WORKSHOP ON RISKS AND THREATS OF CORRUPTION AND THE LEGAL PROFESSION

TOPIC: THE INTERNATIONAL ANTI-CORRUPTION FRAMEWORK AND THE LEGAL PROFESSION

A presentation by:
KERIAKO TOBIKO CBS, SC DIRECTOR OF PUBLIC PROSECUTIONS, KENYA [SEPTEMBER 17th, 2013] AT THE INTERCONTINETAL HOTEL, NAIROBI.
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Distinguished Guests Ladies and Gentlemen,

A.

INTRODUCTION

1.

I thank the law society of Kenya and the International Bar

Association (IBA)for organizing this timely workshop in Kenya. It is the Third IBA Anti-Corruption Compliance Workshop to be held in Africa. 2. It comes at a time when Kenya is ranked the fourth most

corrupt nation in the world according to the 2013 Transparency International Global Corruption Barometer. 3. We all recognize that corruption is insidiously multi-faceted at

both the national and international levels. It undermines : democracy; the rule of law; discourages foreign direct investment; hinders economic and social development; and causes distortions in the market economy, including within the legal profession.

4.

Indeed as much as one third of Kenyas GDP is lost each year

due to corruption and at least 30 percent of its budget remains unaccounted for due to mismanagement, poor accounting practices and leakages. This robs Kenyans the opportunities they need and deserve for better lives. 5. Corruption also creates a conducive environment for the

emergence of other crimes and social ills including: Terrorism, Human trafficking, Money laundering, Drug trafficking, Trafficking in illicit arms, Counterfeiting etc. All of which affect not only ordinary citizens, but also legal professionals in one way or another.

6.

Indeed, for the longest while national focus and energy was

directed towards combating public sector corruption. This workshop and forums such as this herald an important shift, which is the recognition of the need to fight corruption in the private sector as well.

7.

While I acknowledge that more needs to be done to combat

corruption in public institutions, the time has come for our legal profession to re-examine its role in the fight against corruption. This fight cannot be confined to law enforcement agencies, hence the importance of this workshop. 8. Lawyers the world over are integral in the facilitation of business

transactions both nationally and internationally. Often times they are faced with situations where their clients transactions involve possible corruption. In some occasions we have been approached to act as agents or middlemen in transactions which involve bribery, national or international corruption.

B.

LEGAL FRAMEWORK FOR COMBATING CORRUPTION AND THE LEGAL PROFESSION

INTERNATIONAL LEGAL FRAMEWORK

9.

The key global and legally binding instrument in the fight

against corruption is the UN Convention against Corruption [UNCAC].

10.

The UNCAC specifies the measures that state parties are

required to implement in the fight against corruption, including: Criminalization of all forms of corrupt acts including those involving the private sector; The imposition of punitive sanctions and penalties targeted at individual and corporations involved in corruption; Asset recovery; and Strengthening of international law enforcement and judicial co-operation.

11.

Additionally,

the

United

Nations

against

Transnational

Organized Crimes (UNTOC) provides for criminalization of corruption and laundering of proceeds of crime, with measures to combat money laundering, and corruption.

12.

The OECD block of countries enacted the 1997 Convention on

Combating Bribery of Foreign Public Officials in International Business Transactions.

13.

The convention requires state parties to criminalize and exercise

jurisdiction over cases of bribery of foreign government officials by

their nationals (individuals or corporations) in their countries or abroad, in a manner comparable to the bribery of the Partys own public officials.

14.

This represents an extra-territorial convention which may be

applied against lawyers in Kenya who act as intermediaries in corrupt international business transactions.

15.

This may include: deprivation of liberty of an individual; effective, proportionate and dissuasive non-criminal sanctions, including monetary sanctions, for bribery of foreign public officials; seizure and confiscation or that monetary sanctions of comparable effect; and the imposition of additional civil or administrative sanctions upon a person subject to sanctions for the bribery of a foreign public official.

16.

The United States of America and the United Kingdom have

enacted national legislations of extra territorial application to prevent bribery of foreign government officials by their nationals (individuals or corporations) in their jurisdictions and abroad. These
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are the United States Foreign Corrupt Practices Act 1977 and the United Kingdom Bribery Act 2010.

AU LEGAL FRAMEWORK

17.

The 2003 African Union Convention on Preventing and

Combating Corruption was enacted to provide an African legal framework for combating rampant corruption in the continent.

18.

In relation to the legal profession and corruption, the convention also obligates the member states to adopt: measures to prevent and combat acts of corruption committed and instigated by agents in the private sector; and mandates member states to adopt measures necessary to empower law enforcement agencies to access financial and commercial documents without meeting undue resistance due to bank secrecy and confidentiality rules.

EAC LEGAL FRAMEWORK

19.

At the East African Community level, we have the EAC Protocol

on Preventing and Combating Corruption entered into in 2012 with the regional aim of giving effect to UNCAC and the AU Convention. The protocol similarly requires the criminalization of private sector corruption.

KENYAS LEGAL FRAMEWORK

20.

Kenya was the first country in the world to sign and ratify the

UNCAC. It is also a state party to the African Union Convention on Preventing and Combating Corruption and the EAC Protocol on Preventing and Combating Corruption.

21.

This signifies the countrys commitment to the fight against

corruption and implementation of its international obligations.

22.

Indeed, to assess the implementation levels of legal policy and

institutional interventions on corruption Kenya as part of its state

obligations has so far published its first self-assessment report that is the UNCAC Gap Analysis Report in 2009.

23.

This report identified various gaps which should be addressed

for Kenya to effectively combat corruption, key among them being increased focus on the supply side of corruption that is private sector corruption.

24.

Article 2(5) of the Constitution makes the entire aforementioned

international legal regime applicable in Kenya. Moreover, Article 10 of the constitution on Kenyas national values and principles of governance obligates state organs to comply with principles of good governance, integrity, transparency and accountability.

25.

The Constitution dedicates its Chapter Six to matters of

leadership and integrity in the public sphere.

26.

Kenyas focus on combating public sector corruption has led it

to enact various enabling legislations i.e.: The Ethics and Anti-corruption Act The Public Officers Ethics Act The Proceeds of Crime and Anti-Money Laundering Act
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 The Prevention of Terrorism and Organized Crimes Act Public Procurement and Disposal Act. The Witness Protection Act

27.

To enforce the aforementioned national legislation and

international conventions, Kenya has established an institutional framework which comprises of the following institutions which are critical in the fight against corruption:-

Ethics and Anti-Corruption Commission Office Of The Director Of Public Prosecutions Kenya National Audit Office Public Procurement Oversight Authority Commission on Administrative Justice The National Police Service The Auditor General The Controller of Budget Public Accounts Committee Public Investments Committee The National Anti-Corruption Campaign Steering Committee The Witness Protection Agency

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28.

The above institutions are subject to parliamentary oversight

through filing of periodic reports and debate in parliament.

29.

It may be noted that the aforementioned legislations largely

have an orientation of criminalizing public sector corruption, with few of the more recent legislations criminalizing certain forms of private sector corruption, particularly in public procurement and money laundering activities.

30.

It may be necessary and timely for Kenya to develop, anti-

corruption legislation(s) which also focus on the supply side (private sector corruption) and international corruption- both inbound and outbound corruption.

31.

In this regard a key area in which we all have to collaborate

on, is the review of our legislative and institutional frameworks for combating corruption with a view to accessing its efficacy.

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C.

CORRUPTION AND THE LEGAL PROFESSION

INTERNATIONAL EFFORTS TO COMBAT CORRUPTION IN THE LEGAL PROFESSION

32.

The IBA, OECD, and the UNODC conducted a global survey in

2010 on the risks and threats of corruption in relation to the legal profession.

33.

The survey sought to: explore the level of awareness of the risks of corruption to the risks of the legal profession, investigate the legal professions awareness of the ever developing international anti-corruption regulatory framework and, awareness of the tools available to mitigate these risks including examining the role that bar associations and societies as well as law firms are playing in the international fight against corruption.

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34.

A total of 642 legal professionals from 95 jurisdictions including

Kenya spread geographically in all continents, participated in the survey.

35.

The major findings of the report were: Half of the respondents perceived corruption to be an issue in the legal profession both in their homes and neighbouring jurisdictions, Respondents recognized that a significant number of lawyers are approached to act as agents/middlemen men in transactions which could reasonably be suspected to involve international corruption. That international corruption negatively affects the ability to compete for business in the legal profession. There is a dangerous lack of awareness of international anticorruption instruments including national legislation with extra-territorial applicability such as the: OECD Convention On Combating Bribery Of Foreign Public Officials In International Business Transactions 1997 United States Foreign Corrupt Practices Act 1977 United Kingdom Bribery Act 2010

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 Respondents perceive their bar associations, law societies and law firms as not actively engaging their professionals on issue of international bribery and corruption. Where such efforts have been made younger and less senior legal professionals are often left out.

36.

It is in recognition of these poignant findings and in keeping

with the IBAs obligations under the international corruption regulatory environment that; the IBA has developed An AntiCorruption Guidance for Bar Associations meant to create, develop, and promote anti-corruption initiatives for the legal profession.

37.

The IBA in conjunction with OECD and UNODC have

developed the Global Anti-Corruption Strategy for the Legal Profession.

38.

Through its useful online portalwww.anticorruptionstrategy.org;

the IBA has provided bar associations and law societies, legal practitioners, and law enforcement agencies a sensitization platform to share best practices and compliance mechanisms aimed at ensuring that the legal profession is no longer facilitating or involved in national and international corrupt practices.

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39.

The

IBA/OECD/UNODC

in

conjunction

with

local

bar

associations and law societies have been organizing in-country anticorruption compliance workshops which sensitize on: the risks, threats and challenges of corruption in legal practice; educate on the sanctions which may be imposed for deliberate or inadvertent corruption and corruption related activities that lawyers may be engaged in; and on implementing adequate compliance programs designed to identify, address and resolve potential threats.

40.

I congratulate the IBA, OECD, UNODC and LSK for all these

important endeavors.

LAWYER-CLIENT CONFIDENTIALITY

41.

There are numerous statutory provisions on advocate-client

confidentiality in Kenyan law. These include the: The Evidence Act (Section 134) - it is protected save in circumstances which are in furtherance of criminal acts. The Advocates Act (Section 80)- on breach of trust

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 The Proceeds of Crime and Anti-Money Laundering Act (Sections 17-18) protects advocate-client confidentiality but provides that an Advocate can be compelled to disclose information available to him in respect to any transaction or dealing during investigations through an order of the High Court.

42.

For a long time, lawyers have hidden behind the veil of lawyerconfidentiality to facilitate and benefit from corrupt

client

transactions on behalf of their clients.

43.

The duty of counsel in the administration of justice extends to

assisting Law enforcement agencies in gathering, preservation and presentation of evidence wherever necessary. Advocates must therefore cooperate at all times with law enforcement agencies.

44.

As Lord Denning stated, in the case of Rondel- Vs- Worsley

(1966) 3 ALL ER 657, regarding the relationship of advocate and client, It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or . to do what he directs. He is none of those things. He owes allegiance to a higher cause. It is the cause of truth and justice.
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45.

As lawyers, we have an inviolable duty to our clients. This is

however not a justification for abdicating from our other duties to fellow members of the legal profession, the public and the societies.

46.

Grand corruption scandals which have rocked the social and

economic fabric of Kenya have been facilitated in one way or another by lawyers. Public institutions and corporations have lost public funds while under the management of lawyers and through lawyers facilitation of their clients corrupt practices.

47.

Lawyers have a duty to ensure that public funds are not looted

by the private sector through national and multinational companies as well as individuals while in the furtherance of their legal practice. 48. Kenya is prime destination in Africa for foreign direct investment

and our lawyers have been successful as intermediaries for multibillion-shilling corporate legal advisory business as per the 2012 Chambers and Partners and International Financial Review 1000 (IFRL 1000).

49.

While we celebrate the increased success and repute of

Kenyan lawyers in international trade dealings, we must sensitize all

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legal professionals in Kenya not only of Kenyas anti -corruption legal framework but the far-reaching extra-territorial conventions and foreign legislations which could be applied against them.

D. 50.

CONCLUSION Moving forward, I urge the LSK to develop a national anti-

corruption strategy drawing inspiration from the IBA/OECD/UNODC global anti-corruption strategy for the legal profession. This should be informed by the findings of the aforementioned IBA 2010 survey.

51.

Indeed, LSK should commission a similar Kenya-specific survey

as less than 3 respondents in the IBA survey were from Kenya. 52. Other measures should include comprehensive capacity to

increase legal awareness both within the legal fraternity and the public.

53.

The LSK should also set up a strong management structure

specifically dealing with overseeing the full implementation of the societys anti-corruption strategy.

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54.

LSK should also review its ethical code of conduct and its

disciplinary rules and policies to deal with lawyers who engage in corrupt practice.

55.

It will also be necessary to develop a recognitions and

incentive initiative to publically award successful anti-corruption measures taken by legal professionals in their work.

56.

Law firms must also be encouraged to develop anti-corruption

systems within their practice.

57.

The ODPPs partnership with the LSK is a long standing one and

indeed LSK is represented in the ODPP Advisory Board by none other than the distinguished chairman of the LSK.

58.

LSK has been supportive and instrumental in the on-going

process of reforming and revamping our National Prosecutors Service.

59.

We are committed to continued co-operation, particularly in

ensuring that the risks and threats of corruption are fully addressed.

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The ODPP will on its part prosecute lawyers who are involved in corrupt business transactions without fear or favor.

60.

Prosecutors as legal professionals must on their part avoid all

instances of corruption and conflict of interest and in this regard the ODPP has revised its Code of Conduct and Ethics for Prosecutors.

61.

The fight against corruption is a hard one. Corruption fights

back and thus all anti-corruption actors; be they national and international, state and non-state, must collaborate and synergize their initiatives to ensure maximum impact.

62.

I thank you all for listening.

KERIAKO TOBIKO CBS, SC DIRECTOR OF PUBLIC PROSECUTIONS, KENYA. 17THSEPTEMBER, 2013.

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