Kenya’s efforts in combatting economic crimes in recent years have yielded significant recoveries both internationally and domestically. Several cases instituted by law enforcement agencies concerning the proceeds of economic crimes are currently ongoing in the courts, including some linked to county governments.
With the decentralization of administrative powers to counties, as stipulated in the Constitution of Kenya, 2010, policy, administrative and fiscal management has been brought closer to counties. It is perceived that this has, however, also decentralised economic crimes: with greater financial autonomy at the county level, more possibilities for misappropriation have arisen, despite there being legal safeguards designed to guarantee transparency and accountability in the prudent management of resources.
While recent efforts to streamline how Kenya addresses the proceeds of crime through the development of the Criminal Assets Recovery Fund (CARF) may facilitate access to data and information on the amounts recovered and its end use, the relationship between this Fund and instances where economic crimes have occurred at the county level have been underexplored. It is notable that there is a lack of clarity on the extent to which counties and communities where the crimes have occurred will directly or indirectly receive recovered funds. The question, put simply then, is the extent to which victim communities will benefit from the recovery of assets?
This policy paper seeks to answer the questions posed above by undertaking an analysis of the current framework in place to distribute recovered assets upon their confiscation and forfeiture and conducting an initial exploration of an approach to return recovered property and funds in a way that benefits affected communities.
To do this, it draws insights from four other contexts:
- The Swiss Federal Act on the Division of Forfeited Assets, which institutes a model to allocate the proceeds of crime to both the central authority involved in the recovery process and local regions seeking remedy.
- The Bayelsa State Returns in Nigeria, which aimed at accountable and efficient use of assets to benefit the communities affected by the money laundering and corruption case.
- The Ibori Case in Nigeria, where controversy arose in the use of returned funds from an international corruption case for federal projects, with critics arguing for a return to the state level.
- The UK’s Asset Recovery Incentivisation Scheme, which distributes the confiscated proceeds of crime to different agencies involved, who can in turn use these funds for community and crime prevention projects.
The paper further explores several elements that could inform a framework for the distribution of recovered assets to communities in Kenya and highlights the importance of any framework to guarantee fairness, justice, transparency, and accountability in the distribution of recovered assets. It argues that, only by doing so, the people affected, the communities, can benefit from the restitution of proceeds of crime.