The presumption of innocence is a fundamental principle in criminal law.
The presumption is that every individual is considered innocent until proven guilty by a competent and fair legal authority.In the last article we addressed the question of the constitutionality of the standard of proof in cases involving property reasonably suspected to be proceeds of crime.It was put to bed that requirement in Section 78 of the Forfeiture of Proceeds of Crime Act to the effect that cases of suspected proceeds must be proven on the balance of probabilities is constitutional. We however did not address the constitutionality of the offence itself or how it is presented, which we now do.Asset forfeiture and confiscation are legal processes used by governments to seize assets that are believed to be the proceeds of crime or associated with criminal activities.While these measures are essential in combating organized crime and corruption, they should also be carried out with proper respect for human rights, including the presumption of innocenceIn Zambia, the general modus operandi of law enforcement agencies (LEAs) in the administration of the Forfeiture Act has been to seize property of an accused person, evaluate it using market or reinstatement values against the known income of an accused person.
In Zambia, the offence of suspected proceeds under Article 71 has 4 ingredients, namely, criminal proceeds, knowledge, possession, and prohibited conduct.
It is not an offence where the accuser has to prove intention.It is equally not a predicate offence, meaning, it is not necessary to establish that the money or assets were obtained through a specific criminal act.Where LEAs determine that a person’s known income is above the value of the property one possess, he or she is deemed guilty until proven or proves oneself innocent before a court of law.International bodies, such as the United Nations and African Union, have emphasised the importance of preserving the presumption of innocence in asset forfeiture and confiscation cases.The UN Convention against Corruption (UNCAC), for example, urges states to ensure that the burden of proof rests with the prosecution in confiscation proceedings.The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948, Article 11, states:“Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”Similarly, the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1966, Article 14(2), reaffirms the presumption of innocence: “Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.”And finally, the African Charter on Human and Peoples’ Rights (ACHPR), adopted by the AU in 1981, Article 7 (b), provides similar protection: “Every individual shall have the right to have his cause heard. This comprises the right to be presumed innocent until proved guilty by a competent court or tribunal.”In our own Supreme law, Article 18(2)(a) of the Constitution states: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.”Many who have done a cursory read of the 2015 Supreme Court Judgment in the case of Austin Liato quickly run to a conclusion that the Court had addressed the constitutionality of Section 71. This is a misreading and misdirection about the questions the Court was addressing.The two major questions in that case bordered on the standard of proof and evidential burden of proof. For the sake of the reader, standard of proof is about the amount of evidence necessary to prove an assertion or claim in a trial. This standard can be proof beyond reasonable doubt or proof based on the balance of probability.On the other hand, the evidential burden is the burden by the parties of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.In the Liato case, the grievance by the State was that the court below did not construe section 71 of the Forfeiture of Proceeds of Crime Act in a manner that would render it possible to give effect to the intention of the Legislature.The contention by advocates of Liato and the State was not about the constitutionality of Section 71 of the Act. Essentially, the Liato had argued that section 71 of the Act requires reasonable suspicion to be proved beyond reasonable doubt.The State’s argument, on its part, was that it was justified for the law to reverse the burden of proof when it comes to the origins of suspected proceeds of crime.On page J52 of the Judgment the Court had this to say, “The passage of the Forfeiture of Proceeds of Crime Act in 2010 was therefore, a deliberate act of the State, sequel to international clamour in this regard, to restate the burden and the standard of proof in proceedings relating to forfeiture of proceeds of crime. The framing of section 71 (1), (2) and (3) was a conscious and deliberate desire to change the standard of proof and the evidentiary burden of proof.”This is exactly what the Court was addressing, a conscious and deliberate desire to change the standard of proof and the evidentiary burden of proof.The argument that will still linger in our jurisdiction is whether presuming a person guilty of a crime because his income does not marry with the property he or she has acquired is constitutional or not.It is the author’s view that the approach of indicting people, in a manner described above, makes accused to be presumed guilty until they are proven innocent or they prove themselves innocent.This is an unintended unconstitutional consequence of the law and should give Zambian lawmakers some reflection on what needs to do in order to improve the law.But perhaps to just discuss what is expected of an accused person when they are put on their defence under the Forfeiture Act. Section 71(2) states that:
“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 defence in section 71 (2) goes to the state of mind of the accused at the time of possession.This kind of defence seem to be supported a legal maxim Actus Reus Non Reum Nisi Mens Sit Rea which simply means, “an act does not make render a man guilty unless his mind his equally guilty.”This is a fundamental principle of criminal law that a person cannot be found guilty of a crime unless he or she acted with both a guilty mind and a criminal act.Section 71 (2) of the Act provides an accused person with an opportunity to escape criminal liability by satisfying the court on a balance of probabilities that he or she had no reasonable grounds for suspecting that the property referred to in the charge, was derived or released from the commission of a crime.So, if you possess property in gifts, as an example valued at K3 million and LEAs pounce on your property, convincing the court that your property is worth more than your income of K500,000, all the law requires from you is an explanation to satisfy the court that at the time the property got into possession, you had no reasonable grounds for suspecting that the property referred to in the charge, was derived or released from the commission of a crime.A person who has been accused just need to prove his innocent state of mind in relation to the property in question once the prosecution has proved section 71 (1).In the Liato case, the High Court had suggested that the question of your state of mind in relation to the property in question can only be resolved by interrogating the source or manner it came into the accused’s possession but the Supreme Court rejected that idea that it is a misdirection to apply or require such a test to subsection (1) of section 71.The wisdom of the Supreme Court is found on Page J. 36-37, where it categorically stated:“Our understanding of section 71 (2) is that it does not impose any duty on the accused person to prove any ingredient of the offence under section 71 (1).
Where the prosecution proves its case against the accused under section 71 (1), it behoves such accused person, if desirous of defending himself, to show that he had no reasonable grounds for suspecting that the property to which the charge under section 71 (1) related, was derived from criminal activity.
While we agree with the High Court that section 71(2) does not impose any obligation on the accused person to prove any ingredient of the offence under section 71 (1), it does afford the accused an opportunity to explain the absence of reasonable grounds on his part, for suspecting that the property he was found in possession of under section 71(1) was proceeds of crime.”The Supreme Court was categorical that there is no duty placed on accused persons to prove any ingredient of the offence under section 71 (1) of the Act.The decision is that, to be set free, an accused person must only show a court that he or she had no reasonable grounds for suspecting that the property with which he was charged was derived from criminal activity.However, negative side is that this defence leaves an accused person at the mercy, discretion and thinking of an adjudicator to be satisfied.If the adjudicator says, ‘I am satisfied that an accused had no reasonable grounds for suspecting that the property was derived from criminal activity,’ the accused escapes prison.But if an adjudicator she or he is not satisfied, then its done, the journey to prison begins.One has to really pray that the adjudicator would not wake up in bad mood or has an issue or a bias with either of the parties.In conclusion, the Constitution of Zambia and the law, international conventions and instruments demonstrate the local and international commitment to addressing criminal activities and recovering assets while respecting the rights of individuals but, most importantly, that must be done with utmost preservation of the presumption of innocence which is somehow compromised in our legal system.