Link Forfeited Property To Crime – Court Guides
By Dickson Jere
In what can be described as landmark case, the Court of Appeal has guided the prosecutors to always link the forfeited property to a serious crime. The Court said it was not good enough to merely state that the owner has no known income to acquire property.
In this case, a suspected drug trafficker, had his property confiscated in 2016 in New Kasama on the grounds that it was built by suspected proceeds of crime. His known income could not support him owning such property as argued by the State.
When the matter came up in the High Court for non-conviction forfeiture, the Judge ordered that the property be forfeited to the State because the owner could not show how he purchased the same. It was believed money came from drug trafficking.
This prompted him to appeal in the Court of Appeal where three Judges reviewed the case and provided guidance on how to deal with forfeitures.
“The issue is whether the property is tainted in connection to a serious offence,” the Court observed.
“Therefore, a forfeiture of tainted properties, will not be made unless the offence in issue is a serious one. It does not matter whether a person has sufficient resources to enable him or her acquire properties.”
The Judges went further to state that although non-conviction based forfeiture is not based on conviction, there is need to identify the offence which the person has committed or alleged to have committed with clear connection to the property.
“The Court below lost sight of the issue by focusing on financial capacity,” the Judges said, noting that the evidence provided that intelligence reports showed that he was involved in drug trafficking was not enough.
“The question the trial Court ought to have answered is whether the property in question was tainted property”, the Judges said.
“Further, there is no evidence, on balance of probability, connecting any proceeds of crime being used to procure the plot and building of the structures thereon,” the Court observed and ordered that the property be given back to the owner.
See case of Sydney Mwansa v Director of Public Prosecutions- Appeal No. 276/2021 and Judgment delivered last month.
This is a very interesting case given the number of properties being forfeited to the State on allegations that they were proceeds of crime.
Yes this will cause a merry go round
It’s a sub-optimal judgement by the Court of Appeal which the DPP is strongly advised to appeal to the Supreme Court. Wealth or money has to have a source and disclosing the source should never be a problem if it’s lawful. Possession of an expensive asset whose acquisition one cannot explain is a prima facie case of involvement in crime or hiding income. The Court of Appeal’s judgement reminds me of Chief Justice Mumba Malila’s best-selling book “Contours of a Developing Jurisprudence”.
Remember the Austin Liatto case? He buried millions of kwacha at his Mwembeshi farm. The then Magistrate Elida Chulu put him on his defence in order to compel him to disclose the source of the money. Liatto opted for silence but Ms Chulu convicted him. He appealed to the High Court where a three-person bench freed him but the DPP appealed to the Supreme Court where the subordinate cout’s position was restored. Liatto was rightfully sent to jail and his farm forfeited to the state. He only left jail upon Edgar Lungu’s pardon. The judges who freed Liatto are all on the Court of Appeal bench. I would not be surprised if they are the ones behind this judgement.
We concur with Gunner. The decision of the Court of Appeal would be overturned by the Supreme Court on appeal. It matters that if an accused has property but no means of its lawful acquisition, the law precisely deems it to be proceeds of crime unless proved otherwise.