Recent decisions by the Court of Appeal, Zambia, regarding forfeiture of properties suspected to be proceeds of crime have sparked widespread interest and public attention. The judgments in the cases of Sydney Mwansa and Nathan Mbaya raise important questions on the significance of evidence pertaining to the inability to explain the legitimate source of property in forfeiture proceedings involving proceeds of crime.
The relevant facts of the first case, cited as Sydney Mwansa vs. Director of Public Prosecutions, are that a bus conductor who had previously evaded law enforcement officers was found red-handed in possession of a significant quantity of Cocaine. Subsequent investigations revealed that the accused had acquired multiple high value properties. The accused was convicted on two counts of drug trafficking and sentenced to five years’ imprisonment. The Director of Public Prosecutions (DPP) initiated parallel Non-Conviction Based Forfeiture proceedings. The High Court ruled in favour of forfeiting the properties to the State. The convict appealed to the Court of Appeal (CAZ), which overturned the forfeiture, allowing him to retain the contested assets.
In the second case, referenced as Nathan Mbaya, Wu Xinran and Kelsha Investments Limited vs. Director of Public Prosecutions, a group of foreign nationals were apprehended at the Kai Kai shopping Centre near the Zambia-Congo Kasumbalesa border. The prosecution demonstrated that the individuals were engaged in unauthorised foreign exchange trading and handling substantial sums of foreign currency without the necessary licenses, thereby breaching financial regulations. The Court of Appeal Zambia ruled in favour of the appellants.
In disagreeing with the High Courts’ decision in the two cases, the Learned Judges of the Court of Appeal stressed that the key issue is whether there is evidence showing a clear connection between the property and an offence as defined under the relevant provisions of Forfeiture of Proceeds of Crime Act (FPOCA).
In contrast to the High Court’s decision, the Court of Appeal’s position emphasises the need for evidence directly linking the property to an offence as defined under the relevant provisions of the Forfeiture of Proceeds of Crime Act (FPOCA). This departure from settled principles in non-conviction-based forfeiture has sparked discussion and debate among practitioners in the field of criminal asset recovery.
The crucial issue at hand is not whether the State bears the burden of presenting evidence establishing a direct link between the property subject to forfeiture and a specific offence, rather, whether evidence showing that the owner is unable to provide a plausible explanation for the legitimate source of their income is relevant and admissible in forfeiture proceedings.
In jurisdictions with comparable legal regimes, including the United Kingdom, Ireland, South Africa, and Kenya, evidence demonstrating the lack of means to acquire the targeted property has consistently influenced judicial outcomes in favour of forfeiture of properties to the State.
The law of forfeiture establishes a rebuttable presumption that the person in possession of property has special knowledge of the property’s origin and bears the burden of demonstrating that its source is legitimate. If they fail to meet this burden, a rebuttable presumption of illegality is triggered, placing the possessor in a position where they must demonstrate the source’s legitimacy to rebut the presumption.
In this context, evidence suggesting a reasonable suspicion of criminal activity from which financial benefits could be derived serves as compelling proof of the absence of legitimate means to acquire the property. The decisions rendered by the Court of Appeal of Zambia appear to be at odds with judgments handed down by courts in other jurisdictions in comparable cases, where similar circumstances have yielded different outcomes.
The greater concern lies in the binding force that these decisions hold for lower courts, and as a result, the substantial hindrance they create for efforts to recover proceeds of crime. In their current form, the decisions require the State to produce evidence that demonstrably connects the property to a serious offence, which is a flawed approach. Under the Forfeiture of Proceeds of Crime Act, merely being in possession of property one cannot account for is a serious offence itself and connects the property to the serious offence as either tainted or proceed of crime.
The formulation of the current forfeiture laws is both intentional and necessary, designed to shield the community from white-collar criminals who perpetuate corruption and economic crimes through sophisticated schemes and complex corporate structures.
These individuals frequently indulge in ostentatious displays of opulence, showcasing their wealth through lavish spending. While unraveling the sources of their wealth may be complex, tracking their assets is relatively more straightforward.
Policy makers and practitioners have developed a forfeiture law that departs from the traditional model of relying on criminal prosecutions and convictions. Instead, this law is grounded in a logical legal framework and adheres to the principles of a fair process, thereby striking a balance between effectiveness and due process.
The element of lack of legitimate source is an integral component of non-conviction-based forfeiture of proceeds of crime. If evidence of the nature suggested by the Court of Appeal were available, there would be no need to require the person to explain the source, as the State would already possess conclusive proof of the criminal origin. If evidence of the nature suggested by the Court of Appeal were available, there is no good reason why the person should not be charged for the criminal offence and the associated property confiscated upon a finding of guilt.
A white-collar criminal who exploits with a pen can be just as destructive, if not more so, than an individual who wields an AK-47. The former perpetuates systemic injustice, depriving millions of Zambians of essential services such as quality education, healthcare, clean water, and sanitation. They burden citizens with excessive taxation, which can have a chilling effect on economic growth and development. Therefore, it is crucial to tackle those who steal with a pen with equal, if not greater, vigor, as the only evidence of their transgression is often the unexplained wealth they accumulate.
