A human rights and constitutional lawyer has raised the red flag on the Proceeds of crime and Anti-money laundering Act and wants certain overarching sections deemed to rope Kenyan lawyers and presumably innocent businessmen in criminal cases declared unconstitutional.
These excess sections, lawyer Felix Kiprono, states are currently being experimented in two criminal cases to the detriment of “advocates lawfully carrying their functions and duties and Kenyan lawfully carrying out their businesses.”
“We have seen that the Act is vague and ambiguous…letting off the main masterminds of scandal(s) who go Scot-free while the innocent persons are locked up, we need it to get back to Parliament so that they may come up with a proper legislation that will net the real fish….the reason why the small fish are netted is purely because of the impractical shortcomings of the Act,” the lawyer told Justicenow.co.ke shortly after a court session.
The petitioner states that the Act violates the Bill of rights and militates against public interest, and, the fair administration of justice.
He also seeks to have the DPP restrained from prosecutions based on the contentious sections of the Act.
“Besides vagueness, the sections have a chilling effect on the Right to property, right to a fair trial and right to protection from the law,” the lawyer contends.
He states that the Act as it is, is giving authorities undue leverage over innocent lawyers who are caught up in the course of discharging their “legal duties to clients.”
Among the flaws cited in the Act include imposition of offences “without defining the target and conduct of money laundering, a lack of distinction between mere arrangement,agreement, association , and lack of appropriate and definite terminology which may translate to money laundering.”
Kiprono says the Act ropes in everybody as having participated in money laundering despite “things done in ordinary course of business and professional duty.”
The case has been lodged before justice Chacha Mwita for determination.
“While the state was pursuing a legitimate objective to curb the vice, it has used means which are broader than is necessary to accomplish the objective, thereby violating the rights of innocent Kenyans,” Kiprono states in filings.
The Director of Public Prosecutions Keriako Tobiko last year approved money laundering charges against 11 suspects in the Sh791 million National Youth Service scam.
A lawyer who carried out transactions in the saga is among those charged with the offence of money laundering.
They are accused of money laundering contrary to sections 3 and 4 of the Proceeds of Crime and Money Laundering Act.
The suspects are lawyer Patrick Onyango Ogola, John Kago, Josephine Kabura, Charity Gethi, Samuel Wachenje, Anthony Gethii Kihara, Benson Gachoka, Benson Gethi, John Hope Vandamme, Martin Gachara Wanjohi and Jedida Wangari.
Some of the suspects have been battling to save their property after seizure by the Assets Recovery Agency on grounds that they were bought using money stolen from the NYS.
The recovery agency has been pushing for a forfeiture of the properties but the suspects contend that the charges against them are yet to be proved in a court of law, thus presumed innocent till otherwise.
Ogola whose property was also frozen has confirmed he received Sh103 million from Kago but added it was conveyancing transactions.
“I co-operated with Corporal Sautet Jeremiah Matipei and made 2 detailed statements explaining that my Firm had received the total sum of Ksh 103,000,000.00 from the said Mr John Kago Ndugu for the purposes on 2 conveyancing transactions,” he says in court papers.
The lawyer said he used Sh60 million to purchase a piece of land and Sh50 million for a transaction that did not proceed and that the monies were thereafter forwarded onward to a bank account designated by Kago.
The lawyer said in the course of his dealings with Kago he offered to sell to him Motor Vehicle KCB 750 Z a Range Rover which is among the property targeted in the freeze.
The preservation order was obtained at the High Court under the Proceeds of Crime and Anti-Money Laundering Act in respect of the eight suspects.
Also under the freeze are pieces of land in Muthaiga, a house in Rosslyn Estate, Nairobi, Eden Times Restaurant located in Mercury Building along Moi Avenue and a Range Rover Vogue all valued about Sh500 million.
Anthony Kihara Gethi has joined the suit as in interested party.
The matter will be heard in July 2017.