Recovering the Proceeds of Corruption: Why Kenya Should Foreground Civil Forfeiture
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Date
2012
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Western Cape
Abstract
Today corruption is a major concern for most countries.1 Civil forfeiture of the proceeds of corruption has been embraced as a key strategy by many states in recovering public funds lost through corruption.2 It may be defined as a remedial statutory device designed to recover the
proceeds of a crime as well as its instrumentalities.3 Originally, asset recovery regimes adopted by most states were predominantly criminal
forfeiture. This mode of forfeiture is preceded by a conviction, after which the state takes possession of the proceeds of the crime from a convicted individual.4 Its proceedings are in personam and the standard of proof is proof beyond a reasonable doubt. Thus, actual forfeiture
only takes place after the issue of a conviction order. As a consequence, it is always lengthy and often results in delayed realisation of the proceeds of crime. 5 The inherent weaknesses of criminal forfeiture gave birth to the idea of developing a civil forfeiture system.6 This mode is different from the former in that its proceedings are in rem. Hence the standard of proof is proof on a balance of probabilities and a conviction order is not required.7
Description
Magister Legum - LLM
Keywords
Asset Recovery, Civil forfeiture, Corruption, Criminal forfeiture, Ethics and Anti-Corruption Commission, Instrumentalities of Corruption, Money Laundering, Presumption of Innocence, Proceeds of Corruption, Right to Property