This archive report was first published on 11 June 2020.
Unexplained Wealth Orders: A Tool Against Corruption ¶
On December 9, 2003, the Republic of Kenya ratified the United Nations Convention Against Corruption (UNCAC), which defines illicit enrichment as a significant increase in assets that cannot be reasonably explained in relation to lawful income.
The Anti-Corruption and Economic Crimes Act (ACECA) provides a framework for addressing unexplained wealth, with Section 55 outlining the process for forfeiture of such assets. According to Article 20 of UNCAC, illicit enrichment occurs when a public official's assets exceed their lawful income, and they cannot provide a satisfactory explanation.
Section 55 of ACECA empowers the Ethics and Anti-Corruption Commission (EACC) to initiate proceedings against individuals suspected of having unexplained assets. The Commission must satisfy that the person has assets that are disproportionate to their known sources of income and lacks a satisfactory explanation for their acquisition.
Under Section 26 of ACECA, a person under investigation is required to provide an explanation for the assets in question. The onus is on the individual to clearly explain how they acquired the assets, and failure to do so may result in the forfeiture of those assets.
One of the critical aspects of unexplained wealth proceedings is determining whether the property in question was acquired through lawful means. The Court of Appeal in the Amuti's case held that the concept of unexplained assets and its forfeiture under Sections 26 and 55 of ACECA is neither founded on criminal proceedings nor conviction for a criminal offense or economic crime.
Section 55(3) of ACECA provides that proceedings under the Act shall be commenced by Originating Summons, and the standard of proof is on balance of probability. The Commission is not required to prove that there was criminal conduct on the person under investigation, and the question of innocence does not arise.
However, the provision of Section 55 ACECA has been criticized for infringing on a person's right against self-incrimination as enshrined under Article 50(2)(l) of the Constitution. Additionally, the Section has been argued to offend Section 107 of the Evidence Act, which provides for the burden of proof.
Despite these criticisms, the Court of Appeal in the Amuti's case held that the right to property under Article 40 of the Constitution does not extend to property that has been found to have been unlawfully acquired.
According to a report by EACC for the financial year 2018-2019, the Commission recovered public assets amounting to Kshs. 3,187,821,838.80/= during the period under review, including Kshs. 317,000,000/= recovered from Jimmy Kiamba in an unexplained assets case.
