ESTHER LUNGU CHALLENGES DPP OVER NON-CONVICTION FORFEITURE

By GRACE CHAILE

FORMER First Lady, Esther Lungu, has insisted the non-conviction forfeiture proceedings against her by the Director of Public Prosecutions (DPP), Gilbert Phiri, are unconstitutional and violates her right to self-incrimination.

Ms Lungu argues that the DPP has failed to establish that the 15 flats said to be worth K24 million are tainted property, for them to be liable for forfeiture to the State. 

“That I verily believe as advised by my advocates that the applicant has failed to obtain an order of this court in respect of which the property sought to be forefeited is established to be tainted property and in the absence of such an order I verily believe that the proceedings herein violate my constitutionally guaranteed right to be presumed innocent until proven guilty as these proceedings attribute guilt with no prior conviction associated with the said properties,” she contended.

In this matter, the DPP filed a notice of motion before the Economic and Financial Crimes Division-High Court, seeking an order for the forfeiture of Ms Lungu’s flats situated in State Lodge on reasons that they were built through proceeds of crime. 

The DPP has challenged the former her to proof the legitimate acquisition of the said seized property because according to investigations by the Drug Enforcement Commission (DEC), she has no income capacity to develop such real estate. 

In a latest development on the case, Ms Lungu through her lawyers, D. Findlay and Associates, Legal Practitioners and Makebi Zulu Advocates has raised Preliminary Issues (PI) and asked the court to dismiss the notice of motion. 

She has challenged the existence of the Economic and Financial Crimes Court because it was constituted by the Chief Justice by Statutory Instrument (SI) number 5 of 2022 as a division of the High Court is contrary to Article 133(2) and (3) of the Constitution of Zambia ( amended) Act number 2 of 2016.

Ms Lungu has also raised issue in the manner the case has been commenced by way of originating notice of motion, which she says is contrary to the provisions relating to the prescribed mode of commencement of actions.

“. Whether or not the action herein is in fact premature, incompetent and therefore null and void, there being no predicted proceedings determining that the property in respect of which the order sought is “tainted property” as defined by Section 2 of the Forfeiture of Proceeds of Crime Act No.19 of.2010; the absence of which predicted proceedings violates the provisions of Article 18 of the constitution of the Republic of Zambia,” she challenged. 

She argues that the exhibits of her bank statements obtained by DEC flouts the provisions of the law in relation to banker’s books and the law in relation to computer generated evidence.

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