Lawyers would be required to report their clients’ cash deals in order to encourage the recovery of the proceeds of crime.
A bill sponsored by the National Assembly Majority Leader Amos Kimunya aims to the law requiring attorneys to provide the authorities with details of their clients’ financial transactions.
The Crime Income and Money Laundering Proceedings Act of 2021 provides that attorneys are among the people in charge of the Asset Recovery Agency
This would apply to “lawyers, notaries and other independent legal professionals who are individual practitioners, partners or employees in professional law firms”.
“The obligations apply to the lawyers, Notaries and other independent lawyers in the preparation or execution of transactions for their clients, ”says Kimunya in the memorandum of the draft law.
Lawyers would therefore help their clients when buying and selling Report real estate, client money and assets they manage, as well as B. Banks, savings banks and stocks.
Legal professionals will also be required to disclose how much their clients have contributed to starting, operating and managing businesses
The new anti-corruption law also seeks to track down funds that lawyers’ clients have used in buying and selling companies. Lawyers opposed the plans when the state proposed in the Finance Act of 2019 that their clients’ transactions be disclosed.
Officials at the Law Society of Kenya said at the time that the proposed bill “had a significant impact on legal practice and rule” . of the law and the administration of justice “.
” The subject of attorney-at-law or attorney-client secrecy is strengthened in the law by the evidential secrecy of the law of evidence and the common law principle established under the Judicature Act ” The LSK said in a memorandum then submitted to Parliament.
Lawyers went on to explain that the proposed change “affects several legal principles, practices and laws” and cited new issues such as “confidentiality, the role of lawyers, constitutional ones.” Rights, rules of evidence, criminal law principles and procedures as well as the self-regulation of the professional associations. “
In the petition, which was signed by then LSK boss Allen Waiyaki and attorney Tom Ojienda, the attorneys were categorically that they” neither Agents are still officials of the Director of the Criminal Police and thus also of the Inspector General of the Police or the Financial Reporting Center (FRC) ”. Information is fatal to attorneys’ business and business as it could expose attorneys to disciplinary proceedings, disqualification and removal from the bar. ”
If the bill is passed by MPs, the FRC to pounce on a person or institution if there is “reasonable suspicion that a transaction or planned transaction may constitute money laundering or related activities”.
This also applies to Saccos, which would be reportable all transactions, who are suspected to have come from illegal sources of money.
The relevant bill provides for the Law Society of Kenya and the Sacco Societies Regulatory Authority to be involved as supervisory authorities for the purpose of the reporting process.
In the new changes, the center will knock if someone is suspected of having made their fortune through the proceeds of crime .
Monitoring includes “any property that is associated with” the proceeds of any crime or illegal activity and related activities “.
The agency also tracks the” proceeds or assets, associated with an offense related to the financing of terrorism and related activities “.
The state also seeks to” prevent property owned or controlled by a person or entity, in accordance with the law of terrorism has been identified or named, or on behalf of or on their instruction “to prosecute.
ARA would therefore be empowered to stop all suspicious transactions in relation to the funds or property since s is affected by the marked cash deals “… to enable the center to make the necessary inquiries into the transaction,” states the bill.
If the center deems it appropriate, it would ” inform and advise an investigator ”. Authority, regulator or tax authority “- in this case the Kenyan Revenue Service.
In previous efforts, the FRC has cited attorneys as an obstacle to manipulating the fight against citation disputes by extracting information from attorneys of related clients on cases .
The FRC believes lawyers and their offices have been used by unscrupulous corrupt officials to hide stolen public funds citing scandals involving the NYS and the Nairobi District Government.
The law is also amended to deny the right to privacy to persons suspected or accused of an offense under the Criminal Code.
“If a person is suspected or accused of an offense under this Act, the home the person or property can be searched, that person’s property confiscated, and information relating to financial, family, or personal matters That person’s matters may be disclosed, if necessary … the confidentiality of a person’s communications may be investigated or otherwise compromised, “states the proposed law.
” A limitation of a law applies only for the purpose of preventing, detecting, investigating and prosecuting the proceeds of crime, money laundering and terrorist financing, “she adds.
In giving ARA a free hand in prosecuting their cases, the law will be amended to ensure that the agency’s attorney “has the same privileges as prosecutors under the attorney general’s office, in addition to any other powers they may have under the law.”
ARA continues to urge an independent budget allocation during of the budgetary procedure in the National Assembly.
“The National Assembly provides the Agency with adequate resources to enable the Agency to carry out its tasks in accordance with this law and any other written law and the budget is a separate vote, ”states the bill.
The government is also seeking to establish an oversight body known as the Asset Recovery Oversight Board Has a Secretary appointed by the Public Service Commission.
It consists of the Attorney General, the Chief Secretary of the Treasury, the Director of the Public Prosecutor, the Director General of the National Intelligence Service, the Director General of the FRC and the DCI. < / p>