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…Gilbert Phiri says he does not need to place charges on the former First Lady to have her properties forfeited


THE Director of Public Prosecutions (DPP), Gilbert Phiri, has argued that according to the Non-Conviction Based (NCB) forfeiture application, he does not need to charge former First Lady, Esther Lungu, with an offence to establish her property is tainted.

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The DPP contended that in the case of the People vs Austin Chisangu Liato (Appeal no. 281/2014/2015, ZMSC 26”, the Court said,” to secure a conviction under Section 72(1) of the forefeiture of proceeds of crime Act no predicate needs to be proved.”

He also cited section 31(4) of the Forefeiture of Proceeds of Crime Act which states, “The validity of the forefeiture order is not affected by the outcome of the criminal proceedings, or investigations with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated.”

This is in response to the preliminary issues raised by Ms Lungu asking the Economic and Financial Crimes Court (EFCC) to refer to the Constitutional Court the matter in which the DPP is seeking an order to have her flats in State Lodge forefeited without any criminal proceedings to find her guilty. 

The former First Lady argued that the proceedings against her are unconstitutional and violates her right to self-incrimination.

She has also questioned the jurisdiction of the EFCC to hear the matter having been constituted by the Chief Justice.

In an affidavit in opposition to summons for an order for constitutional reference and an order to stay proceedings pending hearing and determination of constitutional reference by the Constitutional Court sworn by senior investigations officer, Emmanuel Khondowe, the State described Ms Lungu’s preliminary issues an abuse of court process.

“I contend that the issue of whether the CJ can constitute a special court by way of Statutory Instrument does not require reference for determination as it is envisaged in the constitution. I am informed by counsel that the issue of jurisdiction of the EFCC was recently litigated on and settled by this court in the case of the DPP and Re property $24,004,284.92 2023/HPEF/10,” he contended.

The State argued NCB proceedings do not require a criminal charge or conviction against the owner.

“From the foregoing,we submit that there is no need of prior proceedings to determine that the property is tainted and that the provision of the law which the properties have contravenes is not predicted on proof of the commission of a serious offence or foreign serious offence. The application before this court is not based on the fact that the property was used as an instrumentality hence the applicant does not need to show link between the offence and the property as an instrumentality or connection to the Commission of the offence,”DPP submitted.

The State submitted that Ms Lungu’s request to refer the matter to the Constitutional Court is an abuse of court process, forum shopping and meant to delay and frustrate the speedy disposal of the case as envisaged in these fast track courts .



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