A concern that has been raised by Kenyans from the 32 counties that the Building Bridges Initiative team has visited so far is that more needs to be done to recover the proceeds of corruption from graft suspects.
A situational analysis shows that Kenya has everything it takes to conduct a highly successful asset recovery as one of the initiatives in the fight against graft. In fact, Kenya has one of the best collections of tools to conduct this drive.
The significance of asset recovery in the fight against corruption is borne from the simple fact that those who engage in corruption do so in order to live in luxury.
If society can make it impossible for them to achieve this objective, then the motivation to steal public funds is eliminated.
President Uhuru Kenyatta and ODM leader Raila Odinga have had a common stand on the need to address this issue.
In different forums, the two leaders have aired the same concerns as other Kenyans regarding the need to remove the temptation to steal public money by recovering every cent that is acquired through a corrupt transaction.
This has given Kenya the first and most critical determinant of success of its asset recovery programme - political will.
The mutual slamming of doors on the face of merchants of graft by the two leaders has created an environment that promotes an aversion for proceeds of corruption.
This parity of political philosophy on corruption proceeds was evident in the speeches the two delivered during the Multi-Sectoral National Anti-Corruption Conference held at Bomas of Kenya on January 25, 2019.
The President said: “Rather than shunning those who have made their wealth through illicit means, we celebrate them. Even in places of worship, we now admire those who have manipulated the system to acquire ill-gotten wealth.
"In Kenya today, corruption has no stigma, no social consequence. We must reverse this state of affairs. There are no two ways about it”.
Mr Odinga on his part said: “As children, our parents warned us against being seen with so and so, or against marrying in such a family because they are thieves. Over time, there has been a systematic laundering of this crime, its perpetrators and its proceeds. We launder them in church, at social events like weddings, at harambees and during times of tragedies sometimes caused by the crimes of the very same people.”
The second critical determinant that Kenya possesses is a good asset recovery law. Actually, Kenya has a fantastic legal asset recovery framework when it comes to going after corruption proceeds.
In fact, Kenya has two. The first is the Proceeds of Crime and Anti-Money Laundering Act.
This Act was passed in 2009 and gives the State the power to confiscate any property that is used or intended to be used in the commission of a crime or is directly or indirectly the product of proceeds of crime.
The act creates an agency called The Assets Recovery Agency through which the powers of the State are exercised in this regard.
The second legal system is contained in the Anti-Corruption and Economic Crimes Act, which was passed way back in 2003.
It gives power to the Ethics and Anti-Corruption Commission (EACC) to confiscate any property that is acquired as a result of corrupt conduct.
Two characteristics of these laws make them the perfect weapon in the anti-corruption war.
First, it is not necessary that the defendant has been convicted of corruption for the recovery to happen.
Indeed, it is even not necessary for the person to have been charged with an offence. So long as the court is convinced that the money or other asset is derived from a corrupt conduct, it becomes the property of Kenyans.
Second characteristic is that the burden of proof is on the defendant. The law requires the target of recovery proceeding to explain how they acquired the property.
If they can’t, then it is presumed that the property was acquired through corruption and it is surrendered to the people of Kenya.
The motto of the law on corruption proceeds worldwide is “Prove it or lose it”. This brings us to the third determinant of the success of Kenya’s asset recovery programme.
This is the Judiciary. You will be surprised to discover that this is one area of the war against corruption that the Judiciary is playing a commendable role in.
One of the very first cases on the recovery of proceeds of corruption was decided in 2017.
It had been lodged in 2011 by the defunct Kenya Anti-corruption Commission against Stanley Mombo Amuti, a former National Water Conservation and Pipeline Corporation Financial Controller, over alleged corrupt dealings.
The commission was after the defendant because of money dealings he had done between 1992 and 2008 which involved Sh140 million being bank deposits he had accumulated through alleged fraudulent means and a further Sh32 million being the value of unexplained assets he held. Mr Amuti’s salary was Sh180,000 per month
Initially, the High Court had quashed the case of the commission against Mr Amuti. In fact, it went on to quash the commission itself as unconstitutional.
But the Court of Appeal saved the commissions case against Mr Amuti at least twice by overturning the attempts of the High Court to quash it.
But the greatest contribution the Court of Appeal has made to this anti-corruption initiative is by upholding the reversal of the burden of proof.
The Court of Appeal has not only held that this reversal is constitutional, but also that the person who faces a forfeiture suit is not entitled to the protection of a criminal standard of proof.
The commission only needs to prove its case on a balance of probability.
This helpful legal position would have meant little if then-Chief Justice Willy Mutunga had not in January 2016 created the new Anti-corruption and Economic Crimes Division of the High Court and appointed Justice Hedwig Ongudi to head it and Justice Lydia Achode as deputy.
The two judges have given life to the law on asset recovery. And reading what some of their colleagues have ruled prior to their appointment to this division, one is left with no doubt that the credit belongs to the ladies.
Indeed, it is Justice Achode who finally decided the Amuti case and ruled that he should forfeit Sh41.2 million because it was unexplained wealth.
You will also be happy to know that Justice Ongudi was one of five out of 351 judicial officers vetted who received a special commendation from the Judges and Magistrates Vetting Board.
The board said that the five stood out as “very impressive, competent and dedicated to their work”.
The reason we are not getting quicker results is because our agencies are a bit slow.
There is some turf war going on between the Asset Recovery Agency and the EACC sometimes with both ending up as parties in the same case, which is a waste of time and effort.
I would also suggest that the EACC allows the Directorate of Criminal Investigations do more of the investigations for purposes of prosecution and the commission dedicates more of its time on forfeiture suits.
We need a more aggressive recovery programme being conducted not just in Kenya but also abroad.
Judging from the presentations being made to the Building Bridges Initiative, the people believe more will be achieved by recovering every shilling stolen, plus costs and interest.
The writer, an advocate of the High Court of Kenya, is former Prime Minister Raila Odinga’s legal adviser