The Kenyan government has been in recent years engaged in domestic and cross-border asset freezing, confiscation, and return of the proceeds of corruption. Corruption, nevertheless, remains pervasive in the country. The 2021 Transparency International Corruption Perceptions Index places Kenya 128th out of 180 countries.1 While not ranked in 2021, the 2020 Basel Anti-Money Laundering Index identified Kenya as high risk for money laundering,2 making it vulnerable as both a country of origin, as well as a transit and destination for stolen money.
Corruption is a pervasive challenge in Kenya. In 2021, the former President Uhuru Kenyatta was quoted as saying that Kenya loses KSh 2 billion per day through corruption.3 Whereas this was widely perceived as an admission of the failure in his administration’s efforts to stem the tide of corruption, the acknowledgement of the sheer magnitude of the challenge is the first step in addressing the issue. Previously, in 2016, the former Ethics and Anti-Corruption Commission (EACC) Chairman Philip Kinisu announced that about KSh 600 billion was lost to corruption every year.4
The newly elected President William Ruto’s United Democratic Alliance have included commitments to strengthening the independence of asset recovery agencies, as well as to expand beneficial ownership information and address state capture.5
Asset Recovery Cases
Domestic asset recovery cases have been the priority for Kenya in recent years. Between the three responsible agencies – the Ethics and Anti-Corruption Commission (EACC), Assets Recovery Agency, and Office of the Director of Public Prosecution, substantial amounts of assets resulting from corruption have been investigated, prosecuted and recovered.
Asset recovery domestically takes place through:
- the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), 2009, which contains a mixture of conviction-based and non-conviction-based means of asset recovery. This legislation is enforced primarily by the Assets Recovery Agency.
- Ethics and Anti-Corruption Commission (EACC) Act, 2011, which established the EACC pursuant to Article 79 of the Constitution. Section 11(1) (j) empowers the EACC to institute and conduct proceedings in court for the purposes of the recovery or protection of public property, or for the freeze or confiscation of the proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures.
- Anti-Corruption and Economic Crimes (ACECA), Act 2003. Part VI of this law addresses Compensation and Recovery of Improper Benefits, with Section 51 holding persons engaged in corruption or economic crime liable to compensate anyone who suffers a loss as a result. In addition, Section 55 sets the foundation for civil forfeiture of unexplained assets, and Section 56 provides for preservation orders.6
Statistics released by the EACC indicate that it recovers in the region of 6-9 billion KSh annually from the proceeds of corruption.7 This is in addition to that recovered by the other two responsible agencies.8
International recoveries have also taken place. In 2018, the Framework for the Return of Assets from Corruption and Crime in Kenya (FRACCK) was set up between Kenya, Jersey, Switzerland and the UK, to facilitate the confiscation and recovery of assets acquired through corruption and crime in Kenya and subsequently hidden in those countries.9
In 2022, Jersey returned GBP 3 million to Kenya under the FRAACK following the 2016 conviction of Windward Trading Ltd for money laundering. The money has been allocated for Kenya’s COVID-19 response and is being distributed by Crown Agents and Amref Health Africa. 90% of the funds will be allocated to the procurement of medical equipment under Crown Agents, and 10% of the funds is earmarked for a community-based project under Amref Health Africa to stregthen healthcare worker capacity and home-based care.10
International Institutional Engagement
Kenya is a member of Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG), a regional body implementing the FATF Forty Recommendations. The latest FATF report was published in 201111 and a new report is due in the near future.
Kenya is a member to Asset Recovery Inter-Agency Network for Eastern Africa (ARIN-EA). This is an informal network which aims to exchange information on individuals, assets and companies, both at the regional and international level.
This research study assesses the current state of play in the use of sanctions as an asset recovery tool, examining their application in Kenya, and their prospects for addressing grand corruption.
- Transparency International, Corruption Perceptions Index 2021, https://www.transparency.org/en/cpi/2021/index/ken
- Basel Institute on Governance, ‘ Basel AML Index: 9th Public Edition’ 2021.
- Benjamin Muriuki, “President Kenyatta Says Over Ksh.2 Billion Is Stolen From Gov’t Daily”, Citizen Digital, January 18, 2021 https:// www.citizen.digital/news/president-kenyatta-says-over-ksh-2-billion-is-stolen-from-govt-daily-4563455
- Duncan Miriri, “Third of Kenyan budget lost to corruption: anti-graft chief”, Reuters, 10 March 2016, https://www.reuters.com/article/us-kenya-corruption-idUSKCN0WC1H8.
- Kenya Kwanza, The Kenya Plan 2022-2027.
- Phillip Kagucia and Rose Wanjiru, Asset Recovery in Kenya, CiFAR 2022, pp. 5-6.
- Kenya News, Sh6-8 billion assets recovered by EACC, 1 October 2022, https://www.kenyanews.go.ke/sh6-8-billion-assets-recovered-by-eacc/
- Cases concluded by the Assets Recovery Agency can be found here: https://assetsrecovery.go.ke/case/,
- Government of Jersey, Jersey and Kenya sign historic Asset Recovery Agreement, 28 March 2022, https://www.gov.je/news/2022/pages/JerseyKenyaCOVID-19.aspx