The state power to sieze property in criminal matters v the property rights of an accussed: Finding the Balance

Abstract

This dissertation considers the right to property and the power of the State to seize property in criminal matters. It further attempts to address the issue of balancing the two competing interests. In approaching the concept, the research starts by explaining the notion of the right to property and the instruments that guarantee its protection at international, regional and national levels. It further looks at whether the state in exercising the power to derogate from an individual's right to property does so within the parameters of that power or in an arbitrary way. In addition it considers whether the State has the power to utilise seized property before a forfeiture order is granted by the court as reflected in cited cases. The outcome of the research and interviews indicated that when the State seizes property alleged to be an instrumentality of a crime, it does so without any reasonable grounds upon which to suspect that the alleged owner committed a criminal offence. Through interviews conducted it was observed that the burden the State bears in proving that property is an instrumentality of a crime is too high to discharge in most instances. From the cases cited, it was found that government investigation officers in most instances misuse seized goods before investigations are even concluded or a forfeiture order is granted forfeiting the interest in the said property to the state. The study therefore recommends that civil forfeiture should be introduced in the Zambian legal system and should co-exist with the already existing criminal forfeiture system. It is also recommended that the courts should make an order that prohibits anyone from interfering with seized property in the custody of the State before a forfeiture order is granted.