FAITH NG’ETHE: Recovering stolen assets a critical pillar in corruption fight

The theft of public assets is a development problem of the greatest magnitude.

It is not only misguided but also unethical to argue that stolen public assets invested in the country by corrupt individuals benefit the public — for instance, stealing funds meant for medicine and medical supplies in hospitals and investing the same in the construction of private property.

Public assets are meant to be expended for the public good.

The true cost of corruption far exceeds the value of the assets stolen. Corruption leads to the degradation and erosion of trust in public institutions.

The corruption of social service delivery mechanisms, such as those for basic health and education programs, has an adverse impact on the poor, who rely on the state for service delivery.

The United Nations Convention Against Corruption (UNCAC) obligates every Member State to freeze, seize, and confiscate proceeds of corruption and illicitly acquired assets.

In Kenya, the legal framework provides both substantive and procedural law for the recovery of public assets, compensation for the loss of public property, confiscation of proceeds of corruption, and forfeiture of unexplained wealth.

The law allows for both conviction-based and non-conviction-based recovery of illegally acquired public assets, which can be asset-based or value-based.

The rationale behind the asset recovery strategy is that those who commit unlawful acts should not be allowed to profit from their crimes. The proceeds of corruption should be forfeited and used to compensate the victim, whether it is the state or a public institution. This approach also serves as a deterrent.

The development benefit of recovering stolen assets is enormous, assuming the funds are well spent.

Even a portion of the recovered assets could provide much-needed funding for social programs or critically needed infrastructure.

The Ethics and Anti-Corruption Commission has recorded a significant increase in the number and value of corruptly acquired public assets recovered.

In the last five years, the Commission has traced and recovered corruptly acquired and unexplained assets with an estimated value of Sh28 billion.

Among the assets recovered are private real estate, vehicles, and cash in personal accounts, for which the owners could not explain a legitimate source of acquisition.

In addition, embezzled public funds and public land reserved for the Judiciary, police stations, government housing, roads, and even a public hospital have been recovered and restored to their intended use.

Some of the obstacles faced by agencies mandated to fight corruption and recover public assets include limited legal, investigative, and judicial capacity; inadequate financial resources; and illicit assets hidden in non-reciprocal jurisdictions.

With the development of supporting jurisprudence, asset recovery as a mechanism in the fight against corruption is now firmly rooted in Kenya.

Faith Ngéthe is the Assistant Director, Asset Recovery, at the Ethics and Anti-Corruption Commission.