24 Jun
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Criminalizing and Prosecuting Illicit Enrichment in Corruption Cases

Corruption is becoming a major threat to the world. All countries of the globe are running the risks associated with it. Corrupt practices such as bribery and other abuses of public functions for private gain have been criminalised in almost all legal systems. Criminalisation of acts of corruption constitutes one of the major dimensions of the international anti-corruption instruments.

The clandestine nature of corruption crimes creates difficulties in gathering evidence for prosecution and effective implementation of the law. To overcome such problems, some indicators of corruption such as possession of property that far exceeds legitimate sources of income need to be criminalised. It is also imperative to deal with the challenges associated with such criminalisation. The international community, in combating corruption, calls upon states to outlaw and criminalise certain acts of corruption, and illicit enrichment is one of them. Since not all states of the world have criminalised illicit enrichment under the ambit of their anti-corruption legislation, this study mainly addresses the importance of its criminalisation so as to fight corruption in a broader and more effective way.

This article tries to analyse the challenges related to due process of law in the investigation and prosecution of illicit enrichment. Further, complexities associated with the process of recovering illicitly acquired assets, such as resources and expertise, as well as effective co-operation among various jurisdictions, need to be explored.

By giving special emphasis to the Ethiopian legal framework on the matter, the nature of the offence, its prosecution, and the challenges associated with recovering the proceeds of the crime, especially such proceeds as have already gone from the country, will be considered. In this regard, the effectiveness of the law in contributing towards the effort to eradicate corruption is the central point.

In addition to the law relating to the offence of illicit enrichment, the article analyses the Ethiopian anti-corruption laws and their effectiveness in combating corruption.   

 

Criminalising and Prosecuting Illicit Enrichment

 

This part deals with the criminalisation and prosecution of illicit enrichment. The justifications for the need to have an independent offence of illicit enrichment are provided. The standard of proof in illicit enrichment prosecution will be analysed. Advantages and drawbacks of having an independent offence of illicit enrichment with regard to recovering assets situated in foreign jurisdictions and related issues will be examined. 

 

Definition and Justifications for Criminalising Illicit Enrichment

 

The offence of illicit enrichment has been defined in various international and regional anti-corruption instruments. UNCAC, for instance, defines it to mean ‘a significant increase of the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income’.   It further explicitly included the requirement of intention (mensrea) for the crime to be committed.  Apart from UNCAC, no regional anti-corruption conventions as well as domestic laws require intention as an element of illicit enrichment. In addition, the scope of UNCAC seems restricted to the wealth of the public official while the AU Convention transcends such limitation by including the term ‘any other person’.  This term was incorporated because assets can be transferred easily to third parties who are affiliated with public officials in one way or another.

In addition, disproportionate wealth and failure to justify the legitimacy of the source of the alleged wealth are the elements of the offence of illicit enrichment under the definitions. 

 Corruption by its nature is committed in secret, which creates difficulties for its detection and investigation.  However, property in the hands of public officials and their families that are manifestly in excess of their legitimate income would be relatively easy to detect, investigate and prosecute.  The extreme difficulties in obtaining evidence to prove bribery and other related acts of corruption demand a consideration of the criminalisation of a significant increase in the property of public officials. Therefore, the inclusion of the offence of illicit enrichment in the list of crimes of corruption is perceived to be an effective way of combating corruption.

 

The Advantages and Challenges of Criminalising Illicit Enrichment

 

The advantages of criminalising illicit enrichment are associated with the standard of proof required for conviction.  In prosecuting illicit enrichment as a crime of corruption, the prosecutor should prove beyond a reasonable doubt the disproportionate assets in the hands of the accused in relation to his legitimate income. In this respect, the prosecutor is not required to prove the fact that the accused has received a bribe or committed any other form of corruption. Wealth that is not proportionate to the legitimate income of a public official is presumed to have originated from corruption unless the contrary is proved.  In such circumstance, the burden of proof is eased and the prosecutor is not required to prove corruption as a source of the wealth in question.

 

However, because of the human rights debates raised by some writers, many countries are hesitant to criminalise it as an independent corruption crime. The impact of this response upon the anti-corruption effort will be discussed below.       

 

Advantages of Criminalising Illicit Enrichment

 

The advantages of establishing an independent crime of illicit enrichment will be discussed in the following sub-sections. Criminalising illicit enrichment mainly solves the problems associated with gathering evidence for the prosecution of corruption offences. Further, the investigation and prosecution of corruption offences require resources and skilled personnel. Hence, criminalising illicit enrichment is important, especially for underdeveloped countries which often lack such resources and personnel. 

 

Overcoming Hurdles Associated with Collecting Evidence

 

The greatest obstacle for investigating and prosecuting the crime of corruption is linked to the gathering of evidence. One of the unique features of the crime of corruption is that it is ‘a secret offence’.  Most of the time, the persons who can be major witnesses are involved in the commission of the crime.   Hence, it remains confidential among the parties who are involved in the crime and there would be no single individual victim to disclose and report it to the appropriate authorities.

 

Further, corrupt public officials in power have the ability to intimidate potential witnesses not to testify against them or to distort documentary evidence. Additionally, witnesses may die or leave. These situations problematic the detection, investigation and prosecution of corruption cases and make it hard to obtain direct evidence to prove corruption offences.      

 

Accordingly, the importance of criminalising illicit enrichment and easing the burden of proof to prosecute the offence has been growing considerably.  In this regard, the offence of illicit enrichment is considered to be an effective tool for combating corruption. However, despite its usefulness for the anti-corruption campaign, none of the international or regional anti-corruption instruments imposes an obligation on states to criminalise it.

 

Further, states have different options with regard to the standard of proof required in illicit enrichment cases.   Either they can require the prosecution to prove beyond a reasonable doubt only the property that is manifestly disproportionate to the legitimate income or both the disproportionate property and the unlawful source of the property. However, requiring the prosecutor only to establish beyond a reasonable doubt the luxurious and disproportionate property as compared to the accused’s official income eases the burden of proof and assists in overcoming the challenges associated with obtaining evidence. It also facilitates the successful prosecution of corrupt public officials.

 

Promotion and Protection of Human Rights

 

There is a direct link between fighting corruption and the protection and promotion of human rights. According to the UN Human Rights Council, ‘the fight against corruption at all levels plays an important role in the promotion and protection of human rights and in the process of creating an environment conducive to their full enjoyment’.

It has been established that where corruption is rampant in a society, there usually is a high level of human rights violations.  Corrupt public officials discriminate among citizens on the basis of economic status, social and family backgrounds or any other grounds. Nepotism and other corrupt practices erode the principles of equality and non-discrimination based on social origin, colour, language, religious or political opinion, sex, property or other status as enshrined in international human rights instruments and domestic constitutions.

Further, public officials divert public resources allocated for economic and social development for their private gain, thereby retarding the overall development that has been recognised as a right by international human rights regimes and domestic constitutions. It is agreed generally that combating corruption through effective anti-corruption tools, such as criminalising and prosecuting illicit enrichment, has positive implications for the protection and promotion of human rights. Combating corruption through the criminalisation of illicit enrichment also assists states in breaking the cycles of impunity.

Moreover, states parties to international human rights instruments and anti-corruption conventions have obligations to implement the provisions of the instruments. In this respect, criminalising and prosecuting illicit enrichment allows states to fulfil the obligations they have undertaken under international human rights and anti-corruption regimes.

It is important to note that the criminalisation of illicit enrichment can have a prominent impact on the anti-corruption campaigns of developing and transitioning states. Anti-corruption agencies in developing countries suffer from inadequate resources both in terms of skilled human resources and financial and material resources.  These countries do not have the required capacity to detect and prosecute complex crimes of corruption. 

Inadequate capacity could render the anti-corruption efforts of developing countries ineffective.  This scenario also affects adversely the obligation of states to respect, promote and fulfil human rights values.  It is in this context that the criminalising illicit enrichment can be used as an effective anti-corruption tool in underdeveloped countries to promote and protect their citizens’ fundamental human rights.

 

Building Public Confidence in the Governance

 

Corruption undermines the effectiveness and efficiency of public institutions and erodes public trust in government.  In particular, corruption affects the ability of governments to realise their objectives of social and economic development for vulnerable and marginalised groups of the society. Therefore, in order to reduce the risk that corruption poses to society, it is important to take measures such as criminalising and prosecuting illicit enrichment as it is one of the simplest tools for holding corrupt public officials accountable.

 

Challenges of Criminalising and Prosecuting Illicit Enrichment

 

The challenges associated with the criminalisation of illicit enrichment will be discussed in the following sub-sections. Particularly, the weights given to illicit enrichment by international and regional anti-corruption instruments will be explored.  Additional challenges in the area of asset recovery will be considered also.

The Status of Illicit Enrichment in International and Regional Anti-Corruption Instruments

 

The international and regional anti-corruption instruments do not bind states parties to take legislative and other measures to criminalise illicit enrichment. Criminalisation is not mandatory either under UNCAC or the AU Convention. These instruments require the criminalisation of illicit enrichment to be compatible with the constitution and fundamental principles of the domestic law of states parties.  These conventions and other regional anti-corruption instruments have made optional the criminalisation of illicit enrichment. They particularly employ a safeguarding clause that exempts states parties from the obligation of criminalising illicit enrichment if it conflicts with their constitutions and fundamental principles of their legal system.  Thus, the criminalisation of the offence of illicit enrichment is possible only to the extent that the legal principles of the domestic law of states parties allow.

The non-mandatory nature of the provisions on illicit enrichment in the various international anti-corruption legal frameworks emanates from the concern that creating an independent offence of illicit enrichment could undermine basic human rights conferred upon the accused.  In particular, the criminalisation of illicit enrichment has been considered as an infringement of the presumption of innocence. However, the non-obligatory nature of the provisions regarding illicit enrichment in international and regional anti-corruption instruments creates a risk of failure to develop common standards for the full implementation of the conventions.

 

The Offence of Illicit Enrichment and Asset Recovery

 

Asset recovery is a core constituent of international as well as regional anti-corruption instruments.  It has been shown that the provisions of asset recovery embedded in the anti-corruption conventions, especially in UNCAC, encouraged ratification by many developing countries as a large amount of their wealth has been stolen by corruption.

The fact that UNCAC and other regional anti-corruption instruments do not oblige states to criminalise illicit enrichment in their domestic law may pose a challenge in relation to recovering assets located in countries which have not criminalised illicit enrichment.  However, UNCAC provides for international co-operation for effective implementation and enforcement of its provisions.  With respect to international co-operation regarding asset recovery, UNCAC firmly requires each state party ‘to afford one another the widest measure of co-operation and assistance’.  Where dual criminality is required in international co-operation, UNCAC further states that dual criminality ‘shall be deemed satisfied irrespective of whether the laws of the requested state party place the offence within the same category of offence or denominate the offence by the same terminology as the requesting state party’.  Accordingly, the states parties that have not criminalised illicit enrichment under their domestic law may not refuse to co-operate in returning corruptly acquired assets to the countries of origin.  In this respect, UNCAC has closed the legal loopholes that could have been created by the dual criminality requirement to recover proceeds of the offence of illicit enrichment across different jurisdictions. In addition, the AU Convention encourages states parties that have not criminalised illicit enrichment to provide assistance and co-operation to the requesting states insofar as their law permits.

The different approaches that exist in different jurisdictions in regard to the standard of proof in illicit enrichment are creating a challenge in the recovery of corruptly acquired assets that are located in other jurisdictions.  In this respect, the UN Secretary-General report to the General Assembly stated that:

‘Obstacles are created by the diversity of approaches taken by different legal systems, in particular between common and civil law, with respect to matters such as jurisdiction, evidential requirements, the relationship between criminal prosecution and recovering proceeds and whether civil proceedings could be used. Countries seeking the return of assets often face severe challenges. High evidential and procedural standards required by the laws of developed countries where substantial proceeds of corruption are more likely to be concealed often pose a challenge.  Obtaining domestic freezing and confiscation orders that can form the basis for the transnational request and enforcement of such request, in particular depends upon high evidential and procedural standard requirements of the requested states’.

 

Further, asset recovery becomes more difficult where the proceeds of two or more crimes are intermingled.  In addition, it may involve two or more states claiming the recovery of the assets, making the process even more complicated.It has been established also that asset recovery is a costly, complicated and time-consuming process.  A successful asset recovery exercise requires expertise, resources and commitment for tracing, freezing and confiscating.

 

The Role of Asset Disclosure and Registration Law in Prosecuting Illicit Enrichment

 

Asset declaration by public officials and government employees is considered as one of the preventive mechanisms needed to control corruption. This preventive mechanism has been recognised by both UNCAC and the AU Convention.  According to these instruments, states parties are required to commit themselves to adopting legislation and other measures that require officials to declare their external activities, employment, investments, gifts or benefits from which a conflict of interest may arise. Such declarations must be made at the time of assumption of office, during and after the term of their public service.

In 2010, in response to its obligations under these anti-corruption instruments, the government of Ethiopia passed the Disclosure and Registration of Assets Proclamation. The purpose of this law is to facilitate preventive mechanisms in the fight against corruption. In its preamble, the Proclamation says that ‘the disclosure of assets is of paramount importance in the prevention of corruption and improprieties and helps to enhance good governance’. The applicability of the Proclamation is confined to political appointees, elected persons and public servants. These persons are compelled to register assets that are under their and their family’s ownership or possession; and the sources of the income of themselves and their family. The Proclamation defines ‘family’ to include ‘spouse, dependent child under the age of 18, adopted children and spouse in irregular union’.

In addition to its preventive purpose, the asset disclosure and registration law is important for the detection of corruptly accumulated wealth and the prosecution of corrupt public officials and civil servants for the crime of illicit enrichment.  Any asset of an appointee, an elected person or a public servant not registered in accordance with the Proclamation, in the absence of proof to the contrary, is considered unexplained property.

The effectiveness of the asset disclosure and registration law in the prevention of corruption has attracted criticism.  First, in disclosing and registering assets, the information that will be provided by concerned officials in most circumstances may not be real and accurate. The body in charge of registration, that is, the FEACC, mainly relies upon the information provided by the person registering the asset. The Commission has been granted the mandate to verify the information submitted where there is sufficient ground to suspect that the information is false, incomplete and inaccurate.  Even though the mechanism for verification is provided under the Proclamation, this by itself does not guarantee the submission of accurate information. Second, it has been said that such law usually fails to control the possible transfer of properties to a third party as it only imposes an obligation to declare personal income and assets and those of the immediate family members. It is important to mention here that in a society like Ethiopia, the relationship among members of extended families is very tightIn such instances, the probability of the transfer of assets to members of the extended family is likely to be high. Third, according to some scholars, while prescribing disclosure and registration of assets, the law fails to require officials to prove that the assets under consideration were not gained illegally.  These scholars further add that this lacuna in the law gives public officials the opportunity for validating corruptly obtained properties.

 

Illicit Enrichment and Human Rights Principles

 

In addition to its recognition by international and regional anti-corruption instruments, different countries have criminalised illicit enrichment in their domestic laws.

As mentioned earlier, the criminalisation of illicit enrichment is important because often it is challenging or impossible for the prosecutor to establish that a public official has accepted a bribe or an undue advantage or committed any other form of corruption. Therefore, the criminalisation of illicit enrichment is important in that the property or pecuniary possession that is disproportionate to the legitimate income of public officials can create a prima facie case that a public official has been corrupted.

However, it was argued during the drafting of UNCAC that the criminalisation of illicit enrichment would be in violation of the presumption of innocence. Further, some delegations to the discussions prior to the Convention expressed their concern as to the implementation of the provision on illicit enrichment, fearing that it would face constitutional challenges.  They believed that constitutional difficulties could arise as the provision would include a reversal of the burden of proof.

Hence, some delegates suggested that the criminalisation of illicit enrichment should be non-binding upon states parties and moved to the chapter dealing with prevention in order to allow states to adopt administrative measures that encompass the concept.

It was argued also that the criminalisation of illicit enrichment does not necessarily include a reversal of the burden of proof per se. Rather, the onus upon the prosecutor to prove his case beyond a reasonable doubt is confined to the disproportionate assets of the accused. In such circumstances, it would be convenient for the court to convict the accused if the prosecutor can prove beyond a reasonable doubt that the luxurious life which the accused is living is disproportionate to his legitimate income. As agreed in the discussions preceding the adoption of UNCAC, the inclusion of such provision is important for the effective prosecution of crimes of corruption.

 

The Presumption of Innocence

 

Countries that have a strong constitutional tradition, such as the United States and some European countries are still reluctant to establish the offence of illicit enrichment as an independent crime of corruption. These countries are concerned about the presumption of innocence enshrined in their constitutions. In addition, the right to be presumed innocent as a requirement of the due process of law has a firm grounding, especially in the common law legal systems.

The International Convention on Civil and Political Rights (ICCPR) provides that: ‘Every one charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law’.  The principle of the presumption of innocence encompasses, among other elements, the burden of proof being upon the prosecution, the accused being protected against self-incrimination and the accused having the right to remain silent, the prosecution of the offence should not commence from a construct of assumption of guilt.

According to some commentators, criminalising illicit enrichment contradicts these human rights principles recognised by the ICCPR and other international and regional human rights instruments. Wilsher observes that the criminalisation of illicit enrichment would exempt the prosecutor from having to prove the charge against the accused beyond a reasonable doubt as the prosecutor is not required to produce direct evidence that can establish the commission of corruption by the accused.  He argues further that in the prosecution of illicit enrichment, the prosecutor should prove beyond a reasonable doubt the fact that the public official has received bribes or has committed any other form of corruption.

But, this line of argumentation overlooks the fact that corruption is a clandestine offence and that certain corrupt acts are naturally difficult to detect and it is hardly possible to discover evidence of their commission.   Hence, to prove the offence of illicit enrichment to the extent of establishing the fact that the accused has received a bribe or other undue advantage would undermine the anti-corruption campaign significantly.

As accepted in the discussions leading to the adoption of UNCAC, the possession of wealth that is manifestly disproportionate to the legitimate income of the accused constitutes a prima facie ground that the public official is corrupt. Thus, the prosecutor is required to present evidence only as to the wealth and lifestyle that exceeded the legitimate earnings of the accused.

 

The Burden of Proof in the Prosecution of Illicit Enrichment

 

In any lawsuit, including civil litigation, the party who brings the action or claim bears the burden of proving that the claim has both legal and evidential substance. In criminal litigation, the prosecutor is the one who initiates the litigation and thus carries the burden to prove every element of the crime. This is sometimes called ‘the legal onus or burden of proof’.

In the case of illicit enrichment, the prosecutor has the legal duty to produce evidence to prove the property in the possession of the public official is quite disproportionate to his or her lawful income. The fact in issue that needs to be proved by the prosecutor is the accumulation of wealth by a public official that he or she cannot explain legitimately. In other words, in an illicit enrichment prosecution, it is the accumulation of wealth that is manifestly high as compared to the public official’s lawful income that needs proof beyond a reasonable doubt. This would give rise to the presumption that the accused has acquired the property through corruption or in some other illegal way.  It is important to note here that this is a rebuttable presumption that requires the accused to give a reasonable explanation as to the lawful sources of the assets.  This burden of producing evidence is sometimes known as the ‘evidential burden’.

As mentioned, the presumption of innocence does not prohibit a presumption of fact or law against the accused insofar the accused is given the chance to rebut it.   In other words, the legislation creating illicit enrichment as an offence of corruption places an evidential burden upon the accused to provide reasonable evidence for the significant increase in his or her assets.  It has been recognised that placing an evidential burden on the accused to rebut the presumption of corruption does not infringe the presumption of innocence.  It is important to note that creating an evidential burden does not mean that there is presumption of guilt as the burden of proof remains upon the prosecution.

Therefore, it is possible to conclude that criminalising and prosecuting illicit enrichment does not shift the burden of proof to the accused and if there is a presumption of corruption, this presumption is a permissive presumption that can be rebutted upon contrary evidence being produced by the accused. The presumption of fact which an accused is required to rebut is not necessarily contrary to the accused’s fundamental right to be presumed innocent.

 

Alternative Approach: The Proportionality Test

 

In some jurisdictions, creating illicit enrichment as an independent offence of corruption is regarded as contrary to the right to be presumed innocent.

However, if creating an evidential burden to rebut an allegation infringes the presumption of innocence at all, this right, like many other rights, is not absolute.  In combating corruption, two competing interests must be considered. These are: the threats corruption is posing to the overall socio-economic and political developments of society or the public interest, on one hand, and the protection of the presumption of innocence, on the other hand.

In these circumstances, the risks and damages posed by corruption against the public interest are very high. Here, ‘the test of proportionality’ is applicable, requiring the accused to produce evidence as to the lawful sources of his wealth after the prosecutor has established that the wealth in the hands of the accused could not have come reasonably from his or her legitimate income.  In the proportionality test, the seriousness of the corruption would justify the deviation from the protection given to the presumption of innocence. 

According to this criterion, criminalising and prosecuting illicit enrichment does not contradict fundamental human rights principles such as presumption of innocence since all rights are not absolute. Further, it was held that restriction on the presumption of innocence is justifiable as long as there is a logical link between the presumed fact and the proven fact. It is, therefore, in the interest of the public to require the public official to explain as the sources of his wealth. Therefore, if restriction of and the encroachment on the presumption of innocence in cases of prosecution of illicit enrichment exist at all, an effective anti-corruption campaign to protect the broader public interest justifies it.

 

 

Illicit Enrichment in Ethiopian Anti-Corruption Law

 

This section will deal specifically with the criminalisation and prosecution of illicit enrichment under Ethiopian anti-corruption law. The legal provision pertaining to this offence is found in Article 419 of the Criminal Code of Ethiopia.

The offence of illicit enrichment contained in Article 20 of UNCAC has been incorporated into Article 419 of the Criminal Code of Ethiopia. The provision that governs the offence of illicit enrichment in the Criminal Code is termed ‘Possession of Unexplained Property’.  It reads as follows:

‘(1) any public servant, being or having been in a public office, who:

a) maintains a standard of living above that which is commensurate with the official income from his present or past employment or other means; or

b) is in control of pecuniary resources or property disproportionate to the official income from his present or past employment or other means, shall, unless he gives a satisfactory explanation to the Court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be punished, without prejudice to the confiscation of the property or the restitution to the third party, with simple imprisonment or fine, or in serious cases, with rigorous imprisonment not exceeding five years and fine.

(2) Where the Court, during proceedings under sub-article (1) (b), is satisfied that there is reason to believe that any person, owing to his closeness to the accused or other circumstances, was holding pecuniary resource or property in trust for or otherwise on behalf of the accused, such resources, or property shall, in the absence of evidence to the contrary, be presumed to have been under the control of the accused.’

The article is applicable to public officials. The article employs the wording adopted in UNCAC, but also goes beyond it. In this respect, the offence of illicit enrichment in the Criminal Code encompasses any property or pecuniary resource that is manifestly disproportionate to the legitimate income either in the hands of a public official or any other person on behalf of the public official.  Here, the offence of illicit enrichment in the Criminal Code corresponds with the AU Convention.  The AU Convention defines the crime of illicit enrichment as ‘the significant increase of assets of a public official or any other person that he or she cannot reasonably explain in relation to his or her legitimate income’.

As mentioned, Article 419 of the Criminal Code explicitly extends to property that is possessed by another person on behalf of the public official.  A further distinct feature of the offence of illicit enrichment in the Criminal Code is that the unexplained property in the hands of a public official or a third party related to him must pertain to his or her present or past employment.  The time element in article 419 of the Criminal Code is similar to the provision on illicit enrichment contained in the Inter-American Convention against Corruption.

 

Easing the Burden of Proof and the Presumption of Innocence in Ethiopian Law

 

The presumption of innocence is a fundamental principle of human rights and criminal justice in Ethiopia, as in other legal systems. The presumption of innocence imposes on the prosecutor the burden to prove the charge against the accused beyond a reasonable doubt.

The right to be presumed innocent is provided for under Article 20(3) of the Ethiopian Constitution, which states that: ‘During proceedings accused persons have the right to be presumed innocent until proven guilty according to law and not to be compelled to testify against themselves’. This article of the Constitution does not provide for how and when the presumption of innocence could be subject to restriction.

The objective of the Ethiopian criminal law, as stated in the Criminal Code,  ‘is to ensure order, peace and the security of the state, its people and inhabitants for the public good’.  Further, the Criminal Code emanates from the Constitution and serves to pursue the goals sought to be achieved by the Constitution.

The burden of proof required for the prosecution of illicit enrichment in Ethiopian anti-corruption law is that of producing evidence to demonstrate that the accused a public official and is in possession of property or maintains a standard of living that is manifestly disproportionate to his lawful income.   The prosecutor still retains the legal burden to prove beyond a reasonable doubt the significant increase in the wealth and the standard of living above that which is commensurate with the lawful income of the accused.   This is evident from the cases of Elizabeth Weldegebriel et al and Mekonnen Workeneh Weldesemayat which will be discussed below. 

However, the provision in the Criminal Code dealing with the offence of illicit enrichment creates an evidential burden for the accused. It requires the accused to give a reasonable ‘explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resource or property came under his control’.

In this respect, the Criminal Code eases the burden of proof for the prosecutor but requires him to prove beyond a reasonable doubt the disproportionate assets and the standard of living of the public official.  Further, the law requires the accused to produce evidence to prove the legitimate sources of the assets in question. The evidential burden imposed upon the accused in illicit enrichment cases does not necessarily violate the presumption of innocence under Article 20(3) of the Constitution, since the accused is given the opportunity to produce the evidence that can refute the allegation brought against him.

Therefore, the offence of illicit enrichment in the Ethiopian Criminal Code does not involve a shift of the burden of proof to the accused per se, and thus does not violate the constitutional right to be presumed innocent.

 

Prosecuting Illicit Enrichment in Ethiopian Anti-Corruption Law

 

In Ethiopian criminal litigation, the burden of proof primarily rests upon the prosecutor. In an illicit enrichment case, the prosecutor retains the duty to prove beyond reasonable doubt the fact that the accumulation of wealth in the hands of the public official exceeds his or her lawful income. Once the court is satisfied with this assertion, and then an evidential burden rests upon the accused to give an explanation as to how he was able to maintain such a standard of living or how such pecuniary resource or property came under his control.  It is important to emphasise that this approach is crucial for protecting innocent defendants from being convicted where reasonable doubt exists as to their misuse of entrusted power for private gain.

In the case of Prosecutor v Elizabeth Weldegebriel et al, the Federal High Court found Mulugeta Yayeh Zewdei guilty of the offence of possession of unexplained property. The accused was an employee of a metal factory, a public enterprise, with a monthly salary of 3 778 ETB. The charge against him shows that the accused owned four houses and two plots of land in Addis Ababa, the capital of Ethiopia.  He also had 158 964.8 ETB in his personal banking account.

The prosecutor produced witness testimony and documentary evidence and proved that the accused owned assets disproportionate to his present and past employment and other legitimate income. The accused defended the charge against him by stating that he had received 60 000 ETB from his family to build a house and bought the land from the earnings of the house rent. However, his reasons were not convincing, as the expenses to build a house far exceeds 60 000 ETB and he could not build four houses with this amount only.  In addition, the accused failed to give a satisfactory explanation as to the amount of money found in accounts at three different banks.

Accordingly, the Federal High Court after found him guilty of possession of unexplained property within the meaning of Article 419(1) (a) and (b) of the Criminal Code and sentenced him to three years’ imprisonment and a 7000 ETB fine.

In the case of Prosecutor v Mekonnen Workeneh Weldesemayat, the Federal High Court acquitted the accused on the ground that he had given a credible explanation as to the source of his wealth. The charge against the accused stated that, while working in Ethiopian Revenue and Customs Authority, he had accumulated 1 136 541.47 ETB in banks and thus was found in possession of unexplained property.

At the trial, the prosecutor presented to the court evidence concerning the present and past employment and earnings of the accused. He was earning 1000 ETB to 10 000 ETB from July 2003 to September 2010. The prosecutor adduced evidence from the banks where the accused kept the money.

The court, after hearing evidence brought against the accused, ordered him to produce evidence in his defence.  In so doing, the accused demonstrated that he inherited four hectares of land from his father and he was operating an agri-business on it with his two brothers. He also produced evidence that, in addition to the four hectares of land, he leased two hectares and he had been working on six hectares of land. Further, the accused presented evidence to show that the proceeds from the sale of the farming products, money he received from his sister living abroad, and the proceeds from the sale of a house in one of the regional state towns, supported by documentary evidence, were the sources of his income.

The court, after evaluating the evidence presented by both the prosecutor and the accused, acquitted him pursuant to Article 149(2) of the Criminal Procedure Code of Ethiopia. The court, in its acquittal judgement, reasoned that though the income from the employment cannot be the source of more than one million Birr in the banking account, the accused had additional means of income which could be the source of such money.  The judgement further stated that the accused had explained sufficiently the sources of his wealth and thus it cannot be said that he had committed the crime of possession of unexplained property within the meaning of Article 419 of the Criminal Code.

 

Conclusion

 

Despite the on-going debate as to its contraction with human rights principles, the criminalisation of illicit enrichment, mostly known as unexplained property, continues to be one of the most effective tools to fight corruption. It allows countries to prosecute corrupt public officials and confiscate proceeds of crimes. In prosecuting illicit enrichment, the prosecutor need not prove the sources of the assets in question, such as bribery, abuse of functions or embezzlement. Hence, this enables states to recover proceeds of crimes other than corruption.

 

Against this stand, though some scholars argue that illicit enrichment raises concerns regarding fundamental principles of law and human rights, particularly regarding the burden of proof, the presumption of innocence, and the privilege against self-incrimination, experience and jurisprudence have shown that not all rights are absolute. These fundamental principles are often qualified in the application of the law to serve the interests of both the public and justice. As a result, the criminalization of illicit enrichment is a clear example of the tension between the public interest in eradicating corruption and the rights of the individual—one that each country will have to address depending on its own existing factual situations. As a result, the writer of this article maintains that criminalizing illicit enrichment does not contradict the long established tradition of presumption of innocence as well as other constitutional rights granted to the accused persons.

Mesay Tsegaye

The blogger has LLB from Haramaya University and LLM in Transnational Criminal Justice and Crime Prevention – An African and International Perspective from the University of the Western Cape, South Africa and Humboldt University, Germany. Currently, she is a public prosecutor in the Federal Democratic Republic of Ethiopia Ministry of Justice.