PROPOSED ANTI LAUNDERING LAW WAIVES SUSPECTS RIGHT TO PRIVACY, GIVES INVESTIGATIVE AGENCIES MORE TEETH

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A new Bill before Parliament is set to give more biting teeth to anti-graft investigative agencies enabling them to net people suspected of engaging in economic crimes such as money laundering. The new law will allow the agencies to carry out electronic surveillance on suspects and seize their assets even before they go on trial.

Further, the Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, (POCAMLA) 2021 proposes the suspension of an individual’s right to privacy for purposes of prevention, detection, investigation and prosecution of proceeds of crime, money laundering and financing terrorism.

The Act gives investigative agencies power to search homes or properties, seized possessions, information on a person’s financial, reveal family or private affairs or communications for investigation purposes.

This will go a long way in empowering investigative agencies such as the Directorate of Criminal Investigation and the Ethics and Anti-Corruption Commission (EACC) gather crucial evidence against corruption and economic crimes suspects.

Another new development is listing of reporting agents by expanding it to cover lawyers. Currently, the agents are casinos, real estate agencies, firms dealing with precious stones or metals, accountants and non-governmental organizations. These are required to continuously monitor complex, unusual, suspicious or large transactions and unusual patterns, and forward reports to the Financial Reporting Centre (FRC).

The proposed Bill, 2021 has now added advocates, notaries and other independent sole practitioner legal professionals to the list of reporting agents.

This will in effect reign in lawyers who have often been used by the wealthy to hide their suspect or ill-gotten wealth through registering for them trusts and companies.

The law further proposes creation of an oversight board to oversee and advice the Assets and Recovery Agency (ARA) in performance of its functions, approve its annual budget, annual reports and expenditure.

The FRC will also have powers to stop transactions reported to authorities such as the Competition Authority of Kenya and the Capital Markets Authority if the transactions are suspected to be tainted with laundered money, and to direct the institution or person to stop suspicious transaction for a period not exceeding five working days.
This is to allow the center act or inform and advise investigating, regulatory or tax agencies.

If approved by Parliament, the amendments will be the most significant changes to the country’s POCAMLA, 2009.
For years, investigative agencies have had to grapple with tedious processes to gather evidence against economic crimes suspects intent on hiding their ill-gotten wealth through legal loopholes in various anti-corruption laws. The government is now tightening these laws through the amendments to existing laws.

One of the major cases that will benefit from the proposed law is the Migori Governor Kshs. 73Million public funds fraud case. The EACC is in court to recover the money after it obtained orders freezing assets belonging to Governor Okoth Obado and his family members.
EACC accuses Obado of carrying out the embezzlement using his children with the aid of proxy companies and associates, and it has been a daunting task for authorities to recover the cash, hence the timeliness of the new law.

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