Opinion / Columnist
Unexplained wealth orders here to stay
12 Jul 2019 at 08:03hrs | Views
THE proposed introduction of a free-standing procedure which compels an individual to explain the source of his wealth is a radical development in English law. For instance, the human rights and political implications of the unexplained wealth orders (UWOs) is a matter that needs to be urgently explored, for if there are any implications, it is best for the government to consider these than to be surprised.
Fighting corruption is on the new Government of Zimbabwe's docket. However, since the declaration of war against corruption on the dawn of November 15, 2017, enforcement authorities have not made any significant gains in fighting the scourge.
The new government's anti-corruption mantra is slowly beginning to lose support because it is failing to net in those individuals publicly known to be corrupt.
As a result, it has further divided an already polarised nation.
One solution that have been on many peoples lips, both those optimistic and pessimistic about the new dispensation's sincerity to fight corruption, has been to audit the lifestyles of high net-worth individuals.
For handful countries in the world struggling to contain financial crimes, especially those with less resources and capacity to fight sophisticated white-collar crime, the crime UWOs becomes an option in order to allow the High Court to make unexplained wealth-orders — court orders designed to elicit explanations from persons who exhibit possession of great wealth without having apparent lawful means of obtaining such wealth.
An unexplained wealth-order, which can be obtained by specified authorities without prior notice to the person concerned, require that person to explain his or wealth and provide supporting documentation showing it was lawfully obtained. The aim is to combat money laundering, terrorist financing, tax evasion and corruption.
If no satisfactory explanation is provided, forfeiture of property may follow. Put in other words, the concept of unexplained wealth can be summarised as follows:
To that end, Zimbabwe has amended the MLPCA to authorize the Money Laundering and Proceeds of Crime Amendment Bill (2019) that seeks to give the Zimbabwe Anti-Corruption Commission (Zacc), Zimbabwe Revenue Authority (Zimra) and Zimbabwe Republic Police (ZRP) and the National Prosecuting Authority (NPA) powers to obtain a court order to forfeit and seize properties of people seen with wealth without the means of obtaining it. Through an application to the High Court for an order known in the financial crimes parlance as an UWO.
Procedural history
The order has been in place since November 9, 2018 when President Emmerson Mnangagwa controversially passed Statutory Instrument 246 of 2018, in terms of the provisions of Section 6 of the Presidential Powers (Temporary Measures) Act [Chapter 10;20], Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act and Exchange Control Act).
The President made a temporary provision for such orders in the Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act and Exchange Control Act) Regulations, 2018, gazetted in SI 246/2018 of November 9, 2018 and made under the Presidential Powers (Temporary Measures) Act [PPTM Act].
However, the regulations expired on the one hundredth and eighty first day following the date of commencements of the regulations, which was the midnight of May 8, 2019.
The Minister of Finance and Economic Development Professor Mthuli Ncube sought to introduce the Micro Finance Bill to amend the Micro Finance Act.
Clause 34 of the Bill provided for the enactment into permanent law of the temporary regulations enacted by SI 246/2018 under the Presidential Powers (Temporary Measures) Act on November 9, 2018 to beat the foreseen deadline.
The Bill went through Parliament as Finance (No. 3) Bill, 2018.
Parliament recommended: Deletion of provision for UWOs from the Bill provided for the enactment into permanent law of the temporary regulations controversially enacted by SI 246/2019.
The Minister accepted the deletion of this clause when former Minister of Finance and a member of the main opposition party Tendai Biti correctly, pointed out that it should not have been included in a Money Bill confined to revenue measures [Constitution, Fifth Schedule, paragraph 7].
However, the temporary regulations were still in force despite Parliament's refusal to include them in a money Bill until they expired at midnight on May 8, 2019.
The government failed to keep the regulations on the statute book without a break, by failing to pass an appropriate Bill through Parliament and gazetted as an Act on or before May 8.
As temporary measures, however, the regulations were functional for only 180 days from November 9 unless re-enacted by an Act of Parliament.
And, as they were not so re-enacted, they expired at midnight on Thursday, May 8.
The result of this expiry is that from May 9 onwards, no new applications for unexplained wealth orders can be lodged with the High Court on May 28, 2019 for printing and gazetting.
Thus, on July 5, 2019, the government gazetted the Bill, which was published in the Government Gazette, to amend the Money Laundering and Proceeds of Crime Act [Chapter 9; 24].
The amendment of the Money Laundering and Proceeds of Crime Bill is intended to insert a new part into the Money Laundering and Proceeds of Crime Act that gives the UWOs a permanent legal life.
In Zimbabwe, as in South Africa, after passage in the Government Gazette, a Bill will have to go through the Government Gazette for about 14 days before its introduction in Parliament.
Upon gazetting, the Bill stands referred to the Portfolio Committee that shadows the Ministry responsible for administering the Bill.
The Portfolio Committee can then consult the public through public hearings or oral evidence interviews to get their input on the Bill.
The committee also prepares a report that is presented at the second reading stage and through the Senate before the presidential assent and enrolment into the Act.
As stated above, there is general consensus among Zimbabweans and lawmakers from both divides that UWOs are a panacea to corruption challenges, as a result the Bill is widely expected to sail through both houses.
Zimbabwe will become part to handful countries in the world with full UWOs legislation and these are Ireland, Australia, Pakistan and Colombia and recently the United Kimgdom.
Others like South Africa and Canada have partially adopted aspects of unexplained wealth in that there is a presumption in favour of forfeiture for certain offences.
The clamour grew to target the ultra-wealthy Zimbabweans who had long-flaunted their wealth in public, including on social media and who allegedly relied on former President Robert Mugabe's patronage to accumulate grotesque wealth.
Still, while UWOs are a potentially powerful tool for law enforcement, they have rarely been used.
The legislation was used only once in the case of former Zimbabwe National Road Administration (Zinara) chief executive officer Frank Chitukutuku, who is under investigation for fraud, and was given a 30-day ultimatum to give an account of how he acquired an array of immovable and movable assets worth over US$20 million.
High Court judge Justice Erica Ndewere ordered a freeze of the assets of Chitukutuku, pending finalisation of the criminal case. Chitukutuku is said to have acquired 10 motor vehicles between September 2013 and April last year.
These vehicles include two Mazda T35 trucks, a Hino Dutro truck, Toyota Land Cruiser, Toyota Prado, Nissan NP200, Range Rover, Hino Ranger and a Land Rover Discovery. Sometime in 2011, Chitukutuku reportedly acquired residential properties, namely: Property measuring 4 048 square metres held under Deed of Transfer 3232/11 situated at Lot 1 of Lot 3 of Lot 56A Borrowdale Estate, Harare and another one measuring 8 853 square metres held under Deed of Transfer 3885/11 situated at Lot 3 of Subdivision C of Subdivision B of Subdivision D of Nthaba of Glen Lorne.
The State also claims Chitukutuku built or acquired a multi-million dollar thatched precast-walled house at the top of a mountain at Belmont Farm, Goromonzi, adding he also has six state-of-the-art fowl runs, five tractors, a 10-tonne UD truck, 4 x 200-litre PVC water tanks, as well as several structures at the farm.
Apart from a long list of expensive properties, Chitukutuku is also said to be the owner of two renowned companies, Farm Pride (Private) Limited situated at 49 Kent Road, Chisipite, Harare and an insurance company, Champions Insurance, which boasts of assets estimated at over US$15 million.
According to the State, Chitukutuku acquired the properties at a time he was lawfully earning a combined $8 500 from Zinara as well as his farming activities.
How does a UWO work in practise?
According to the SI, the High Court may, on an ex-parte application, that is to say, an application "by one party". In this case, any of the enforcement authorities above, issue an UWO.
The high court can only issue an UWO upon satisfaction that the requirements for such an order have been fulfilled. First, the respondent falls into the category of the Politically Exposed Persons (PEPs), that is to say, someone who has been entrusted with a prominent public function.
Similarly, if there are reasonable grounds for suspecting that the respondent is or has been involved in serious crime, whether in Zimbabwe or elsewhere, or a person connected with the respondent is or has been is involved. Serious crimes include money laundering, bribery and corruption, drug trafficking and other offences.
Second, that there is reasonable cause to believe that the target person holds the property and the value of the property is greater than US410 000. The asset(s) in question can be single or collective or its equivalent in local currency.
Third, that there are reasonable grounds for suspecting that the known sources of the respondent's lawfully obtained income would have been insufficient for the purpose of enabling the respondent to obtain or hold the property.
The UWO requires the respondents to explain how they have lawfully acquired their assets—prove it or lose it. Thus, if the respondent fails to respond or gives an inadequate response, the property is deemed to be tainted property.
Then this extra information can be used in a separate civil recovery process (an existing measure under the Money Laundering and Crime Act) if law enforcement has gathered sufficient evidence. Chitukutuku now has to give a detailed statement to the head of the police's Asset Forfeiture Unit (AFU) within a month.
It is important to note here that UWOs should not be confused with the crime of illicit enrichment. Contrary to popular beliefs, Zimbabwe has not adopted an independent crime of illicit enrichment.
This piece considers the proposed UWO regime in the context of other recommendations for targeting illicit wealth by the United Nations Convention Against Corruption (UNCAC) unit.
Specifically, it examines why UWOs are more suitable to the UK than the offence of illicit enrichment.
Article 20 of UNCAC recommends that signatories consider implementing a criminal offence of illicit enrichment.
However, to date, the UK has not implemented a criminal offence to this effect. UWOs stem from the idea of illicit enrichment and are, one might say, two sides of the same coin. UWOs are civil measures, rather than criminal.
It will allow law enforcement agencies, defined in the Bill, to apply for a court order against an individual who they suspect has assets incommensurate to their known income, arguably far more important in the context of developing nations.
The effect of the law
The UWO will be an express gateway to the forfeiture of assets. It is the mainstay of the UWOs to seize and repatriate proceeds of serious financial crimes. An application for the UWO must specify the property in respect of which it is sought and specify the person who the enforcement authority thinks holds the propert, that is, the respondent.
It is worth noting that the UWOs have extra-territorial application. In other words they can be applied even if the person specified is outside Zimbabwe. This is very significant, especially since many Zimbabwean PEPs have properties in South Africa and the UK where UWOs have also been introduced.
The High Court may pass imprisonment for those who fail to explain or provide tangible information pertaining to the source of their wealth. According to the SI under discussion, offenders will be jailed up to two years.
Likewise, a person who makes a false statement in response to unexplained wealth shall be guilty of an offence and maybe jailed for a period of up to two years. The High Court also has the discretion to impose a fine of up to US$65 000 or the equivalent in Zimdollars at the prevailing interbank rate of exchange.
Certain concerns
Although, the use of UWOs may be hailed as an important tool to fight corruption and a cure to Zimbabwe's dirty money problem, however, there are some concerns. The possibility of these laws being applied in an arbitrary and detrimental fashion cannot be underestimated.
5.1. Human Rights
As is often the case against illicit enrichment discussed above, the main concern about the impact of UWOs on the right to a fair trial—presumption of innocence in that UWOs force the respondent to explain their innocence, rather than the applicant to prove guilt – they involve a burden of proof much lower than in any civil or criminal trial, and they can be enforced without the recipient being found guilty, or even accused, of any crime.
5.2 Procedural
Questions have been raised about the classification of UWOs as civil proceedings. It has been argued that UWOs are criminal proceedings similar to illicit enrichment and, therefore, if the substance of the proceedings is criminal in nature, difficulties arise when civil standard is applied
5.3 Political
There is also a fear that UWOs could turn into a political weapon. It is true, says Cowie, that the SFO has a mandate to punish fraud and to fight corruption, including corruption overseas. "But it doesn't have an anti-kleptocracy mandate. UWOs are an area that could be intensely political and quite subjective."
Enforcement agencies ZRP, the Zacc, and Zimra's operational independence is also a subject of intense debate.
The orders can be seen as a way of hitting back at the G-40, contrary to the intention of the framers, who consider them as part of a concerted effort by the new government to crack down on corruption and related financial crimes.
Be warned
The potential dire consequences for those individuals who will fall target to the UWOs.
To human rights defenders and other interested stakeholders, this means it remains a key area for development over the coming months and perhaps years. And, particularly to HNWIs and PEPs, they should seek specialist legal advice if they have any concerns that they might be of interest to Zacc, Zimra, ZRP or the NPA as these are the agencies with the power to obtain a UWO.
It would be bad political PR for the new government of Mnangagwa and bad for [UWOs as an instrument] if they fail.
Fighting corruption is on the new Government of Zimbabwe's docket. However, since the declaration of war against corruption on the dawn of November 15, 2017, enforcement authorities have not made any significant gains in fighting the scourge.
The new government's anti-corruption mantra is slowly beginning to lose support because it is failing to net in those individuals publicly known to be corrupt.
As a result, it has further divided an already polarised nation.
One solution that have been on many peoples lips, both those optimistic and pessimistic about the new dispensation's sincerity to fight corruption, has been to audit the lifestyles of high net-worth individuals.
For handful countries in the world struggling to contain financial crimes, especially those with less resources and capacity to fight sophisticated white-collar crime, the crime UWOs becomes an option in order to allow the High Court to make unexplained wealth-orders — court orders designed to elicit explanations from persons who exhibit possession of great wealth without having apparent lawful means of obtaining such wealth.
An unexplained wealth-order, which can be obtained by specified authorities without prior notice to the person concerned, require that person to explain his or wealth and provide supporting documentation showing it was lawfully obtained. The aim is to combat money laundering, terrorist financing, tax evasion and corruption.
If no satisfactory explanation is provided, forfeiture of property may follow. Put in other words, the concept of unexplained wealth can be summarised as follows:
To that end, Zimbabwe has amended the MLPCA to authorize the Money Laundering and Proceeds of Crime Amendment Bill (2019) that seeks to give the Zimbabwe Anti-Corruption Commission (Zacc), Zimbabwe Revenue Authority (Zimra) and Zimbabwe Republic Police (ZRP) and the National Prosecuting Authority (NPA) powers to obtain a court order to forfeit and seize properties of people seen with wealth without the means of obtaining it. Through an application to the High Court for an order known in the financial crimes parlance as an UWO.
Procedural history
The order has been in place since November 9, 2018 when President Emmerson Mnangagwa controversially passed Statutory Instrument 246 of 2018, in terms of the provisions of Section 6 of the Presidential Powers (Temporary Measures) Act [Chapter 10;20], Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act and Exchange Control Act).
The President made a temporary provision for such orders in the Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act and Exchange Control Act) Regulations, 2018, gazetted in SI 246/2018 of November 9, 2018 and made under the Presidential Powers (Temporary Measures) Act [PPTM Act].
However, the regulations expired on the one hundredth and eighty first day following the date of commencements of the regulations, which was the midnight of May 8, 2019.
The Minister of Finance and Economic Development Professor Mthuli Ncube sought to introduce the Micro Finance Bill to amend the Micro Finance Act.
Clause 34 of the Bill provided for the enactment into permanent law of the temporary regulations enacted by SI 246/2018 under the Presidential Powers (Temporary Measures) Act on November 9, 2018 to beat the foreseen deadline.
The Bill went through Parliament as Finance (No. 3) Bill, 2018.
Parliament recommended: Deletion of provision for UWOs from the Bill provided for the enactment into permanent law of the temporary regulations controversially enacted by SI 246/2019.
The Minister accepted the deletion of this clause when former Minister of Finance and a member of the main opposition party Tendai Biti correctly, pointed out that it should not have been included in a Money Bill confined to revenue measures [Constitution, Fifth Schedule, paragraph 7].
However, the temporary regulations were still in force despite Parliament's refusal to include them in a money Bill until they expired at midnight on May 8, 2019.
The government failed to keep the regulations on the statute book without a break, by failing to pass an appropriate Bill through Parliament and gazetted as an Act on or before May 8.
As temporary measures, however, the regulations were functional for only 180 days from November 9 unless re-enacted by an Act of Parliament.
And, as they were not so re-enacted, they expired at midnight on Thursday, May 8.
The result of this expiry is that from May 9 onwards, no new applications for unexplained wealth orders can be lodged with the High Court on May 28, 2019 for printing and gazetting.
Thus, on July 5, 2019, the government gazetted the Bill, which was published in the Government Gazette, to amend the Money Laundering and Proceeds of Crime Act [Chapter 9; 24].
The amendment of the Money Laundering and Proceeds of Crime Bill is intended to insert a new part into the Money Laundering and Proceeds of Crime Act that gives the UWOs a permanent legal life.
In Zimbabwe, as in South Africa, after passage in the Government Gazette, a Bill will have to go through the Government Gazette for about 14 days before its introduction in Parliament.
Upon gazetting, the Bill stands referred to the Portfolio Committee that shadows the Ministry responsible for administering the Bill.
The Portfolio Committee can then consult the public through public hearings or oral evidence interviews to get their input on the Bill.
The committee also prepares a report that is presented at the second reading stage and through the Senate before the presidential assent and enrolment into the Act.
As stated above, there is general consensus among Zimbabweans and lawmakers from both divides that UWOs are a panacea to corruption challenges, as a result the Bill is widely expected to sail through both houses.
Zimbabwe will become part to handful countries in the world with full UWOs legislation and these are Ireland, Australia, Pakistan and Colombia and recently the United Kimgdom.
Others like South Africa and Canada have partially adopted aspects of unexplained wealth in that there is a presumption in favour of forfeiture for certain offences.
The clamour grew to target the ultra-wealthy Zimbabweans who had long-flaunted their wealth in public, including on social media and who allegedly relied on former President Robert Mugabe's patronage to accumulate grotesque wealth.
Still, while UWOs are a potentially powerful tool for law enforcement, they have rarely been used.
The legislation was used only once in the case of former Zimbabwe National Road Administration (Zinara) chief executive officer Frank Chitukutuku, who is under investigation for fraud, and was given a 30-day ultimatum to give an account of how he acquired an array of immovable and movable assets worth over US$20 million.
High Court judge Justice Erica Ndewere ordered a freeze of the assets of Chitukutuku, pending finalisation of the criminal case. Chitukutuku is said to have acquired 10 motor vehicles between September 2013 and April last year.
The State also claims Chitukutuku built or acquired a multi-million dollar thatched precast-walled house at the top of a mountain at Belmont Farm, Goromonzi, adding he also has six state-of-the-art fowl runs, five tractors, a 10-tonne UD truck, 4 x 200-litre PVC water tanks, as well as several structures at the farm.
Apart from a long list of expensive properties, Chitukutuku is also said to be the owner of two renowned companies, Farm Pride (Private) Limited situated at 49 Kent Road, Chisipite, Harare and an insurance company, Champions Insurance, which boasts of assets estimated at over US$15 million.
According to the State, Chitukutuku acquired the properties at a time he was lawfully earning a combined $8 500 from Zinara as well as his farming activities.
How does a UWO work in practise?
According to the SI, the High Court may, on an ex-parte application, that is to say, an application "by one party". In this case, any of the enforcement authorities above, issue an UWO.
The high court can only issue an UWO upon satisfaction that the requirements for such an order have been fulfilled. First, the respondent falls into the category of the Politically Exposed Persons (PEPs), that is to say, someone who has been entrusted with a prominent public function.
Similarly, if there are reasonable grounds for suspecting that the respondent is or has been involved in serious crime, whether in Zimbabwe or elsewhere, or a person connected with the respondent is or has been is involved. Serious crimes include money laundering, bribery and corruption, drug trafficking and other offences.
Second, that there is reasonable cause to believe that the target person holds the property and the value of the property is greater than US410 000. The asset(s) in question can be single or collective or its equivalent in local currency.
Third, that there are reasonable grounds for suspecting that the known sources of the respondent's lawfully obtained income would have been insufficient for the purpose of enabling the respondent to obtain or hold the property.
The UWO requires the respondents to explain how they have lawfully acquired their assets—prove it or lose it. Thus, if the respondent fails to respond or gives an inadequate response, the property is deemed to be tainted property.
Then this extra information can be used in a separate civil recovery process (an existing measure under the Money Laundering and Crime Act) if law enforcement has gathered sufficient evidence. Chitukutuku now has to give a detailed statement to the head of the police's Asset Forfeiture Unit (AFU) within a month.
It is important to note here that UWOs should not be confused with the crime of illicit enrichment. Contrary to popular beliefs, Zimbabwe has not adopted an independent crime of illicit enrichment.
This piece considers the proposed UWO regime in the context of other recommendations for targeting illicit wealth by the United Nations Convention Against Corruption (UNCAC) unit.
Specifically, it examines why UWOs are more suitable to the UK than the offence of illicit enrichment.
Article 20 of UNCAC recommends that signatories consider implementing a criminal offence of illicit enrichment.
However, to date, the UK has not implemented a criminal offence to this effect. UWOs stem from the idea of illicit enrichment and are, one might say, two sides of the same coin. UWOs are civil measures, rather than criminal.
It will allow law enforcement agencies, defined in the Bill, to apply for a court order against an individual who they suspect has assets incommensurate to their known income, arguably far more important in the context of developing nations.
The effect of the law
The UWO will be an express gateway to the forfeiture of assets. It is the mainstay of the UWOs to seize and repatriate proceeds of serious financial crimes. An application for the UWO must specify the property in respect of which it is sought and specify the person who the enforcement authority thinks holds the propert, that is, the respondent.
It is worth noting that the UWOs have extra-territorial application. In other words they can be applied even if the person specified is outside Zimbabwe. This is very significant, especially since many Zimbabwean PEPs have properties in South Africa and the UK where UWOs have also been introduced.
The High Court may pass imprisonment for those who fail to explain or provide tangible information pertaining to the source of their wealth. According to the SI under discussion, offenders will be jailed up to two years.
Likewise, a person who makes a false statement in response to unexplained wealth shall be guilty of an offence and maybe jailed for a period of up to two years. The High Court also has the discretion to impose a fine of up to US$65 000 or the equivalent in Zimdollars at the prevailing interbank rate of exchange.
Certain concerns
Although, the use of UWOs may be hailed as an important tool to fight corruption and a cure to Zimbabwe's dirty money problem, however, there are some concerns. The possibility of these laws being applied in an arbitrary and detrimental fashion cannot be underestimated.
5.1. Human Rights
As is often the case against illicit enrichment discussed above, the main concern about the impact of UWOs on the right to a fair trial—presumption of innocence in that UWOs force the respondent to explain their innocence, rather than the applicant to prove guilt – they involve a burden of proof much lower than in any civil or criminal trial, and they can be enforced without the recipient being found guilty, or even accused, of any crime.
5.2 Procedural
Questions have been raised about the classification of UWOs as civil proceedings. It has been argued that UWOs are criminal proceedings similar to illicit enrichment and, therefore, if the substance of the proceedings is criminal in nature, difficulties arise when civil standard is applied
5.3 Political
There is also a fear that UWOs could turn into a political weapon. It is true, says Cowie, that the SFO has a mandate to punish fraud and to fight corruption, including corruption overseas. "But it doesn't have an anti-kleptocracy mandate. UWOs are an area that could be intensely political and quite subjective."
Enforcement agencies ZRP, the Zacc, and Zimra's operational independence is also a subject of intense debate.
The orders can be seen as a way of hitting back at the G-40, contrary to the intention of the framers, who consider them as part of a concerted effort by the new government to crack down on corruption and related financial crimes.
Be warned
The potential dire consequences for those individuals who will fall target to the UWOs.
To human rights defenders and other interested stakeholders, this means it remains a key area for development over the coming months and perhaps years. And, particularly to HNWIs and PEPs, they should seek specialist legal advice if they have any concerns that they might be of interest to Zacc, Zimra, ZRP or the NPA as these are the agencies with the power to obtain a UWO.
It would be bad political PR for the new government of Mnangagwa and bad for [UWOs as an instrument] if they fail.
Source - newsday
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