The Economic and Financial Crimes Division of the High Court of Zambia in a judgment delivered on 21st August, 2024 restated the settled international standards on Non-Conviction Based Forfeiture in the case of Anti-Corruption Commission vs. Pittscon Zambia Limited & 7 Others 2022/HPEF/12.
The High Court disagreed with the decision of the Court of Appeal in the case of Sydney Mwansa vs. The People (CCZ) Appeal No. 276 of 2021 by distinguishing it on the premise that it did not conform with settled international standards on Non-Conviction Based Forfeiture. In the Sydney Mwansa case, the Court of Appeal decided that there must be a connection between the property sought to be forfeited and a criminal charge. On the other hand, the High Court has indicated that it would instead follow the Supreme Court’s decision in the case of The People vs. Austin Liato (No. 291/2014) where the current Chief Justice, Dr. Mumba Malila, SC stated as follows:
“The passage of the Forfeiture of Proceeds of Crime Act 2010 was therefore, a deliberate act of the State, sequel to international clamour in this regard, to restate the burden and standard of proof in proceedings relating to forfeiture of proceeds of crime. The framing of section 71(1), (2) and (3) was a conscious and deliberate desire to change the standard of proof and the evidentiary burden of proof. Section 78 of the Act, which we have earlier on quoted, makes the intention of the legislature quite evident.”
According to the High Court, the decision of The People vs. Austin Liato is more persuasive to the effect that Non-Conviction Based Forfeiture of assets is not dependent on proof of one having committed a criminal offence as the Court of Appeal’s decision of Sydney Mwansa vs. The People appears to suggest.
This decision encourages the investigation and prosecution of individuals reasonably suspected to be in possession of property reasonably suspected to be proceeds of crime. It will also enhance the fight against corruption.
