Friday, May 15, 2009



May 15, 2009

Kenyans who steal from public coffers and stash their loot in foreign countries will now have nowhere to hide their ill-gotten wealth following the jubilation of a Bill that will permit the Government to freeze and seize such properties.

The Bill — dubbed the Mutual Legal Assistance Bill 2009 — was published yesterday by the Attorney General Amos Wako and may see cases involving assets acquired through the multi-billion scams such as the Anglo-Leasing and Goldenberg unlocked if MPs pass it into law.

The law is crucial in tracing and repatriating assets accrued from proceeds of corruption. It is also the formal way in which countries request and provide assistance in obtaining evidence located in another country. It will assist considerably in tracing assets amassed through corruption.

With this Bill Kenya, with the assistance of the US government, will now be able to co-operate in the in the case of Mr Bradley Birkenfeld, an American national turned Swiss banker who signed one of the 18 Anglo Leasing fraudulent contracts.

Mr Birkenfeld signed the contract on behalf of InfoTalent and was listed in a second credit contract as a director of the Offices of Midland Finance & Securities Limited.

It will also facilitate the widest range of assistance to be given and received by Kenya on investigations,prosecutions and judicial proceedings in relation to criminal matters.

The new law also legalises interception of telecommunications while tracing criminals, although the information would be kept confidential.

The publication of this Bill is also a major boost to the war on corruption, especially the Director of Kenya Anti Corruption Commission (Kacc)Justice Aaron Ringera who has always complained of lack of assistance from the AG’s Office.

Last year, for example, a court ruled that Kacc had no powers to seek or receive Mutual Legal Assistance(MLA) from other countries.

Cripple investigation

But Mr Ringera complained that those orders were meant to cripple the Anglo Leasing investigations.

The court’s move, Ringera said, made foreign governments view Kenya as not serious in fighting graft.

"I must speak with restraint here because my heart is raging with fury and anger. I have never been in a job more frustrating than being director of Kacc," Ringera was quoted has having said.

Hands tied

He said Britain, through its Serious Fraud Office (SFO), had committed itself to assisting Kacc and said it must be supplied with evidence that could enable the suspects be prosecuted.

"The Kenyan courts, however, ruled that Kacc cannot investigate the cases," he said.

The Kacc boss denied SFO stopped investigations due to lack of will from Kenya and instead said: "Our hands have been tied by the Judiciary."

Ringera named SFO, FBI, Dutch Police and Swiss AG’s office as among those that assisted Kacc in the Anglo Leasing investigations.

Speaking a day after the SFO announced that it had discontinued investigations into the Anglo Leasing

scandal due to lack of co-operation by the Kenyan government, Ringera blamed the Judiciary for the move.

But UK High Commissioner Rob Macaire said then that the Kenyan government seemed reluctant in exposing those behind the multi-billion shilling scam.

Macaire said the SFO has been waiting for communication from the Kenyan authorities showing that Kacc was willing to give evidence.

The new law will now permit Kenyan authorities to freeze or seize property after receiving a freezing or

seizure order from courts.

The new bill provides for legal assistance to be given or received by Kenya (Interstate co-operation) in

investigations, prosecutions and judicial proceedings in relation to criminal matters.

Observers and lawyers, greeted the publishing of the Bill with enthusiasm, hoping it will help unravel the mystery of assets accrued from graft proceeds

and particularly those related to Anglo Leasing and Goldenberg which have been dropped before.

Senior Counsel Paul Muite described the move as a wise act, which removes technical loopholes at a time when Kenya is seeking to freeze assets

stashed away in foreign countries.

Freeze assets

"The UK Serious Fraud Office had expressed concerns over the lack of an enabling legal framework through which they would support Kenya

trace such assets." Muite said.

But he expressed fears Kenya was famous for enacting laws but lacked goodwill in implementing them.

"A law does not implement itself. There must be political goodwill to implement them," Muite said.

The chairman of Pan African Lawyers Union Tom Ojienda said: "The law is good and timely and will help repatriate assets of corruption."

"It has been the missing link in asset tracing and will help Kacc accomplish its duty," Mr Ojienda said.

AG Wako said the object of the Bill was to facilitate the widest range of assistance to be given and received by Kenya in investigations, prosecutions

and judicial proceedings in relation to criminal matters.

The law will compel the country to assist in proceedings involving the identification, tracing freezing, seizure and confiscation of the proceeds

and instruments of crime under its laws or any other arrangement to which Kenya may be bound in relation to requesting state.

The law also allows admissibility in Kenya of evidence obtained abroad, and seeks to create a Central Authority to perform functions related to this proposed law.