‘No standard operating procedure for forfeiture units’

The Malawi Government’s introduction of a Forfeiture Unit within the Anti-Corruption Bureau alarmed some people, who feared that the unit resembled the Forfeiture Act, the draconian legislation of the one party state. Our reporter Boniface Phiri caught up with Chancellor College associate professor of law Edge Kanyongolo who explains his understanding of the forfeiture unit.

Q

How do Forfeiture units or acts generally work?

A

There is no standard operating procedure for forfeiture units or acts as such. The mandate of any particular unit and its method of work will be determined by the specific legal basis on which it is founded.

Q

The introduction of the Forfeiture Unit is coming hot on the heels of the infamous cash-gate scandal. Don’t you think some people are justified in thinking that it’s a witch hunting tool?

A

It does not seem logical to conclude that since the proposal is coming on the heels of the cashgate scandal it is, therefore, a witch-hunting tool. The best test of whether this is a witch-hunting tool can only be whether, in practice,  it is used selectively against only certain classes of offenders, for example, those that have links to opposition parties.

Q

Does the introduction of a Forfeiture Unit have a legal basis?

A

Yes it has. It is based on the Corrupt Practices Act which, ironically, also empowers authorities to forfeit property deemed to have been acquired dubiously. However, that should not mean other mechanisms have failed, but this being an administrative arrangement, I believe government would like to have hands-on authority over the whole process.

Q

People still have memories of how the one-party regime used a similar piece of legislation, the Forfeiture Act, to torment innocent people. Do you think this is a legitimate measure in this democratic dispensation?

A

In some circumstances, it is legitimate in a democracy for the State to forfeit property that is illegally obtained or purchased using proceeds of crime. In this vein, it is legitimate for the state to forfeit houses built, or vehicles bought, using money stolen from the public coffers as is allegedly the case in the cashgate. The fundamental difference between the operation of the Forfeiture Act during the pre-1994 one-party dictatorship and forfeiture provisions under the current Corrupt Practices Act is that the latter follows the conduct of a trial, during which the accused has rights to fair trial.

In contrast, under the pre-1994 Forfeiture Act, property could be forfeited even where the owner had not been found guilty by any court, as long as a minister concluded that property owner had acted in a manner “prejudicial to the economy of the State or subversive to the authority of the government.”

QWon’t the Forfeiture Unit be in conflict with the Corrupt Practices Act that’s currently in use?

A

My understanding is that the unit will be part of the ACB and, therefore, cannot be in conflict with the Corrupt Practices Act which sets up the ACB. However, if the unit is established separately from the ACB it will require a specific legal basis which will need to be crafted in a manner that complements, rather than contradicts, existing laws including the Corrupt Practices Act, the Penal Code and the Money Laundering, Proceeds of Serious Crimes and Terrorist Financing Act, all of which also have forfeiture provisions.

Q

If the unit is embedded in the Anti-Corruption Bureau, which has been called a toothless dog that fears the big shots in society, do you see it being effective enough?

A

I think to call the ACB a toothless bulldog is an exaggeration of the limitations that the ACB has experienced over time. In any case, since the work of the unit would be based on a conviction of an offender by a court, it would be relatively easy to use the same courts to compel the unit to act, even if it was initially unwilling or unable to do so.

Q

Is it proper to give this unit a specific operational time frame as it is being proposed by some quarters?

A

I think it would be wrong in principle to provide an operational time frame for an institution whose scope of work we cannot predict in advance. We do not know how many people will be convicted of corruption, when the courts will convict them and how many will have assets that may be forfeited.