The place of unexplained wealth in Kenya: comparative analysis and best practices

worldwide.
Introduction

The corruption menace in Kenya spans for over four decades and has being a headache-
atleast on the manifesto- for all the sitting presidents. In the kenyattas era, partly due to
the 1963 that made the presidency so strong in powers, his administration was marked
with intolerance and corruption. In the Mois era, the administration was characterized by
a system of patraonage, jobs distributed along ethic affilliations. In the Kibakis regime there
was public euphoria of a strong willed fight against corruption with the government at the
assumption of power being full of what the public termed as ‘reformers’. In the early days
of his administration he started with the reoganisation of the judiciary, creation of the
Kenya Anti- Corruption Commission (KACC) and the enactment of the anti –corruptioan
and Economic Crimes Act- ACECA. The government of today has strengthed the fight
against corruption mainly because of the executive strong will to end the menace. This
may be partly because the current presidency is barred by the constitution from vying for
another time thus more focused on hteir legacy as opposed to having political cronies.
Similary over the years as the facets of corruption has been evolving. This maybe partly
due to the changes in technological advancements, the deporation of the human values,
globalization and ‘ existing political culture. In the African setting especially, the notion of
success has been mainly pegged on the person who is deemed to be in positions of power
or close connections thereto. Political positions and state appointments have been
characterized with affluence and thus seen as many as the shortest route to riches.

Illicit enrichment
The African union convention on preventing and combating corruption defines illicit
enrichment as;
The significant increase in the assets of public official or any other person which he or she
cannot reasonably explain in relation to his or her income.
The UNCAC article 20 provides as follows;
Subject to its constitution and the fundamental principles of its legal system, each State
Party shall consider adopting such legislative and other measures as may be necessary to
establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a
significant increase in the assets of a public official that he or she cannot reasonably explain
in relation to his or her lawful income.
Unexplained wealth
The definition of unexplained assets is to be found in the Anti-corruption and Economic
Crimes Actwhich provides in section 2 that:
“unexplained assets means assets of a person-.
a. acquired at or around the time the person was reasonable suspected of corruption or
economic crime; and
b. whose value is disproportionate to his known sources of income at or around that time
and for which there is no
satisfactory explanation.”
Covered under section 55 of the aceca
Application by way of originating summons
The public officer is then given statutory notice to explain how the wealth was acquired.
Under the said regime of laws, the public officer would be left free if satisfactory
explanation is provided by the officer. On the contrary, like in the instant case, where no
satisfactory explanation is given by the public officer, the Respondent would commence
proceedings leading to the forfeiture of the said suspected wealth. Those proceedings begin
by firstly the Respondent applying to court for the freezing orders on the suspect accounts
and orders freezing any sale and/or transfer of immovable properties.
The assets or accounts are frozen simultaneously as proceedings begin for their recovery.
This is done so that in the event of a successful recovery, the suit property is still intact so
that the final victory is not a phyrric victory.
there is a moral lesson to be learnt under the law under which the suit properties are being
recovered. The lesson is that a property suspected to have been acquired by corrupt
practices is itself to be recovered to deter any future attempt at corruption. The law
specifically targets that property for forfeiture. The owner of the said property, if guilty, is
required to forfeit that very property to enable the moral lesson to be internalized. That
property to be forfeited cannot be traded with any other property. Indeed if that were to
be the case, then the virture of Section 55 of the Anti-Corruption and Economic Crimes
Act would be lost, because persons suspected of corruption would freely trade the proceeds
of corruption with other less valuable assets. The idea here is not that the Ethics and Anti-
Corruption Commission wishes to trade in exchange of properties and thereby to make
money. The idea is to forestall corruption by scorning on the act and forfeiting wealth
acquired by corruption. It is not a trading floor. In my view, the suggestion by the
Applicant to provide security in lieu of attached property reduces the matter herein to a
local commercial dispute which it is not.
In these proceedings the moral of the Anti-Corruption and Economic Crimes Act, and the
objectives of the Ethics and AntiCorruption Commission, and the need for every Kenyan
to internalize the need to deter and fight corruption must remain alive as the central pillar.
Kenya Anti-Corruption Commission v James Mwathethe Mulewa & another [2018] eKLR-
property marked for forfeiture by EACC cannot be exchanged with another property
owned by the officer regardless of the value

In the ruling of Odunga J in Ethics and Anti-Corruption Commission vs Ministry of Medical

Services & Another [2012] eKLR,he captured the purpose of preservation orders under
Section 56(1) ACECA, which reasoning can also apply to Section 82(1) and (2) POCAMLA.
The Defendant’s known earnings were through his gross salary which stood at between
Kshs.33,050/= and Kshs.38,630/= permonth in the period under investigation. In his
statutory declaration of Income, Assets and liabilities under the Public Officer Ethics Act of
2003 for the period under investigation, the Defendant declared total earnings of salary
and allowances of Kshs.948,120, Kshs.4,300,00 from farming and rental income of
Kshs.180,000 per year. Obviously therefore the Defendant’s assets are not commensurate
with his income as a Police Constable. Ethics and Anti-Corruption Commission v Jamal
Bare Mohamed [2018] eKLR,,,,freezing order allowed pending the hearing and
determination of the OS

In the uk. Through the Criminal Finances Act 2017, the unexplained wealth orders (UWOs)
that came into effect on 31st January 2018 were introduced. This is basically a type of court
order that requires the owner of an asset to explain how they were able to afford the
stated asset. In uk they have extra territorial application meaning one must not be a citizen
neither the property situated in the UK.

In order to apply to the court for an Unexplained Wealth Order, the following
conditions must be satisfied:

 The respondent must hold the asset

 The value of that asset must be greater than £50,000
 There are reasonable grounds for suspecting the known source of the respondent’s
lawfully obtained income would have been insufficient for the purposes of
enabling the respondent to obtain the asset.
  The respondent is a politically exposed person or there are reasonable grounds for
suspecting that the respondent is, or has been involved in serious crime (in the UK
or elsewhere)
 A person connected with the respondent is, or has been, so involved.

Pointers-

 Definition of standards of living communserate to the income

 Any mention of any standard ie reasonalble comparative to Zambia
 Period under scrutitny

In this regard, lessons can be drawn from countries such as Argentina and Columbia
which extend the period of interest to a number of years after a public official leaves
office. Another method that the law in Zambia can adopt is to leave the possibility of
prosecution open and not limit or stipulate the number of years within which a public
official can be prosecuted after leaving office

Test – hongkong
in Attorney General v Hui Kin-hong [1995] 1 HKCLR 227, the Court of Appeal noted that
the prosecution was required not only to prove that expenditure was greater than income,
but also needed to show the following:
“(a) the amount of pecuniary resources and other assets in the accused’s control at
the charge date; (b) the accused’s total official emoluments up to the same date; and a
disproportion between (a) and (b). That is, the prosecution has to prove that the
acquisition of the total assets under the accused’s control could not have been
amassed reasonably, in all circumstances, by way of the total official emoluments
earned up to that date.”

Balance of probabilities
Const infringments – bill of rights