The Propriety of Advocates as Reporting Institutions Under Anti-money Laundering Laws in Kenya

Abstract

Kenya as well as other members of FATF have made steps geared towards attainment of FATF set standards. In that regard, Kenya enacted the Proceeds of crime and Anti-money laundering Act (POCAMLA). POCAMLA establishes financial reporting centre, AML Advisory Board, Assets Recovery Agency; and provides for reporting institutions and obligations. These provisions notwithstanding, Kenya was still classified as a high-risk jurisdiction. FATF made recommendations aimed at expanding the scope of Designated Non-Financial Business and Professions (DNFBP) to include advocates. The scope of DNFBP under POCAMLA has been said to be narrow and excludes advocates, Efforts to have advocates included as part of DNFBP have been initiated severally but subsequently aborted after much resistance. Resistance to the changes by advocates are premised on the assertion that these amendments are contrary to the rules of evidence; and that they gravely impinge on the principle of advocate- client privilege. This paper explores this stalemate and establishes through benchmarking other jurisdictions, best practices which can guide Kenya in implementing FATF recommendations.