By John Agar
Can you prove that all the assets you possess – the cars, the houses, the lands, the cash – were acquired lawfully and not through corruption?
It is not wrong to own several properties. The problem arises when you struggle to explain how you acquired them, or your explanations just don’t add up. In a scenario such as this, an investigator may initiate asset-tracing.
Simply put, asset-tracing is the process by which investigators “follow the money”. Asset-tracing and recovery is a complex task that demands a remarkable amount of time and energy. It requires experienced professionals who are knowledgeable about identifying, preserving, and recovering stolen assets.
Detectives trace assets by conducting financial investigations to determine at least the following about the subject:
- Ownership of assets such as money, securities, real estate, vehicles, other valuable items.
- Sources of income.
- The use of associates or family members in disguising assets.
- If spending is much more than the person’s legitimate income.
Using such information, an investigator is able to apply different methods to carry out a lifestyle audit and determine if the individual has any property that could have been acquired using proceeds of crime.
Investigators also look at suspicious activity indicators, such as shell companies, trusts, and non-profit entities, as these are commonly used to launder funds. They serve as vehicles for financial transactions while having no known assets or operations.
In some jurisdictions, investigators also look into professionals working with the suspect/individual. Professionals such as accountants, lawyers, and financial consultants have been known to aid and abet their clients in laundering funds through false accounting.
Inferring from the statistics of past and current suspects of corruption in Kenya, it is notable that many public and state officers assume office for selfish motives and not public service. Such officers, especially those who have access to government resources, engage in crimes that include embezzlement, fraud, bribery, and failure to follow procurement procedures. These vices and many more are executed to confer benefits to the individual or their close associates at the expense of better roads, healthcare, education, agricultural facilities, affordable housing, access to water and so on.
People who connive to steal public resources have the underlying motive of benefiting themselves and/or their close associates to the detriment of the general public.
Kenyan laws, alongside the United Nations Convention Against Corruption (UNCAC), provide for not only the punishment of corrupt individuals, but also recovery of assets that have been stolen or are established to have been illegitimately acquired.
Usually, criminal action is about the individual, whereas civil litigation is about the assets. If the law provided solely for punishment of the offender, many people would simply pay a Court fine out of their ill-gotten wealth or serve a short jail term and return afterwards to ‘enjoy’ the fruits of their crime. This explains why it is appropriate that the practice of asset-tracing and recovery is given full support by all stakeholders.
How to strengthen asset-tracing and recovery
Stronger laws in terms of locating assets, searches and seizures, freezing orders, and multijurisdictional work are essential to a successful asset-tracing and recovery process.
Parliament should enact laws that make it possible and simpler to trace and recover corruptly acquired assets. For instance, making asset declarations public would avail law enforcement agencies when conducting preliminary inquiries.
The threat of recovery of illicit proceeds is an effective deterrent against corrupt activities and thereby helps to prevent them, especially if unscrupulous individuals cannot find a safe haven for their assets in or outside their jurisdiction. This practice would also allow for easy access to data on owners of property and other details such as the source of funds for their acquisition.
The Multi-Agency Taskforce (MAT) comprising the Office of the Director of Public Prosecutions, the Ethics and Anti-Corruption Commission, Kenya Revenue Authority, National Intelligence Service, Financial Reporting Centre, Asset Recovery Agency, Directorate of Criminal Investigations and the Attorney General, is crucial to asset-tracing and recovery. In as much as the constituent bodies are independent, their functions are correlated.
Moreover, there is a need for upward review of the fines, which are imposed on corrupt individuals. A mandatory jail term, heavy fines and complete recovery of assets are part of the measures that should be introduced as the minimum penalties for those who misuse their offices and positions to ‘develop’ themselves. The enhanced penalties will not only restore public resources, but will also act as deterrents for those who may want to engage in such criminal activities.
The Judiciary is also an important player in the asset-tracing and recovery process because it ultimately determines the culpability of suspects. The expeditious conclusion of asset recovery cases is vital in ensuring justice for the people of Kenya.
The public should be marshalled and empowered to point out suspicious assets owned by public officers and their close associates. The public should promptly report ‘developments’ belonging to individuals, to law enforcement agencies for scrutiny.
Enhanced asset-tracing and recovery should not replace but reinforce the existing strategies for fighting corruption. Institutions should continue implementing corruption prevention tools and strategies proposed by EACC to detect and prevent systemic weaknesses. The overall goal of anti-corruption processes is to reduce, even by the smallest margin, the endemic corruption now wasting away the society.
As we pursue a corruption-free Kenyan society, properties worth billions that are suspected to be illegally in private hands will, through enhanced asset recovery, be restituted to the public. Kenya will realise a new dawn of change.
The writer is an educationist in anti-corruption matters