The Office of the Director of Public Prosecution (ODPP) has been thrust into the spotlight after the US government claimed that undue bureaucracy and information leaks were hurting the fight against financial crimes, including money laundering.
“Kenya needs to strengthen implementation of good governance and anti-corruption measures. Bureaucratic, logistical, and capacity challenges impede investigation and prosecution of financial crimes” the US Department of State (DOS) said in a newly published update.
The US said even though the Ethics and Anti-Corruption Commission (EACC) and the Assets Recovery Agency (ARA) have achieved some success, resulting in asset seizures, suspensions and impeachments of public officials, the ODPP remained a weak link in the fight against financial crimes.
“EACC is an investigative organisation and can initiate proceedings without a criminal charge, while the ARA requires a predicate offence to proceed. Both entities seize and recover proceeds of crime and unexplained assets through civil proceedings, often working independently” the US said.
“Exclusive criminal prosecution authority rests with the Director of Public Prosecutions, and prosecutorial and judicial delays have impeded most attempts at prosecution. Better coordination among these agencies would enhance the overall effectiveness of combating corruption and money laundering in Kenya.”
The department has also cautioned moles leak information during the investigations spooking the suspects who relocate assets to other jurisdictions.
“To demand bank records or seize an account, authorities require a court order citing evidence linking the deposits to a criminal violation. In practice, these investigations and proceedings often leak, leading to the assets being relocated,” said the DOS.
The DPP is responsible for undertaking criminal proceedings, taking over and continuing existing proceedings, and conducting direct investigations.
The ARA’s mandate is the proceeds of crime under the Proceeds of Crime and Anti-Money Laundering Act, while the EACC is tasked with pursuing unexplained wealth under the Anti-Corruption and Economic Crimes Act.
The ARA does not focus on corruption and requires a predicate offence to proceed, unlike the EACC, which can investigate and initiate proceedings without a criminal charge.
In a report from the Financial Reporting Centre (FRC), the ODPP received 23 money laundering cases for prosecution. Despite all being approved for prosecution, there were no convictions.
“The number of money laundering (ML) cases prosecuted as well as the number of convictions are relatively few, owing to capacity constraints and few number of ML investigations,” said the FRC.
The FRC echoed the DOS sentiment of the lack of capacity to ensure a risk-based prioritisation of cases, prosecution-guided parallel financial investigations, and sensitisation of investigators, prosecutors, and judicial officers on money laundering typologies.
Kenya has been on the international radar for dirty cash and deficiencies in the financial and legal systems that are exploited by criminals who want to conceal laundered money.
The DOS report shows that some of the financial institutions, lawyers, real estate agents, and notaries are conduits in money laundering cases associated with the trafficking of illegal narcotics, humans, weapons, wildlife, timber, charcoal, and minerals.
