The asset forfeiture regime in Malawi and its implications for the combating of money laundering

Abstract

The international legal framework on money laundering encourages states to put in place effective systems for the identification, freezing, seizure and forfeiture of proceeds and instrumentalities of crime. While the international legal framework obligates countries to adopt conviction-based forfeiture (criminal forfeiture), it only encourages them to consider adopting non-conviction based asset forfeiture (civil forfeiture). This has led to a situation where countries, such as Malawi, adopt only criminal forfeiture and not civil forfeiture. This study analyses the efficiency of the existing Malawian criminal forfeiture regime in curbing and preventing the proliferation of underlying profit-generating crimes and money laundering. This thesis contends, in part, that some countries have not adopted civil forfeiture because there is no international obligation to do so. It argues that the fact that states are not obligated to adopt civil forfeiture by international legal frameworks and national arrangements undermines the deterrent aim of the anti-money laundering and asset forfeiture systems in combating economic crimes. Some justify the casual approach to civil forfeiture by arguing that its implementation harbours the danger of violating human rights and constitutional guarantees. This thesis, however, advocates for the adoption of civil forfeiture within the limits of John Locke’s social contract theory, which guides states on how they can pursue policies and implement laws without limiting the rights of their people arbitrarily.