Wednesday, July 17, 2024

Court of Appeal Sets New Forfeiture Precedent: Impact on Chiluba’s Case

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Late Former President FTJ Chiluba
Late Former President FTJ Chiluba

By Gregory Mofu

In a significant judgment, the Court of Appeal has established a crucial precedent for forfeiture cases by emphasizing the necessity of linking the property to a serious crime. This ruling has far-reaching implications, particularly for the case of late former Republican President Dr. Frederick Chiluba, whose assets were seized by the State without those assets being subject to litigation now over 20 years.

The Court of Appeal’s guidance is clear: mere suspicion or lack of known income is insufficient to justify forfeiture. Prosecutors must now demonstrate a tangible connection between the property and a serious offense. This sets a higher bar for forfeiture, protecting individuals from unjust seizures.

In the case of _Sydney Mwansa v. Director of Public Prosecutions_ (Appeal No. 276/2021), the Court of Appeal overturned a lower court’s decision and ordered the return of the property to its owner. This ruling underscores the importance of evidence and due process in forfeiture cases.

This landmark case has significant implications for President Chiluba’s assets, which were seized following allegations of financial wrongdoing during his tenure. Despite his acquittal, the assets remain in the State’s possession. The Court of Appeal’s ruling suggests that the State must demonstrate a clear connection between the assets and a serious offense, beyond mere suspicion or lack of known income.

In the case of the former President, the state lost the case in 2010 and were meant to return his assets. They failed to appeal within the legal period of 30 days and waited for the demise of Dr Chiluba months later to appeal seize his assets. In fact, the state even argued that they were seizing the assets because he did not claim them back. Tedworth, for example, was even changed to Pendulum Estates by the state. These errors, have not been rectified to this day despite that government found no use of public funds in the purchase of those assets.

The return of President Chiluba’s assets to his family would be a significant victory for justice and the rule of law. It would also set a precedent for future forfeiture cases, ensuring that individuals are protected from unjust seizures and that the State respects the rights of its citizens.

In conclusion, the Court of Appeal’s landmark ruling has raised the bar for forfeiture cases, emphasizing the need for evidence and due process. This has significant implications for President Chiluba’s case and beyond, promoting justice and the protection of individual rights.

29 COMMENTS

    • Could be. But the man never instilled a sense of responsibility in his sons. Look at Tito who was being looked after by someone who could have easily been his domestic servant.

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    • Late Chiluba’s children should be judged on their own actions. They’re adults now and they would be expected to be leading independent lives even if their father was alive. They should not be judged by who their father was.

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    • #Gunner.. nobody is judging Chiluba but if a parent fails to nurture his children in the right way how are you going to judge that parent. Castro was a mere teenager when he started terrorizing people… who do you blame?

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  1. Does it make sense for the ACC or DEC to summon Mutale Mwanza for questioning just because she took some selfie at an expensive brothel? Or seize Bowman’s Rover because he decided to buy hungry police officers lunch packs? Is that how they’ve been trained to fight white collar crime? In the meantime people that removed police checkpoints to allow their contraband passage are busy investing proceeds abroad. This looks like the first sensible verdict from the judiciary in a long time

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    • We certainly do have a problem with investigaters. They’re in most cases being sent to perform tasks for which they have not received adequate training.

    • Our Police are haphazard. Anything goes. Now does this mean Mrs Lungu can get away with her flats? And that policewoman Katanga should have her buses back? Or are the police able to connect criminal activities to Lungu’s flats and Katanga’s buses?
      Indeed most capitalist countries dont have living be yond one’s means as an offence. That kind of living may just raise the eyebrows of investigating agencies who then go ahead to investigate the suspect

    • Whoever voted negative for me is either too young or stupid. Fred Mmembe Post was no different from Chilufya Tayali’s antics. The only difference is that Fred Mmembe packaged his hatred/personal agendas in a newspaper and was making lots of money from sensational reporting and opinions, whilst destroying other peoples lives. Tayali on the other hand asks for handouts for those he saves. I cannot believe that this man married Mazoka’s child after all the vile he spewed

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  2. Gregory Mofu is writing about an issue he knows very little about. The civil matter of Tedworth Properties vs the Anti-Corruption Commission started when Frederick Chiluba was alive. Late Chiluba never turned up in court to swear an affidavit as a claimant of Tedworth Properties. The matter was litigated in the High Court and the Supreme Court and Chiluba’s name is not mentioned.

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  3. Is drug trafficking a serious offence we are not talking about drug possession! The essence of having the CA is for them to determine if they are appealable matters that can allow a matter to proceed…can they then overstep their role and rule that the appeal stands therefore give back the property? Awe why should a law abiding citizen have in their possession assets beyond their means and fail to explain the source? FTJs case must be grounded on ‘abuse of office’.. I think the Supreme Court will once again come to the rescue….

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    • I consider the Court of Appeal’s judgement sub-optimal. I hope the DPP will appeal to the Supreme Court. Meanwhile the DPP should consider appropriate training for investigators at both DEC and ACC.

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    • How do the Police prove abuse of office? Even when Lungu receives land from Swaziland how would that be called abuse of office? Lawyers please tell us.

  4. this seems extremely difficult even to retrieve suspected goods from robbers, as long as they eliminate any link to robbed items

  5. even the assets declaration by civil servants and politicians is useless. these guys make sure they eliminate corruption everytrail: for instance presidents steal through civil servants bank accounts who normally make deposits in foreign countries, rendering it so difficult to trace the corruption trail and link the assets to the questionable source.

  6. It is very important to be mindful of individual rights.
    In that sense, it should not mean that a majority people should be deprived of the resources at the expense of an individual.
    While the individual rights are being upheld, we should not forget that individuals have no right to absolutely deprive the majority simply because the majority are not in the privileged positions.
    It must be understood that, that those in the privileged positions have been enjoying many good conditions of service, and selfishness is NOT a condition of service, but a selfish human act which has no satisfaction at all. That is were decision should lay and the majority should benefit.

  7. ……..

    Wrong ruling by the courts……..

    Every where in the world , if you are caught with suitcases full of cash and cant explain the source………

    You lose that cash………..

    That court must be a PF aligned court…….

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  8. LET BOWMAN GET BACK HIS HOUSES. !!!!
    THE FIRST LADY GET BACK HER PROPERTIES!!!
    LET FAITH MUSONDA GET BACK HER MONEY. !!!!
    LET CHARITY KATANGA GET BACK HER SANTA MARIA BUSES. !!!

    THIS IS THE MOST FAIR JUDGEMEMT

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  9. This Gregory guy seems to be an interested party who wants to use late chiluba’s wayward children to his own advantage by claiming some assets using their name and afterwards discarding them.

  10. This is a good judgement because
    1. It conforms to tenet which assumes innocence until proven guilty
    2. Places the burden of proof on the prosecution
    3. The law of forfeiture is aimed at corrupt politicians but it may/will impact ordinary hardworking citizens
    4. We should devise laws that will address graft and theft whilst they are in office NOT after the damage has been done

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    • The Court of Appeal is in essence saying that it opposes lifestyle audits in Zambia. There’s no properly-governed country in the world where sudden wealth whose source is unknown does not attract the interest of law enforcement officers.

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