Musa-Mwenya declaration of assets presentation

A presentation on the importance of asset declaration and interest declaration

1. Declaration of assets,
unexplained wealth, lifestyle
audits – Challenges &
Recommendations
Musa Mwenye, SC
23
rd
August , 2023
National Prosecutors Conference,
Livingstone

2. •Declarations of Assets and interests; and
•Life style audits are mechanisms for fighting
corruption
•Before we can consider these concepts, we
must first reflect on why we must fight
corruption
Preamble

3. •We must fight corruption because:
–It robs our country of vital resources needed to
reduce poverty and provide social services
•The total cost of corruption is 5% of world GDP
–It is hidden tax that increases the cost of doing
business
•Bribes usually equal 10.9% of of transactions and 34.5%
of profits (OECD 2014)
–Because our TI 2022 CPI score is a low 33/100 and
we are ranked 116
th
least corrupt country in the
world out of 180.
PREAMBLE CONT’D

4. Life Style audits
•A life style audit is:
–An accountability tool used to detect and prevent
corruption
•It should be triggered when the observable
life style of an individual appears to exceed
their known income
•The purpose of a life style audit is to:
–raise red flags for closer scrutiny

5. Life style audits cont’d
–Help determine whether apparent extravagant
expenditure could be proceeds of crime
–Help highlight conflicts of interest or illicit
activities
•A lifestyle audit can be done by:
–Assessing the individuals income, assets and
investments against extravagant expenditure (net
worth analysis)
–Surveillance and intelligence gathering
–Life style questionnaires
–Analysing the individuals household as a whole

6. Sources of lifestyle audits
•Article 20 of UNCAC
–Implores states to criminalize significant increase in assets
of a public official which he/she cannot reasonably
explain
•Article 1 of the AU convention on preventing and
combating corruption defines illicit enrichment as:
–significant increase in the assets of a public official or any
other person which he or she cannot reasonably explain
in relation to his or her income
•u

7. Sources of Lifestyle audits cont’d
•Section 22(1) of the Anti Corruption Act No. 3
of 2012 provides that a public officer who:
–Maintains a standard of living above his/her
present or past official emoluments or other
income; or
–Controls or possesses pecuniary resources or
property disproportionate to the public officers
present or past official emoluments
–Is guilty of possessing or controlling resources or
property reasonably suspected of having been
corruptly acquired

8. Limitations of Lifestyle audits
•Life style audits are not an end in and of
themselves but they are an aide to fighting
corruption.
•Limitations are:
–Poor inter agency co-ordination
–Limited funding
–Limited financial and operational independence
–Lack of technical skills and tools

9. Limitations Cont’d
•To be effective, life audits must be aided by:
–Criminalisation of illicit enrichment
–An open and vigilant press
–An active and well informed civil society
–Obligations of regular declarations of assets,
income and interests which are open to the public

10. Declarations of assets & interests
(DAI)
•Declarations of assets/interests are a financial
disclosure mechanism made by specified
individuals and used to detect conflicts of
interest, unjustified assets and illicit
enrichment
•To be effective, DAI’s must:
– as much as possible be accessible by the public;
–Encompass political leaders in public office and
the staff in their private offices ; and

11. DAI’s Cont’d
–Encompass all those public officials and civil
servants involved in public procurement,
licencing, supervision, regulation, tax and customs

12. What should be declared
•As a minimum, the following should be
declared:
–Crypto currencies, expensive art work, jewelry etc
–National and foreign bank accounts and safe
deposit boxes to which the declarant and his/her
family have assess to
–Loans given or received
–Deferred corporate rights (options to shares)
–Expenditure above a certain threshold between
declarations
–Income , savings and expenditure over time
–Interests in Govt. contracts

13. DAI Cont’d
•Declarations of assets need to be accompanied
by verification or Lifestyle audits &
enforcement
•Verification helps expose:
–Late or non submission
–Prohibited gifts
–Assets and income not reported or disclosed
–Assets not justified by lawful income
–Lifestyle not commensurate with earnings

14. DAI Cont’d
•To be effective, the requirement to declare
assets must be codified and accompanied by
criminal sanctions for late filing or failure to
file/filing false or misleading declarations
•For elected officials, late filing or failure to file
may be accompanied by a penalty of possible
loss of office
•Other sanctions could include naming and
shaming recalcitrant individuals and
administrative sanctions

15. Sources of DAI
•Article 7.1 of the AU convention on preventing
and combating corruption implores states
parties to:
–pass laws requiring all designated officers to
declare their assets at the time of assumption of
public office and after their term of office

16. Sources of DAI Continued
•Article 8(5) of UNCAC implores states parties
to:
–Endeavour to establish measures and systems
requiring public officials to make declarations of
their outside activities, employment, investments,
assets and substantial gifts or benefits from which
a conflict of interest may result with respect to
their functions as public officials

17. Sources of DAI Cont’d
•Section 30 of the Electoral Process Act No. 35
of 2016 requires candidates for election as
President and vice president of the Republic
of Zambia:
– to deliver to the returning office as part of the
nomination process, the prescribed statutory
declaration of the candidates assets and liabilities.

18. Sources of DAI Cont’d
•Section 5 of the Parliamentary and Ministerial
Code of conduct Act Chapter 16 of the laws of
Zambia proscribes members from speaking in
the National assembly or in any committee on
matters in which they have a pecuniary
interest:
–unless they have disclosed the nature of that
interest to the national assembly or to the
committee

19. Sources of DAI’s
•Section 6 of the Parliamentary and Ministerial Code of
conduct Act provides for the declarations of interests
by members of parliament:
–in contracts with the Government that are made or
proposed
•Interestingly although there is a requirement to declare
interest in contracts in which the member will either:

20. –Derive a material benefit; or
–In which one party of the contract is a firm or
corporate body in which he has a material interest
•The member is not considered to have a
material interest in a corporate body by
reason only that:
–He holds debentures in the corporate body; or
–He holds shares in the body corporate with a total
market value of less than the annual emoluments
of the office of the member concerned

21. •Section 10 of the Parliamentary and
Ministerial Code of conduct Act requires
Ministers, the Speaker and Deputy Speaker to
declare their assets, liabilities and income
–Within 30 days of their appointment;
–After that annually on the anniversary of their
appointment;
–The register of declarations made under the act is
supposed to be open for inspection to the public
at all reasonable times

22. •Section 28 of the Anti Corruption Act No. 3 of
2012
–requires public officers to disclose interests in
matters falling for their consideration;
–Proscribes officers from taking part in proceedings
or processes considering matters in which they
have a conflict; and
–Criminalizes failure to comply with the provision

23. •Section 10 of the Anti corruption Act and
regulation 4 of the first schedule to the Act,
respectively, require:
–The DG, deputy DG and the officers of the
Commission to declare assets upon assuming
office and every five years thereafter; and
–The board to declare assets upon assuming office

24. Conclusion and recommendations
•It is clear that corruption cannot be fought
without dealing with unexplained wealth and
illicit wealth
•Lifestyle audits and DAI are an indispensable
tool in dealing with unexplained wealth and
illicit wealth
•Zambia has not fully complied with its
international obligations with regards DAI’s and
has not employed Life style audits effectively

25. Recommendations
•Malawi passed the Public officers (declaration
of assets, liabilities and business interests) Act
which requires specified persons holding
public office, to declare their assets. We
should emulate this.
•The law to be enacted should:
–Encompass all elected political officials who serve
in the executive or local government, all persons
in the public service who occupy a supervisory

26. –licencing or regulatory office or those who
oversee or are involved in public procurement, tax
or customs duty collection
–Should have sanctions for non compliance that far
outweigh the benefits of non compliance
–All declarations must be received by a new, well
funded department of the anti corruption
commission
–The receiver of DAI must be equipped and funded
to verify and enforce the declarations and must
also be responsible for conducting life style audits

27. •There must be technical, technological and
operational coordination between the anti
corruption commission, RTSA, PACRA and ZRA.
•Implementation of an integrated case
management system software on the model of
the one implemented by the Ministry of Justice
of Rwanda with line of sight to all vital registries
and records
•Implementation of operational and financial
independence of corruption fighting agencies

28. Post script
•In March 2023, the NDI conducted a survey on
public perceptions on corruption in Zambia.
The Survey found that:
–68% of respondents said it was important for top
officials to declare their assets when they come
into office and every year there after;
–64% of respondents said it was important for the
President to declare his/her assets after he/she
assumes office and every year they remain
President