ZAMBIA RECORDS CONVICTION UNDER THE FORFEITURE OF PROCEEDS OF CRIME ACT:
Ex-Minister sentenced over K2million (USD 300,000)
The
Supreme Court on Tuesday 2nd June, 2015 upheld the two-year jail
sentence with hard labour imposed on former minister of labour and social
security Austin Liato by the Lusaka Magistrate's Court for possession of K2.1
million reasonably suspected to be proceeds of crime.
Supreme Court judge Mumba Malila sitting in Ndola sentenced Mr Liato to 24 months imprisonment with hard labour for possession of property reasonably suspected to be proceeds of crime. Mr Justice Malila further ordered that Liato's farm number L/Mpamba/44 in Mwembeshi area, and the K2.1 million which was in his possession be forfeited to the State.
Liato was on 23rd July, 2013 convicted and sentenced to 24 monthsimprisonment with hard labour by the Lusaka Magistrate's Court, which also ordered that his farm and the money, which he had buried on the property, be forfeited to the State but the sentence was later quashed by the Lusaka High Court.
The State appealed to the Supreme Court on the grounds that the High Court erred in law when it held that to prove reasonable suspicion under section 71 of the Forfeiture of Proceeds of Crime Act No. 19 of 2010 (FPCA), the prosecution had to link between the source of money or the accused to possible criminal conduct among other grounds of appeal.
In his judgement, Mr Justice Malila stated that: '' The money was buried underground in a chalet at the convict's farm and the top was sealed with concrete. This raises a lot of questions on whether the money was gotten legitimately. This court holds the view, therefore that the money was ill-gotten as no one would conceal money the way the convict did even if one had lost faith in the banking system in the country''.
The High court judgement was therefore, set aside and uphold that of the lower court. Mr Liato was charged with possession of property suspected to be proceeds of crime contrary to section 71(1) Act number 19 of 2010 of the laws of Zambia.
In November, 2011 in Lusaka the Government Joint Investigations Team (GJIT) comprising the Drug Enforcement Commission (DEC) the Anti Corruption Commission (ACC) and the Zambia Police (ZP) arrested and charged Liato for being in possession of K2.1 million which was reasonably suspected to be Proceeds of crime. Liato served as Minister in the MMD Government which lost power to the current Government in September, 2011.
The judgement is a landmark achievement and sets a precedence in the fight against fraud, corruption and money laundering in my country.
About the FPCA
The FPCA was enacted by the Parliament of Zambia on 16th April, 2010. Proceeds of crime according to the Act, in relation to a serious offence or a foreign serious offence, means property or benefit that is -
a)wholly or partly derived or realised directly or indirectly, by any person from the commission of a serious offence or a foreign serious offence;
b)wholly or partly derived or realised from a disposal or other dealing with proceeds of a serious offence or a foreign serious offence;
c)wholly or partly acquired proceeds of a serious offence or a foreign serious offence; and includes, on a proportional basis, property into which any property derived or realised directly from the serious offence or foreign serious offence is later converted, transformed or intermingled, and any income, capital or other economic gains derived or realised from the property at any time after the offence; or any property that is derived or realised, directly or indirectly, by any person from any act or omission that occurred outside Zambia and would, if the act or omission had occurred in Zambia, have constituted a serious offence.
Section 71 (1) Act 19of 2010
71. (1) A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Zambia any money, or other property, that may reasonably be suspected of being proceeds of crime commits an offence and is liable upon conviction to--
a)if the offender is a natural person, imprisonment for a period not exceeding five years; or
b)if the offender is a body corporate, a fine not exceeding seven hundred thousand penalty units.
(2)It is a defence under this section, if a person satisfies the court that the person had no reasonable grounds for suspecting that the property referred to in the charge was derived or realised, directly or indirectly, from any unlawful activity.
(3)The offence under subsection (1) is not predicated on proof of the commission of a serious offence or foreign serious offence.
SOURCE: THE ZAMBIA DAILY MAIL
THE FORFEITURE OF PROCEEDS OF CRIME ACT 19 OF 2010