, Cornell University Law School in United States of America.
In his article ‘The Fight against Corruption and the Concept of Unexplained Wealth,’ Prof Ndulo explains the role of unexplained wealth provisions in the fight against corruption.
“In this article, we wish to explore the role of ‘unexplained wealth’ provisions in the fight against corruption, and their consistence with the constitutional rights against self-incrimination and the presumption of innocence. We argue that ‘unexplained wealth’ laws are constitutional and are a critical tool in the fight against corruption,” he wrote.
“We further argue that these provisions are mandated by international conventions, and are consistent with, and do not violate the right to self-incrimination and the presumption of innocence. They are a legally appropriate technique in dealing with corruption in all its increasing complexity.”
Citing international conventions, Prof Ndulo urged suspects to just explain their wealth when called upon by law enforcement agencies.
“Article 20 of the United Nations Convention against Corruption provides that: ‘subject to its constitutional and the fundamental principles of its legal system, each state party shall consider adopting such legislative measures as may be necessary to establish as criminal offence, when committed intentionally, illicit enrichment that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income’,” he said.
“In similar vein, the African Union Convention on Preventing and Combating Corruption, in article 8 provides that: ‘(1) subject to the provisions of their domestic laws, state parties undertake to adopt necessary measures to establish under their laws an offence of ‘illicit enrichment’.”
According to Prof Ndulo, “The power to prosecute ‘illicit enrichment’ without having to prove specific acts of corruption constitutes a core weapon in the United Nation Convention on the Prevention of Corruption”.
He explained the meaning of the unexplained wealth law.
“The common characteristics of all illicit enrichment laws is that they do not require prosecutors to secure conviction for the underlying criminal conduct that allegedly produced the illicit wealth. Rather, illicit enrichment laws only require that the prosecutors show that the person enjoyed an amount of wealth that cannot be explained by reference to their lawful income,” he said.
“In the unexplained wealth/illicit enrichment approach, by placing the onus of proof on the individual whose wealth is in dispute the concept raises a presumption that the wealth was obtained by corrupt means. In other words, in jurisdictions with unexplained wealth laws, it is not necessary to demonstrate beyond reasonable doubt that the wealth was gotten by criminal activity, but instead, the state places the onus on an individual to prove that their wealth was acquired by legal means.”
Prof Ndulo said in Zambia, those against the unexplained wealth law argued that it was inconsistent with the Constitution.
He said to the contrary, such a law was in fact consistent with the Constitution.
“A legal device aims at overcoming the difficulties of meeting the burden of proof in corruption related cases. It must however, be emphasised that even though the accused partly bears the burden of proof on this one issue, the standard of proof that applies in the case of the accused is merely an evidential burden of adducing sufficient evidence to rebut the legal presumption created by such a provision,” said Prof Ndulo.
“Those who object to the illicit enrichment provisions do so on the grounds that they are inconsistent with the Constitution and violate the presumption of innocence, relax the burden of proof on the prosecution to establish a case beyond reasonable doubt and violate the right of an accused person to remain silent.”