In a blow to the lawless nouveau riche, those who cannot explain the source of their wealth will no longer hide behind the right to property, the Supreme Court has held.
By closing the door on a man who could not explain his wealth, the Supreme Court has now set the bar and might not be entertaining cases already determined by the Court of Appeal – a blow to those with riches acquired through dubious means.
It is also a big victory to the war against graft and the self-styled millionaires with various cases in court have something to worry about.
In what is emerging as Kenya’s jurisprudence on greed, the Court of Appeal had previously described unexplained assets as “tainted property” and that such property can only be categorised as “unlawfully acquired” – perhaps one of the biggest victories in the war against graft.
Now, the Supreme Court has weighed in in the matter, placing those with graft cases at the mercy of the High Court and Court of Appeal – where they have to explain their source of wealth of they lose it.
While ruling on a case involving Mr Stanley Amuti, a former finance manager at the National Water Conservation and Pipeline Corporation, the Supreme Court ruled that the matter was not of public interest and does not raise constitutional issues; and as such the highest court had no jurisdiction to hear it.
Mr Amuti had built a multi-million estate within a few years, but when he was taken to court by the Ethics and Anti-Corruption Commission, he could not explain where he got the money.
The Supreme Court now says that it will not listen to such cases “as a matter of right” under Article 163 (4) (a) and that those who cannot explain the source of their wealth cannot rush to be heard at that level.
The anti-graft agency had objected to Mr Amuti’s appeal at the Supreme Court.
With that door closed, the ruling now means that cases involving forfeiture of property will be terminating at the Court of Appeal and may take less time. “Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a),” the Supreme Court noted.
It also means that the constitutional right to property cannot be invoked in such cases and this leaves those with similar cases with no constitutional haven to hide in.
Mr Amuti, who had built a huge empire, had been ordered to surrender Sh41 million to the government after failing to explain its source.
In the case, the Court of Appeal had placed the burden of explaining the source of wealth on the accused. “The theme in evidentiary burden in relation to unexplained assets is prove it or lose it,” said the judges.
“In other words, an individual has the evidentiary burden to offer satisfactory explanation for legitimate acquisition of the asset or forfeit such asset. The cornerstone for forfeiture proceedings of unexplained assets is having assets disproportionate to known legitimate sources of income.”
This principle was recently applied in the case involving former Youth and Gender Principal Secretary Lilian Omollo who was ordered to forfeit about Sh33 million in her bank accounts to the State.
Justice Mumbi Ngugi ruled that the former PS, a suspect in the National Youth Service (NYS) fraud cases, was unable to explain how she made her money and that the only conclusion was that the funds were proceeds of crime and corruption, which she described as “that insidious scourge that has reduced our society to penury”.
The Supreme Court has now added that presumption of innocence as a legal right does not arise when somebody is asked to explain their wealth and does not violate the right to fair hearing.
“The requirement to explain assets is not a requirement for one to explain his innocence. The presumption of innocence is a fundamental right that cannot be displaced through a notice to explain how assets have been acquired”.
This was in support of a Court of Appeal observation: “The right (to property) protects the sweat of the brow – it does not protect property acquired through larceny, money laundering or proceeds of crime or any illegal enterprise. When an individual is alleged to have assets disproportionate to his known lawful source of income, is asking such a person to explain and account for the unexplained disproportionate assets a violation of the constitutional protection of the right to property? The answer is in the negative. There is no violation of the right to property if an individual is requested to explain the source of his assets that is disproportionate to his legitimate source of income.”
It now means that courts will no longer be able to protect property acquired through corruption and that for such property to be seized, one does not have to go through the criminal process.
The Court of Appeal had held that civil recovery will take place if an individual is unable to explain the source of assets and that “those who acquire property unlawfully cannot claim protection provided by the legal system.”
It means that the criminal process and the civil process will be different.
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