The statement made by Mr. John Sangwa, SC, on current efforts to recover illicitly acquired assets is, to be modest, most unfortunate. Coming from a professional who has branded himself as a constitutional lawyer, makes it sad. It was either a deliberate misdirection of his audience, or born out of ignorance of immense proportions. The statements could also not have been made at a worse time when Zambia is undergoing review for compliance with the United Nations Convention against Corruption!
In an interview with Diamond TV’s COSTA Programme, Mr. Sangwa, in apparent reference to the Forfeiture of Proceeds of Crime Act, is quoted as having said that there is nothing wrong with the law only that it is being abused. In addition, he contended that there cannot be asset forfeiture unless one is tried and convicted of a criminal offence as the law provides. First, it is difficult to reconcile the contradictory stances; whether the implementation is abusive of an otherwise good law or that the law is fundamentally flawed for underpinning forfeiture without criminal conviction. Finally, he boldly, but quite recklessly, stated that such flawed law can only be found in Zambia, ostensibly suggesting that such law is unique to Zambia. As a responsible professional, noting that his audience does not have the benefit of the knowledge he has, Mr. Sangwa should have been more careful to fact-check his propositions.
I wish to start with the last position: Is the law on forfeiture of proceeds of crime flawed? To begin with, it is important to understand that the Forfeiture of Proceeds of Crime specifically targets what is called organised crime typically motivated by the desire for financial gain and characterised by complex schemes to conceal or disguise the source and the destination or final beneficiary of the finances. These are not crimes committed by your everyday chicken thief or burglar. They are perpetrated by honourable-looking persons in suits and driving expensive cars. Often, they are persons in positions of trust in the society, like public officers, or control organised criminal gangs without getting their hands dirty. They do not break doors. They are neither the peddlers or consumers of dangerous drugs, but the master minds. They are a threat to the very fabric of an orderly society. They are the well-connected traffickers of drugs that are wreaking havoc of our youth and stealing the future of our nation. They are the ones in-charge of our public finances and our natural resources. They are the awarding big procurement contracts for kickbacks regardless of whether the works or services are delivered. This crop of criminals is calculating and have the ability to cover their tracks to prevent detection. If detected, they are able to hire expensive lawyers and even ready to manipulate the criminal justice system. Worse still, they have the capacity to play victim by weaving false narratives such as political persecution or discrimination on basis of their tribe or affiliation.
It is in this setting that the law on forfeiture of proceeds of crime, is built. It is built on two sound foundations: First, it requires persons reasonably suspected of engaging in these crimes to explain their sources of wealth, failing which they lose it to the State. Second, the law does not require prior conviction of crime as the sole basis for forfeiture proceedings. Rather, it is grounded on the rationale assumption that whoever claims ownership of a property should be able to present evidence of a legitimate source say income, gift, inheritance or even winnings from legal gambling, for example. The prosecution must also demonstrate, through evidence, reasonable suspicion for engaging in crime or that the property was used for or derived from crime.
Is the law unique to Zambia? I wish to make it clear forfeiture laws, in particular non-conviction based forfeiture law is widely accepted as a universal standard response to corruption and organised crime. The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), often referred to as the Vienna Convention, was one of the first international agreements to address asset forfeiture. It mandated member states to adopt measures to confiscate the proceeds of drug trafficking and related crimes. This was followed by the United Nations Convention against Transnational Organised Crime (2000), also known as the Palermo Convention, which expanded the scope of asset forfeiture to include a broader range of criminal activities.
Additionally, the United Nations Convention against Corruption (2003), the Merida Convention, specifically urged countries to implement measures for asset recovery, including the establishment of non-conviction based forfeiture mechanisms. Indeed, all countries which ascribe to the United Nations Convention against Corruption as well as the United Nations Convention against Transnational Organised Crime, of which Zambia is a signatory, are obliged to adopt the principles of non-conviction-based forfeiture of properties reasonably suspected to be derived from or obtained, directly or indirectly, through corruption and other organised crimes. In addition, State Parties to these conventions are urged to adopt a law that requires claimants of properties suspected to be proceeds of crime to demonstrate legitimate sources. These conventions underscore the importance of asset forfeiture as a global tool in the fight against crime and corruption, and they form the legal foundation upon which many countries, including Zambia, have built their forfeiture laws.
The Financial Action Task Force further obligates member states to have in place robust asset recovery laws, including non-conviction based forfeiture. These are publicly available Treaties, Conventions and International Obligations which any well deserving advocate, including Mr. Sangwa should be well acquainted or should have acquainted himself with before he took to the media.
Closer home, Tanzania, Kenya, Lesotho, Botswana Malawi, Zimbabwe, South Africa, and many other countries in the region and beyond have laws with similar provisions to those of Zambia’s Forfeiture of Proceeds of Crime Act, 2010. With the kind of technology at most people’s disposal, these laws would not be difficult to access.
Finally, is the law being abused? Nothing could be further from the truth. Diligent investigations have been undertaken, some lasting several years across political regimes. In a number of cases, evidence has been obtained from foreign countries where suspects had either hidden their wealth or their co-conspirators paid them from. Only when the DPP is satisfied that there is sufficient evidence to sustain a case of forfeiture of properties, to the threshold demanded by the law, does he authorize the case to proceed. As noted, perpetrators of these crimes have the financial muscle to hire the best lawyers in Zambia to defend them. Indeed, several suspects have, after being confronted with the available evidence, opted to surrender the assets to the State. Such consent judgements are willingly entered and have been widely published. Again, such Consent Judgments are not unique to Zambia but are widely employed in Jurisdictions such as Angola and South Africa. The Learned Judges and Magistrates have interpreted and applied the law correctly in favour or even against the case presented by the DPP. These cases are conducted in public and widely covered by our newspapers. By castigating the law and judgements founded on this law, Mr. Sangwa is evoking mistrust on the entire judicial process in Zambia.
In this age of sophisticated criminals, any one urging a case of recovery of assets only after conviction for a criminal offence is prosecuting a very retrogressive narrative only supported by those who would benefit. And it is definitely not the ordinary poor Zambian. The Office of the DPP will continue upholding the Oath of the Office and prosecute cases only in public interest. In appropriate cases, the DPP has prosecuted suspects for criminal offences as well as recovered their assets in parallel prosecutions. Notably, this comprises the bulk of cases. Only in unique settings has the DPP applied for forfeiture of properties without corresponding criminal prosecution. It should finally be noted that a non-conviction-based forfeiture case is completely independent of the results of the criminal case. The provisions of the Law are clear that non-conviction based forfeiture does not depend on the outcome of a criminal trial nor does a person need to be charged for an offence before a non-conviction based forfeiture application may ensue.
