FINANCIAL INTELLIGENCE CENTRE ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
THE FINANCIAL INTELLIGENCE CENTRE

   3.   Establishment of Financial Intelligence Centre

   4.   Seal of Centre

   5.   Functions of Centre

   6.   Extent of Centre’s autonomy

   7.   Board of Centre

   8.   Functions of Board

   9.   Director

   10.   Powers of Director

   11.   Officers and other staff

   12.   Immunity of officers

   13.   Disapplication of secrecy obligations

   14.   Immunity from execution of judgements

PART III
PREVENTION OF MONEY LAUNDERING, TERRORIST FINANCING AND OTHER SERIOUS OFFENCES

   15.   Prohibition of establishment of anonymous accounts

   16.   Customer identification requirements

   17.   Reliance on identification by third party

   18.   Customers not physically present

   19.   High risk customers

   20.   Identification and account-opening for cross border correspondent banking relationships

   21.   Inability to fulfil customer identification obligations

   22.   Record-keeping

   23.   Internal programmes to combat money laundering, financing of terrorism and other serious offences

   24.   Ongoing due diligence

   25.   Special monitoring of certain transactions

   26.   Obligations regarding wire transfers

   27.   Compliance with obligations by foreign subsidiaries and branches

   28.   Prohibition against shell banks

   29.   Obligation to report suspicious transactions

   30.   Obligation to report currency transactions

   31.   Disclosing information regarding compliance

   32.   Inapplicability of confidentiality provisions

   33.   Prohibition against tipping off

   34.   Protection of identity of persons and information relating to suspicious transaction reports

   35.   Exemption from liability for good faith reporting of suspicious transactions

   36.   Duties of supervisory authorities

   37.   Powers to enforce compliance

   38.   Financial instrument reporting at borders

   39.   Prohibition of publication of, or disclosure of, information to unauthorised persons

   40.   Communication with foreign competent authorities

   41.   No order for production of information

PART IV
OFFENCES AND PENALTIES

   42.   Failure to comply with identification requirements

   43.   Failure to maintain or provide access to records

   44.   Failure to fulfil due diligence obligations or maintain internal controls

   45.   Failure with regard to suspicious transaction or other reporting

   46.   False or misleading statement

   47.   Confidentiality violation

   48.   Setting up shell bank

   49.   Generally penalty

PART V
GENERAL PROVISIONS

   50.   Mutual legal assistance

   51.   Extradition

   52.   Offences by body corporate or unincorporate body

   53.   Offences committed outside jurisdiction

   54.   Monitoring effectiveness of system

   55.   Annual report

   56.   Centre to issue guidelines

   57.   Retention of records

   58.   Regulations

      SCHEDULE

AN ACT

to establish the Financial Intelligence Centre and provide for its functions and powers; provide for the duties of supervisory authorities and reporting entities; and provide for matters connected with, or incidental to, the foregoing.

[29th November, 2010]

Act 46 of 2010.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Financial Intelligence Centre Act.

2.   Interpretation

In this Act, unless the context otherwise requires—

“account” means any facility or arrangement by which a reporting entity does any of the following—

      (a)   accepts deposits of funds or other assets;

      (b)   allows withdrawals or transfers of funds or other assets; or

      (c)   pays negotiable or transferable instruments or orders drawn on, or collects negotiable or transferable instruments or payment orders on behalf of, any other person; and includes any facility or arrangement for a safety deposit box or for any other form of safe deposit;

“bearer negotiable instrument” includes any monetary instrument in bearer form such as a traveller’s cheque, negotiable instrument, including a cheque, promissory note and money order, that is either in bearer form, endorsed without restriction, made out to a fictitious payee, or otherwise in such form that title thereto passes upon delivery;

“beneficial owner” means—

      (a)   a natural person who ultimately owns or controls the rights to or benefits from property, including the person on whose behalf a transaction is conducted; or

      (b)   a person who exercises ultimate effective control over a legal person or legal arrangement;

“Centre” means the Financial Intelligence Centre established under section 3;

“customer” means any of the following—

      (a)   the person for whom a transaction or account is arranged, opened or undertaken;

      (b)   a signatory to a transaction or account;

      (c)   any person to whom an account or rights or obligations under a transaction have been assigned or transferred;

      (d)   any person who is authorised to conduct a transaction or control an account;

      (e)   any person who attempts to take any of the actions referred to in paragraphs (a) to (d); or

      (f)   such other person as may be prescribed by the Minister;

“currency” means the coin and paper money of the Republic, or of a foreign country, that is designated as legal tender or is customarily used and accepted as a medium of exchange;

“data message” has the meaning assigned to it in the Electronic Communications and Transactions Act, 2009;

“Director” means the person appointed as such under section 9;

“financial institution” has the meaning assigned to it in the Banking and Financial Services Act;

“financial instrument” means an instrument capable of representing a monetary value, and includes money, bonds, bills and notes;

“foreign designated authority” means the authority designated for the receipt, requesting, analysis and dissemination of disclosures of suspicious transaction reports in a foreign country;

“funds or other assets” means financial assets, property of every kind, whether tangible or intangible, moveable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such funds or other assets, including but not limited to bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts or; letters of credit, and any interest, dividends or other income on or value accruing from or generated by such funds or other assets;

“law enforcement agency” means—

      (a)   the Zambia Police Force, established under the Constitution;

      (b)   the Zambia Security Intelligence Service established under the Zambia Security Intelligence Service Act;

      (c)   the Immigration Department established under the Immigration and Deportation Act, 2010;

      (d)   the Drug Enforcement Commission, established under the Narcotic Drugs and Psychotropic Substances Act;

      (e)   the Anti-Money Laundering Investigations Unit established under the Prohibition and Prevention of Money Laundering Act, 2001;

      (f)   the Anti-Corruption Commission established under the Anti-Corruption Act, 2010;

      (g)   the Zambia Revenue Authority established under the Zambia Revenue Authority Act; an

      (h)   any other investigative institution that the Minister may, by statutory instrument, designate;

“law enforcement officer” means an officer of a law enforcement agency;

“legal arrangement” means to express trusts or other similar legal arrangements;

“legal practitioner” has the meaning assigned to it in the Legal Practitioners Act;

“money laundering” has the meaning assigned to it in the Prohibition and Prevention of Money Laundering Act, 2001;

“officer” means an officer of the Centre or a law enforcement officer authorised by the Centre to carry out a function under this Act;

“private body” means any person or organisation other than a public body, and includes a voluntary organisation, a charitable institution, company, partnership or a club;

“proceeds of crime” has the meaning assigned to it in the Forfeiture of Proceeds of Crime Act, 2010, and the Prohibition and Prevention of Money Laundering Act, 2001;

“public body” means the Government, any Ministry or department of the Government, a local authority, commission or other body appointed by the Government, established by, or under, any written law or in which the Government has an interest;

“record” means any material on which information is recorded or marked and which is capable of being read or understood by a person, or by an electronic system or other device;

“reporting entity” means an institution regulated by a supervisory authority and required to make a suspicious transaction report under this Act;

“sanction” includes a fine, suspension, de-registration or any other penalty that may be prescribed by, or under, this Act, but does not include imprisonment;

“serious offence” has the meaning assigned to it in the Forfeiture of Proceeds of Crime Act, 2010;

“shell bank” means a bank that has no physical presence in the country in which it is incorporated and licensed, unless such bank is wholly owned by one or more financial institutions forming part of a regulated financial services group that is subject to effective consolidated supervision;

“supervisory authority” means—

      (a)   the Governor of the Bank of Zambia appointed under the Bank of Zambia Act;

      (b)   the Registrar of Co-operatives appointed under the Co-operatives Act, 1998;

      (c)   the Registrar of Pensions and Insurance appointed under the Pension Scheme Regulation Act, 1996;

      (d)   the Commissioner appointed under the Securities Act;

      (e)   the Registrar appointed under the Patents and Companies Registration Agency Act, 2010;

      (f)   the Commissioner of Lands;

      (g)   the Zambia Development Agency, established under the Zambia Development Agency Act, 2006;

      (h)   the licensing committee established under the Tourism and Hospitality Act, 2007;

      (i)   the Registrar of Estate Agents appointed under the Estate Agents Act, 2000;

      (j)   the Law Association of Zambia established under the Law Association of Zambia Act;

      (k)   the Zambia Institute of Chartered Accountants established under the Accountants Act, 2008; and

      (l)   any other authority established under any written law as a supervisory authority or as the Minister may prescribe;

“suspicious transaction report” means a report submitted on suspected money laundering, financing of terrorism or other serious offence or attempted money laundering, financing of terrorism or other serious offence, whether in form of a data message or otherwise;

“terrorism” has the meaning assigned to it in the Anti-Terrorism Act, 2007;

“transaction” means a purchase, sale, loan, pledge, gift, transfer, delivery or other disposition, or the arrangement thereof, and includes—

      (a)   opening of an account;

      (b)   any deposit, withdrawal, exchange or transfer of funds in any currency whether in cash or by cheque, payment order or other instrument or by electronic or other non-physical means;

      (c)   the use of a safety deposit box or any other form of safe deposit;

      (d)   entering into any fiduciary relationship;

      (e)   any payment made or received in satisfaction, in whole or in part, of any contractual or other legal obligation;

      (f)   any payment made in respect of a lottery, bet or other game of chance;

      (g)   establishing or creating a legal person or legal arrangement;

      (h)   entering into a transaction involving real property; and

      (i)   such other transaction as may be prescribed by the Minister, by statutory instrument; and

“wire transfer” means any transaction carried out on behalf of an originator through a financial institution or payment system including an institution that originates the wire transfer and an intermediary institution that participates in completion of the transfer by electronic means with a view to making an amount of money available to a beneficiary.

PART II
THE FINANCIAL INTELLIGENCE CENTRE

3.   Establishment of Financial Intelligence Centre

   (1) There is hereby established the Financial Intelligence Centre which shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its corporate name, and with power, subject to the provisions of this Act, to do all such things as a body corporate may, by law, do or perform.

   (2) The Schedule applies to the Centre.

4.   Seal of Centre

   (1) The seal of the Centre shall be such device as may be determined by the Board and shall be kept by the Secretary.

   (2) The affixing of the seal shall be authenticated by the Chairperson or the Vice Chairperson and any other person authorized in that behalf by a resolution of the Board.

   (3) Any document purporting to be made under the seal of the Centre or issued on behalf of the Centre shall be received in evidence and shall be deemed to be so executed or issued, as the case may be, without further proof, unless the contrary is proved.

5.   Functions of Centre

   (1) The Centre shall be the sole designated agency responsible for the receipt, requesting, analysing and disseminating of the disclosure of suspicious transaction reports.

   (2) Notwithstanding the generality of sub-section (1), the functions of the Centre are to—

      (a)   receive, request and analyse suspicious transaction reports required to be made under this Act or any other written law, including information from any foreign designated authority;

      (b)   analyse and evaluate suspicious transaction reports and information so as to determine whether there is sufficient basis to transmit reports for investigation by the law enforcement agencies or a foreign designated authority;

      (c)   disseminate information to law enforcement agencies, where there are reasonable grounds to suspect money laundering or financing of terrorism;

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