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Justice Loyce Matanda-Moyo
ZIMBABWE is party to various regional and international legal instruments, including the United Nations Convention Against Corruption; the United Nations Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances; the Financial Action Task Force Recommendations; and the United Nations Convention Against Transnational Organised Crime; as well as the African Union Convention on Preventing and Combating Corruption.
These instruments, amongst other things, oblige member states to adopt measures to combat money laundering and other related vices by taking necessary measures to enable their competent authorities to effectively and efficiently identify, trace, seize, freeze, confiscate and manage illicit assets.
The primary legislative mechanism for implementing these obligations in the country is the Money Laundering and Proceeds of Crime Act.
Among its provisions, the Act establishes the legislative framework for civil forfeiture, which is a modern and innovative way of combating crime and corruption through the use of civil litigation and remedies directly against proceeds of crime without the need to use the traditional approach of conviction-based asset forfeiture, which requires the conviction of a person before forfeiture may be ordered.
The objectives behind civil forfeiture are to remove incentives to commit crime, deter persons from using or allowing property to be used in crime, and eliminate or incapacitate some of the means by which crime is committed, as well as advancing the ends of justice by depriving those involved in crime of property concerned.
Civil forfeiture was a response by the international community after realising the inadequacies of the traditional criminal justice system in effectively dealing with crime and corruption.
This process is purely of a civil nature. It enables the State to forfeit assets belonging to criminals and their associates through civil action instituted directly against the property, without the need to first obtain a conviction or for a specific charge to be laid against a person.
It is also not necessary for the State to prove its case beyond reasonable doubt, or for the accused to be present during proceedings.
All that has to be proven on a balance of probabilities is that property belonging to or associated with the respondent are proceeds from some conduct constituting or associated with illegal activities.
There is no minimum value that has been set by legislation in order to initiate a civil forfeiture application.
All that is required is evidence that the property is tainted by virtue of it being obtained through crime and corruption or its use for the furtherance of the same.
However, as stated earlier, one of the objectives behind civil forfeiture is to deter crime and corruption by disabling criminals and their associates of proceeds of crime.
This, in our view, is one of the considerations that we take into account in making a decision on whether or not to pursue a civil forfeiture application.
Civil forfeiture is a relatively new phenomenon in our jurisdiction.
As a result, our thrust over the past years has been to first develop jurisprudence on the subject by bringing a few test cases before our courts. We are happy to state that we have managed to achieve this objective as we have successfully pursued cases in both the High Court and the Supreme Court.
We are ready to disgorge criminals of their ill-gotten wealth.
We are presently unable to definitively quantify the value we have recovered but it is well within millions in civil forfeiture and preservation orders in respect of illicit assets.
Many civil forfeiture applications in respect of the properties are currently pending before our courts.
We have, in terms of Section 27A of the National Prosecuting Authority Act, established the Asset Forfeiture Unit (AFU), whose main function is to give effect to the provisions of the Money Laundering and Proceeds of Crime Act by assisting and giving guidance during investigations and compilation of case files, as well as ensuring that proceeds obtained or used to commit offences are preserved and ultimately forfeited.
AFU is also mandated to make and receive requests in line with the above-stated objectives from other countries.
The unit is manned by specialised prosecutors, who have received training through partnerships with organisations such as the Asset Recovery Inter-Agency Network for Southern Africa, the United Nations Office on Drugs and Crime, and the Basel Institute.
However, in order to effectively and efficiently discharge its mandate, the unit works hand in hand with investigating agencies in the country, which include the Zimbabwe Republic Police, the Zimbabwe Anti-Corruption Commission, the Zimbabwe Revenue Authority and the Financial Intelligence Unit.
The investigating agencies present evidence to the National Prosecuting Authority of Zimbabwe on where the money comes from, how it is moved and how it is used and, in particular, how the properties in question were acquired.
They also assist in detecting money laundering, terrorist financing and other serious crimes. AFU also works hand in hand with the Asset Management Unit, whose duty, amongst other things, is to ensure sound management of assets frozen, seized or forfeited under the Money Laundering and Proceeds of Crime Act.
Justice Loyce Matanda-Moyo is the Prosecutor-General of Zimbabwe. She was speaking to The Sunday’s Mail Senior Reporter Nyore Madzianike.
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