HARARE – A Ugandan couple whose two upmarket properties in Harare were seized by the prosecutor general as “unexplained wealth” have won their Supreme Court appeal.
Former aid worker Robert Kweyunga Kwesiga and his wife Sande Hilda Kwesiga were accused of money laundering after buying two properties in Mount Pleasant and Vainona for $115,000 and $165,000 in cash transactions respectively.
The High Court granted the prosecutor general’s application for an unexplained wealth order, freezing the properties.
But ruling on the couple’s appeal, three Supreme Court judges – Tendai Uchena, Felistus Chatukuta and Samuel Kudya – overturned the High Court judgement.
The judges said the requirements for obtaining an unexplained wealth order were not met.
The case turned on the finding that the prosecutor general Loice Matanda-Moyo had no knowledge of what Robert Kwesiga’s salary or disposable income was at the time of applying for the unexplained wealth order, which Advocate Thabani Mpofu for the appellants said made her application fatally defective. The Supreme Court judges agreed.
With the other appeal judges concurring, Justice Uchena said in a July 11 judgement: “The prosecutor general did not place any objective facts demonstrative of suspected money laundering, breaching exchange control regulations, hoarding and trading in hoarded cash. She simply made the bald assertion that she was relying on a tip-off from a faceless individual.
“The paucity of objective facts that could link the first appellant (Robert Kwesiga) to these generalised crimes clearly does not meet the prescribed threshold in s 37C (3) of the Money Laundering and Proceeds of Crime Act.
“The prosecutor general improperly reasoned backwards, firstly by inferring suspicion from the common cause facts of the acquisitions. Secondly, by utilising her own failure to obtain the appellants’ income as a further basis to infer that they could not at the time afford to purchase the two properties within a space of two years. Lastly, by inferring from the two preceding inferences that they must have been involved in criminal
activities.
“Instead, the provisions of section 37C of the Act required her to first establish objective facts of their income, of their unlawful extra-curricular activities before she could infer that the appellants were incapable of raising the purchase price and transfer costs from their
lawful activities.
“In the end, what the prosecutor general presented and what the court a quo (High Court) upheld was an inchoate or unparticularised suspicion or hunch from a tip-off and not specific and articulable facts upon which rational inferences could be drawn…
“Clearly, the facts and circumstances disclosed by the prosecutor general and accepted by the court a quo were insufficient to warrant a prudent man to suspect that the appellants had committed, the criminal offences of money laundering, breaching the exchange control regulations and hoarding or trading in hoarded cash for which they were to suffer the indignity of an unexplained wealth order.
“The appeal has merit. The court a quo could not have granted the application for an unexplained wealth order when the requirements set out in section 37C of the Act were not met.
“The appeal ought to be allowed. There is no reason why costs should not follow the result.”
Kwesiga was first employed as regional head of the International Federation of the Red Cross in 2005 before joining the Danish Red Cross Society in Harare in the same capacity two years later. The couple were resident in Zimbabwe until 2013.
The court heard that they bought the Mount Pleasant house in 2010 and the Vainona property in 2012 following which they appointed real estate firm Knight Frank to manage the properties.
Their problems started on July 2, 2021, when one Derick Manuel Dube flighted an advertisement for the sale of the Vainona property in the Herald newspaper.
Knight Frank duly alerted Kwesiga and his wife who through their lawyer managed to interdict Dube from selling their property.
But just a month later, the Criminal Investigations Department’s asset forfeiture unit informed the couple of a “tip-off from an open source” on purported unreported criminal activities involving “large” sums of money that went undetected at the time the husband was “the accounting officer and budget controller” of the Danish Red Cross.
The couple submitted proof that they had sold their flat in Kampala, Uganda, for $80,000 and pay slips showing that Kwesiga earned US$10,474 per month in 2009 and US$10,911 in 2011 per month. His bank statement showed his credit balance in May 2009 was US$30,693 and was US$41,651 in June 2011.
The High Court however ruled that the absence of a discernible paper trail of the origin and movement of the purchase price for the properties constituted objective facts upon which “reasonable basis to suspect” existed that the purchase price was derived from criminal proceeds.
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