Kenya has over the years witnessed a high level of grabbing of public property, with the perpetrators going about it with impunity. There have been some instances where illegally-acquired properties were recovered but many more remain in the wrong hands. Does the law give the Ethics and Anti-Corruption Commission (EACC) powers to recover illegally-acquired property?
Yes, the Ethics and Anti-Corruption Act empowers the EACC to aid in recovering illegally-acquired property.
The anti-graft body can also invoke the Constitution and the United Nations Convention Against Corruption (UNCAC) to recover assets stashed abroad. Kenya ratified the UNCAC in December 2003, which empowers a law enforcement agency like EACC to recover public assets acquired illegally and hidden abroad.
Section 11 of the EACC Act empowers the commission to institute and conduct proceedings in court towards recovery or protection of public property, freeze or confiscate proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures as well as recommend prosecution of the officer involved.
The process of recovering stolen property entailed collecting intelligence, evidence and asset tracing (both locally and abroad), securing the assets before embarking on a court process to obtain conviction, confiscation, fines, damages or compensation, enforcing the orders and returning the assets.
Separately, the Anti-Corruption and Economic Crimes Act provides mechanisms and procedures of safeguarding stolen public property.
In a situation where the commission believes that there is a need to safeguard any asset before lodging the suit for recovery, it may seek court orders to preserve the asset.
UNCAC provides procedures and mechanisms through which a member state can recover public assets or property stolen and hidden in a foreign country.
Under the convention, if a member state wishes to recovery such assets/property, it has to do so through Mutual Legal Assistance (MLA).
Locally, the process of seeking MLA from a foreign country is governed by the Mutual Legal Assistance Act, Act No 36 of 2011.
But EACC still faces insurmountable challenges in seeking such assistance, mainly in the form of lengthy protracted and delayed court cases challenging investigations and recovery proceedings, limited capacity lack of political goodwill, co-operation from officers during investigations and deficient resources.
According to Section 158 of the Land Act (2012), any public property obtained through corruption is outright illegal. And the forms of corruption mentioned includes obtaining a building or land through a government official who may issue a certificate of ownership.
The law further explains that such property transactions would be illegal from inception and considered null and void.
Unlike the traditional laws on property, the Land Act openly describes illegal transactions, which include that either party has been convicted of the fraudulent deal.
Others include property transactions that result in interdiction or retirement of a government official in public interest on grounds of graft.
— The writer is an advocate of the High Court.