Wilful Blindness & Deliberate Avoidance of Facts

WILFUL BLINDNESS by the Anti-Corruption Commission (ACC) – The Commission may be breaching the Law. I will try to break it down in simpler terms for several others to follow from the Zambian perspective. Here is a scenario: Temwani Twakondwera Mabvuto Matsautso was a private (RATSA) unregistered PSV Taxi driver). He has been formally arrested and charged jointly whilst acting together together with 4 accused persons and others unknown on a burglary or Bank Robbery case. Mabvuto’s defence in court was that he hadn’t known that he was taking part in a burglary/Bank Robbery. He claimed he genuinely thought he was simply driving some innocent looking Zambians to and from a business meeting they claimed that they were attending. In convicting Mabvuto for 10 years with hard labour (to be incarcerated at Mwembeshi Open Prison (call it Corrective penitentiary if you like) for aiding and abetting the Bank Robbery, the Magistrate HAMUSANKWA HAMUDUDU rejected Mabvuto’s explanation and plea on the grounds that his accomplices had put black stockings over their heads and armed themselves with shot batons, machetes, (Pangas), screwdrivers, knives, guns, shamboks and a variety of other dangerous tools prior to exiting the car he was driving and heading to the Banking Hall entrance. He should have known that Bank customers don’t enter the Bank premises armed to the teeth and with black Head socks on. Mabvuto had the mobile phone at the time and must have called 911 or reported to the nearest Police Station had he been a good Zambian citizen.

Similarly, A well trained and professional investigator who has been attested (with legal power and authority to effect an arrest) goes to Chalala, finds 4 or 8 tenants out of the 48 houses. Tenants are hesitant to disclose the details of the Landlord. As an investigator, he or she knows that records can be retrieved from Lusaka City Council (LCC and His Worship the Mayor – Miles Sampa confirmed that LCC have records and knows who owns the 48 houses), Ministry of Lands – Hon. Jean Kapata would be more than happy to avail details, we hope and pray that Kingsley Chanda at ZRA – is collecting property withholding taxes. PACRA and many other sources. The Investigators go back to the Office and report their end of the road – hitting a brick wall efforts to ACC Command. The Acting DG goes to the press and tell the World and its wife…the ACC inabilities, incapabilities, impossibilities, inadequacies etc. Alas the dismal explanation does not fully satisfy the general populace, Infact, the cover up attempt invokes anger in them. The rest is history. Nkani izibika!

‘WILFUL BLINDNESS’ can/may lead you into trouble. When a person “consciously avoids” the facts, or fails to adequately resolve “suspicious indicators” or significant inconsistencies, arising in connection with the due diligence process or in connection with unusual transactions, that person may be deemed to have been wilfully blind to the illegal source of funds. Wilful blindness often results in a person being deemed to have knowledge of the illegal source of funds resulting in possible criminal prosecution. In the US courts wilful blindnes is defined as the “DELIBERATE AVOIDANCE OF KNOWLEDGE OF FACTS” or “PURPOSEFUL INDIFFENCE” – This is equivalent to “ACTUAL KNOWLEDGE” of the illegal source of funds or of the intentions of a customer in a corruption or money laundering transaction. In corporate criminal liability would mean that the person’s wilful blindness can be attributed to the person’s employer i.e.the Anti-Corruption Commission who sent the Investigators or the Acting DG to embarrass the Commission. Such suspicious activities let to the Head of State to unleash other Bulldogs from the Ministry of Home Affairs (ZPS and DEC) through Honourable Kampyongo to go and sniff better than the ACC did. ACC many have sent the Poodles – fluffy maltese with no teeth instead of the German Shepherds.

SUSPICIOUS:- An English judge has described suspicion as “A degree of satisfaction, not necessarily amounting to belief but at least extending beyond speculation, as to whether an event has occurred or not”; and“Although the creation of a suspicion requires a lesser factual basis than the creation of belief, it must nonetheless be built upon some foundation”. At certain points, therefore, it becomes unreasonable either to suspect or not to suspect somebody of something, and this is an area of great personal and corporate legal risk, because failing to report a suspicion is, as you no doubt know by now, not only a breach of the AML Law (that is why FIC reports on typologies), but also a criminal offence in most of the countries.

Let us all remember that owning property in Zambia is not an offence. The owner should be bold enough to come out in the open! Lest we forget, Thandiwe Banda and the MPUNDU Trust came up some years back and RB and a platoon of Lawyers went to court and challenged the ACC alleged forfeiture of the said property. As of today we all know who built the plush apartments and who collects the Rent money! Lol! I hope and pray that the 48 houses case will not die Yet another natural death like the 42 fire Tender Trucks, General Chimese’s case and many others! Stay well and be blessed – KEKK2019

Published by Kunda Kalaba

Financial Crime Compliance (FCC) professional. Passionate about AML/CTF, Sanctions, ABC, KYC, CDD. Member - World Advisory Council Association of Certified Fraud Examiners-ACFE. Member of the African Task Force Committee - ACAMS. Presenter at International Conferences-ACAMS&ACFE. Certified Fraud Examiner-CFE. ACFE & ACAMS Singapore Chapters Member. Certified Anti-Money Laundering Specialist-CAMS. Certified Anti-Bribery and Corruption-ABC. Chairperson, ABC Working Group. Founder - Institute of Directors (IoD) Zambia Chapter. Founder - Managerial Accountability & Transparency. Two-term of two years Chairperson of the Bankers Association of Zambia Fraud Prevention and Security Committee. Zambian Government to SADC and COMESA Consultant on Crime & Corruption Prevention & management Strategies. Sound & vast experience in FCC Compliance, Deterrence, Prevention, Detection, Investigations, Security and Prosecutions. 25 years extensive experience in FCC, ABC, AML, CTF, Fraud & Operational risk assessment & Investigations. STA in Financial Crime Compliance & Risk management in London, Coventry & Southampton in the UK. Area Head of FCC for Southern & East Africa responsible for Risk Assessments & Investigations, AML/CTF, Sanctions. Central Bank regulatory and AML Directives appointed as Country Money Laundering Prevention/Reporting Officer-CMLPO. Professionally trained “trainer of trainers” & core facilitator. Proficient with proven track record of exceptional abilities in management and leadership for performance. Corporate Governance, capacity building, Institutional & Organizational development, business process re-engineering. Technical expertise is coupled with excellent interpersonal, team building, communication and presentation skills.

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