Battle ranges over control of Asset Recovery Agency

A constitutional standoff between the Attorney General and Director of Public Prosecutions (DPP) is looming on who between the two should be in charge of the Asset Recovery Agency (ARA).

When the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) was enacted in 2009, the Attorney General (AG) prosecuted crimes; and therefore, ARA automatically fell under that office.

However, when Kenya ushered the new Constitution in 2010, the prosecution role shifted from the AG’s office to that of the DPP. The Constitution gave AG a right to represent the government in all cases other than criminal ones.

And a case facing businessman Anthony Odiero has sucked in the two key offices as they fight who between them should prosecute the man.

In the case, the businessman’s lawyer, Ndegwa Njiru, argued that the AG should have surrendered ARA to DPP as his client was not involved in any criminal cases.

“Despite the clear provisions of the Constitution of Kenya, the Assets Recovery Agency has blatantly been performing functions exclusively related to criminal investigations and matters including recovery of proceeds of crime without any reference to or supervision of the constitutionally mandated Offices of the DPP and Inspector General of Police,” argues Njiru.

According to him, the DPP should appoint the agency’s director and approve the terms of office for staff in that office.

Odiero roped in the DPP and the Inspector General of Police in the case as interested parties. He claimed that contrary to the law, the AG had been positing staff from his office to ARA.

His lawyer argued that this was a usurpation of the DPP’s powers.

The other issue is ARA’s role. The police are mandated to get intelligence, investigate, and stop all kinds of crimes, including serious ones such as narcotics, money laundering, and economic crimes.

Odiero argued that ARA has been doing police work despite not being gazetted as a police station or expressly given the authority to probe crimes.

He stated that the police should investigate a person, the DPP should prosecute the suspect, and ARA should come in for the illicit wealth.

ARA filed a case seeking to have Odiero forfeit Sh55 million. It claimed that it suspected that the money was proceeds of crime. Initially, when ARA was seeking to freeze his accounts before the Anti-corruption and Economic Crimes magistrate court, the agency claimed that it had intelligence that Odiero’s money was obtained from drug trafficking and money laundering.

It also went for his vehicles. However, the High Court dropped the drugs narrative and held onto suspicion that the Sh55 million in his account was laundered.

The agency stated that the money had been flagged from his account at the National Bank of Kenya (NBK). 

But the accused was emphatic that he had never been investigated, summoned, or even linked to the crimes alleged by ARA.

According to him, ARA has been jumping the gun by seeking persons to forfeit assets and money before a person has either been investigated or prosecuted.

To bolster his argument, Odiero attached a police clearance certificate issued in September last year. He argued that the Directorate of Criminal Investigations could not have issued him with such a document if he had any criminal record.

In addition, the other argument is what law should be applied while recovering laundered money.

POCAMLA became law in 2009. This Act deals with the money laundering offense and introduces measures to identify, trace, freeze, and confiscate proceeds of crime.

According to Odiero’s lawyer, suspicion cannot be used to forfeit assets and money to the government. Njiru argued that POCAMLA provides for an offense of money laundering; hence, his client ought to have been charged, tried, or convicted in a criminal court before the agency came calling.

Then, there is the Anti-Corruption and Economic Crimes Act known as ACECA. Parliament provided for a law that would enable the prevention and investigation of corruption and economic crimes.

This law provided for powers to pursue unexplained assets. The Judiciary created the High Court for Anti-Corruption and Economic Crimes to hear the cases.

However, the businessman stated that it is a special one and should not be hearing money laundering cases. “I have never been summoned, investigated, or prosecuted over any corruption or economic-related crimes to warrant me to be subjected to the jurisdiction of the Anti-Corruption and Economic Crimes Division,” said Odiero in his supporting affidavit.

The case will be heard on August 12, 2024.