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.
