KENYA: “STATE CAPTURED” BY SYSTEMIC FORCES OF CORRUPTION WITH THEFT OF PUBLIC RESOURCES

The Daily Nation on 23rd May referred to a “damning” report from NPO, the Africa Centre for Open Governance (AfriCOG) in Nairobi, which says elites and private interests are calling the shots.  It says the State has succeeded in the art of speaking out against corruption while endorsing it behind the scenes.  The report cites a number of scandals whose investigations have over the years became a routine circus because of collusion, fightbacks and endless legal manoeuvres.  It refers to the fear that the current President’s anti-corruption drive is losing momentum, with some MPs starting the push for the sacking of top government officials implicated in graft.

https://www.nation.co.ke/news/State-capture-foils-anti-graft-campaign/1056-5127614-rl4c5dz/index.html

kenya

The report is available at –

https://africog.org/reports/state-capture-inside-kenyas-inability-to-fight-corruption/

US DEPARTMENT OF STATE CONSIDERING STRICT ORIGIN RULES FOR JEWELLERY TO SUPPLEMENT KIMBERLEY PROCESS

On 24th May, Arent Fox published an article saying that fashion accessory and luxury goods importers of fine and costume jewellery containing gemstones or precious metals (e.g. gold) should be aware of a proposal being considered by Department of State officials.  The officials recently met with trade organisations in New York to discuss requiring the jewellery industry to declare the country of origin for all materials used in jewellery products, an origin declaration requirement would be for all raw materials used in jewellery and, in addition, the new rules might require a chain of custody declaration (i.e. the movement from owner to owner).  It says that the new requirements were being considered because the Kimberley Process – the international certification scheme that regulates the diamond trade to prevent the sale of conflict diamonds – is inadequate.

https://www.internationallawoffice.com/Newsletters/International-Trade/USA/Arent-Fox-LLP/Department-of-State-considering-strict-origin-rules-for-jewellery

CASH FORFEITURE: CIVIL CASES IN CRIMINAL COURTS

An article by Jonathan Fisher QC from Brightline Law discusses the convergence of civil and criminal procedure in cash forfeiture appeals.  The powers are civil in nature but the requirement of underlying criminal conduct and use of the Crown Court, with inadequate procedural rules, leads to an unfortunate conflation of the systems. It concludes that it is vital that these courts are equipped to deal with cases in a manner which is fair to the enforcement authority as well as the defendant.  In the absence of formalised processes and guidance to Magistrates and Crown Court judges about the true nature of the civil proceedings, the risk of injustice is high.

https://www.brightlinelaw.co.uk/bll-bulletin/civil-cases-in-criminal-courts.html

THE 8 PRINCIPLES FROM THE OECD/INTERNATIONAL BAR ASSOCIATION REPORT

The report, titled the “Role of Lawyers and International Commercial Structures,” lays out 8 key principles for lawyers to follow –

Principle 1: Non-facilitation of illegal conduct – When creating companies, trusts and partnerships, a lawyer should not facilitate illegal conduct, and should undertake the necessary due diligence to avoid doing so inadvertently.

Principle 2: Misuse of the duty of confidence and privilege – A lawyer should not use the confidential nature of the lawyer–client relationship or the principles of legal professional privilege to shield wrongdoers.

Principle 3: Client due diligence – The enquiries that a lawyer undertakes should be heightened if the risk profile of the client, the type of transaction, the origin of the funds, the parties involved and/or the jurisdiction fall within well-established international benchmarks for jurisdictions with increased risk of bribery, corruption and commercial crime.

Principle 4: Action where client conduct is, may be or becomes illegal – Where the conduct of a client is, may be or becomes illegal, even if it was originally legal and the lawyer continues to be retained by the client, a lawyer should advise the client of the consequences of the conduct and recommend that the client pursues alternative solutions.

Principle 5: Multi-jurisdictional risk – Where a transaction involves conduct by a client, agents or representatives of a client in more than one jurisdiction and the lawyer has reasonable grounds to believe that the conduct may be or may become illegal in a jurisdiction(s), a lawyer should verify that expert advice is or has been obtained by the client from a lawyer experienced in the conduct or transaction in that jurisdiction.

Principle 6: Use of illegally obtained information – Lawyers should strongly discourage a client from paying private parties or public officials to obtain illegal information, which of itself may constitute a criminal offence in many jurisdictions.

Principle 7: Disclosure of beneficial ownership – A lawyer should obtain and maintain up-to-date beneficial ownership information and take reasonable measures to verify its accuracy in relation to the lawyer’s client(s).

Principle 8: Advertising by lawyers on international commercial structures – Any advertising by lawyers should be transparent, accurate and truthful,

https://www.ibanet.org/Conferences/The-role-of-lawyers-in-international-commercial-structures.aspx

OFAC DESIGNATES ARGENTINIANS AND ARGENTINE ONLINE PHARMACY CRIMINAL ORGANISATION

On 23rd May, a news release from OFAC listed 8 individuals, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, and a number of businesses in various countries, including the UK – SMILE PROPERTY & TRAVEL LTD (aka QUARTIERLATINAPARTMENTS; aka SMILE BITCARD; aka SMILE PROPERTY AND TRAVEL LTD).  OFAC said in a news release that the online pharmacy, Goldpharma, sells illicit opioids to customers located in the US through its 9 entities located in Argentina, Colombia, Canada, the UK, and the Netherlands.

https://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20190523.aspx