Forfeiture law weaponized to settle political scores -lawyer

By Richard l Sakala

LUSAKA lawyer Joseph Chirwa has criticised the use of the non-conviction forfeiture of Proceeds of Crime Act (FOPA) as a tool that is undermining the presumption of innocence and stifling legitimate businesses.
According to Mr. Chirwa, the law, which was enacted to tackle economic crimes such as money laundering and corruption, has been weaponised to harass political opponents and destroy businesses under the guise of fighting corruption.
Mr. Chirwa has argued that the law had shifted the burden of proof onto the accused, effectively reversing the fundamental principle of presumption of innocence.
“The Forfeiture of Proceeds of Crime Act has eroded the presumption of innocence,” Mr. Chirwa explained. “It puts accused persons in a position of ‘guilty until proven innocent.” It is now the duty of the accused to prove their innocence,” Mr Chirwa said.
Mr. Chirwa explained that the shift in the burden of proof was solidified by the Supreme Court’s 2014 decision in The People v Austin Chisangu Liato, where the court ruled that the state needed only to demonstrate reasonable suspicion that property was obtained through crime, leaving it up to the accused to prove their innocence.
“In its controversial decision, the Supreme Court held that it was only for the accuser to have a ‘reasonable suspicion’ that the accused was in possession of property reasonably suspected to be proceeds of crime, and for the accused to account and prove their innocence,” he said.
Mr. Chirwa also criticised the use of the Forfeiture of Proceeds of Crime Act for political purposes, particularly during the Patriotic Front (PF) administration, which reinstated the law to target former government officials from the Movement for Multi-Party Democracy (MMD), including the late President Rupiah Banda.
“This law has been repeatedly used to torment political opponents and stifle legitimate businesses,” Mr. Chirwa said. “It was the PF that reinstated this law after the MMD repealed it, and over 11 years later, it is now biting PF officials,” he said.
Mr. Chirwa also raised concerns about the Anti-Corruption Act (ACA), which he argued undermined the presumption of innocence.
He pointed to sections 22 and 66 of the ACA, which he claimed shifted the burden of proof from the accuser to the accused, thereby eroding the rights of individuals under investigation.
“The burden of proving one’s guilt has been moved to the accused to prove their innocence,” Mr. Chirwa said. “It follows that the accused is somewhat guilty until proven innocent.”
He lamented the growing trend of law-fare, where laws meant to combat crime were misused for political gain and to suppress freedoms.
“The presumption of innocence is slowly dying and being killed through legislative interventions,” he argued. “Under law-fare, laws are used to oppress the governed and suppress their freedoms,” he said.
Mr. Chirwa also drew attention to the global implications of such legal trends, pointing out that the shift in the burden of proof had far-reaching consequences for businesses and individuals in Zambia.

“Is it proper to have an environment where citizens cannot prosper without the fear of being accused of being criminals?” he asked. “What have we done to change the status quo?”