Why Kenya is yet to receive funds stashed in Swiss banks

President Uhuru Kenyatta (right) and Swiss counterpart Alain Berset (left) witness the signing of a framework agreement for return of stolen assets stashed in Switzerland to Kenya by the Swiss Ambassador to Kenya Ralf Heckner and Attorney General Paul Kihara June 9, 2018. PHOTO | MARTIN MUKANGU |NMG

By Valentin Zellweger
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Summary

• In recent years, Switzerland has amply demonstrated that stolen assets can be returned successfully.
• So far, Switzerland has returned well over $2 billion to the countries of origin.
• Leading international organisations such as the World Bank, the Organization for Economic Cooperation and Development (OECD) and the UN Office on Drugs and Crime (UNODC) have acknowledged Switzerland’s leadership role in the field.

Shortly after I had arrived in Kenya and begun to settle down into my position as the Ambassador of Switzerland to Kenya, a friend of mine told me, “You had better be ready to answer a rather difficult question: sooner or later, Kenyans will ask you, ‘Where is our money?’”

He was referring to the fact the Swiss authorities had frozen approximately $2 million in 2008 in the context of the Anglo Leasingcase, better known here as the Anglo Leasing scandal.

Many Kenyans found it difficult to understand why Switzerland did not simply return the funds to Kenya without much further ado. To them, it seemed obvious that the funds had been obtained illegally, although this has never been proven in a court of law.

In recent years, Switzerland has amply demonstrated that stolen assets can be returned successfully. So far, Switzerland has returned well over $2 billion to the countries of origin. Leading international organisations such as the World Bank, the Organization for Economic Cooperation and Development (OECD) and the UN Office on Drugs and Crime (UNODC) have acknowledged Switzerland’s leadership role in the field.

The idea behind this policy is a simple one: Switzerland is an important financial centre and there should be no space for stolen assets. Furthermore, Switzerland cannot define the fight against corruption as a pillar of its foreign policy and objective of its development cooperation programmes without implementing at the same time also legislation and policies to prevent corruption at home and abroad.

Over the years, Switzerland has returned over $1 billion embezzled by former President Sani Abacha to Nigeria, $684 million stolen by Ferdinand Marcos to the Philippines, $163 million to Kazakhstan and $64 million to Angola.

In addition, the principles governing future repatriation of funds to Kenya have already been agreed. During the visit of the Swiss President, Alain Berset, in 2018, Kenya and Switzerland, together with the UK and Jersey, signed the Framework for the Return of Assets from Corruption and Crime in Kenya (FRACCK).

This document provides a series of guidelines for the return of funds. Returns should proceed in a transparent and accountable manner with the mutual consent of the government of Kenya and the partner returning assets.

From this arises a crucial question: If the method for returning stolen funds has already been proven to work and if the requisite procedures are in place, how can it be explained, that the $2 million still remains frozen in Switzerland?

To understand this, we have to go back to the beginning of the proceedings. The freezing of the assets by Swiss authorities was indeed the first step in a well-established legal procedure: A prosecutor initiates proceedings and asks other countries — or technically speaking, “jurisdictions” — where parts of the proceeds of the crime have allegedly been deposited, for support and assistance.

Such cooperation is called mutual legal assistance and is governed by bilateral and multilateral agreements. Over the years, Switzerland has executed several requests for mutual legal assistance by Kenyan authorities and has provided them with evidence in the Anglo Leasing case.

What applies to murder cases applies to economic crimes: The closer the prosecution is to the scene of the crime, the easier it is to collect the necessary evidence and to prove the circumstances of the crime. In other words, the country where the corruption took place is always the best placed to bring criminal proceedings to a successful conclusion.

Other jurisdictions have a much harder time in prosecuting suspects, as they do not have direct access to the requisite evidence and to witnesses. This is why the vast majority of successful corruption cases are resolved through domestic proceedings.

If Kenyan authorities succeed in convincing a court of law that the suspects in the Anglo Leasing case acquired the assets illegally, the judges may decide to forfeit them. With such a ruling, Kenya will be able to request the return of the funds from other jurisdictions. In other words, only a final Kenyan judgment can provide the necessary legal basis for a confiscation and return of assets by Switzerland.

This is indeed the approach taken by both sides in the Anglo Leasing case from the outset. The Kenyan authorities have decided to prosecute the suspects and Switzerland assists them in submitting the necessary evidence. To date, the Anglo Leasing proceedings are still ongoing.

Once Kenya transmits a final and executable court order, the Swiss authorities will have a legal title to return the frozen funds to Kenya. Only a judicial verdict confirming the illegal origin of the funds makes it possible to repatriate them. A mere suspicion of an illegal acquisition is not sufficient, however strong it may be. If the Swiss government were to disappropriate the account holders without a court decision, they could sue it for damages.

Experience shows that the repatriation of stolen funds can be successful if both sides work together. There is no reason why this should not be possible also in relation to the Anglo Leasing case.

A successful outcome will depend on the criminal conviction of the perpetrators in Kenya. As soon as their crimes have been established in a final and executable Kenyan court decision, Switzerland will be in a position to return the funds based on the guidelines agreed.

Dr Zellweger is Swiss Ambassador to Kenya