This was an appeal ((Appeal No.
276/2012)) against a non-conviction forfeiture order given by the High Court of Zambia in respect of Lot. Number
17922/M, in Lusaka which was ordered to be forfeited to the state. The State had argued that the fact that the appellant had failed to provide a legitimate source of income, accounting for the property, meant that the property was a proceed of crime falling within the meaning of the proceeds of crime as articulated in the Forfeiture of Proceeds of Crime Act No. 19 of 2010. The Court of Appeal allowed the appeal on the grounds that the High Court “occupied itself with whether the appellant, having regard to his income or earnings Was capable of procuring the property in question.” The Court of Appeal deemed this consideration irrelevant in terms of non-conviction-based forfeiture orders.
In the Court of Appeal’s view what is cardinal is whether the property in issue is tainted property or not. It held that although non-conviction based forfeiture Civil forfeiture is not based on a conviction, there is need to clearly identify the offence which the respondent has committed or alleged to have committed and then a clear connection established on the balance of probabilities how the offence Serious offence) is related to the property in issue i.e. wholly or partly derived or realized from the commission of the offence; wholly or partly derived or realized from a disposal or other dealings with proceedings of crime. The Court further held that if it is tainted, it has to be tainted in relation to a serious offence. The court defined a serious offence as one in which the maximum sentence provided by law is death or imprisonment for not less than 12 months.
The Court of Appeal’s decision is wrong in law and fact because it fails to realize that the core element of non-conviction forfeiture is the lack of requirement for the state to show that an offense has been committed. Unexplained wealth, the subject of non-conviction orders, is defined as a significant increase in the assets of an individual that he or she cannot reasonably explain in relation to his or her lawful income. Any person can be the subject of a non-conviction proceeding if there are reasonable grounds to suspect that he or she owns or possesses wealth that is not lawful. Non conviction processes are opened where authorities show a manifest disparity between legitimate earnings and the assets owned by the targeted individual. Once the discrepancy has been demonstrated, the person concerned will have to prove to the satisfaction of the court the legal origins of those assets. If he or she cannot explain the source of his or her wealth, the assets are confiscated, even if the state cannot prove that he or she committed a criminal offense or that his or her money was derived from an offense that he or she may have committed. Interpreting similar legislation in the UK in Asset Recovery Agency (Jamaica, 2015 PC.1 ), Lord Hughes stated that “Reasonable grounds for believing a primary fact, such as that the person under investigation has benefited from his criminal conduct, or has committed a money laundering offence, do not involve proving that he has done such a thing, whether to the criminal or civil standard of proof. The test is concerned not with proof but the existence of grounds (reasons) for believing (thinking) something and with reasonable grounds that he has done such a thing, whether to the criminal or civil standard of proof. The test is concerned not with proof but the existence of grounds. It only asks the state to show that there are objectively reasonable grounds for that belief.”
The relevant Zambian legislation is the Forfeiture of Proceeds of Crime Act, 2010. The Act clearly distinguishes conviction-based forfeiture from non-Conviction based forfeiture. In article 4 (1) the Act states that “ Subject to subsection (2), where a person is convicted of a serious offence committed after the coming into force of this Act, a public prosecutor may apply to the court for one or both of the following: (a) forfeiture order against property that is tainted property in respect of the offence. And (b) confiscation order against the person in respect of benefits derived by the person from the commission of the crime. The second type of order, is spelt out in article 29 “ A public prosecutor may apply to a court for an order forfeiting to the state all or any property that is tainted property.” Then article 31(1) states that Article 31 (1) “ Subject to subsection (2) , where a public prosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order be forfeited to the state. The side notes to the article state” Notes to Article 31 (f) : “non-conviction-based forfeiture order for tainted property”. Article 33 (1) further states: “ Any proceedings on an application for a restraining order, forfeiture order, or confiscation order is not a criminal proceeding.” And in article 33 (2) (b) states “The rules of evidence applicable in civil proceedings apply and those applicable in criminal proceedings do not apply to proceedings under this Act.
This approach expands the concept of attacking the proceeds of crime in that it attacks any property that is not acquired lawfully, whether it was acquired through a commission of one offense or a series of offenses, what type of offence was committed, and over what duration. The burden of proof on the prosecution is lower because it must show only that a person has a lifestyle beyond his or her means. This is sufficient to satisfy the court to direct a person to produce evidence and establish the lawful origin of the property. The DPP is not required to show that any offense was committed. This is a powerful tool in the fight against corruption especially that of politically exposed individuals. The Court Appeal in insisting in Mwansa v. DPP that the DPP needed to prove a crime failed to understand the difference between forfeiture on conviction (which is a post-conviction process) and non -conviction based forfeiture. If both require a conviction or identification of a crime, why would Parliament have passed a law which provides for the two approaches?
In the next few paragraphs, I will endeavor to show that this my position is supported by case law from several common law jurisdictions. I will also show that the shifting of the burden of proof in non-conviction-based forfeiture provisions does not violate the Constitution as has been canvassed by some in Zambia . Non-Conviction orders target the proceeds derived from criminal activities. Their primary objective is to deprive criminals from acquiring or benefiting from unlawful activities.
Non-conviction wealth order laws are a recent development in confiscation and forfeiture jurisprudence, targeting the proceeds derived from criminal activities. Their primary objective is to deprive criminals from acquiring or benefiting from unlawful activities. However, by raising non-conviction wealth orders, the state does not have to first prove a criminal charge, as is the case with conviction-based forfeiture. Likewise, the state does not have to first prove that the property in question is the instrument of proceedings of crime, as is the case in conviction-based asset forfeiture. They differ from traditional forfeiture laws in another important respect: they shift the burden of proof to the property owner who must prove a legitimate source for his or her wealth and the forfeiture proceedings are instituted against a person rather than against the property.
Zambia is not alone in having non-conviction wealth orders. Ireland has had the most success of any country in implementing what in most jurisdictions in the world are termed “Unexplained Wealth Order laws” through its Proceeds of Crime Act (POCA, 1996) which recognizes the importance of seizing assets without having to prove a connection with an offence, most jurisdictions allow for both direct and indirect forfeiture of the proceeds of crime; that is , assets can be directly removed from the defendants or indirectly removed if assets or benefits are transferred to a third party to avoid seizure and confiscation of assets. Assets seizure following conviction is conducted as part of the sentencing process by the trial judge.
In non-conviction forfeiture proceedings, a lower standard of proof applies-balance of probabilities. Application of the lower standard of proof is justified by the difficulty of establishing the link between the offence and the proceeds because of the way the crimes are committed and the steps often taken by the convicted persons to conceal the proceeds of crime and persons involved in corruption and money laundering. In Australia a notable case is, Burnett v. Northern Territory (2007, 228 FLR 365) a West Australian man was stripped of one million dollars in assets including land, vehicles, and a boat when investigation found he had no legitimate source of income to support his lavish lifestyle. The court seized his assets based on the Australian unexplained wealth law. In the United Kingdon, in the first ever unexplained wealth order case, Zamira Hajiyeva v. National Crime Agency (2020), Ms Zamari Hajiyeva bought a thirteen-million-dollar house near Harrods and a golf course in Berkshire. She had not been charged with a crime. The court ordered her to reveal how she became wealthy enough to buy the mansion and the golf course. She applied for leave to appeal to the Supreme Court. Dismissing the appeal, Lord Burnett, The Lord Chief Justice refused to allow her to take the matter to the Supreme Court and ordered her to pay the National Crimes Agency’s legal fees. In the Judgment, the Lord Chief Justice and two other senior judges said that Mrs. Hajiyeva has been lawfully targeted by the unexplained wealth order. The Court added: “the relevant requirement for making an unexplained order is that the court must be satisfied that there are reasonable grounds for suspecting that the known sources of the lawfully obtained income available to the targeted individual would have been insufficient to enable him or her to obtain the property. Further unexplained wealth laws place the burden on the individual to prove the legitimate source of their assets when authorities suspect criminal activity, meaning they must demonstrate how they acquired their wealth if questioned”. The Lord Chief Justice further observed that the state does not have to first prove a criminal charge, as is the case with conviction-based forfeiture.
Some lawyers have raised concerns as to whether the approach in the non-conviction orders order violate the presumption of innocence. Fundamental rights provisions in most constitutions around the world guarantee the presumption of innocence in criminal trials. The fundamental rights provisions on due process and fair hearing have been sought to be deployed by persons accused of corruption by claiming that their refusal to explain the sources of their wealth was justified by the constitutional right to remain silent and not incriminate themselves. The effect of this is to impose an almost impossible task for the prosecution to discharge its burden of proving its case beyond reasonable doubt. The idea of reversing the burden of proof was first internationalized in the 1988 United Nations Convention against the Illicit Traffic of Narcotic Drugs And Psychotropic Substances. Article 7 of the Convention provides that: “state parties consider ensuring that the onus of proof be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation to the extent that action is consistent with principles of domestic law and with the nature of judicial proceedings and other proceedings.” It is backed by Article 21 of the United Nations Convention against Corruption which provides:” subject to its constitutional and the fundamental principles of its legal system, each state party shall consider adopting such legislative measures as maybe necessary to establish as criminal offense, 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 lawful income.” 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 law, state parties undertake to adopt necessary measures to establish illicit enrichment as an offence under their domestic law, such an offence shall be considered an act of corruption or a related offence for the purposes of this convention.” There are several countries of different legal traditions that have adopted and implemented this approach in their anti-corruption legislation. These include France, The UK, Sweden Romania, Ireland, Romania, Tanzania, and Malawi. The Australian legislation requires courts to make an order seizing property if satisfied that a person’s total wealth is greater than the lawfully acquired wealth. In the UK, the Unexplained Orders were introduced under part 8 of the Proceeds of Crime Act 2002. The orders are made where there is reasonable cause to believe that : (a) the respondent holds the property; (b) the value of the property is greater than 50,000 pounds; (c) That there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purpose of enabling the respondent to obtain the property (d) there are reasonable grounds to suspect that the respondent is or has been involved in a serious crime.
The core of non-conviction orders is the reversal of the burden of proof to the respondent to justify that his or her wealth was acquired by lawful means and is not the proceeds of any illegal activity. The second element is the lack of requirement for the state to show that an offense has been committed. Any person can be the subject of the non-conviction orders proceedings if there are reasonable grounds to suspect that he or she owns or posses wealth that is not lawful. The burden of proof on the prosecution is lower because it must show only that a person has a lifestyle beyond his or her means. This is sufficient to satisfy the court to direct a person to produce evidence and establish the lawful origin of the property. The prosecution is not required to show that any offense was committed.
The critical point to remember is that the presumption does not operate automatically but must be established by the prosecution by demonstrating that the criminal origin of the proceeds, though not proven, is probable. The European Court of Human Rights has made an important ruling on the matter of the burden of proof. The court observed, ordinarily in criminal trial, that the prosecution must prove the accused person’s guilt beyond reasonable doubt. In Salabiaku v France, the court observed : “Such abstract formulation is more or less far from being absolute. In principle, the contracting states may under certain conditions, penalize a simple or objective fact as such irrespective of whether it results from criminal intent or from negligence.
Corruption is a major challenge to the development and wellbeing of countries. An essential element in efforts to combat corruption is the legal and juridical framework within which the scourge is fount. It is unquestionable that a sound legal framework, though not the answer to all corruption problems, is crucial in the fight against corruption. The forfeiture provisions of the Zambian laws have three objectives: (a) to deter those who contemplate criminal activity by reducing the possibility of gaining or keeping a profit from that activity; (b) to prevent crime by diminishing the capacity of offenders to finance any future criminal activity that they might engage in and (c) to remedy the unjust enrichment of criminals who profit at society’s expense. Non-conviction orders are often the only means to reliably identify criminal entrepreneurs whose involvement in crime is usually indirect in terms of actual commission. Non-Conviction orders are one of the most effective means to deal with corruption cases which are otherwise difficult offences to deal with.
Story originally published on diggers.news by NewsDiggers