Asset recovery will make graft less rewarding

 Mwongela Mbiti

Corruption is not only a violation of the law but also results in the loss of public resources. 

Considering that the primary motivation for corruption is the profits derived thereof, the global, regional and domestic legal framework has provided extensively for recovery of assets. 

Under the Anti-Corruption and Economic Crimes Act and the Proceeds of Crime and Anti-Money Laundering Act, Kenya has provided an elaborate mechanism for the Ethics and Anti-Corruption Commission (EACC) and the Asset Recovery Agency (ARA) to recover public assets and property acquired in pursuit of, or as a result of acts of corruption and other crimes. 

The logic behind this is that whereas criminalisation of corruption and the prosecution of the corrupt are necessary, it is equally important to complement the criminal law processes with efforts to reduce the financial gain that emanates from acts of corruption. 

This is such a significant pillar of most anti-corruption efforts that substantial resources should be dedicated towards asset recovery.

Value recovery of stolen assets is both an enforcement of anti-money laundering laws and a potent weapon against corruption. When obtainable, it represents society’s credible commitment to ensure that “crimes do not pay.” 

We explore these linkages by reviewing international experiences on the implementation of value recovery. Lessons from elsewhere suggest that country-level studies are more likely to strengthen local initiatives, leading to regional strategies capable of improving negotiations for Mutual Legal Assistance and cooperation at the global level.

Financial gain is the main incentive for most serious and organised crime networks, and stripping them of their proceeds is the most effective way to dismantle them. 

Yet according to Europol (European Union Agency for Law Enforcement Cooperation) only 1.2 per cent of illicit proceeds are confiscated in the European Union, leaving 98.8 per cent at the disposal of criminals. 

Though no study of this nature has been undertaken in Kenya or other African countries, the situation is believed to be even worse as stolen resources are stashed in offshore accounts making the work of institutions involved in asset tracing and recovery complex. 

Why is it that only such a small fragment of crime proceeds is confiscated? What can be done to strengthen criminal justice measures to recover illegal assets and disrupt criminal groups? 

These are the key questions addressed by participants in the 2017 Organisation for Security and Co-operation in Europe  (OSCE) Annual Police Experts Meeting entitled “Crime Should Not Pay” in The Hofburg, Vienna.

In Kenya, criminal groups are known to invest their money in the legitimate economy, ensuring business continuity for themselves and a further expansion of their criminal enterprises. 

Of particular interest is the real estate sector that corrupt government official and business people use to feed the money into the legal financial system. 

Crime-related profits have also been used to spoil markets, corrupt politicians and the Judiciary or finance terrorism. There has to be a deliberate focus and strong interest in changing this pattern.

Ideally, bringing criminals to justice should always be the priority number one. However, in the long run, we must channel our energies to drying up the money flow and recovering criminal proceeds. 

If we take away the gains from criminals, then we take away the main incentive for criminal activities. Without achieving this, we cannot successfully disrupt and prevent organised crime.

— The writer is a legal officer at EACC. The views are his own and do not represent the position of his employer