NAIROBI Kenya -Government agencies have adopted a collaborative approach for investigations and prosecution of corruption, terrorism, terrorism financing and money laundering cases.
The initiatives seek to leverage resources and expertise while improving the ability to detect, prevent, and effectively investigate such crimes.
“The various agencies are equipped differently, with their own unique capacities, and this will enhance the optimal use of shared information. The joint investigations ensure timely information sharing,” the Directorate of Criminal Investigations boss Mohamed Amin said.
In conducting investigations, the lead agency is expected to ensure that all concerned agencies are involved in the investigations and are provided access to relevant information.
On August 17, the Law Society of Kenya (LSK) agreed to report suspicious transactions by their clients to the Financial Reporting Centre (FRC) in a major boost to the fight against money laundering in the country.
The move ends a stalemate that had tested one of the conditions Kenya was required to fulfil to continue accessing a Sh334 billion loan from the International Monetary Fund (IMF).
The FRC Director-General Saitoti Maika told Parliament that they had signed consent with the LSK to withdraw a case which has blocked the implementation of a new law that compels lawyers and their staff to disclose suspicious financial deals involving their clients.
The Central Bank of Kenya (CBK) Governor Kamau Thugge has also backed the proposed changes to the law arguing that Kenya stands the risk of being placed on the Financial Action Task Force (FATF) “grey list” if it does not substantially address deficiencies including legal reforms by October 2023.
“The need for multi-agency, multi-stakeholder and multi-sectoral approach has been necessitated by the organized and complex nature of some of these crimes. They require thorough investigations while gathering sufficient evidence likely to secure upon prosecution,” a senior government official said.
The ODPP
The Office of the Director of Public Prosecutions (ODPP) has also issued clear directives regarding investigations into money laundering, terrorism and terrorism financing cases.
On August 11, for example, the acting DPP Dorcas Oduor issued directives aimed at addressing the deficiencies on Kenya’s anti-money laundering and countering the financing of terrorism efforts.
Oduor directed prosecutors handling cases that generate proceeds of crime to ensure that criminal investigation files are reviewed to establish whether any proceeds of crime were generated from the commission of the offence and initiate parallel financial investigations in such cases.
Kenya underwent a mutual evaluation process last year by the Eastern Anti-Money Laundering Group (ESAAMLG) and in September 2022, ESAAMLG submitted a report on deficiencies and ways of strengthening the country’s anti-money laundering and the countering of terrorism financing framework.
As a result, Kenya was placed on a one-year observation period to rectify the identified deficiencies by October this year.
To address the deficiencies, the FRC as the coordinator of the National Taskforce on Anti-Money Laundering and the Countering of Terrorism Financing, identified the ODPP as one of the key institutions in addressing some of the deficiencies identified.
According to the DPP, the proceeds generating offences to be given priority have been identified as fraud and forgery offences; drug related offences; corruption and economic crime offences; environmental and wildlife cases; and cyber-crime related offences.
Others are human trafficking and smuggling of persons offences; tax offences; terrorism and terrorism financing offences; and money laundering offences.
“Where there are assets or property that have been obtained as a consequence of the commission of the offence, prosecutors to promptly make the necessary applications in court to preserve the value of the assets or property in consultation with the investigators or other law enforcement agencies,” the acting DPP Dorcas Oduor directed in a letter to all prosecutors dated August 11, 2023.
Oduor further directed that applications must be made in all proceeds generating offences for forfeiture of instrumentalities, assets or property as a consequence of the commission of the offence upon the conviction of the accused persons.
“All prosecutors are to ensure they keep records of all assets, or property forfeited to the State and to make the necessary applications to have the assets or property valued before forfeiture proceedings,” she added.
Terrorism
The agencies have also come up with a robust counter-terrorism and counter-financing of terrorism legal and institutional framework that involves different agencies.
The Inter-Agency Guidelines on Cooperation and Collaboration in the Investigation of Terrorism and Terrorism Financing provide for a framework that fosters efficiency and expeditiousness in the investigations and also enhance interagency information sharing.
The investigations are prosecution guided, and the ODPP is always notified and provided access to all relevant information through the entire process.
The Anti-Terrorism Police Unit (ATPU) is expected to collaborate, cooperate and coordinate with other relevant agencies in combating terrorism and terrorism financing, while the National Intelligence Service (NIS), under Section 5(1) of the NIS Act, will advise and support these agencies.
The National Counter Terrorism Center (NCTC) has a general obligation to coordinate measures to combat terrorism, while the National Crime Research Centre (NCRC) shares its research findings and recommendations.
The FRC, on the other hand, gathers data regarding all suspicious financial transactions linked to terrorism financing from all financial institutions and shares such information with the relevant agencies.
Section 23 of the Proceeds of Crime and Anti Money Laundering Act as well as Section 42 of the Prevention of Terrorism Act (POTA) mandates the FRC to do so.
The Kenya Revenue Authority (KRA) undertakes tax affairs checks for suspected cases and undertakes administrative and enforcement measures against suspicious transactions.
The initiative involves several agencies and institutions including the Central Bank of Kenya (CBK), the Judiciary, Asset Recovery Agency (ARA), and Joint Terrorism Task Force -Kenya (JTTF), among others.
The Institute of Certified Public Accountants of Kenya (ICPAK) is also playing an active role in the investigations of complex corruption cases and economic crimes.
According to the Auditor-General Nancy Gathungu, an accountant was involved, either voluntarily or inadvertently, in all corrupt transactions.
Some accountants have been trained on how to effectively whistle blow frauds and corrupt deals at their place of work.
The United Nations Development Programme (UNDP), Amnesty International and ICPAK had also a programme aimed at deepening the accountants’ courage to report malpractice safely and effectively.
“Accountants are the ones used to identify the loopholes which are then used to siphon taxpayer’s money. This collaboration of professionals seeks to seal such loopholes,” another official said.
Section 2(c) and section 14 (b) of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) make the advocates and their employees, including accountants, clerks and cleaners, reporting agents of the FRC.
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