The African Union Convention Against
Corruption: and prospects and projects in
Kenya
Mark Handley
The Fight Against Corruption, London, September 2012
© Gibson, Dunn & Crutcher LLP. These materials may not be reproduced without permission.
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Topics
The African Union
Convention on
Preventing and
Combating Corruption
– key features.
Case Study - The
Convention’s
legislative and legal
impact in Kenya.
Lawyers Without
Borders – Trial
Advocacy and Anticorruption training,
Nairobi, August 2012.
Prospects.
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The African Union Convention on Preventing
and Combating Corruption
• Adopted July 2003.
• Came into force August 2006.
• Signed by 46 of the 53 Member States.
• Most recently signed by Eritrea on 25 April 2012.
• Ratified by 33 of the 53 Member States.
• Most recently ratified by Guinea on 5 March 2012.
• Significantly broader in scope than the OECD Convention.
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The Convention – key features
•
Very broadly defines acts of corruption, including diverting public funds,
illicit enrichment, and the use or concealment of proceeds of other corrupt
acts (Art. 4).
•
Calls upon Member States to (Art. 5):
– adopt legal measures against all acts of corruption;
– establish and maintain national anti-corruption authorities;
– strengthen the audit function regarding public funds; and
– encourage reporting of corruption, including through witness protection
programmes.
•
Requires all public officials to declare their assets before and after public
service (Art. 7).
•
Extends corruption to private sector, including corporations (Art. 11).
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The Convention – key features continued
•
A Member State has jurisdiction over offences committed (Art. 13):
– wholly or partly within it;
– by its nationals or permanent residents, wherever committed;
– elsewhere, and by a non national who is now within the country and who is not
extradited; and
– outside its territory, but affecting its national interest.
Also provisions as to:
• Fair trial (Art. 14);
• Extradition (Art. 15);
• civil recovery of proceeds of crime (Art. 16);
• Derogations from ordinary rules of bank secrecy (Art. 17);
• Mutual legal assistance and co-operation (Arts. 18-19).
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The Convention implemented in Kenya - I
•
Anti-Corruption and Economic Crime Act 2003.
•
Public Officer Ethics Act 2003.
•
Public Procurement and Disposal Act 2005.
•
Proceeds of Crime and Money Laundering Act 2009.
•
Ethics and Anti-Corruption Commission Act 2011.
•
The African Union Convention itself, along with other international
treaties, also forms part of Kenyan Law under the new Constitution.
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The Convention implemented in Kenya - II
•
Currently debates in academic circles in Kenya as to whether Kenyan law
allows for corporate criminal liability (G. Otieno, “The Company as a
Criminal: Comparative Examination of some Trends and Challenges
relating to Criminal Liability of Corporate Persons”, Kenyan Law Review 2
(2008-2010)).
•
EA Oil Refineries Ltd v Republic [1981] KLR 109 – corporate
manslaughter.
•
Art. 23 of the Penal Code.
•
Impact of the new Constitution.
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Kenyan anti-corruption law modernised
•
•
The Anti-Corruption and Economic Crimes Act 2003 repealed the
Prevention of Corruption Act 1956.
The 2003 Act overturned a number of rules derived from Kamau v
Republic [1981] KLR 508:
– a reward for a past improper act was not a corruption offence
• Sec. 39(1) and (2) includes “rewards” for past acts
– where the giver or recipient of the bribe is a prosecution witness they
are a “statutory accomplice” and no more reliable than any other
accomplice
• Sec. 60 – such persons no longer considered an “accomplice”
– a public officer bribed to act outside their remit was not committing an
offence
• there is no reflection of this in the 2003 Act, which includes the
additional offence of abuse of public position
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Kenyan anti-corruption law and the Convention
•
Impact of the offence of “illicit enrichment” – certificates of assets for
public defendants.
•
Unexplained assets serve as proof of the receipt of a benefit (Sec. 57(1))
– Defined as assets acquired around the time of the alleged offence,
whose value is disproportionate to known sources of income and for
which there is no satisfactory explanation (Sec. 57(2)).
– Includes assets held in trust for the accused and assets acquired from
the accused without adequate consideration (Sec. 57(2)).
•
Presumption that where an offence
requires an act to be done corruptly, and
that act was done, that it was done
corruptly (Sec. 58).
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Long way to go…
•
•
•
Kenya ranked 154 of 182 on TI Corruption Index
Scores of 2.1 to 2.2 since 2008
Recent cartoons in the Daily Nation:
But… 101 prosecutions in 2010-11.
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Lawyers without Borders - Nairobi
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Lawyers Without Borders - trial advocacy training in Kenya since 2006.
•
In August 2012 LWOB conducted training for approximately 90 Kenyan
magistrates, police prosecutors, public prosecutors, NGO lawyers and
private practitioners.
•
Equivalent to the Higher Rights.
•
Many of the trainers were from the US (especially NITA), including US
federal and appellate judges, and Britain, and many others were Kenyan
alumni of previous trainings.
•
All with the view of capacity building – eventually there will be no foreign
trainers.
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Lawyers without Borders - Nairobi
•
My firm designed and created the mock trial and legal materials focussed
on a bribery offence, as well as an offence under the Sexual Offences Act.
•
Accompanied by a detailed presentation and slides on Kenyan Anticorruption law.
•
All based on my firm’s exhaustive review of the thousands of reported
Kenyan criminal cases from 1981-2012 (eKLR and KLR).
•
Some mock file is now going to be rolled out by the Judicial Training
Institute and FIDA.
•
Ripple effect for change.
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