FORFEITURE OF PROCEEDS OF CRIME ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Definition of certain terms

PART II
THE FORFEITURE ORDERS, CONFISCATION ORDERS AND RELATED MATTERS

DIVISION 1
APPLICATION FOR FORFEITURE OR CONFISCATION ORDER

   4.   Application for forfeiture or confiscation order on conviction

   5.   Jurisdiction of High Court

   6.   Notice of application

   7.   Amendment of application

   8.   Procedure on application

   9.   Application for forfeiture order where person has absconded

DIVISION 2
FORFEITURE ORDERS

   10.   Forfeiture order on conviction

   11.   Effect of forfeiture order

   12.   Protection of third parties

   13.   Discharge of forfeiture order on appeal and quashing of conviction

   14.   Effect of discharge of forfeiture order

   15.   Payment instead of forfeiture order

   16.   Enforcement of order for payment instead of forfeiture

   17.   Forfeiture order where person has absconded

   18.   Registered foreign forfeiture orders

DIVISION 3
CONFISCATION ORDERS

   19.   Confiscation order on conviction

   20.   Rules for determining benefit and assessing value

   21.   Statements relating to benefits from commission of serious offences

   22.   Amount to be recovered under confiscation order

   23.   Variation of confiscation orders

   24.   Court may lift corporate veil

   25.   Enforcement of confiscation orders

   26.   Amounts paid in respect of registered foreign confiscation orders

DIVISION 4
CIVIL FORFEITURE ORDERS

   27.   Application for restraining order for tainted property

   28.   Prohibition from disposal, etc., of tainted property

   29.   Application for non-conviction based forfeiture order for tainted property

   30.   Notice of application

   31.   Non-conviction based forfeiture order for tainted property

DIVISION 5
GENERAL

   32.   Voiding of contract

   33.   Proceedings civil, not criminal

   34.   Onus of proof

PART III
POLICE INVESTIGATION AND PRESERVING PROPERTY LIABLE TO FORFEITURE AND CONFISCATION ORDERS

DIVISION 1
POWERS OF SEARCH AND SEIZURE

   35.   Warrants to search premises etc., for tainted property

   36.   Defects in warrants

   37.   Police may seize other tainted property

   38.   Return of seized property

   39.   Appointment of administrator

   40.   Search for and seizure of tainted property in relation to foreign offences

DIVISION 2
RESTRAINING ORDERS

   41.   Application for restraining order

   42.   Restraining order

   43.   Undertaking by Attorney-General

   44.   Notice of application for restraining order

   45.   Service of restraining order

   46.   Further orders

   47.   Attorney-General to satisfy confiscation order

   48.   Registration of restraining order

   49.   Contravention of restraining orders

   50.   Court may revoke restraining orders

   51.   When restraining order ceases to be in force

   52.   Interim restraining order in respect of foreign serious offence

   53.   General provisions on registered foreign restraining order

   54.   Court may direct Attorney-General to take custody, etc., of property

   55.   Undertakings relating to registered foreign restraining orders

   56.   Time when registered foreign restraining order ceases to be in force

DIVISION 3
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS

   57.   Production and inspection orders

   58.   Scope of police powers under production order etc.

   59.   Evidential value of information

   60.   Variation of production order

   61.   Failure to comply with production order

   62.   Search warrant to facilitate investigations

   63.   Production orders and search warrants in relation to foreign offences

DIVISION 4
MONITORING ORDERS

   64.   Monitoring orders

   65.   Monitoring orders not to be disclosed

DIVISION 5
OBLIGATIONS OF FINANCIAL INSTITUTIONS

   66.   Register of original documents

DIVISION 6
DISCLOSURE OF INFORMATION HELD BY GOVERNMENT DEPARTMENTS

   67.   Direction to disclose information

   68.   Further disclosure of information and documents

   69.   Evidential value of copies

PART IV
DISPOSAL ORDERS

   70.   Disposal orders

PART V
OFFENCES

   71.   Possession of property suspected of being proceeds of crime

   72.   Conduct by directors, servants or agents

PART VI
FORFEITED ASSETS FUND

   73.   Establishment of Forfeited Assets Fund

   74.   Credits to Fund

   75.   Shared confiscated property with foreign countries to be credited to Fund

   76.   Payments from Fund

   77.   Programmes for expenditure on enforcement, etc.

PART VII
GENERAL PROVISIONS

   78.   Standard of proof

   79.   Costs

   80.   Operation of other laws not affected

   81.   Appeals

   82.   No criminal or civil liability for compliance

   83.   Rules

   84.   Regulations

AN ACT

to provide for the confiscation of the proceeds of crime; provide for the deprivation of any person of any proceed, benefit or property derived from the commission of any serious offence; facilitate the tracing of any proceed, benefit and property derived from the commission of any serious offence; provide for the domestication of the United Nations Convention against Corruption; and provide for matters connected with, or incidental to, the foregoing.

[16th April, 2010.]

ACT 19 of 2010.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Forfeiture of Proceeds of Crime Act.

2.   Interpretation

In this Act, unless the context otherwise requires—

“account” means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals or fund transfers or a facility or arrangement for a fixed term deposit or a safety deposit box;

“administrator” means the person appointed as such under section 39;

“Attorney-General” means the person appointed as such under the Constitution;

“Bank” means the Bank of Zambia or an institution providing any financial service within the meaning of the Banking and Financial Services Act;

“benefit” includes any property, service or advantage, whether direct or indirect;

“building society” means a body registered or incorporated as a co-operative, housing society or similar society under any law;

“casual gift” has the meaning assigned to it in the Anti-Corruption Commission Act;

“confiscation order” means an order made by the court under sub-section (1) of section 19;

“court” means a High Court or a subordinate court;

“credit union” means a union or society carrying on credit business under any law;

“Director of Public Prosecutions” means the person appointed as such under the Constitution;

“document” means any one or more of the following:

      (a)   anything on which there is writing;

      (b)   a map, a photograph, plan, graph or drawing;

      (c)   anything on which there are marks, figures, symbols or perforations having meaning for persons to interpret;

      (d)   a disk, tape, sound track or other device in which sound or other data not being visual images, are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom; or

      (e)   a film, negative, tape or other device in which one or more visual images are embodied so as to be capable of being reproduced therefrom;

“encumbrance” in relation to a property, includes any interest, mortgage, charge, right, claim or demand made on the property;

“facsimile copy” means a copy obtained by facsimile transmission;

“film” includes a microfilm or microfiche;

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

“fixed term deposit” means an interest bearing deposit lodged for a fixed period;

“foreign confiscation order” means a confiscation order made in relation to a foreign serious offence;

“foreign forfeiture order” means a forfeiture order made in relation to a foreign serious offence;

“foreign restraining order” means a restraining order made in relation to a foreign serious offence;

“foreign serious offence” means a serious offence against the law of a foreign country;

“forfeiture order” means an order made by a court under sub-section (1) of section 10;

“Fund” means the Forfeited Assets Fund established under section 75;

“interest” in relation to property, means—

      (a)   a legal or equitable estate or interest in the property; or

      (b)   a right, power or privilege in connection with the property;

“police officer” means a member of the Zambia Police Force, and includes an officer from the Anti-Corruption Commission, Drug Enforcement Commission and any other investigative institution of the State;

“premises” includes vessel, aircraft, vehicle or any place, whether built upon or not;

“proceeds” in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence in or outside Zambia;

“proceeds of crime” 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

      (d)   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;

“production order” means an order made by the court under section 57;

“property” includes any real or personal property, money, things in action or other intangible or incorporeal property, whether located in Zambia or elsewhere and includes property of corresponding value in the absence of the original illegally acquired property whose value has been determined;

“property-tracking document” in relation to an offence, means—

      (a)   a document relevant to—

      (i)   identifying, locating or quantifying the property of a person who committed the offence; or

      (ii)   identifying or locating any document necessary for the transfer of property of person who committed the offence; or

      (b)   a document relevant to—

      (i)   identifying, locating or quantifying tainted property in relation to the offence; or

      (ii)   identifying or locating any document necessary for the transfer of tainted property in relation to the offence;

“public prosecutor” has the meaning assigned to it in the Criminal Procedure Code;

“realisable property” means, subject to sub-sections (3) and (4) of section 3—

      (a)   any property held or controlled by a person who has been convicted of, or charged with, a serious offence;

      (b)   any property held by a person in respect of which a confiscation or forfeiture order may be made; and

      (c)   any property held by any other person to whom the person so convicted or charged has directly or indirectly made a casual gift within the meaning of this Act;

“relevant application period”, in relation to a person’s conviction of a serious offence, means the period of twelve months after—

      (a)   where the person is to be taken to have been convicted of the offence by reason of paragraph (a) of the definition of “proceeds of crime” the day on which the person was convicted of the offence;

      (b)   where the person is to be taken to have been convicted of the offence by reason of paragraph (b) the definition of “proceeds of crime” the day on which the person was discharged without conviction; or

      (c)   where the person is to be taken to have been convicted of the offence by reason of paragraph (c) of the definition of “proceeds of crime” the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph;

“relevant offence” in relation to tainted property, means—

      (a)   an offence by reason of the commission of which the property is tainted property; or

      (b)   any other offence that is prescribed by regulation as a serious offence for the purposes of this definition or is of a class of offences that is so prescribed;

“restraining order” means an order made by the court under sub-section (1) of section 42;

“serious offence” means an offence for which the maximum penalty prescribed by law is death, or imprisonment for not less than twelve months;

“tainted property” in relation to a serious offence or a foreign serious offence, means—

      (a)   any property used in, or in connection with, the commission of the offence;

      (b)   property intended to be used in, or in connection with, the commission of the offence; or

      (c)   proceeds of the offence; and when used without reference to a particular offence means tainted property in relation to a serious offence; and

“unlawful activity” means an act or omission that constitutes an offence under any law in force in Zambia or a foreign country.

3.   Definition of certain terms

   (1) In this Act, a reference to a benefit derived or obtained by, or otherwise accruing to, a person includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at the request or direction of the person.

   (2) For the purposes of this Act, a person is taken to be convicted of a serious offence where—

      (a)   the person is convicted, whether summarily or on indictment, of the offence;

      (b)   the person is charged with, and found guilty of, the offence but is discharged upon conviction; or

      (c)   a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence.

   (3) Property is not realisable property if—

      (a)   there is in force, in respect of that property, a forfeiture order under this Act or under any other law; or

      (b)   a forfeiture order is proposed to be made against that property under this Act or any other law.

   (4) For the purposes of sections 21and 22, the amount that may be realised at the time a confiscation order is made against a person is the total of the value at that time of all the realisable property held by the person less the total amounts payable under an obligation, where there is an obligation having priority at that time, together with the total of the value at that time of all casual gifts falling within the meaning of this Act.

   (5) For the purposes of sub-section (4), an obligation has priority at any time where it is an obligation of the person to—

      (a)   pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or the order was made before the confiscation order;

      (b)   pay an amount due in respect of any tax, rate, duty or other impost payable under any law; or

      (c)   pay any other civil obligation as may be determined by the court.

   (6) Subject to sub-sections (7) and (8), for the purposes of this Act, the value of property, other than cash, in relation to a person holding the property, is—

      (a)   where any other person holds an interest in the property, the market value of the first-mentioned person’s beneficial interest in the property, less the amount required to discharge any encumbrance on that interest; or

      (b)   in any other case, its market value.

   (7) References in this Act to the value at any time, referred to in sub-section (8) as “the material time” of the transfer of any property, are references to—

      (a)   the value of the property to the recipient when the recipient receives it, adjusted to take account of subsequent changes in the value of money; or

      (b)   where sub-section (8) applies, the value mentioned in that sub-section; whichever is the greater.

   (8) Where at the material time a recipient holds—

      (a)   any property which the recipient received, not being cash; or

      (b)   any property which, in whole or in part, directly or indirectly represents in the recipient’s hands the property which the recipient received; the value referred to under paragraph (b) of sub-section (6) is the value to the recipient at the material time of the property referred to in paragraph (a) or, as the case may be, of the property mentioned in paragraph (b), so far as it represents the property which the recipient received,

   (9) Subject to sub-section (13), a reference to the value at any time, referred to in sub-section (10) as “the material time”, of a casual gift is a reference to—

      (a)   the value of the casual gift to the recipient when the recipient received it, adjusted to take account of subsequent changes in the value of money; or

      (b)   where sub-section (10) applies, the value mentioned in that sub-section; whichever is the greater.

   (10) Subject to sub-section (13), where at the material time a person holds—

      (a)   property which the person received, not being cash; or

      (b)   property which, in whole or in part, directly or indirectly represents in the person’s hands, the property which the person received; the value referred to under paragraph (b) of sub-section (9) is the value to the person at the material time of the property mentioned in paragraph (a) or the value of the property mentioned in paragraph (b) so far as it so represents the property which the person received.

   (11) A gift, including a casual gift made before the commencement of this Act, falls under this Act where—

      (a)   it was made by the person convicted or charged at a time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate, and the court considers it appropriate in all the circumstances to take the casual gift into account;

      (b)   it was made by the person convicted or charged at any time and was a casual gift of property—

      (i)   received by the person in connection with the commission of a serious offence committed by the person or by another person; or

      (ii)   which in whole or in part directly or indirectly represented in the person’s hands, property received by the person in that connection.

   (12) Any reference in sub-section (11) to “an offence to which the proceedings for the time being relate” includes, where the proceedings have resulted in the conviction of a person, a reference to any offence which the court takes into consideration when determining sentence.

   (13) For the purposes of this Act—

      (a)   the circumstances in which a person must be treated as making a casual gift include those where the person transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided or the property transferred by the person; or

      (b)   in the circumstances referred to under paragraph (a), sub-sections (9), (10) and (11) shall apply as if the person had made a casual gift of such share in the property as bears to the whole property the same proportion as the difference between the value referred to in paragraph (a) bears to the value of the consideration provided or the property transferred by the person.

PART II
FORFEITURE ORDERS, CONFISCATION ORDERS AND RELATED MATTERS

DIVISION 1
APPLICATION FOR FORFEITURE OR CONFISCATION ORDER

4.   Application for forfeiture order or confiscation order on conviction

   (1) Subject to sub-section (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 orders:

      (a)   a forfeiture order against property that is tainted property in respect of the offence;

      (b)   a confiscation order against the person in respect of benefits derived by the person from the commission of the offence.

   (2) A public prosecutor shall not make an application after the end of the relevant application period in relation to the conviction unless the public prosecutor has reasonable grounds for doing so.

   (3) An application under this section may be made in respect of one or more than one serious offence.

   (4) Where an application under this section is finally determined, no further application for a forfeiture order or a confiscation order may be made in respect of the offence for which the person was convicted unless the court grants leave for the making of a new application on being satisfied—

      (a)   that the property or benefit to which the new application relates was identified after the previous application was determined;

      (b)   that necessary evidence became available only after the previous application was determined; or

      (c)   that it is in the interests of justice that the new application be made.

   (5) Any application under sub-section (2) shall be made ex parte and shall be in writing and be accompanied by an affidavit.

5.   Jurisdiction of High court

The court has jurisdiction to make a forfeiture order irrespective of the value of the property.

6.   Notice of application

   (1) Where a public prosecutor applies for a forfeiture order against property in respect of a person’s conviction of an offence—

      (a)   the public prosecutor shall give written notice of the application to the person and any other person who the public prosecutor has reason to believe may have an interest in the property;

      (b)   the person, and any other person, who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and

      (c)   the court may, at any time before the final determination of the application, direct the public prosecutor—

      (i)   to give notice of the application to any person who, in the opinion of the court, appears to have an interest in the property; or

      (ii)   to publish in the Gazette and in a daily newspaper of general circulation in Zambia, notice of the application, in the manner and containing such particulars and within the time that the court considers appropriate.

   (2) Where a public prosecutor applies for a confiscation order against a person—

      (a)   the public prosecutor shall give the person written notice of the application; and

      (b)   the person may appear and adduce evidence at the hearing of the application.

7.   Amendment of application

   (1) The court hearing an application under sub-section (1) of section 4 may, before final determination of the application, and on the application of a public prosecutor, amend the application to include any other property or benefit, as the case may be, upon being satisfied that—

      (a)   the property or benefit was not reasonably capable of identification when the application was originally made;

      (b)   necessary evidence became available only after the application was originally made; or

      (c)   the property or benefit was acquired after the application was originally made.

   (2) Where a public prosecutor applies to amend an application for a forfeiture order and the amendment would have the effect of including property in the application for the forfeiture order, the public prosecutor shall give written notice of the application to amend to any person who the public prosecutor has reason to believe may have an interest in property to be included in the application for the forfeiture order.

   (3) Any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend.

   (4) Where a public prosecutor applies to amend an application for a confiscation order against a person and the effect of the amendment would be to include an additional benefit in the application for the confiscation order the public prosecutor shall give the person written notice of the application to amend.

   (5) Section 9shall apply for the purposes of written notice in sub-section (4) where the person required to be notified has absconded.

8.   Procedure on application

   (1) Where an application is made to the court for a forfeiture order or a confiscation order in respect of a person’s conviction of an offence, the court may, in determining the application, have regard to the transcript of any proceedings against the person for the offence.

   (2) Where an application is made for a forfeiture order or a confiscation order to the court before which the person was convicted, and the court has not, when the application is made, passed sentence on the person for the offence, the court may, if it is satisfied that it is reasonable to do so in the circumstances, defer passing sentence until it has determined the application for the order.

9.   Application for forfeiture order where person has absconded

   (1) Where a person absconds in connection with a serious offence committed after the coming into force of this Act, a public prosecutor may, within a period of six months after the person so absconds, apply to the court for a forfeiture order under section 17 in respect of any tainted property.

   (2) For the purposes of this section, a person shall be deemed to have absconded in connection with an offence where—

      (a)   an information has been laid alleging the commission of the offence by the person;

      (b)   a warrant for the arrest of the person is issued in relation to that information;

      (c)   reasonable attempts to arrest the person pursuant to the warrant have been unsuccessful during a period of six months commencing on the day the warrant was issued; or

      (d)   the person dies after the warrant is issued or an investigation into the offence has commenced.

   (3) A person is deemed to have absconded on the last day of the period of six months or where the person has died, on the date of death.

   (4) Where a public prosecutor applies under this section for a forfeiture order against any tainted property the court shall, before hearing the application—

      (a)   require notice of the application to be given to any person who, in the opinion of the court, appears to have an interest in the property; or

      (b)   direct notice of the application to be published in the Gazette and in a newspaper of general circulation in Zambia, of such particulars and for so long as the court may require.

DIVISION 2
FORFEITURE ORDERS

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.