Some 191 public officers in foreign missions risk criminal trial for illegally operating secret bank accounts abroad.
The law requiring full disclosure of transactions in foreign bank accounts was informed by cases of rogue powerful figures in government stashing looted public funds in overseas accounts.
An audit by the Ethics and Anti-Corruption Commission (EACC) of bank accounts held by public officers outside Kenya uncovered the unauthorised overseas accounts run by the 191 officers in the Ministry of Foreign Affairs.
“The officers currently in active foreign service are illegally operating bank accounts outside Kenya, having not declared their operation to the commission by way of seeking approval,” EACC Chief Executive Twalib Mbarak has notified Foreign Affairs Principal Secretary Macharia Kamau through a letter dated September 20.
This is an offence under section 19(6) of the Leadership and Integrity Act for which the officers, upon conviction, are liable to five-year imprisonment or Sh5 million fine, or both, explains Mr Mbarak.
Annual bank statements
EACC has further identified 58 officers who, despite approval for their bank accounts held abroad, have failed to furnish the commission with their annual bank statements, in violation of the law.
“The commission is considering legal action, including initiation of criminal proceedings to hold the non-compliant officers to account for their respective violations of the law,” reads Mr Mbarak’s letter.
The affected officers have until October 31 to seek approval for their bank accounts and make full disclosure of annual bank statements.
EACC has asked the PS to notify all the suspects whose names are listed in a schedule attached to the letter to comply.
“The commission cautions that failure to comply with the terms of this notice will trigger the relevant enforcement proceedings,” the letter concludes.
The Constitution and the Act prohibits public officers from operating bank accounts outside Kenya except with the approval of the anti-corruption agency.
Once a public officer secures the commission’s green light to operate the overseas account, he/she is required to submit annual bank statements to the commission not later than January 31 of each succeeding year.
Article 76 (2) of the Constitution prohibits a state officer from maintaining a bank account outside Kenya except in accordance with an Act of Parliament.
Further, those serving in foreign missions are barred from seeking or accepting a personal loan or benefit in circumstances that compromise their integrity.
Section 19 (1) of the Act stipulates: “A State officer shall not open or continue to operate a bank account outside Kenya without the approval of the commission.”
Subsection (2) adds: “A State officer who has reasonable grounds for opening or operating a bank account outside Kenya shall apply to the Commission for approval to open or operate a bank account.”
When the Act came into force in 2012, serving State and public officers who had foreign accounts at the time were required to close them within six months.
The restrictions, informed by past trends where rogue public officers stashed ill-gotten wealth in overseas accounts, have been fought, particularly by politicians.
In 2012, when Parliament was passing new integrity laws required by the Constitution, MPs rejected an amendment to the EACC Bill that sought to bar state officers from operating bank accounts in a foreign country.
An amendment moved by then-Constitutional Implementation Oversight Committee chairman Abdikadir Mohammed, which required that monies held in such accounts be repatriated to Kenya, was rejected.