An Examination of Asset Seizure, Preservation, Forfeiture and Management in Kenya

Abstract

Asset seizure and forfeiture as part of asset recovery is the process through which law enforcement identify and trace assets linking them to crime and criminal activity and allow for seizure and confiscation of the proceeds and prosecution of the perpetrators. It is mainly concerned with the fight against crime and aimed at correcting the harm caused by crime based on the principle of ensuring and encouraging corrective justice and the principle that crime does not pay. The study considers asset seizure and forfeiture processes as well as asset management under POCAMLA , the utility of the process of criminal and civil asset forfeiture as tools in the fight against corruption, and organised crime, the justification and the aim of asset seizure and forfeiture of taking the benefits out of crime and in the process ensuring that crime does not pay at the same time ensuring that the society is compensated for the negative effects of crime. The study also considers the conflict between protection of private property and the public interest in effective crime fighting and prevention. And the standard of proof to be mustered in the process of both criminal and civil asset forfeiture regimes. The study also considers the effect of forfeiture on the rights of innocent third parties for example co-owners, lenders, mortgagees and creditors. The findings of the research show that Asset management compliments the asset recovery policy by taking care of the assets and maintaining their value. Thus, proper asset management lies at the heart of the asset recovery policy supporting the aim of combating crime and correcting the harm caused by crime. Without proper asset management skills, the authorities may end up seizing and preserving liabilities rather than assets whose management costs may exceed the anticipated realizable value hence burdening the authorities and the public unnecessarily. The study looks at the management of seized and forfeited assets and the processes involved with respect to international best practices, identifies shortcomings and proposes ways of addressing them. The findings of this study adds to the body of law and expands the knowledge in the areas specifically of asset management as well as improve the management of seized assets in Kenya. The study has identified gaps in the body of the law and offered recommendations on likely amendments to fill the identified gaps and enrich the process which makes the enforcement of the law beneficial to the law enforcement agencies and the citizenry.