Author's note

More clarity is required surrounding the potential impact the definition of ‘unexplained property’ under Section 3 has on a proceeding under Section 22. If Section 3 is taken into account in proceedings under Section 22, then, depending on interpretation, Section 3 might require the state to acquire a conviction  of a separate offence before purseing proceedings under Section 22. If this is the case, or even if the commission of a separate offence needs to be proven to a civil standard, then this law would not be classified as an illicit enrichment law within this publication (instead, depending on the standard of proof required, this law would be more similar to an extended confiscation law or an non-conviction based confiscation law). As the possession of unexplained property is an offence in itself however, and as Section 3 does not specify the need to demonstrate a ‘separate’ offence, there is also an argument that proof of the commission of a Section 22 offence is enough to satisfy the definition of ‘unexplained property’ in Section 3.

Official Text (Source)

3. Interpretation

…”unexplained property” means property in respect of which the value is disproportionate to a person’s known sources of income at or around the time of the commission of the offence and for which there is no satisfactory explanation…

22. Possession of unexplained property 

(1) Subject to the Constitution, any public officer who -

(a) maintains a standard of living above which is commensurate with the public officer’s present or past official emoluments or other income;

(b) is in control or possession of pecuniary resources or property disproportionate to the public officer’s present or past official emoluments; or

(c) is in receipt of the benefit of any services which the public officer may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act;

Shall, unless the contrary is proved, be liable for the offence of having, or having had under the public officer’s control or in the public officer’s possession pecuniary resources or property reasonably suspected of having been corruptly acquired, or having misused or abused the public officer’s office, as the case may be.

(2) Where the court is satisfied in proceedings for an offence under subsection (1) that, having regard to the closeness of the public officer’s relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused , or acquired such pecuniary resources or property as a gift, or loan without adequate consideration, from the accused, such pecuniary resources or property shall, unless the contrary is proved, be deemed to have been under the control or in the possession of the accused.

41. General penalty

A person who is convicted of an offence under this Part, for which no penalty is provided, is liable – 

(a) upon first conviction, to imprisonment for a period not exceeding fourteen years; 

(b) upon a second or subsequent conviction, to imprisonment for a term of not less than five years but not exceeding fourteen years; and

(c) in addition to any penalty imposed under this Act, to forfeiture to the State of any pecuniary resource, property, advantage, profit, or gratification received in the commission of an offence under this Act.

49. Effect of conviction

(1) A person convicted of an offence under the Part shall, by reason of such conviction, be disqualified for a period of five years from the date of such conviction, from being elected or appointed to, or from holding or continuing to hold, any office or position in an public body…

Type: Qualified Criminal Illicit Enrichment Laws

Last update on LEARN: 19 de abril de 2021