Recovery of public assets and forfeiture of unexplained wealth as an effective tool in the fight against corruption

The theft of public assets is a development problem of the greatest magnitude. It is not only amiss but also unethical to argue that stolen public assets invested in the country by corrupt individuals benefit the public; for instance, stealing funds for medicine and medical supplies in hospitals and investing the same in construction of private property. Public assets are to be expended for public good.

The true cost of corruption far exceeds the value of assets stolen. Corruption leads to the degradation and distrust of public institutions. Corruption of social service delivery mechanisms, such as those for basic health and education programs, have adverse impact on the poor public who rely on the state for service delivery.

The United Nation Convention Against Corruption (UNCAC) obligates every Member State to freeze, seize and confiscate proceeds of corruption and illicitly acquired assets

In Kenya, the legal framework provides for the substantive and procedural law for recovery of public assets, compensation for loss of public property, confiscation of proceeds of corruption and forfeiture of unexplained wealth. The law adopts both a conviction based and non-conviction based recovery of illegally acquired public asset which is both asset and value based.

The rationale behind asset recovery strategy is that those who commit unlawful activity should not be allowed to profit from their crimes and proceeds of corruption should be forfeited and used to compensate the victim, whether it is the state or a public institutions and it likewise serves as a deterrent.

The development benefit of recovering stolen assets is enormous, assuming the funds are well spent. Even a portion of the assets could provide much-needed funding for social programs or desperately needed infrastructure.

The Ethics and Anti-Corruption Commission has realized a significant increase in the number and value of corruptly acquired public assets recovered. In the last five years, the Commission has traced and recovered corruptly acquired and unexplained assets with an estimated value of Kes. 28 billion. Among assets recovered include private real estates, vehicles and cash in personal accounts which the owners could not explain how they legitimately acquired the wealth. In addition, embezzled public funds; land reserved for the Judiciary, police station, government houses, roads and even a public hospital, are among the properties recovered and restored to their intended use.

Among the obstacles the agencies mandated with fighting corruption and recovery of public assets face are: limited legal, investigative, and judicial capacity; inadequate financial resources and illicit assets hidden in other non-reciprocal jurisdictions.

With the developing jurisprudence, asset recovery as a mechanism in the fight against corruption is now firmly rooted in Kenya.

By: Faith Ngéthe, Assistant Director Asset Recovery – EACC