Forfeiture of Proceeds of Crime [No. 19 of 2010 215
THE FORFEITURE OF PROCEEDS OF CRIME ACT, 2010
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
Short title and commencement
Interpretation
Definition of certain terms
PART II
THE FORFEITURE ORDERS CONFISCATION ORDERS AND RELATED MATTERS
Division I - Application for forfeiture or confiscation
Application for forfeiture or confiscation order on conviction
Jurisdiction of High Court
Notice of application
Amendment of application
Procedure on application
Application for forfeiture order where person has absconded
Division 2 - Forfeiture Orders
Forfeiture order on conviction
11. Effect of forfeiture order
12 Protection of third parties
Discharge of forfeiture order on appeal and quashing of conviction
Effect of discharge of forfeiture order
Payment instead of forfeiture order
Enforcement of order for payment instead of forfeiture
Forfeiture order where person has absconded
Registered foreign forfeiture orders
Division 3 - Confiscation Orders
Confiscation order on conviction
Rules for determining benefit and assessing value
21. Statements relating to benefits from commission of serious offences
Single copies of this Act may be obtainedfrom the Government Printer,
P.O. Box 30136, 10101 Luska. PriceK31, 000 each
216 No. 19 of 20101 Forfeiture of Proceeds of Crime
Amount to be recovered under confiscation order
Variation of confiscation orders
Court may lift corporate veil
Enforcement of confiscation orders
Amounts paid in respect of registered foreign confiscation orders
Division 4 - Civil Forfeiture Orders
Application for restraining order for tainted property
Prohibition from disposal, etc of tainted property
Application for non-conviction based forfeiture order for tainted property
Notice of application
Non-conviction based forfeiture order for tainted property
Division 5 - General
Voiding of contract
Proceedings civil, not criminal
Onus of proof
PART III
POLICE INVESTIGATION AND PRESERVING PROPERTY LIABLE TO FORFETURE AND
CONSFICAT/ON ORDERS
Division 1 - Powers of Search and Seizure
Warrants to search premises etc, for tainted property
Defects in warrants
Police may seize other tainted property
Return of seized property
Appointment of Administrator
Search for and seizure of tainted property in relation to foreign offences
Division 2 - Restraining Orders
Application for restraining order
Restraining order
Undertaking by Attorney-General
Forfeiture of Proceeds of Crime No. 19 of 2010 217
Notice of application for restraining order
Service of restraining order
Further orders
Attorney-General to satisfy confiscation order
Registration of restraining order
Contravention of restraining orders
Court may revoke restraining orders
When restraining order ceases to be in force
Interim restraining order in respect of foreign offence
General provisions on registered foreign restraining order
Court may direct Attorney-General to take custody, etc, of property
Registered foreign restraining orders - undertaking
Registered foreign restraining orders - time when order ceases to be in
force
Division 3 - Production Orders and Other Information Gathering Powers
Production and inspection orders
Scope of police powers under production order etc.
Evidential value of information
Variation of production orders
Failure to comply with production order
Search warrant to facilitate investigations
Production orders and search warrants in relation to foreign offences
Division 4 - Monitoring Orders
Monitoring orders
Monitoring orders not to be disclosed
Division 5 - Obligations of Financial Institutions
Register of original documents
Division 6 - Disclosure of Information held by Government Departments
Direction to disclosure information
Further disclosure of information and documents
Evidential value of copies
218 No. 19 of 2010] Forfeiture of Proceeds of Crime
PART IV
DISPOSAL ORDERS
Disposal orders
PART V
OFFENCES
Possession of property suspected of being proceeds of crime
Conduct by directors, servants or agents
PART VI
FORFEITED ASSETS FUND
Establishment of Forfeited Assets Fund
Credits to Fund
Shared confiscated property with foreign countries to be credited to
Fund
Payments from Fund
Programmes for expenditure on enforcement, etc.
PART VII
GENERAL PROVISIONS
Standard of proof
Costs
Operation of other laws not affected
Appeals
82. No criminal or civil liability for compliance
83 Rules
84. Regulations
Forfeiture of Proceeds of Crime No. 19 of 2010 219
GOVERNMENT OF ZAMBIA
ACT
No. 19 of 2010
Date of Assent: 13th April, 2010
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
ENACTED by the Parliament of Zambia.
PART
PRELIMINARY
This Act may be cited as the Forfeiture of Proceeds of Crime
Act, 2010, and shall come into operation on such date as the Minister
may, by statutory instrument, appoint.
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 thirty-nine;
" 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
Enactment
Short title and
commencement
Interpretation
Cap. I
Cap. 387
220 No. 19 of 20101 Forfeiture of Proceeds of Crime
as a co-operative, housing society or similar society under
any law;
" casual gift " has the meaning assigned to it in the Anti-
Cap. 91 Corruption Commission Act;
" confiscation order" means an order made by the court under
subsection (1) of section nineteen;
" 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
Cap. 1 as such under the Constitution;
" document " means any one or more of the following:
(a) anything on which there is writing;
(ii) a map, a photograph, plan, graph or drawing;
anything on which there are marks, figures,
symbols or perforations having meaning for
persons to interpret;
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
Cap. 387 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;
Forfeiture of Proceeds of Crime [No. 19 of 2010 221
" 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
subsection (1) of section ten;
" Fund " means the Forfeited Assets Fund established under
section seventy-five;
" interest " in relation to property, means -
a legal or equitable estate or interest in the
property; or
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 -
wholly or partly derived or realised directly or
indirectly, by any person from the commission
of a serious offence or a foreign serious offence;
wholly or partly derived or realised from a
disposal or other dealing with proceeds of a
serious offence or a foreign serious offence;
(e) 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,
222 No. 19 of 2010] Forfeiture of Proceeds of Crime
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 fifty-seven;
" 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-
identifying, locating or quantifying the
property of a person who committed the
offence; or
identifying or locating any document
necessary for the transfer of property
of person who committed the offence;
or
Cap. 88
(b) a document relevant to-
identifying, locating or quantifying tainted
property in relation to the offence; or
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 subsections (3) and (4)
of section three—
(a) any property held or controlled by a person who
has been convicted of, or charged with, a serious
offence;
Forfeiture of Proceeds of Crime (No. 19 of 2010 223
any property held by a person in respect of which
a confiscation or forfeiture order may be made;
and
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—
an offence by reason of the commission of which
the property is tainted property; or
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
subsection (1) of section forty-two;
" serious offence " means an offence for which the maximum
penalty prescribed by law is death, or imprisonment for not
less than twelve months;
224 No. 19 of 2010] Forfeiture of Proceeds of Crime
Definition
of certain
terms
" tainted property " in relation to a serious offence or a foreign
serious offence, means—
any property used in, or in connection with, the
commission of the offence;
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. (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—
the person is convicted, whether summarily or on
indictment, of the offence;
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—
there is in force, in respect of that property, a forfeiture
order under this Act or under any other law; or
a forfeiture order is proposed to be made against that
property under this Act or any other law.
(4) For the purposes of sections twenty-one and twenty-two,
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
Forfeiture of Proceeds of Crime (No. 19 of 2010 225
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 subsection (4), an obligation has priority
at any time where it is an obligation of the person to—
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;
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 subsections (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—
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
in any other case, its market value.
(7) References in this Act to the value at any time, referred to
in subsection (8) as "the material time" of the transfer of any
property, are references to—
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
where subsection (8) applies, the value mentioned in that
subsection; whichever is the greater.
(8) Where at the material time a recipient holds—
any property which the recipient received, not being cash;
Or
any property which, in whole or in part, directly or indirectly
represents in the recipient's hands the property which
the recipient received;
226 No. 19 of 2010] Forfeiture of Proceeds of Crime
the value referred to under paragraph (b) of subsection (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 subsection (13), a reference to the value at any
time, referred to in subsection (10) as "the material time", of a
casual gift is a reference to—
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
where subsection (10) applies, the value mentioned in
that subsection;
whichever is the greater.
(10) Subject to subsection (13), where at the material time a
person holds—
property which the person received, not being cash; or
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 subsection (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—
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;
it was made by the person convicted or charged at any
time and was a casual gift of property-
received by the person in connection with the
commission of a serious offence committed by
the person or by another person; or
which in whole or in part directly or indirectly
represented in the person's hands, property
received by the person in that connection.
Forfeiture of Proceeds of Crime (No. 19 of 2010 227
Any reference in subsection (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.
For the purposes of this Act—
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
in the circumstances referred to under paragraph (a),
subsections (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 I-Application for forfeiture or confiscation order
4. (1) Subject to subsection (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 forfeiture order against property that is tainted property
in respect of the offence;
a confiscation order against the person in respect of
benefits derived by the person from the commission of
the offence.
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.
An application under this section may be made in respect of
one or more than one serious offence.
Application
for forfeiture
order or
confiscation
order on
conviction
228 No. 19 of 2010] Forfeiture of Proceeds of Crime
Jurisdiction
of court
Notice of
application
(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—
that the property or benefit to which the new application
relates was identified after the previous application was
determined;
that necessary evidence became available only after the
previous application was determined; or
(c) that it is in the interests ofjustice that the new application
be made.
(5) Any application under subsection (2) shall be made ex parte
and shall be in writing and be accompanied by an affidavit.
The court has jurisdiction to make a forfeiture order
irrespective of the value of the property.
(1) Where a public prosecutor applies for a forfeiture order
against property in respect of a person's conviction of an offence—
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;
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-
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
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-
Forfeiture of Proceeds of Crime INo. 19 of 2010 229
the public prosecutor shall give the person written notice
of the application; and
the person may appear and adduce evidence at the
hearing of the application.
7. (1) The court hearing an application under subsection (1)
of section four 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—
the property or benefit was not reasonably capable of
identification when the application was originally made;
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.
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.
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.
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.
Section nine shall apply for the purposes of written notice
in subsection (4) where the person required to be notified has
absconded.
8. (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.
Amendment
of
application
Procedure on
application
230 No. 19 of 20101 Forfeiture of Proceeds of Crime
Application
for
forfeiture
order
where person
has
absconded
(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. (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
seventeen 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—
an information has been laid alleging the commission of
the offence by the person;
a warrant for the arrest of the person is issued in relation
to that information;
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
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—
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
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.
Forfeiture of Proceeds of Crime INo. 19 of 2010 231
Division 2 - Forfeiture Orders
10. (1) Where a public prosecutor applies to the court for an
order under this Part against any property and the court is satisfied
that the property is tainted property, the court may order that the
property, or such of the property as is specified by the court in the
order, be forfeited to the State.
(2) In determining whether property is tainted property the court
may infer—
where the evidence establishes that the property was in
the person's possession at the time of, or immediately
after, the commission of the offence of which the person
was convicted, that the property was used in, or in
connection with, the commission of the offence;
where the evidence establishes that the property, and in
particular money, was found in the person's possession
or under the person's control in a building, vehicle,
receptacle or place during the course of investigations
conducted by the police before or after the arrest and
charge of the person for the offence of which the person
was convicted, that the property was derived, obtained
or realised as a result of the commission by the person
of the offence of which the person was convicted;
where the evidence establishes that the value, after the
commission of the offence, of all ascertainable property
of a person convicted of the offence exceeds the value
of all ascertainable property of that person prior to the
commission of that offence, and the court is satisfied
that the income of that person from sources unrelated
to criminal activity of that person cannot reasonably
account for the increase in value, that the value of the
increase represents property which was derived, obtained
or realised by the person directly or indirectly from the
commission of the offence of which the person was
convicted; and
where the evidence establishes that the property was
under the effective control of the person at the time of,
or immediately after, the commission of the offence of
which the person was convicted, that the property was
derived, obtained or realised as a result of the commission
by the person of the offence of which the person was
convicted, and for purposes of this paragraph effective
control has the same meaning as in section twenty-four
of this Act.
Forfeiture
order on
conviction
232 No. 19 of 20101 Forfeiture of Proceeds of Crime
Effect of
forfeiture
order
Where the court orders that property, other than money, be
forfeited to the State, the court shall specify in the order the amount
that it considers to be the value of the property at the time when the
order is made.
In considering whether a forfeiture order should be made
under subsection (1), the court may have regard to—
the rights or interests, if any, of third parties in the property;
the gravity of the offence concerned;
any hardship that may reasonably be expected to be caused
to any person by the operation of the order; and
the use that is ordinarily made of the property, or the use
to which the property was intended to be put.
(5) Where the court makes a forfeiture order, the court may
give directions necessary or convenient to give effect to the order.
11. (1) Subject to subsection (2), where the court makes a
forfeiture order against any property, the property vests absolutely
in the State by virtue of the order.
(2) Where a forfeiture order is made against registrable property
the property vests in the State in equity but does not vest
in the State at law until the applicable registration
requirements have been complied with;
the State is entitled to be registered as owner of the
property; and
(c) the Attorney-General has power on behalf of the State to
do, or authorise the doing of, anything necessary or
convenient to obtain the registration of the State as owner,
including the execution of any instrument required to be
executed by a person transferring an interest in property
of that kind.
(3) If a forfeiture order has been made against registrable
property —
a public prosecutor has the power on behalf of the State
to do anything necessary or convenient to give notice
of, or otherwise protect, the equitable interest of the State
in the property; and
any action by, or on behalf of, the State is not a dealing
for the purpose of paragraph (a) of subsection (4).
Forfeiture of Proceeds of Crime [No. 19 of 2010 233
(4) Where the court makes a forfeiture order against property—
the property shall not, except with the leave of the court
and in accordance with any directions of the court, be
disposed of, or otherwise dealt with, by or on behalf of
the State, before the relevant appeal date; and
if, after the relevant appeal date, the order has not been
discharged, the property may be disposed of, and the
proceeds applied or otherwise dealt with, in accordance
with the direction of the Attorney-General.
(5) Without limiting the generality of paragraph (b) of subsection
(4), the directions that may be given pursuant to that paragraph
include a direction that property is to be disposed of in accordance
with the provisions of any law specified in the direction.
Money forfeited to the State under a forfeiture order shall
be paid into the Fund.
In this section-
" registrable property " means property the title to which is
passed by registration on a register; and
" relevant appeal date " in relation to a forfeiture order made
in consequence of a person's conviction of a serious
offence, means —
the date on which the period allowed by the rules of court
for the lodging of an appeal against a person's conviction,
or for the lodging of an appeal against the making of a
forfeiture order, expires without an appeal having been
lodged, whichever is the later; or
where an appeal against a person's conviction or against
the making of a forfeiture order is lodged, the date on
which the appeal, or the later appeal, lapses in
accordance with the rules of court or is finally
determined.
12. (1) Where an application is made for a forfeiture order
against any property, a person who claims an interest in the property
may apply to the court, before the forfeiture order is made, for an
order under subsection (2).
(2) Where a person applies to the court for an order under this
subsection in respect of the person's interest in any property and
the court is satisfied that—
(a) the applicant has an interest in the property;
Protection
of third
parties
234 No. 19 of 20101 Forfeiture of Proceeds of Crime
the applicant was not in any way involved in the
commission of the offence in respect of which the
forfeiture of the property is sought, or the forfeiture order
against the property was made; and
the applicant-
had the interest before the serious offence
occurred;
acquired the interest during or after the
commission of the offence, bona fide and for
fair value, and did not know or could not
reasonably have known at the time of the
acquisition that the property was tainted
property;
the court may make an order declaring the nature, extent and value,
as at the time when the order is made, of the applicant's interest.
Subject to subsection (4), where a forfeiture order has already
been made directing the forfeiture of any property, a person who
claims an interest in the property may, before the end of the period
of six months commencing on the day on which the forfeiture order
is made, apply under this subsection to the court for an order under
subsection (2).
A person who had knowledge of an application for the
forfeiture order before the order was made, or appeared at the
hearing of the application, shall not be permitted to make an
application under subsection (3), except with the leave of the court.
A person who makes an application under subsection (1)
or (3) shall give notice of the application to the Director of Public
Prosecutions, who shall be a party to any proceedings in the
application.
An applicant or a public prosecutor may, in accordance with
the rules of court, appeal against an order made under subsection
(2).
(7) The Attorney-General shall, on application by any person
who has obtained an order under subsection (2), and where the
period allowed by the rules of court for appeal has expired or any
appeal from that order has been determined—
(a) direct that the property, or the part thereof to which the
interest of the applicant relates, be returned to the
applicant; or
Forfeiture of Proceeds of Crime [No. 19 of 2010 235
(b) direct that an amount equal to the value of the interest of
the applicant, as declared in the order, be paid to the
applicant.
(8) For the purposes of an application under subsection (1),
where the person who claims an interest in the property is a minor,
an application may be made on behalf of the minor by a guardian
ad litem appointed by the court.
13. (1) Where the court makes a forfeiture order against
property in reliance on a person's conviction of an offence and the
conviction is subsequently quashed, the quashing of the conviction
discharges the order:
Provided that the discharge shall not take effect until the
date on which the period allowed by the rules of court for the
lodging of an appeal expires without an appeal having been
lodged, or the appeal has been finally determined in accordance
with the rules of court.
Where a forfeiture order against property is discharged as
provided by subsection (1) or by the court hearing an appeal against
the making of the order, any person who claims to have had an
interest in the property immediately before the making of the
forfeiture order may apply to the Attorney-General in writing, for
the transfer of the interest to the person.
TheAttorney-General shall, on receipt of an application under
subsection (2) from a person who had an interest in the property -
where the interest is vested in the State, give directions
that the property or part thereof to which the interest of
the applicant relates be transferred to the person; or
in any other case, direct that there be payable to the person
an amount equal to the value of the interest as at the
time the order is made.
(4) In the exercise of powers under this section and section
twelve, the Attorney-General shall have the power to do, or authorise
the doing of, anything necessary or convenient to effect the transfer
or return of property, including the execution of any instrument and
the making of an application for the registration of an interest in the
property on any appropriate register.
14. (1) If a forfeiture order is discharged, a person who claims
to be the person in whom the property was vested immediately
before the making of the forfeiture order may—
Discharge of
forfeiture
order on
appeal and
quashing of
conviction
Effect of
discharge of
forfeiture
order
236 No. 19 of 2010) Forfeiture of Proceeds of Crime
Payment
instead of
forfeiture
order
where the property is still vested in the State institution in
which it was vested under the forfeiture order, by
application in writing to the Attorney-General, request
the return of the property; or
where the property is no longer vested in the State, apply
to the court which made the forfeiture order for an order
declaring the value, as at the time of making the order
under this paragraph, of the property.
On receipt of an application under paragraph (a) of subsection
(1), the Attorney-General shall, subject to subsection (3), arrange
for the property to be transferred to the applicant or other person or
body as the Attorney-General determines and, for this purpose, the
Attorney-General shall do, or authorise the doing of, anything
necessary to carry out the transfer.
On an application under paragraph (b) of subsection (1),
the court may make an order declaring the value, as at the time of
making the order, of the property.
After an order is made under subsection (3), the applicant
for the order may, by application in writing to the Attorney-General,
request the payment of the amount declared by the order.
On receipt of an application under subsection (4), the
Attorney-General shall direct the State institution concerned to pay
to the applicant or to such other person or body as the Attorney-
General determines the amount declared by the order made under
subsection (3) less the total amount paid by the State institution in
respect of the property under any order.
15. Where the court is satisfied that a forfeiture order should be
made in respect of property of a person pursuant to section ten or
seventeen but that the property or any part thereof or interest therein
cannot be made subject to such an order and, in particular—
cannot, on the exercise of due diligence, be located;
has been transferred to a third party in circumstances
that do not give rise to a reasonable inference that the
title or interest was transferred for the purpose of
avoiding the forfeiture of the property;
is located outside Zambia;
has been mixed with other property that cannot be divided
without difficulty; or
(e) has been transferred to a bona fide third party purchaser
for fair value without notice;
Forfeiture of Proceeds of Crime [No. 19 of 2010 237
the court may, instead of ordering the property or part thereof or
interest therein to be forfeited, order the person to pay to the State
an amount equal to the value of the property, part or interest.
(1) An amount payable by a person to the State under
section fifteen is a debt due to the State and shall be summarily
recoverable as a civil debt.
(2) An order made under section fifteen may be enforced as if
it were an order made in civil proceedings instituted by the State
against the person to recover a debt due by the person to the State
and the debt arising from the order shall be taken to be a judgment
debt.
(1) Subject to subsection (3) of section nine, where an
application is made to the court under subsection (1) of section ten
for a forfeiture order against any tainted property because a person
has absconded in connection with a serious offence and the court
is satisfied that—
the property is tainted property in respect of the offence;
proceedings in respect of a serious offence committed in
relation to that property were commenced; and
(c) the accused charged with the offence referred to in
paragraph (b) has absconded;
the court may order that the property, or such of the property as is
specified by the court in the order, be forfeited to the State.
(2) Subsections (2), (3), (4) and (5) of section ten and sections
eleven and twelve shall apply with such modifications as are
necessary to give effect to this section.
18. If a foreign forfeiture order is registered in the court under
the Mutual Legal Assistance in Criminal Matters Act, this Division
applies in relation to the order as if—
any reference to an appeal against the making of an order
and to the relevant appeal date were omitted; and
a period of six weeks were substituted for the period of
six months provided in subsection (3) of section twelve.
Division 3 - Confiscation Orders
19. (1) Subject to subsections (1) and (2) of section twenty, where
a public prosecutor applies to the court for a confiscation order
against a person in respect of that person's conviction of a serious
offence, the court may, if it is satisfied that the person has benefited
Enforcement
of order for
payment
instead of
forfeiture
Forfeiture order
where person
has
absconded
Registered
foreign
forfeiture
orders
Cap. 98
Confiscation
order on
conviction
238 No. 19 of 2010] Forfeiture of Proceeds of Crime
Rules for
determining
benefit and
assessing
value
from that offence, order the person to pay into court an amount
equal to the value of the person's benefits from the offence or such
lesser amount as the court certifies in accordance with section
twenty-two to be the amount that might be realised at the time the
confiscation order is made.
The court shall assess the value of the benefits derived by a
person from the commission of an offence in accordance with
sections twenty to twenty-three.
The court shall not make a confiscation order under this
section —
until the period allowed by the rules of court for the lodging
of an appeal against conviction has expired without the
appeal having been lodged; or
where an appeal against conviction has been lodged, until
the appeal lapses in accordance with the rules of court
or is finally determined.
20. (1) Where a person obtains property as a result of, or in
connection with the commission of, a serious offence, the person's
benefit is the value of the property so obtained.
Where a person derives an advantage as a result of, or in
connection with the commission of, a serious offence, the person's
advantage is deemed to be a sum of money equal to the value of
the advantage so derived.
The court, in determining whether a person has benefited
from the commission of a serious offence or from that offence
taken together with other serious offences and, if so, in assessing
the value of the benefit, shall, unless the contrary is proved, deem—
(a) all property appearing to the court to be held by the person
on the day on which the application is made and all
property appearing to the court to be held by the person
at any time-
within the period between the day the offence, or
the earliest offence, was committed and the day
on which the application is made; or
within the period of five years immediately before
the day on which the application is made,
whichever is the shorter;
to be property that came into the possession or under the control of
the person by reason of the commission of that offence or offences;
Forfeiture of Proceeds of Crime [No. 19 of 2010 239
any expenditure by the person since the beginning of that
period to be expenditure met out of payments received
by the person as a result of, or in connection with, the
commission of that offence or offences; or
any property received or is deemed to have been received
by the person at any time as a result of, or in connection
with, the commission by the person of that offence, or
offences, to be property received by the person free of
any interests therein.
Where a confiscation order has previously been made against
a person, in assessing the value of any benefit derived by the person
from the commission of the serious offence in respect of which the
order was made, the court shall leave out of account any of the
person's benefits that are shown to the court to have been taken
into account in determining the amount to be recovered under that
order.
If evidence is given at the hearing of the application that
the value of the person's property at any time after the commission
of the serious offence exceeded the value of the person's property
before the commission of the offence, the court shall, subject to
subsection (6), treat the value of the benefits derived by the person
from the commission of the offence as being not less than the
amount of the excess.
(6) If, after evidence of the kind referred to in subsection (5)
is given, the person satisfies the court that the whole or part of the
excess was due to causes unrelated to the commission of the
offence, subsection (5) does not apply to the excess or, as the case
may be, that part.
21. ( 1 ) Where—
(a) a person has been convicted of a serious offence and the
Director of Public Prosecutions tenders to the court a
statement as to any matters relevant-
to determining whether the person has benefited
from the offence or from any other serious
offence of which the person is convicted in the
same proceedings or which is taken into account
in determining that person's sentences; or
to an assessment of the value of the person's
benefit from the offence or any other serious
offence of which the person is so convicted in
the same proceedings or which is so taken into
account; and
Statements
relating
to benefits
from
commission of
serious
offences
(b) a person accepts to any extent an allegation in the
statement tendered under paragraph (a);
the court may, for the purposes of so determining or making that
assessment, treat the person's acceptance as conclusive of the
matters to which it relates.
Where a statement is tendered under paragraph (a) of
subsection (1) and the court is satisfied that a copy of that statement
has been served on any person, the court may require the person to
indicate to what extent the person accepts each allegation in the
statement and, so far as the person does not accept any allegation,
to indicate any matter the person proposes to rely on.
Where any person fails in any respect to comply with a
requirement under subsection (2), the person may be treated for
the purposes of this section as having accepted every allegation in
the statement, other than—
an allegation in respect of which the person has complied
with the requirement; and
an allegation that the person has benefited from any serious
offence or that any property or advantage was obtained
by the person as a result of, or in connection with, the
commission of the offence.
(4) Where—
any person tenders to the court a statement as to any
matters relevant to determining the amount that might
be realised at the time the confiscation order is made;
and
a public prosecutor accepts to any extent any allegation
in a tendered statement;
the court may, for the purposes of the determination, treat the
acceptance of the public prosecutor as conclusive of the matters to
which it relates.
An allegation may be accepted or matter indicated for the
purposes of this section either orally before the court or in writing
in accordance with rules of court.
An acceptance by a person under this section that the person
received any benefit from the commission of a serious offence is
admissible in any proceedings for any offence.
240 No. 19 of 2010] Forfeiture of Proceeds of Crime
Forfeiture of Proceeds of Crime [No. 19 of 2010 241
(1) Subject to subsection (2), the amount to be recovered
in a person's case under a confiscation order shall be the amount
which the court assesses to be the value of the person's benefit
from the offence or, if more than one, all the offences in respect of
which the order may be made.
(2) Where the court is satisfied as to any matter relevant to
determining the amount which might be realised at the time the
confiscation order is made, whether by an acceptance under section
twenty-one or otherwise, the court may issue a certificate giving
the court's opinion as to the matters concerned, and shall do so if
satisfied that the amount that might be realised at the time the
confiscation order is made is less than the amount that the court
assesses to be the value of the person's benefit from the offence,
or if more than one, all the offences in respect of which the
confiscation order may be made.
(1) Where—
the court makes a confiscation order in relation to an
offence;
in calculating the amount of the confiscation order, the
court took into account a forfeiture of property, a
proposed forfeiture of property or a proposed forfeiture
order in respect of property; and
(c) an appeal against any forfeiture or forfeiture order is
allowed or the proceedings for the proposed forfeiture
order terminate without the proposed forfeiture order
being made;
a public prosecutor may apply to the court for a variation of the
confiscation order to increase the amount of the order by the value
of the property and the court may, if it considers it appropriate to do
so, vary the order accordingly.
(2) Where—
the court makes a confiscation order against a person in
relation to an offence;
in calculating the amount of the confiscation order, the
court took into account, in accordance with subsections
(4) and (5) of section three, an amount of tax paid by
the person; and
(c) an amount is repaid or refunded to the person in respect
of any tax;
Amount to be
recovered
under
confiscation
order
Variation of
confiscation
orders
242 No. 19 of 20101 Forfeiture of Proceeds of Crime
Court may
lift
corporate
veil
a public prosecutor may apply to the court for a variation of the
confiscation order to increase the amount of the order by the amount
repaid or refunded and the court may, if it considers it appropriate
to do so, vary the order accordingly.
24. (1) In assessing the value of benefits derived by a person
from the commission of an offence or offences, the court may treat
as property of the person any property that, in the opinion of the
court, is subject to the effective control of the person whether or
not the person has—
any legal or equitable interest in the property; or
any right, power or privilege in connection with the
property.
(2) Without limiting the generality of subsection (1), the court may
have regard to—
shareholdings in, debentures over or directorships of a
company that has an interest, whether direct or indirect,
in the property, and for this purpose the court may order
the investigation and inspection of the books of a named
company;
a trust that has a relationship to the property; and
(c) any relationship whatsoever between persons having an
interest in the property, or in companies referred to in
paragraph (a) or trusts referred to in paragraph (b), and
other persons.
Where the court, for the purposes of making a confiscation
order against a person, treats particular property as the person's
property pursuant to subsection (1), the court may, on application
by a public prosecutor, make an order declaring that the property is
available to satisfy the order.
Where the court declares that a property is available to satisfy
a confiscation order—
the order may be enforced against the property as if the
property were property of the person against whom the
order is made; and
a restraining order may be made in respect of the property
as if the property were property of the person against
whom the order is made.
(5) Where a public prosecutor makes an application for an order
under subsection (3) that any property is available to satisfy a
confiscation order against a person-
Forfeiture of Proceeds of Crime [No. 19 of 2010 243
the public prosecutor shall give written notice of the
application to the person and to any other person who
the public prosecutor has reason to believe may have
an interest in the property; and
the person and that other person who claims an interest
in the property may appear and adduce evidence at the
hearing of the application.
(1) An amount payable by a person to the State under a
confiscation order is a debt due to the State and shall be summarily
recoverable as a civil debt.
(2) A confiscation order against a person may be enforced as if
it were an order made in civil proceedings instituted by the State
against the person to recover a debt due by the person to the State
and the debt arising from the order shall be taken to be a judgment
debt.
Where a foreign confiscation order is registered in the court
under the Mutual Legal Assistance in Criminal Matters Act, any
amount paid, whether in Zambia or elsewhere, in satisfaction of
the foreign confiscation order shall be taken to have been paid in
satisfaction of the debt that arises by reason of the registration of
the foreign confiscation order in the court.
Division IV - Civil Forfeiture Orders
27. (1) Where there are reasonable grounds to suspect that
any property is property in respect of which a forfeiture order may
be made under section thirty-one, a public prosecutor may apply
to the court for a restraining order under subsection (2) against
that property.
(2) An application for a restraining order may be made ex parte
and shall be in writing and be accompanied by an affidavit stating—
a description of the property in respect of which the
restraining order is sought;
the location of the property; and
(c) the grounds for the belief that the property is tainted
property for which a forfeiture order may be made under
section thirty-one.
28. (1) Where a public prosecutor applies to the court for a
restraining order against property and the court is satisfied that
there are reasonable grounds for suspecting that the property is
tainted property for which a forfeiture order may be made under
section thirty-one, the court may make an order—
Enforcement of
confiscation
orders
Amounts paid in
respect of
registered
foreign
confiscation
orders
Cap. 98
Application
for
restraining
order for
tainted
property
Prohibition
from
disposal, etc
of
tainted
property
244 No. 19 of 2010] Forfeiture of Proceeds of Crime
Application
for
non-conviction
based
forfeiture
order for
tainted
property
(a) prohibiting any person from disposing of, or dealing with,
the property or any part thereof or interest except in the
manner specified in the order; and
(1)) at the request of the public prosecutor, where the court is
satisfied that the circumstances so require, that the
Attorney-General take custody of the property or any
part thereof and manage or otherwise deal with all or
any part of the property in accordance with the directions
of the court.
For the avoidance of doubt, the court may make an order
under subsection (1) in respect of money or other property located
in Zambia or elsewhere.
Where the court gives theAttorney-General a direction under
paragraph (b) of subsection (1), the Attorney-General may do
anything that is reasonably necessary for preserving the property
and for this purpose may exercise any power that the owner of the
property could exercise and do so to the exclusion of the owner.
(4) Where a public prosecutor applies to the court for an order
under subsection (1), a witness shall not be required to answer a
question or to produce a document where the court is satisfied that
answering the question or producing the document may prejudice
the investigation of, or prosecution of a person for, an offence.
29. A public prosecutor may apply to a court for an order
forfeiting to the State all or any property that is tainted property.
Notice of
application
30. Where a public prosecutor applies under section twenty-
nine for a forfeiture order—
the public prosecutor shall give not less than thirty days
written notice of the application to any person who is
known to have an interest in the tainted property in
respect of which the application is being made;
any person who claims an interest in the property in
respect of which the application is made may appear
and produce 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 to-
Forfeiture of Proceeds of Crime [No. 19 of 2010 245
give notice of the application to any person who,
in the opinion of the court, appears to have an
interest in the property; and
publish in the Gazette or a daily newspaper of
general circulation in Zambia, a notice of the
application.
31. (1) Subject to subsection (2), where a public prosecutor
applies to the court for an order under this section and the court is
satisfied on a balance of probabilities that the property is tainted
property, the court may order that the property, or such of the property
as is specified by the court in the order, be forfeited to the State.
(2) Where a person claiming an interest in property to which an
application relates satisfies the court that the person—
has an interest in the property; and
did not acquire the interest in the property as a result of
any serious offence carried out by the person and-
had the interest before any serious offence
occurred; or
acquired the interest for fair value after the
serious offence occurred and did not know or
could not reasonably have known at the time of
the acquisition that the property was tainted
property;
the court shall order that the interest shall not be affected by the
forfeiture order, and the court shall declare the nature and extent
of the interest in question.
(3) The court may, where it makes a forfeiture order or at any
time thereafter, make any other orders that it considers appropriate,
including orders for and with respect to facilitating the transfer of
property.
The validity of an order under subsection (1) is not affected
by the outcome of criminal proceedings, or of an investigation with
a view to institute such proceedings, in respect of an offence with
which the property concerned is in some way associated.
Sections six and seven, subsections (2), (3), (4) and (5) of
section ten and sections eleven, twelve, fifteen, and sixteen shall
apply with the appropriate modifications as are necessary to an
application for a forfeiture order under this section.
Non-conviction
based forfeiture
order for tainted
property
246 No. 19 of 20101 Forfeiture of Proceeds of Crime
Voiding of
contract
Proceedings
civil,
not criminal
Onus of
proof
Division 5 - General
A court may, before making a forfeiture order or confiscation
order, set aside any conveyance or transfer of money or other
property or interest therein that occurred in circumstances that give
rise to a reasonable inference that the money, property or interest
was conveyed or transferred for the purpose of avoiding the
forfeiture order or confiscation order unless the conveyance or
transfer was to a third party acting in good faith and without notice.
(1) Any proceeding on an application for a restraining order,
forfeiture order or confiscation order is not a criminal proceeding.
(2) Except in relation to an offence under this Act—
(a the rules of construction applicable only in relation to
criminal law do not apply in the interpretation of this Act;
and
(b) the rules of evidence applicable in civil proceedings apply,
and those applicable only in criminal proceedings do not
apply, to proceedings under this Act.
34. The applicant in any proceedings under this Act bears the
onus of proving the matters necessary to establish the grounds for
making the order applied for.
PART III
Warrant to
search
premises, etc
for tainted
property
Cap. 88
Cap. 88
Cap. 88
Defects in
warrants
Police may
seizeother
tainted
property
PROVISIONS FOR FACILITATING POLICE INVESTIGATIONS AND PRESERVING
PROPERTY LIABLE TO FORFEITURE AND CONFISCATION ORDER
Division I - Powers of search and seizure
(1) A police officer may apply to a magistrate for a
warrant to search premises for tainted property in the same way as
a police officer may apply for the issue of a search warrant under
the Criminal Procedure Code.
(2) Where an application is made under subsection (1), the
magistrate may, subject to conditions, issue a search warrant under
the Criminal Procedure Code and, subject to this Division, the
warrant may be executed in the same manner as if it had been
issued under the Criminal Procedure Code.
A search warrant is not invalidated by any defect, other
than a defect which affects the substance of the warrant in a material
particular.
37. In the course of a search under a warrant issued under
section thirty-five, a police officer may seize-
Return of
seized
property
Forfeiture of Proceeds of Crime [No. 19 of 2010 247
any property that the police officer believes, on reasonable
grounds, to be tainted property in relation to any serious
offence; or
any thing that the police officer believes, on reasonable
grounds, will afford evidence as to the commission of a
criminal offence;
where the police officer believes, on reasonable grounds, that it is
necessary to seize that property or thing in order to prevent its
concealment, loss or destruction, or its use in committing, continuing
or repeating the offence or any other offence.
38. (1) Where any property has been seized under this Division,
otherwise than because it may afford evidence of the commission
of an offence, a person who claims an interest in the property may
apply to the court for an order that the property be returned to the
person.
(2) Where a person makes an application under subsection (1)
and the court is satisfied that -
the person is entitled to possession of the property;
the property is not tainted property in relation to the
relevant offence; and
(c) the person in respect of whose conviction, charging or
proposed charging the seizure of the property was made
has no interest in the property;
the court shall order the police officer to return the property to the
person and the police officer shall arrange for the property to be
returned.
(3) Where—
any property has been seized under this Division,
otherwise than because it may afford evidence as to
the commission of an offence;
at the time when the property was seized, information
had not been laid in respect of a relevant offence; and
(c) at the end of a period of forty-eight hours after the time
when the property was seized, information has not been
laid in respect of a relevant offence;
a police officer shall, subject to subsections (5) and (6), arrange for
the property to be returned to the person from whose possession it
was seized as soon as practicable after the end of that period.
248 No. 19 of 20101 Forfeiture of Proceeds of Crime
(4) Where—
any property has been seized under this Division, otherwise
than because it may afford evidence as to the commission
of an offence; and
no forfeiture order has been made against the property
within a period of fourteen days after the property was
seized and the property is in the possession of a police
officer at the end of that period;
the police officer shall, subject to subsections (5) and (6), arrange
for the property to be returned to the person from whose possession
it was seized as soon as practicable after the end of that period.
( 5 ) Where—
any property has been seized under this Division, otherwise
than because it may afford evidence as to the commission
of an offence;
but for this subsection, a police officer would be required
to arrange for the property to be returned to a person as
soon as practicable after the end of a particular period;
and
(c) before the end of that period, a restraining order is made
in relation to the property;
the police officer shall-
if the restraining order directs the Attorney-General
to take custody and control of the property,
arrange for the property to be given to the
Attorney-General in accordance with the
restraining order; or
if the court that made the restraining order has
made an order under subsection (6) in relation
to the property, arrange for the property to be
kept until it is dealt with under another provision
of this Act.
(6) Where—
any property has been seized under this Division, otherwise
than because it may afford evidence as to the commission
of an offence;
a restraining order is made in relation to the property; and
(c) at the time when the restraining order is made, the property
is in the possession of a police officer;
Forfeiture of Proceeds of Crime No. 19 of 2010 249
the police officer may apply to the court that made the restraining
order for an order that the police officer retain possession of the
property and the court may, if satisfied that there are reasonable
grounds for believing that the property may afford evidence as to
the commission of a relevant offence or any other offence, make
an order that the police officer is to retain the property for so long
as the property is so required as evidence as to the commission of
that offence.
Where the police officer applies to the court for an order
under subsection (6), a witness shall not be required to answer a
question or to produce a document if the court is satisfied that the
answering of the question or the production of the document may
prejudice the investigation of, or the prosecution of a person for, an
offence.
Where any property has been seized under this Division
and while the property is in the possession of the police officer, a
forfeiture order is made in respect of the property, the police officer
shall deal with a property as required by the order.
The Attorney-General may appoint an administrator to
administer property forfeited or subject to any order made or to be
enforced under this Act.
(1) Where a police officer is authorised, under the Mutual
Legal Assistance in Criminal Matters Act, to apply to a magistrate
for a search warrant under this Act in relation to tainted property in
respect of a foreign serious offence, the police officer may apply
for the warrant accordingly and this Division applies to the
application and to any warrant issued as a result of the application
as if—
references in this Division to tainted property were
references to tainted property in relation to a foreign
serious offence;
references in this Division to a relevant offence were
references to a relevant foreign serious offence;
references in this Division to seizure of property under
this Division were references to seizure of property under
a warrant issued under section thirty-five in respect of
a foreign serious offence;
the reference in paragraph (c) of subsection (2) of section
thirty-eight to the person in respect of whose conviction,
charging or proposed charging the seizure of the property
was made were a reference to the person who is believed
or alleged to have committed the relevant foreign serious
offence;
Appointment
of
administrator
Search for and
seizure of
tainted
property in
relation to
foreign offences
Cap. 98
250 No. 19 of 2010] Forfeiture of Proceeds of Crime
Cap. 98
(e) the reference in subsection (4) of section thirty-eight to
a period of fourteen days were a reference to a period
of thirty days;
w the references in subsections (5) and (6) of section thirty-
eight to the making of a restraining order in relation to
seized property were references to-
the registration in the court under the Mutual Legal
Assistance in Criminal Matters Act, of a foreign
restraining order in relation to the seized
property; or
the making by the court under this Act of a
restraining order in respect of the seized property
in relation to the foreign serious offence;
the reference in subsection (8) of section thirty-eight to
the making of a forfeiture order were a reference to the
registration in the court under the Mutual Legal
Assistance in Criminal Matters Act of a foreign forfeiture
order; and
section thirty-seven and subsection (3) of section thirty-
eight were omitted.
(2) If, in the course of searching under a warrant issued under
section thirty-five, for tainted property in relation to a foreign serious
offence, a police officer finds—
property that the police officer believes, on reasonable
grounds, to be tainted property in relation to any foreign
serious offence in respect of which a search warrant
under section thirty-five is in force; or
anything that the police officer believes, on reasonable
grounds —
(i) to be relevant to a criminal proceeding in the foreign
country in respect of the foreign serious offence;
Cap. 98
or
(ii) will afford evidence as to the commission of a
criminal offence;
and the police officer believes, on reasonable grounds, that it is
necessary to seize that property or thing in order to prevent its
concealment, loss or destruction, or its use in committing, continuing
or repeating the offence, the warrant shall be deemed to authorise
the police officer to seize that property or thing.
Forfeiture of Proceeds of Crime (No. 19 of 2010 251
Division 2 - Restraining orders
41. (1) Where there are reasonable grounds to suspect that
any property is property in respect of which a forfeiture order may
be made under sections ten or eighteen, a public prosecutor may
apply to the court for a restraining order under subsection (3) against
that property.
Where there are reasonable grounds to suspect that a
confiscation order may be issued under section nineteen, a public
prosecutor may apply to the court for a restraining order under
subsection (5) against any realisable property held by a person.
An application for a restraining order may be made ex parte
and shall be in writing.
(4) An application under subsection (1) shall be accompanied
by an affidavit stating—
a description of the property in respect of which the
restraining order is sought;
the location of the property; and
(c) the grounds for the belief that the property is tainted
property for which a forfeiture order may be made under
section ten or eighteen.
(5) An application under subsection (2) shall be accompanied
by an affidavit stating—
a description of the property in respect of which the
restraining order is sought;
the location of the property;
the grounds for the belief that the person who is suspected
of having committed a serious offence has obtained a
benefit directly or indirectly from the commission of the
offence; and
where the application seeks a restraining order against
property of a person other than the person who is
suspected of having committed a serious offence, the
grounds for the belief that the property is subject to the
effective control of that person.
42. (1) Where a public prosecutor applies to the court for a
restraining order against property under subsection (1) of section
forty-one and the court is satisfied that there are reasonable grounds
for suspecting that the property is tainted property, the court may
make an order under subsection (3).
Application
for
restraining
order
Restraining
order
252 No. 19 of 2010] Forfeiture of Proceeds of Crime
(2) Where a public prosecutor applies to the court for a restraining
order against property under subsection (2) of section forty-one
and the court is satisfied that—
there are reasonable grounds for suspecting that the person
suspected of having committed a serious offence has
derived a benefit directly or indirectly from the
commission of the offence;
the property is the realisable property of the person; the
court may make an order under subsection (3).
(3) Where satisfied under subsection (1) or (2), the court may
make an order—
prohibiting the defendant or any person from disposing
of, or dealing with, the property or any part thereof or
interest except in the manner specified in the order; and
at the request of a public prosecutor, where the court is
satisfied that the circumstances so require that the
Attorney-General take custody of the property or any
part thereof and manage or otherwise deal with all or
any part of the property in accordance with the directions
of the court.
(4) For the avoidance of doubt , the court may make an order
under subsection (3) in respect of money or property located in
Zambia or elsewhere.
(5) An order under subsection (1) may be made subject to
conditions as the court thinks fit and, without limiting the generality
of this section, may make provision for meeting, out of the property
or a specified part of the property—
the person's reasonable living expenses, including the
reasonable living expenses of the person's dependants
and reasonable business expenses;
the person's reasonable expenses in defending a criminal
charge and any proceedings under this Act; or
(c) other specified debt incurred by the person in good faith;
(6) The court shall not make any provision under subsection
(2) unless it is satisfied that the person cannot meet the expenses
or debt concerned out of property that is not subject to a restraining
order.
Forfeiture of Proceeds of Crime [No. 19 of 2010 253
In determining whether there are reasonable grounds for
believing that property is subject to the effective control of the
defendant, the court may have regard to the matters referred to in
subsection (2) of section twenty-four.
Where the Attorney-General is given a direction under
paragraph (f) of subsection (1), the Attorney-General may do
anything that is reasonably necessary for preserving the property
and for this purpose may exercise any power that the owner of the
property could exercise and do so to the exclusion of the owner.
Where a public prosecutor applies to the court for an order
under subsection (1), a witness shall not be required to answer a
question or to produce a document if the court is satisfied that
answering the question or producing the document may prejudice
the investigation of, or prosecution of a person for, an offence.
The court may make a restraining order whether or not
there are reasonable grounds for believing that there is an immediate
risk of the property being disposed of or otherwise dealt with.
(11) The court hearing an application for an order under
subsection (1) may, before final determination of the application,
and on the application of a public prosecutor, amend the application
to include any other property upon being satisfied that the property
was acquired after the application was originally made.
(1) Before making an order under section forty-two, the
court may require the Attorney-General to give an undertaking as
to damages or costs, or both, in relation to the making and execution
of the order.
(2) For the purposes of this section, the Director of Public
Prosecutions may, after consultation with the Attorney-General,
give to the court an undertaking with respect to the payment of
damages or costs, or both, as
(1) Subject to subsection (2), before making a restraining
order, the court shall require notice to be given to, and may hear,
any person who, in the opinion of the court, may have an interest in
the property.
Where the Director of Public Prosecutions so requests,
the court shall consider an application without requiring notice to
be given under subsection (1).
A restraining order in accordance with subsection (2) ceases
to have effect after fourteen days or such lesser period as the
court specifies in the order.
Undertaking
by
Attorney-
General
Notice of
application for
restraining
order
254 No. 19 of 2010] Forfeiture of Proceeds of Crime
Service of
restraining
order
Further
orders
(4) The court may, on application by the Director of Public
Prosecutions, extend the period of operation of a restraining order
made under subsection (2) and shall not consider the application
without requiring notice to be given under subsection (1).
(1) Subject to subsection (2), a copy of a restraining order
shall be served on a person affected by the order in such manner
as the court directs or as prescribed by rules of court.
(2) Where the court is satisfied that it is in the public interest to
do so it may order that service under subsection (1) be delayed for
a specified period.
(1) Where the court makes, or has made, a restraining order,
the court may, on application by the Director of Public Prosecutions,
a person whose property is the subject of the restraining order, in
this section called "the owner", or the Attorney-General, if the
restraining order directs the Attorney-General to take custody and
control of property or, with the leave of the court, any other person,
make any ancillary orders it considers appropriate.
(2) Without limiting the generality of subsection (1), an ancillary
order may
vary the property to which a restraining order relates;
vary any condition to which a restraining order is subject;
order the examination on oath before the court, of any
person about the affairs of the owner or the defendant;
provide for the carrying out of any undertaking with
respect to the payment of damages or costs given by
the State in connection with the making of the restraining
order;
(e) direct the owner or the defendant to give a specified
person a statement on oath setting out the particulars of
the property, or dealings with the property, as the Court
thinks fit; or
(/) where the restraining order directs the Attorney-General
to take custody and control of property-
regulate the performance or exercise, of the
Attorney-General's functions, duties or powers
under the restraining order;
determine any question relating to the property;
(iii) direct a person to do any act or thing to enable
the Attorney-General to take custody and control
of the property;
Forfeiture of Proceeds of Crime [No. 19 of 2010 255
where the restraining order provides that a
person's reasonable expenses in defending a
criminal charge be met out of the property, direct
that the expenses be taxed as provided in the
order before being met; or
make provision for the payment to the Attorney-
General out of the property of the costs, charges
and expenses incurred in connection with the
performance or exercise by the Attorney-
General of functions, duties or powers under
the restraining order.
(3) Where a person who has an interest in property in respect
of which a restraining order was made applies to the court for a
variation of the order to exclude the person's interest from the
order, the court shall grant the application if the court is satisfied -
that the interest is not tainted property and that it cannot
be required to satisfy a confiscation order; or
that the applicant was not in any way involved in the
commission of the offence in respect of which the
restraining order was made and, where the applicant
acquired the interest at the time of or after the
commission, or alleged commission of, the offence, that
the applicant acquired the interest-
for sufficient consideration; and
without knowing, and in a circumstance such as
not to arouse a reasonable suspicion, that the
property was tainted property or that the
property was a benefit obtained from or in
connection with the commission of a serious
offence; or
(c) in any case it is in the public interest to do so having
regard to all the circumstances, including any financial
hardship or other consequence of the interest remaining
subject to the order.
(4) An application under subsection (1) shall not be heard by
the court unless the applicant has given to the other person who is
entitled to make an application under subsection (1) in relation to
the restraining order, notice in writing of the application.
(5) The court may, require notice of the application to be given
to, and hear, any person who, in the opinion of the court, appears to
have an interest in the property.
256 No. 19 of 2010] Forfeiture of Proceeds of Crime
(6) Where a person is required, in accordance with an order
under paragraphs (c) or (e) of subsection (2), to make or give a
statement on oath, the person is not excused from making or giving
the statement on the ground that the statement, or part of the
statement, might tend to incriminate the person or make the person
liable to forfeiture or a penalty but the statement, and any information,
document or thing obtained as a direct or indirect consequence of
the statement, is not admissible against the person in any criminal
proceedings except a proceeding in respect of the falsity of the
statement.
(b) a restraining order is made against any property of the
defendant, or property of another person in relation to
which an order under subsection (3) of section twenty-
four is in force, in reliance on the defendant's conviction,
or alleged commission, of the offence;
the court may, upon the making of the later of the orders or, on
application by a public prosecutor, while the restraining order remains
in force, direct the Attorney-General to satisfy the confiscation order
by a payment out of the property to the Fund.
(2) The court may, for the purposes of enabling the Attorney-
General to comply with a direction under subsection (1)-
direct the Attorney-General to sell or otherwise dispose
of the property or any part of the property as the court
specifies; and
order that the Attorney-General may execute, and do
anything necessary to give validity and operation to, any
deed or instrument in the name of a person who owns or
has an interest in the property.
(3) Where the court makes an order under subsection (2), the
execution of the deed or instrument by the Attorney-General has
the same force and validity as if the deed or instrument had been
executed by the person.
The Attorney-General shall refrain from taking any action
to sell any property pursuant to a direction under subsection (1)
until the relevant appeal date.
In this section "relevant appeal date", used in relation to a
confiscation order made in consequence of a person's conviction
of a serious offence, means-
Attorney- 47. (1) Where—
General to
satisfy (a) a confiscation order is made against a defendant's
confiscation conviction of an offence; and
order
Forfeiture of Proceeds of Crime [No. 19 of 2010 257
the date on which the period allowed by the rules of court
for the lodging of an appeal against a person's conviction,
or for the lodging of an appeal against the making of a
confiscation order, expires without an appeal having been
lodged, whichever is the later; or
where an appeal against a person's conviction or against
the making of a confiscation order is lodged, the date on
which the appeal, or the later appeal, lapses in
accordance with the rules of court or is finally
determined.
Where a restraining order applies to property of a particular
kind and the provisions of any law provide for the registration of
title to, or charges over, property of that kind, the authority responsible
for administering that law may, on application by a public prosecutor,
record on the register kept pursuant to those provisions the
particulars of the restraining order and, if those particulars are so
recorded, a person who subsequently deals with the property, for
the purposes of section forty-nine, is deemed to have notice of the
restraining order at the time of the dealing.
(1) A person who knowingly contravenes a restraining order
by disposing of, or dealing with, property that is subject to the
restraining order commits a cognizable offence and is liable, upon
conviction, to—
in the case of a natural person, a fine not exceeding five
hundred thousand penalty units or imprisonment for a
period not exceeding five years, or to both; or
in the case of a body corporate a fine not exceeding
seven hundred thousand penalty units.
Where a restraining order is made against any property and
the property is disposed of, or dealt with, in contravention of the
restraining order, and the disposition or dealing was either not for
sufficient consideration or not in favour of a person who acted in
good faith, a public prosecutor may apply to the court that made
the restraining order for an order that the disposition or dealing be
set aside.
The court may, where a public prosecutor makes an
application under subsection (2) in relation to a disposition or
dealing
(a) set aside the disposition or dealing as from the day on
which the disposition or dealing took place; or
Registration
of
restraining
order
Contravention
of
restraining
orders
258 No. 19 of 2010] Forfeiture of Proceeds of Crime
Court may
revoke
restraining
orders
When
restraining
order ceases
to be in
force
(b) set aside the disposition or dealing as from the day of the
order under this subsection;
and declare the respective rights of any person who acquired
interests in the property on or after the day on which the disposition
or dealing took place and before the day of the order under this
subsection.
50. (1) The court may, where the court has made a restraining
order against a person's property, on application by the person,
revoke the order if the applicant—
where the applicant is a defendant, gives security
satisfactory to the court for the satisfaction of any
confiscation order that may be made against the person
under this Act; or
gives undertakings satisfactory to the court concerning
the person's property.
(2) An applicant under subsection (1) shall give written notice
of the application to a public prosecutor and, if the restraining order
directed the Attorney-General to take control of the property, the
Attorney-General.
51. (1) Subject to subsection (2), a restraining order made in
reliance on a person's conviction, or alleged commission, of a serious
offence ceases to be in force, in whole or in part—
where the order is made in reliance on the proposed
charging of the person with the offence and the person
is not so charged within a period of forty-eight hours
after the making of the order, at the end of that period;
when the charge against the person is withdrawn or the
person is acquitted of the charge;
(c) when property subject to the order is used to satisfy a
confiscation order which was made in reliance on the
person's conviction of the offence;
when the court refuses an application for a confiscation
order in reliance on the person's conviction of the
offence; or
when property subject to the order is forfeited under
section eleven or seventeen.
(2) Notwithstanding subsection (1), a restraining order ceases
to be in force at the end of six months from the date of the restraining
order.
Forfeiture of Proceeds of Crime [No. 19 of 2010 259
The court may, within the period referred to under subsection
(1), on application by a public prosecutor, order that a restraining
order shall continue in force until a specified time or event, where
the court is satisfied that a forfeiture order may still be made in
respect of the property or the property may be required to satisfy a
confiscation order which has not yet been made.
A public prosecutor shall give a person written notice of an
application under subsection (3) in relation to a restraining order in
respect of any property of the person.
52. (1) Notwithstanding the Mutual Legal Assistance in
Criminal Matters Act, the Director of Public Prosecutions shall
apply for a restraining order under this Act against any property of
a person in respect of a foreign serious offence, and this Division
applies to the application and to any restraining order made as a
result of the application as if
a reference in this Division to a serious offence were a
reference to the foreign serious offence;
a reference in this Division to a person charged or about
to be charged with a serious offence were a reference
to a person against whom a criminal proceeding in
respect of a foreign serious offence has commenced, or
is reasonably believed to be about to commence, in a
foreign country;
there were substituted for the words of paragraph (a) of
subsection (1) of section forty-two the following words:
" the defendant has been convicted of a foreign
serious offence, or a criminal proceeding in
respect of a foreign serious offence has
commenced, or is reasonably believed to be
about to commence, against the defendant in a
foreign country ";
there were substituted for the words of paragraph (b) of
subsection (1) of section forty-two the following words:
" where the defendant has not been convicted of a
foreign serious offence, the offence which the
defendant is believed to have committed and
the grounds for that belief ";
(e) the reference in paragraph (b) of subsection (2) of section
forty-two to a person's reasonable expenses in defending
Interim
restraining
order in
respect of
foreign serious
offence
Cap. 98
260 No. 19 of 2010] Forfeiture of Proceeds of Crime
Cap. 98
General
provision
on registered
foreign
restraining
order
Cap. 98
Cap. 98
a criminal charge included a reference to the person's
reasonable expenses in being represented in a criminal
proceeding in a foreign country; and
09 paragraphs (c) and (/) of subsection (1) of section forty-
two, paragraph (a) of subsection (3) of section forty-six
and sections forty-seven, fifty and fifty-one were
omitted.
Subject to subsections (3) and (4), a restraining order made
in respect of a foreign serious offence ceases to have effect at the
end of the period of thirty days commencing on the day on which
the order is made.
Where the court makes a restraining order in respect of a
foreign serious offence, it may, on application made by a public
prosecutor before the end of the period referred to in subsection
(2), extend the period of operation of the restraining order.
(4) Where
a restraining order against property is made in respect of
a foreign serious offence; and
before the end of the period referred to in subsection (2),
including that period as extended under subsection (3), a
foreign restraining order against the property is registered
in the court under the Mutual Legal Assistance in
Criminal Matters Act;
the restraining order referred to in paragraph (a) ceases to have
effect upon the registration of the foreign restraining order referred
to in paragraph (b).
53. Where a foreign restraining order is registered in the court
under the Mutual Legal Assistance in Criminal Matters Act, this
Division applies to the order as if—
sectionforty-six, subsections (3) and (4) of section forty-
seven and sections fifty and fifty-one were omitted;
a reference in sections forty-five, forty-seven, forty-eight
or forty-nine to a restraining order included a reference
to an order under section fifty-four; and
(c) the reference in subsection (1) of section forty-seven to
the making of a restraining order were a reference to
the registration by the court of a foreign restraining order
under the Mutual Legal Assistance in Criminal Matters
Act and the making of an order under section fifty-
four.
Forfeiture of Proceeds of Crime [No. 19 of 2010 261
54. (1) Where a foreign restraining order against any property
is registered in the court under the Mutual Legal Assistance in
Criminal Matters Act, the court may, upon application by the Director
of Public Prosecutions, order the Attorney-General to take custody
and control of the property or part thereof as is specified in the
court's order and to manage or deal with all or any part of the
property in accordance with the directions of the court.
Before making an order under subsection (1), the court shall
require notice to be given to, and may hear, any person who, in the
opinion of the court, has an interest in the property.
Where the Attorney-General is given an order under
subsection (1) in relation to any property, the Attorney-General
may do anything that is reasonably necessary for preserving the
property and for this purpose may exercise any power that the
owner of the property could exercise and do so to the exclusion of
the owner.
(4) Where an order is made under subsection (1) in respect of
property of a person, in this subsection called the " respondent ",
the court may, at the time when it makes the order or any later
time, order—
the respondent to give the Attorney-General a statement
on oath setting out such particulars of the property, or
dealings with the property, as the court thinks proper;
the performance or exercise of the Attorney-General's
functions, duties or powers under the restraining order;
the determination of any question relating to the property;
where a registered foreign restraining order provides that
a person's reasonable expenses in defending a criminal
charge be met out of the property, that expenses be
taxed as provided in the order before being met; or
(e) the payment to the Attorney-General out of the property
of the costs, charges and expenses incurred in connection
with the performance or exercise by the Attorney-
General of functions, duties or powers under the
restraining order.
55. Where
(a) a foreign restraining order against any property is
registered in the court under the Mutual Legal Assistance
in Criminal Matters Act; or
Court may
direct
Attorney-
General
to take
custody, etc
of property
Cap. 98
Undertakings
relating to
registered foreign
restraining orders
Cap. 98
262 No. 19 of 2010] Forfeiture of Proceeds of Crime
Time when
registered
foreign
restraining
order
ceases to be
in force
Cap. 98
Production
and
inspection
orders
(b) the court makes an order under section fifty-four in
respect of any property;
the court may, upon application by a person claiming an interest in
the property, make an order as to the giving, or carrying out, of an
undertaking by the Attorney-General on behalf of the State, with
respect to the payment of damages or costs in relation to the
registration, making or operation of the order.
56. A foreign restraining order registered in the court under the
Mutual Legal Assistance in Criminal Matters Act ceases to be in
force when the registration is cancelled in accordance with that
Act or any other law.
Division 3 - Production orders and other powers
57. (1) Where a police officer has reasonable grounds for
suspecting that a person has possession or control of a property-
tracking document, the police officer may apply to the court in
Chambers in accordance with subsection (2) for an order under
subsection (5) against the person suspected of having possession
or control of the document.
An application under subsection (1) shall be made ex parte
and shall be in writing and be accompanied by an affidavit.
Where a police officer applies for an order under subsection
(5) and includes in the affidavit a statement to the effect that the
officer has reasonable grounds to believe that—
the person who, was convicted of the offence, or is
believed to have committed the offence, derived a benefit,
directly or indirectly, from the commission of the offence;
and
property specified in the affidavit is subject to the effective
control of the person referred to in paragraph (a);
the court may treat any document relevant to identifying, locating
or quantifying that property as a property-tracking document in
relation to the offence for the purposes of this section.
(4) In determining whether to treat a document, under subsection
(3), as a property-tracking document in relation to an offence, the
court may have regard to the matters referred to in subsection (2)
of section twenty-four
Forfeiture of Proceeds of Crime [No. 19 of 2010 263
(5) Notwithstanding any law which prohibits disclosure of
information of a particular type, where an application is made under
subsection (1) the court may, if satisfied that there are reasonable
grounds for doing so, order the person to
produce to a police officer, at a specified time and place,
any documents of the kind referred to in subsection (1)
that are in the person's possession or control; or
make available to a police officer for inspection, at a
specified time or times, any documents that are in the
person's possession or control.
58. (1) Where a document is produced to a police officer, or
made available to a police officer for inspection, pursuant to an
order under section fifty-seven, the police officer may—
inspect the document;
take extracts from the document;
make copies of the document; or
in the case of an order under paragraph (a) of subsection
(5) of section fifty-seven, retain the document if, and
for so long as, retention of the document is reasonably
necessary for the purposes of this Act.
(2) Where a police officer retains a document pursuant to an
order under section fifty-seven, the police officer shall
give the person to whom the order was addressed a copy
of the document certified by the police officer in writing
to be a true copy of the document retained; and
unless the person has received a copy of the document
under paragraph (a), permit the person to—
(1) inspect the document;
take extracts from the document; or
make copies of the document.
59. (1) Where a person produces or makes available a
document pursuant to an order under section fifty-seven, the
production or making available of the document, or any information,
document or thing obtained as a direct or indirect consequence of
the production or making available of the document, is not admissible
against the person in any criminal proceedings except a proceeding
for an offence under section sixty-one.
Scope of police
powers under
production
order,
etc.
Evidential value
of information
264 No. 19 of 2010] Forfeiture of Proceeds of Crime
Variation of
production
order
Failure to
comply with
production
order
For the purposes of subsection (1), proceedings on an
application for a restraining order, a forfeiture order or a confiscation
order are not criminal proceedings.
A person is not excused from producing or making available
a document when required to do so by an order under section fifty-
seven on the ground that—
the production or making available of the document might
tend to incriminate the person or make the person liable
to a penalty; or
the production or making available of the document would
be in breach of an obligation, whether imposed by any
law or otherwise, of the person not to disclose the
existence or contents of the document.
Where a court makes a production order requiring a person
to produce a document to a police officer, the person may apply to
the court for a variation of the order and if the court hearing the
application is satisfied that the document is essential to the business
activities of the person, the court may vary the production order so
that it requires the person to make the document available to a
police officer for inspection.
(1) Where a person is required by a production order to
produce a document to a police officer or make a document available
to a police officer for inspection, the person commits an offence if
the person—
contravenes the order without reasonable excuse; or
in purported compliance with the order produces or makes
available a document known to the person to be false or
misleading in a material particular without -
indicating to the police officer to whom the
document is produced or made available that the
document is false or misleading and the respect
in which the document is false or misleading;
and
providing correct information to the police officer
if the person is in possession of, or can
reasonably acquire, the correct information.
(2) A person who contravenes subsection (1) commits an offence
and is liable, upon conviction, to—
(a) if the offender is a natural person, a fine not exceeding
five hundred thousand penalty units or imprisonment for
a term not exceeding five years, or to both; or
Forfeiture of Proceeds of Crime [No. 19 of 2010 265
(b) if the offender is a body corporate, a fine not exceeding
seven hundred thousand penalty units.
62. (1) Where
a person is convicted of a serious offence and a police
officer has reasonable grounds for suspecting that there
is in any premises a property-tracking document in
relation to the offence; or
a police officer has reasonable grounds for suspecting
that a person has committed a serious offence and there
is in any premises a property-tracking document in
relation to the offence;
the police officer may apply to a court for a warrant under subsection
(4) to search the premises for the document.
(2) Where a police officer applies for a warrant under subsection
(4) in respect of an offence and includes in the affidavit a statement
to the effect that the officer has reasonable grounds to believe that
Search
warrant to
facilitate
investigation
the person who was convicted of the offence, or who is
believed to have committed the offence, derived a
benefit, directly or indirectly, from the commission of
the offence; and
property specified in the affidavit is subject to the effective
control of the person referred to in paragraph (a);
the court may treat any document relevant to identifying, locating
or quantifying that property as a property-tracking document in
relation to the offence for the purposes of this section.
In determining whether to treat a document, under subsection
(2), as a property-tracking document in relation to an offence, the
court may have regard to the matters referred to in subsection (2)
of section twenty-four.
Subject to subsection (5), and notwithstanding any law which
prohibits disclosure of information of a particular type, where an
application is made under subsection (1) for a warrant to search
premises for a property-tracking document, the court may, issue a
warrant of the kind and in the same manner, and subject to the
same conditions, under the Criminal Procedure Code and, subject Cap. 88
to this Division, the warrant may be executed in the same manner
as if it had been issued under the Criminal Procedure Code. Cap. 88
266 No. 19 of 2010] Forfeiture of Proceeds of Crime
(5) A court shall not issue a search warrant under subsection
(4) unless the court is satisfied that
it would not be appropriate to make a production order in
respect of the document; or
the investigation for the purposes of which the search
warrant is being sought might be seriously prejudiced if
the police officer does not gain immediate access to the
document without notice to any person.
(6) Where a police officer enters premises in execution of a
warrant issued under this section, the police officer may seize and
retain—
any document which the officer has reasonable grounds
to believe is relevant to the investigation for the purpose
of which the warrant was issued; or
anything that the police officer believes, on reasonable
grounds, will afford evidence as to the commission of a
criminal offence.
Production 63. (1) Where under the Mutual Legal Assistance in Criminal
orders Matters Act—
and search
(a) a police officer is authorised to apply to a court for awarrants
search warrant under this Act in relation to a property-in relation
tracking document in respect of a foreign serious offence,to
foreign the police officer may apply for the warrant accordingly;
offences and
Cap. 98
(b) the Attomey-General may apply to a court for a production
order under this Act in respect of a foreign serious
offence, the Attorney-General may apply for the order
accordingly;
and this Division applies to the application and to any order or warrant
issued as a result of the application as if a reference in this Division
to a serious offence were a reference to a foreign serious offence.
(2) Where a police officer takes possession of a document under
a warrant issued, or the Director of Public Prosecutions takes
possession of a document under a production order made in respect
of a foreign serious offence, the police officer or the Director of
Public Prosecutions may retain the document for a period not
exceeding one month pending a written direction from the Attorney-
General as to the manner in which the document is to be dealt with,
which may include a direction that the document is to be sent to an
authority of the foreign country that requested the issue of the
warrant.
Forfeiture of Proceeds of Crime 'No. 19 of 2010 267
Division 4 - Monitoring Orders
64. (1) The Director of Public Prosecutions may apply to a
court in chambers under subsection (2) for a monitoring order
directing a financial institution to give information to a police officer.
An application under subsection (1) shall be made ex parte
and shall be in writing and be accompanied by an affidavit.
A monitoring order shall direct a financial institution to give
information obtained by the financial institution about transactions
conducted through an account held by a particular person with the
financial institution.
A monitoring order shall apply in relation to transactions
conducted during the period specified in the order, being a period
commencing not earlier than the day on which notice of the order
is given to the financial institution and ending not later than three
months after the date of the order.
A court shall not make a monitoring order unless the court
is satisfied that there are reasonable grounds for suspecting that—
(a)
the person in respect of whose account the information
is sought —
has committed, or is about to commit, a serious
offence or a foreign serious offence;
was involved in the commission, or is about to be
involved in the commission, of a serious offence
or a foreign serious offence; or
(iii) has benefited directly or indirectly, or is about to
benefit directly or indirectly, from the
commission of a serious offence or a foreign
serious offence; or
(b) the account is related to or is being used for the purposes
of the commission of a serious offence or a foreign
serious offence.
(6) A monitoring order shall specify—
the name or names in which the account is believed to be
held;
the class of information that the financial institution is
required to give; and
(c) the name of the police officer to whom the information is
to be given, and the manner in which the information is
to be given.
Monitoring
orders
268 No. 19 of 2010] Forfeiture of Proceeds of Crime
Monitoring
orders not
to be
disclosed
(7) Where a financial institution that has been given notice of a
monitoring order knowingly—
contravenes the order; or
provides false or misleading information in purported
compliance with the order;
the financial institution commits an offence and is liable, upon
conviction, to a fine not exceeding seven hundred thousand penalty
units.
(8) A reference in this section to a transaction conducted through
an account includes a reference to—
the making of a fixed term deposit;
in relation to a fixed term deposit, the transfer of the
amount deposited, or any part of it, at the end of the
term; and
(c) the opening, existence or use of a deposit box held by the
financial institution.
65. (1) A financial institution that is, or has been, subject to a
monitoring order shall not disclose the existence or the operation of
the order to any person except—
the Commissioner of Police or a police officer authorised
in writing by the Commissioner of Police to receive the
information;
an officer or agent of the financial institution, for the
purpose of ensuring that the order is complied with; or
(c) a legal practitioner, for the purpose of obtaining legal advice
or representation in relation to the order.
(2) A person referred to in paragraph (a), (b) or (c) of subsection
(1) to whom a disclosure of the existence or operation of a monitoring
order has been made, whether in accordance with subsection (1)
or a previous application of this subsection or otherwise, shall
not —
(a) disclose the existence or operation of the order except to
another person referred to in paragraphs (a), (b) or (c)
of subsection (1) for the purposes of-
if the disclosure is made by a police officer, the
performance of that person's duties;
if the disclosure is made by an officer or agent of
the financial institution, ensuring that the order
is complied with or obtaining legal advice or
representation in relation to the order; or
Forfeiture of Proceeds of Crime [No. 19 of 2010 269
(iii) if the disclosure is made by a legal practitioner,
giving legal advice or making representations in
relation to the order; or
(b) where the person is no longer a person referred to in
paragraphs (a), (b) or (c) of subsection (1), make a
record of, or disclose, the existence or the operation of
the order in any circumstances.
(3) Nothing in subsection (2) prevents the disclosure by a person
referred to in paragraph (a) of subsection (1) of the existence or
operation of a monitoring order—
for the purposes of, or in connection with, legal
proceedings; or
in the course of proceedings before a court.
(4) A person referred to in paragraph (a) of subsection (1)
shall not be required to disclose to any court the existence or
operation of a monitoring order.
(5) A person who contravenes subsection (1) or (2) commits
an offence and is liable, upon conviction, to—
if the person is a natural person, a fine not exceeding
five hundred thousand penalty units or imprisonment for
a term not exceeding five years, or to both; or
if the person is a body corporate, a fine not exceeding
seven hundred thousand penalty units.
(6) A reference in this section to disclosing the existence or
operation of a monitoring order to a person includes a reference to
disclosing information to the person from which the person could
reasonably be expected to infer the existence or operation of the
monitoring order.
Division 5 - Obligations of Financial Institutions
66. (1) Where a financial institution is required by law to release
an original of a document before the end of the minimum retention
period applicable to the document, the financial institution shall retain
a complete copy of the document until the period has ended or the
original document is returned, whichever occurs first.
A financial institution shall maintain a register of documents
released under subsection (1).
A financial institution that contravenes subsection (1) or (2)
commits an offence and is liable, upon conviction, to a fine not
exceeding seven hundred thousand penalty units.
Register of
original
documents
270 No. 19 of 2010] Forfeiture of Proceeds of Crime
Direction to
disclose
information
Further
disclosure of
information
and
documents
Division 6 - Disclosure of Information held by
Government Departments
67. (1) Notwithstanding any provision in any other law, the
Attorney-General may direct the person in charge of any
Government department or statutory body to disclose a document
or information which is in the possession or under the control of
that person or to which that person may reasonably have access,
not being a document readily available to the public, if the Attorney-
General is satisfied that the information is relevant to—
establishing whether a serious offence has been, or is
being, committed; or
the making, or proposed or possible making, of an order
under Part II or III of this Act.
(2) Where the Attorney-General directs disclosure of information
under subsection (1), the person shall disclose the document or
information to the Director of Public Prosecutions or a police officer
authorised by the Director of Public Prosecutions.
68. (1) A person to whom information has been disclosed under
section sixty-seven shall not further disclose the information except
for the purpose of
the investigation, prosecution, or proposed or possible
prosecution, of a person for a serious offence; or
an investigation relating to proceedings, or proposed or
possible proceedings, for the making of an order under
this Act or an investigation relating to the making, or
proposed or possible making, of such an order.
A person to whom information has been disclosed under
subsection (1) or this subsection, shall not disclose the information
to another person except for the purpose referred to in paragraphs
(a) and (b) of subsection (1).
Where information is communicated to a person under
section sixty-seven, or subsection (1) or (2), the person shall not—
voluntarily give the information in evidence in a proceeding
before the court other than a proceeding referred to in
paragraph (a) or (b) of subsection (1); and
be required to communicate the information to the court.
(4) A person who contravenes this section commits an offence
and is liable, upon conviction, to a fine not exceeding two hundred
Forfeiture of Proceeds of Crime [No. 19 of 2010 271
thousand penalty units or imprisonment for a term not exceeding
two years, or to both.
Where any document is examined or provided under section
sixty-seven, the person by whom it is examined or to whom it is
provided, or any officer or person authorised for the purpose by
the person in charge of the relevant Government department or
statutory body, may make or cause to be made one or more copies
thereof and any copy purporting to be certified by the person in
charge of the relevant Government department or statutory body
to be a copy made pursuant to this section is evidence of the nature
and content of the original document and has the same probative
value as the original document would have had if it had been proved
in the ordinary way.
PART IV
D ISPOSAL ORDERS
(1) Where an application is made to a court under subsection
(1) of section nineteen for an order in respect of a particular
property, the court may order that the property be forfeited to the
State and destroyed or disposed of in such manner as it thinks fit.
(2) A Court may give directions that are necessary to give effect
to a disposal order made by it.
PART V
OFFENCES
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—
if the offender is a natural person, imprisonment for a
period not exceeding five years; or
if the offender is a body corporate, a fine not exceeding
seven hundred thousand penalty units.
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.
The offence under subsection (1) is not predicated on proof
of the commission of a serious offence or foreign serious offence.
Evidential
value of
copies
Disposal
orders
Possession of
property
suspected of
being
proceeds of
crime
272 No. 19 of 2010] Forfeiture of Proceeds of Crime
Conduct by
directors,
servants or
agents
72. (1) Where it is necessary, for the purposes of this Act, to
establish the state of mind of a body corporate in respect of conduct
engaged in, or deemed by subsection (2) to have been engaged in,
by the body corporate, it is sufficient to show that a director, servant
or agent by whom the conduct was engaged in within the scope of
the director's, servant's or agent's actual or apparent authority,
had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate -
by a director, servant or agent of the body corporate within
the scope of the director's, servant's or agent's actual
or apparent authority; or
by any other person at the direction or with the consent
or agreement, whether express or implied of a director,
servant or agent of the body corporate, where the giving
of the direction, consent or agreement is within the scope
of the actual or apparent authority of the director, servant
or agent;
is deemed, for the purposes of this Act, to have been engaged in by
the body corporate.
(3) Where it is necessary, for the purposes of this Act, to establish
the state of mind of a person in relation to conduct deemed by
subsection (4) to have been engaged in by the person, it is sufficient
to show that a servant or agent of the person, being a servant or
agent by whom the conduct was engaged in within the scope of the
actual or apparent authority of the servant or agent, had that state
of mind.
(4) Conduct engaged in on behalf of a person other than a body
corporate—
by a servant or agent of the person within the scope of
the servant's or agent's actual or apparent authority; or
by any other person at the direction or with the consent
or agreement, whether express or implied, of a servant
or agent, of the person, where the giving of the direction,
consent or agreement is within the scope of the actual
or apparent authority of the servant or agent;
is deemed, for the purposes of this Act, to have been engaged in by
the person.
(5) A reference in this section to the state of mind of a person
includes a reference to the knowledge, intention or purpose of the
person and the person's reasons for the person's intention or purpose.
Forfeiture of Proceeds of Crime [No. 19 of 2010 273
PART VI
FORFETED ASSESTS FUND
(1) There is hereby established the Forfeited Assets Fund
for the purposes of receiving credits from the proceeds of
convictions of serious offences and payments made or debts
recovered under this Act.
(2) The Minister may, by statutory instrument, provide for the
administration, management and operation of the Fund
There shall be credited to the Fund amounts equal to-.
proceeds of forfeiture orders;
proceeds of confiscation orders;
money paid under section fifteen;
money paid to the Republic of Zambia by a foreign
country, under a treaty or arrangement or otherwise, for
providing mutual assistance in criminal matters; and
money, other than money referred to in paragraph (d),
paid to the Republic of Zambia by a foreign country in
connection with assistance provided by the Republic of
Zambia in relation to the recovery by that country of the
proceeds of unlawful activity or the investigation or
prosecution of unlawful activity.
75. (1) The Attorney-General may enter into an arrangement
with the competent authorities of a foreign country for the reciprocal
sharing with that country of such part of any property realised -
in the foreign country, as a result of action taken by the
Attorney-General pursuant to a forfeiture or confiscation
order; or
in Zambia, as a result of action taken in Zambia pursuant
to a forfeiture or confiscation order.
(2) Any proceeds or benefits of crime—
forfeited or confiscated in a foreign country pursuant to
a request by Zambia; or
forfeited or confiscated in Zambia pursuant to a request
by a foreign country;
to the extent available under any sharing of confiscated property
arrangement or otherwise, shall be credited to the Fund.
(e)
Establishment
of Forfeited
Assets Fund
Credits to
Fund
Shared
confiscated
property with
foreign
countries to be
credited to
Fund
274 No. 19 of 2010] Forfeiture of Proceeds of Crime
Payments
from Fund
Programmes
for
expenditure
On
enforcement,
etc
Cap. 98
76. (1) The purposes of the Fund are to—
make such payments to foreign countries as the Minister,
with the approval of the Minister responsible for finance,
considers appropriate under an approved programme;
make payments under a programme approved by the
Minister under section seventy-seven and approved by
the Minister responsible for finance;
(c) make such payments as the Minister considers necessary
to satisfy Zambia's obligation in respect of -
a registered foreign forfeiture order; or
a registered foreign confiscation order;
with the approval of the Minister responsible for finance;
(d) make payments, as directed, under section fourteen;
and
(e) make payments for the purposes of the administration of
the Fund
(2) Any payment out of the Fund is deemed to be an
appropriation by law.
77. (1) The Minister may, with the approval of the Minister
responsible for finance, in writing, approve a programme for the
expenditure in a particular financial year of money standing to the
credit of the Fund.
(2) The expenditure under subsection (1) shall be approved for
one or more of the following purposes:
measures for the enforcement of this Act, and the Mutual
Legal Assistance in Criminal Matters Act;
assets and the provision of services to strengthen law
enforcement measures relevant to the Acts referred to
in paragraph (a) and related crime prevention measures;
and
(c) any priority health, education or development programmes
approved with the relevant responsible minister.
Forfeiture of Proceeds of Crime [No. 19 of 2010 275
PART VI
GENERAL PROVISIONS
Save as otherwise provided in this Act, any question of fact
to be decided by the court in proceedings under this Act is to be
decided on the balance of probabilities.
(1) Where—
(a) a person brings, or appears at, a proceeding under this
Act before a court in order-
to prevent a forfeiture, confiscation or restraining
order from being made against property of the
person; or
to have property of the person excluded from a
forfeiture,
confiscation or restraining order;
(b) the person is successful in any of the proceedings referred
to under paragraph (a); and
(c) the court is satisfied that the person was not involved in
any way in the commission of the offence in respect of
which the forfeiture, confiscation or restraining order
was sought or made;
the court may order the State to pay all costs reasonably incurred
by the person in connection with the proceedings or such part of
those costs as is determined by the court.
(2) If upon the determination of a proceeding under this Act,
the court is of the opinion that the charge was frivolous or vexatious,
the court may order the person to pay the costs reasonably incurred
by the State in connection with the proceedings or such part of
those costs as is determined by the court.
80. Nothing in this Act prejudices, limits or restricts—
the operation of any other law which provides for the
forfeiture of property or the imposition of penalties or
fines;
the remedies available to the State apart from this Act,
for the enforcement of its rights and the protection of
its interests; or
any power of search or any power to seize or to detain
property which is exercisable by a police officer apart
from this Act.
(c)
Standard of
proof
Costs
Operation of
other laws
not affected
276 No. 19 of 2010] Forfeiture of Proceeds of Crime
Appeals
81. A person aggrieved by a decision made under this Act, may
appeal against such decision.
No 82. (1) It shall not be a breach of professional confidentiality
criminal for a legal practitioner or any other person to comply with any
or civil order or direction of the court made under this Act.
liability
for (2) No proceedings for breach of professional confidentiality
conks=
may be instituted against a legal practitioner or any other person
who in good faith complies with an order or direction of the court in
accordance with this Act.
Rules 83. The Chief Justice may, by statutory instrument, make rules
of court for the better carrying into effect of the provisions of this
Act and in particular prescribing anything which by any of those
provisions is to be prescribed.
84. The Minister may, by statutory instrument, make regulations
to give effect to the provisions of this Act.
Regulations
