THE Economic and Financial Crimes Court has ordered the Drug Enforcement Commission to release bank accounts belonging to businessman Bwalya Kalandanya to and two of his companies.
Judge Edward Musona on behalf of judge Pixie Yangailo and Kenneth Mulife ruled that the State failed to prove that the money in the accounts held at Stanbic Bank Zambia Limited and Eco Bank Zambia limited was obtained through money laundering.
Kalandanya and his companies, Kalandanya Music Promotions, Nsochita General Contractors and Supplies Limited had appealed the decision by Drug Enforcement Director General to restrict and seize their accounts on allegations of money laundering.
They argued that the restriction of the accounts was illegal as the DEC did not serve them with any restriction notices as required by law and that the said notices have expired.
Kalandanya’s and his companies argued that Section 15 of prohibition and prevention of Anti-money laundering Act does not empower the officers of the DEC to freeze a bank account, as the same does not amount to property of the account holder for purposes of seizure.
They stated that the provision only empowers authorized officers to seize already acquired, determined and described property.
The appellants argued that the DEC needed to demonstrate that they acquired the money through money laundering as it would have justified the placement of impugned notices of seizure.
The State asked the Court to dismiss the appellants’ argument that the DEC acted without reasonable belief that the money in issue was seized because it was acquired through money laundering.
It said the appellants’ money which was credited to the Bank accounts in issue is liable to seizure because the DEC has interest in it.
“If the Court orders the release of the subject money, it would be contrary to public interest and tantamount to stopping criminal investigations,” the State said.
Delivering judgement judge Musona said for purposes of facilitating investigations into an alleged crime of money laundering, the burden of proof is on the party that is alleging criminality in the manner the money was acquired.
He said the State misdirected itself when it submitted that the appellants have the burden to prove that the seized money was amassed through money laundering activities.
“Placing the burden of proof on the appellants is requiring them to prove their innocence which is a violation of their fundamental rights,”Judge Musona ruled.
He noted that the impugned notices of seizure have no basis on which they can be sustained and discharged them.
“Ownership of property being a fundamental right guaranteed by Article 16(1) of the constitution, cannot be taken away from the appellants without giving them an opportunity to be heard,”judge Musona guided.
“By logical implication, a notice of seizure issued pursuant to section 15 of the Act, has a validity period of six months from the date it is placed on a property.”
He said since no action was taken after the placement of the notices of seizure on the appellants’ bank accounts and the period is in excess of sixteen months, the seizure notices have been rendered invalid.
“We accordingly discharge the two notices of seizure that were placed on the appellants’ bank accounts by the State on December 27, 2021. The appellants shall forthwith have access to their bank accounts in issue by way of withdrawing or depositing money,” ordered judge Musona.
By Mwaka Ndawa
Kalemba April 27, 2023.
