This Act was repealed on 2017-02-17 by Financial Crimes Act.
Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act
Related documents
- Is repealed by Financial Crimes Act
Malawi
Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act
Chapter 8:07
- Commenced on 25 August 2006
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
- [Repealed by Financial Crimes Act (Act 14 of 2017) on 17 February 2017]
Part I – Preliminary
1. Short title
This Act may be cited as the Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act.2. Interpretation
In this Act, unless the context otherwise requires—“account” means any facility or arrangement by which a financial institution does any one or more of the following—3. Meaning of charge in relation to a serious crime
Any reference in this Act to a person being charged or about to be charged with a serious crime is a reference to a procedure, however described, in Malawi or elsewhere by which criminal proceedings may be commenced.4. Meaning of conviction in relation to a serious crime
For the purposes of this Act, a person shall be taken to be convicted of a serious crime if—5. Meaning of quashing of conviction
For the purposes of this Act, a conviction of a person for a serious crime shall be taken to be quashed in any case—6. Meaning of value of property, etc
7. Meaning of dealing with property
For purposes of this Act, dealing with property held by any person includes—8. Meaning of gift caught by this Act
9. Meaning of deriving a benefit
A reference to a benefit derived or obtained by or otherwise accruing to a person includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at the request or direction of the first person.10. Meaning of benefiting from the proceeds of serious crime
For the purposes of this Act—Part II – Establishment of Financial Intelligence Unit
11. Financial Intelligence Unit
12. Disclosure to foreign institutions and agencies
The Financial Intelligence Unit may disclose any report or information as set out under section 11(2)(p) to an institution or agency of a foreign state or of an international organisation or body or other institution or agency established by the governments of foreign states that has powers and duties similar to those of the Financial Intelligence Unit—13. Appointment and qualifications of Director of the Financial Intelligence Unit
14. Appointment of other staff of the Financial Intelligence Unit
15. Removal from office
16. Confidentiality
17. Disclosure of information
18. Accounts of the Financial Intelligence Unit
19. Annual buaget of the Financial Intelligence Unit
The Financial Intelligence Unit shall prepare for each new financial year an annual budget of revenue and expenditure which shall be submitted to the Minister at least three months prior to the commencement of the financial year.20. Audit of the Financial Intelligence Unit
21. Annual report of the Financial Intelligence Unit
22. Oath of office for officers of the Financial Intelligence Unit
23. Immunity of the Financial Intelligence Unit and officials
No action shall lie against the Financial Intelligence Unit, the Director, or officer or employee of the Financial Intelligence Unit or any person acting under the direction of the Financial Intelligence Unit for anything done in good faith in the administration or discharge of any powers, duties or functions under this Act.Part III – Money laundering and terrorist financing
24. Financial institutions to verify customers’ identity
25. Necessity of identification to conduct business
26. Financial institution to maintain accounts in true name
27. Financial institutions to establish and maintain customers’ records
28. Financial institutions to report suspicious transactions
29. Supervisory authority or auditor to report suspicious transactions
30. Disclosure of suspicious transaction reports and other information
31. Protection of identity of persons and information in suspicious transaction reports
32. Financial institutions to establish and maintain internal reporting procedures
33. Financial institutions and money transmission service providers to include originator information
34. Financial institution to monitor transactions
35. Money laundering offences
36. Terrorist financing offences
37. False or misleading statements
A person who in making a report under section 24, 25, 29 or 34 makes any statement that the person knows is false or misleading in a material particular or omits from any statement any matter or thing without which the person knows that the statement is false or misleading in a material particular commits an offence and shall be liable on conviction—38. Seizure and detention of suspicious imports or exports of currency
39. Seizure of currency or negotiable bearer instruments
40. Detention and release of currency or negotiable bearer instruments seized
41. Power of Financial Intelligence Unit to obtain search warrant
42. Property tracking and monitoring orders
For purposes of determining whether any property belongs to or is in the possession or under the control of any person, the competent authority may, upon application to the court, obtain an order—43. Orders to enforce compliance with obligations under this Act
44. Secrecy obligations overridden
This Act shall have effect notwithstanding any obligation as to secrecy or other restriction on disclosure of information imposed by any other written law or otherwise, if the court so orders.45. Protection of persons reporting suspicious transactions
46. Restitution of restrained property
Where an investigation has begun against a person for a serious crime and, property was restrained under this Act in relation to that offence, and any of the following occurs—47. Damages
Nothing in this Act affects the right of a person whose property has been restrained to seek the payment of damages, either actual or punitive, in cases where it is alleged that the action of the Government involved any abuse of process.Part IV – Confiscation
Division 1 — Confiscation and pecuniary penalty orders
48. Application for confiscation order or pecuniary penalty order
49. Notice of application
50. Amendment of application
51. Procedure on application
52. Procedure for in rem confiscation order where person dies or absconds
Division 2 — Confiscation
53. Confiscation order on conviction
54. Effect of confiscation order on conviction
55. Voidable transfers
The court may—56. Protection of third parties
57. Discharge of confiscation order on appeal and quashing of conviction
58. Payment instead of a confiscation order
Where a court is satisfied that a confiscation order should be made in respect of the property of a person convicted of a serious crime but that the property or any part thereof or interest therein cannot be made subject to such an order and, in particular, the property—59. Application of procedure for enforcing fines
Where the court orders a person to pay an amount under section 58, that amount shall be treated as if it were a fine imposed upon him or her in respect of a conviction for a serious crime, and the court may—60. Confiscation where a person dies or absconds
Division 3 — Pecuniary penalty orders
61. Pecuniary penalty order on conviction
62. Rules of determining benefit and assessing value
63. Statements relating to benefit from commission of serious crimes
64. Amount recovered under pecuniary penalty order
65. Variation of pecuniary penalty order
Where—66. Lifting the corporate veil
67. Enforcement of pecuniary penalty order
Where the court orders a person to pay an amount under a pecuniary penalty order, section 59 shall apply with such modifications as the court may determine for the purpose of empowering the court to impose a term of imprisonment on a person in default of compliance with a pecuniary penalty order.68. Discharge of pecuniary penalty order
A pecuniary penalty order is discharged—(a)if the conviction of the serious crime or offences in reliance on which the order was made is or is taken to be quashed and no conviction for the offence or offences is substituted;(b)if the order is quashed on appeal; or(c)on the satisfaction of the order by payment of the amount due under the order.Division 4 — Control of property
69. Powers to search for and seize tainted property
70. Search warrant in relation to tainted property
71. Searches in emergencies
72. Record of property seized
73. Return of seized property
74. Search for and seizure of tainted property in relation to foreign offences
Where a foreign State requests assistance to locate or seize property suspected to be tainted property in respect of an offence within its jurisdiction, the provisions of sections 70 and 71 apply with necessary modification.Division 5 — Terrorist cash and terrorist property
75. Seizure and detention of terrorist cash
76. Terrorist funding
77. Dealing in terrorist property
78. Restraining directives in respect of terrorist account or property
Division 6 — Restraining orders
79. Application for restraining order
80. Restraining order
81. Undertaking by the Government
82. Notice of application for restraining order
Before making a restraining order under section 80, the court may require notice to be given to, and may hear any person who, in the opinion of the court, appears to have an interest in the property, unless the court is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property.83. Service of restraining order
A copy of a restraining order shall be served on a person affected by the order in such manner as the court directs or as may be prescribed by rules of court.84. Registration of restraining order affecting land
85. Contravention of restraining order
86. Duration of restraining order
A restraining order remains in force until—87. Review of restraining order
88. Extension of restraining order
Division 7 — Realization of property
89. Realization of property
90. Application of proceeds of realization and other sums
91. Exercise of powers of public trustee
92. Paramountcy of this Part in bankruptcy or winding-up
93. Winding-up of company holding, realizable property
Division 8 — Production orders and other information gathering powers
94. Production orders
95. Evidential value of information
96. Failure to apply with a production order
Where a person is required by a production order to produce a document to the competent authority, the person commits an offence against this section if he—97. Production orders in relation to foreign offences
Where a foreign State requests assistance to locate or seize property suspected to be tainted property in respect of an offence within its jurisdiction and the Attorney General has, under the Mutual Assistance in Criminal Matters Act, authorized the giving of assistance to the foreign State, the provisions of section 94 apply mutatis mutandis.[Cap. 8:04]98. Power to search for and seize documents relevant to locating property
The competent authority may, with the consent of the occupier of the land or the premises, or under warrant issued under section 99—99. Search warrant for location of documents relevant to locating property
100. Search warrants in relation to foreign offences
Where a foreign State requests assistance to locate or seize property suspected to be tainted property in respect of an offence within its jurisdiction and the Attorney General has, under the Mutual Assistance in Criminal Matters Act, authorized the giving of assistance to the foreign State, the provisions of section 99 apply mutatis mutandis.[Cap. 8:04]Division 9 — Monitoring orders
101. Monitoring orders
102. Monitoring orders not to be disclosed
Part V – Miscellaneous
103. Money laundering and financing of terrorism offences for extradition purposes
For the purpose of any law relating to extradition of fugitive offenders, money laundering and financing of terrorism shall be offences for which extradition or rendition may be granted.104. Mutual assistance
105. Regulations
The Minister may make regulations for carrying the purpose and provisions of this Act into effect and prescribing all matters which are necessary or convenient to be prescribed for the better carrying out of the provisions of this Act.History of this document
17 February 2017
Repealed by
Financial Crimes Act
31 December 2014 this version
Consolidation
25 August 2006
Commenced