Uganda is still awash with stories of the recent sanctions against Ugandan politicians including two of former ministers in President Museveni’s government. The ministers including Maria Gorreti Kitutu and Agnes Nandutu were days ago put on a persona non grata level by government of United Kingdom accusing them of corruption in relation to the Karamoja Iron sheets scandal. They were also sanctioned alongside the Speaker of Parliament.
Many voices have however, come out to give doubts as to whether UK can enforce it’s plan of freezing alleged assets of these named individuals although speaker Anita Among maintains that she owns nothing in the Queen’s land.
This news station contacted Barrister Peter Magomu Mashate Barrister-at-Law of the Honourable Society of Lincoln’s Inn of Court London on whether the sanctioned people still have a chance to redeem their faces and how UK can successfully move to freeze their alleged fortune. Barrister Mashate was a private lawyer who defended both President Museveni and Uganda government in UK court when he was privately sued.
Excerpts!
Qn. Barrister tell us the process of seizure of properties belonging to any accused person.
PMM: In UK, there’s a law called
The Proceeds of Crime Act 2002 (as amended). It is a fundamental legislation that enables law enforcement agencies to confront criminal activity by impounding and/or indeed confiscating assets obtained through illegal means.
The Act has been in place since 2002 and has had a significant effect on the UK’s ability to prevent money laundering, prosecute criminals, and recover proceeds of crime.
This Act provides the authorities with powers to confiscate assets obtained through criminal activity. The legislation was introduced to tackle money laundering and prevent criminals from benefiting from their illegal activities.
Qn. How significant is this POCA especially now that some of our people in Uganda have been sanctioned and are threatened with confiscation of their assets if any?
PMM: The current law is a significant improvement over its predecessor, The Proceeds from Crime Act 1971. The new Act has strengthened the legal framework for confiscating the proceeds of criminal activity and made it easier for law enforcement authorities to prosecute individuals who have benefited from crime. The 2002 Act is more comprehensive as it provides greater powers to law enforcement agencies to investigate and seize assets. It also includes provisions for money laundering offences, which were not addressed in the 1971 Act.
Inherent in the Act is the Legal power of Tracing the chain of illegal acquisition of wealth and siphoning of the proceeds including concealing the proceeds in third parties and or registering stolen property in third-party. This is recoverable if the proceeds have not been dissipated. But even if they have been dissipated there is what we call in English law the doctrine of Overreaching that recovers monies worth.
Qn. Tell us how it works
PMM: POCA provides law enforcement agencies with a range of powers to seize cash, property, valuables and other assets obtained through illegal means. It also allows the authorities to freeze assets while investigations are ongoing and confiscate them if they are found to be the proceeds of crime.
However, to initiate legal proceedings under the Proceeds of Crime Act 2002, the following conditions must be met:
a) The defendant must be convicted of an offence in proceedings brought before the Crown Court, or their case must be committed to the Crown Court for sentencing.
b) The prosecution must request the court to commence POCA proceedings, or the court must deem it appropriate to initiate such proceedings.
Its worth noting that when the prosecution asks the court (Crown Court/High Court) to proceed to the confiscation stage, which may occur during a POCA court hearing, POCA proceedings become mandatory.
Qn. What then is the Process?
PMM: Understanding the POCA process is necessary for determining the monetary level a defendant must pay under a confiscation order.
The first step in the process is to assess the defendant’s payment obligations. A confiscation order is a directive issued by the Crown Court, requiring a convicted defendant to pay a specific sum of money to HM Courts and Tribunals Service (HMCTS) either immediately or within a specified period. To arrive at the payment amount, two key figures must be calculated: The benefit figure and the available amount.
The benefit figure represents the financial gain the defendant obtained through their criminal activities. It reflects the amount they have unlawfully acquired.
On the other hand, the available amount refers to the funds, assets, or property the defendant currently possesses at the time of prosecution.
The authorities use the benefit figure and the available amount to determine the “recoverable amount,” which is the final value. The confiscation order is then issued for the exact sum of the recoverable amount. Typically, the recoverable amount corresponds to the defendant’s benefit from their criminal conduct, as indicated by the benefit figure. This is the usual amount considered for the confiscation order.
However, if the benefit figure exceeds the available amount, the available amount becomes the maximum sum that can be recovered. In such cases, the confiscation order is limited to the available amount that can be feasibly returned.
Qn. Now, what if the defendant is unable to pay the confiscation order?
PMM: The confiscation period may be extended up to six months if they can demonstrate exceptional circumstances to the court within a year of the order’s issuance. This allows for consideration of an individual’s financial situation.
Meanwhile, if the authorities cannot agree on the defendant’s financial benefit and the amount to be confiscated, a POCA court hearing may take place. Prior to the hearing, evidence will be collected from the defendant, a POCA lawyer, experts, and relevant third parties.
Qn. What are the major cases covered under POCA?
PMM: They are basically three and I will briefly explain them.
a) Concealing. This includes hiding, transferring, or converting assets to prevent them from being seized by the authorities.
b) Arranging. This is another offence under POCA that relates to facilitating the transfer or disposal of assets that have been obtained through criminal activity. This includes providing advice or assistance to individuals who are looking to move or conceal assets.
c) Acquiring: Acquiring assets that have been obtained illegally is also an offence under POCA. This includes knowingly receiving or purchasing assets that have been obtained through illegal means.
Qn. So, in case UK chooses to proceed with freezing assets of Ugandan officials, will there be a process of court hearing or it’s unilaterally done without hearing their side? And where?
PMM: No no, the right to a free and fair hearing is enshrined in Article 6 of the European Convention on Human rights (ECHR) amongst other rights including but not limited to Natural justice. Therefore, they would be served with a legal notice of intention to subject their properties or funds to proceedings under POCA. In the same vein the legal notice will require them to show cause as to why the properties/funds collectively proceeds of crime should not be confiscated.
Further, if the accused cannot account for legitimate source of funds and where the source of where the funds is identified then the court can make an order directing UK government to return those funds to Uganda government. This is not new it has ever happened when suspected illegitimate funds were returned to Uganda around 2008/2009 by the UK government. Notwithstanding, where the sources are not clear or where there are legal barriers as in the current situation of raft of sanctions against Russia etc then the funds are held Bon Vacantia by the UK government in the Consolidated fund.
