By Dickson Jere
In what can be described as a landmark case, the Court of Appeal has guided the prosecutors to always link the forfeited property to a serious crime. The Court said it was not good enough to merely state that the owner has no known income to acquire property.
In this case, a suspected drug trafficker, had his property confiscated in 2016 in New Kasama on the grounds that it was built by suspected proceeds of crime. His known income could not support him owning such property as argued by the State.
When the matter came up in the High Court for non-conviction forfeiture, the Judge ordered that the property be forfeited to the State because the owner could not show how he purchased the same. It was believed money came from drug trafficking.
This prompted him to appeal to the Court of Appeal where three Judges reviewed the case and provided guidance on how to deal with forfeitures.
“The issue is whether the property is tainted in connection to a serious offence,” the Court observed.
“Therefore, a forfeiture of tainted properties, will not be made unless the offence in issue is a serious one. It does not matter whether a person has sufficient resources to enable him or her acquire properties.”
The Judges went further to state that although non-conviction based forfeiture is not based on conviction, there is need to identify the offence which the person has committed or alleged to have committed with clear connection to the property.
“The Court below lost sight of the issue by focusing on financial capacity,” the Judges said, noting that the evidence provided that intelligence reports showed that he was involved in drug trafficking was not enough.”
“The question the trial Court ought to have answered is whether the property in question was tainted property”, the Judges said.
“Further, there is no evidence, on the balance of probability, connecting any proceeds of crime being used to procure the plot and building of the structures thereon,” the Court observed and ordered that the property be given back to the owner.
See case of Sydney Mwansa v Director of Public Prosecutions- Appeal No. 276/2021 and Judgment delivered last month.
This is a very interesting case given the number of properties being forfeited to the State on allegations that they were proceeds of crime.
