Asset Recovery in Corruption Cases: Towards a More Efficient Legal Framework for Recovering Assets

Abstract

The Kenya‟s legal framework for asset recovery establishes the EACC and the ARA, and bestows upon them powers to recover assets acquired through corrupt conduct. Although it was expected that the framework would be efficacious in enhancing asset recovery, there is every indication that this vision is still a mirage because the amount of the recoveries being reported constitute an insignificant portion of the reported loot. The study seeks to investigate and determine the legal challenges that impede the EACC and the ARA from achieving significant recoveries of assets acquired through corrupt conduct. The study utilized doctrinal and historical research methodologies. Some of the legal challenges identified include lack of clear demarcation of their mandates which occasion institutional overlaps, antagonism, sibling rivalry, and parallel investigations. The EACC is yet to achieve full insulation against political patronage which has prejudiced its stability and its jurisprudence. Its lack of prosecutorial powers has also compromised its autonomy and independence. In addition, Kenya‟s legal frame work for cross border and international asset recoveries is inadequate, rendering problematic the role of the EACC in international recoveries with respect to receiving and providing enforcement cooperation. Also to blame is the problem of culture and the value system in the Kenyan society since it appears that Kenyans have made peace with corruption and they tolerate it. In addition, there is the problem of conceptualization with respect to Kenya‟s approach to handling corruption, as well as conceptual confusion around the formation of the EACC, its role and the mandates of its top leadership, both of which have occasioned instability at the EACC as an institution. The research fills the gap in literature on the efficacy of the EACC in asset recovery, and its findings will assist policy makers and legislators in identifying the most appropriate legislative reforms.