The Crime Of Illicit Enrichment

The Crime Of Illicit Enrichment Under International Anti-corruption Legal RegimE


By: Nelly Gacheri Kamunde*

1.0 Introduction

1.0 Introduction


Illicit enrichment is one of the predicate offences of corruption. Its inclusion in the anticorruption legal regime is informed by the fact that corruption is a clandestine offence whose direct evidence of commission is hard to get1 but can be manifested by the immense wealth of a public official despite a modest official salary. The essence of the crime is therefore a way of arresting corruption in a way that is practical, policy responsive and effectively enforceable. This paper first starts with a general overview of the anti-corruption legal regime. The second part then delves into the specific provisions on illicit enrichment in the anti-corruption conventions, with closer attention on the UNCAC. Thereafter, attention is devoted to the special aspects of the law relating to illicit enrichment which make its application challenging in the fight against corruption. Finally, an attempt is made, borrowing from the most authoritative scholars in the area, to establish a way forward in light of the challenges.

2.0 International Anti-Corruption Legal Regime

2.0 International Anti-Corruption Legal Regime


This regime is mainly conventional whose applicability only extends to state parties of the respective treaties in accordance with the principle of pacta sunt servanda3. The Anti-Corruption Conventions that exist today were inspired by the legal responses to the water-gate scandal in the 1970s. In particular the United States? adoption of the Foreign Corruption Practices Act (FCPA) in 1977 enthused other states to individually and regionally enact rules criminalising corruption. The United Nations (UN) in the course of all this also took
various steps that finally led to the adoption of the United Nations Anti-corruption Convention (UNCAC).

Most of the anti-corruption International instruments, just like the UNCAC, are essentially characterised by five main pillars: Prevention, Criminalisation, International Cooperation, asset recovery and establishing effective monitoring procedures.

2.1 United Nations Convention against Corruption (UNCAC)

2.1 United Nations Convention against Corruption (UNCAC)


The UNCAC came into force in 14th December 2005 after a ten year culmination (1990-2000) of a plethora of international and regional anti-corruption initiatives. The convention is said to contain the most detailed provisions regarding procedure and sanctions against corruption. It also stands out in that it contains extensive international participation and broad consensus, despite the fact that it devotes an entire chapter on asset recovery10. UNCAC is basically a representation of the global regime of anti-corruption, containing the five main pillars of fighting corruption and filling in the lacunae that was left behind by other conventions11. The crime of illicit enrichment falls under the criminalisation pillar of UNCAC.

3.0 Illicit Enrichment

3.0 Illicit Enrichment


3.1 The legal, moral and ethical justification of the crime The criminalization of illicit enrichment is said to respond to an ethical and practical need in light of the ?notorious evidential difficulty? of proving bribery. The crime responds to the legal needs to circumvent the hurdles of meeting the burden of proof in corruption cases, and the problem of gathering evidence. Due to these reasons, the crime is said to be listed by the Organization for Security and Co-operation in Europe (OSCE) as one of the best practices for combating corruption.

3.2 International Legal Provisions relating to illicit enrichment

Illicit enrichment is established in International conventions against corruption and the municipal law of various countries.The conventions which establish the crime of illicit enrichment define the crime as a significant increase in the assets of a public official, which he/she cannot reasonably explain in relation to his or her lawful income. The UNCAC however goes a step further, than the terms of these other conventions, and adds the mental element and states that the illicit enrichment occurs when committed ?intentionally?. The Inter-American Convention against Corruption (IACAC), on the other hand, adds the element of time and states that the increase of assets for which one cannot explain, must take place during the performance of one?s functions.

3.3 Background of the crime of illicit enrichment

A scholar on Anti-Corruption, Guillermo Jorge, traces the steps of how the crime of illicit enrichment came to be included in the international anti-corruption legal regime. The IACAC, which was among the first conventions to adopt the crime, was inspired by Latin American criminal law where the crime of illicit enrichment is established in more than ten nations19.

He states that the idea was first put into law by American Policy makers in a bid to control the crime of money laundering. Later on, the crime was internationalised through the 1988 UN convention against the illicit Traffic of Narcotic Drugs and Psychotropic Substances21 and subsequently adopted by the UN convention against transnational organised crime. Later on the idea was embraced by UNCAC in its Article.

3.4 UNCAC and illicit enrichment

Guillermo Jorge, in discussing the crime of illicit enrichment within the UNCAC,analyses, which analysis this paper agrees with, that the UNCAC embraces the idea of the ?profit oriented? approach, as a new paradigm of criminal law. He mentions the provisions that are manifest of this shift of criminal law paradigm as far as crimes of acquisition are concerned. The ultimate provision under UNCAC is however Art. which specifically makes it obligatory for states to criminalise illicit enrichment.

3.5 The characteristics of the offence of illicit enrichment

The basic elements of a crime are actus reus and mens rea. It is noted that there is lack of certainty as to how these elements exist within the context of the crime of illicit enrichment. The actus reus of the crime seems to be the ?possession? of wealth coupled with the ?omission? to justify in accordance to one?s legal income. In this regard, and in agreement with the thoughts advanced by Dan Wilsher, there is an element of confusion expressed by Article 20 UNCAC. This means that a government official, for instance, is required to explain the fact of wealth alone, failure to which would mean that the official must have traded on the governmental authority vested on him for personal gain. This research observes therefore that the prosecution need not prove the ?illegitimacy of the wealth? but the fact that the wealth is ?not legitimately acquired.? Due to these characteristics of the crime of illicit enrichment, its criminalisation has been seen to fall into conflict with human rights law standards of fair trial as is explained below.

3.1 The legal, moral and ethical justification of the crime

3.1 The legal, moral and ethical justification of the crime

The legal, moral and ethical justification of the crime The criminalization of illicit enrichment is said to respond to an ethical and practical need in light of the ?notorious evidential difficulty? of proving bribery. The crime responds to the legal needs to circumvent the hurdles of meeting the burden of proof in corruption cases, and the problem of gathering evidence. Due to these reasons, the crime is said to be listed by the Organization for Security and Co-operation in Europe (OSCE) as one of the best practices for combating corruption.

3.2 International Legal Provisions relating to illicit enrichment

3.2 International Legal Provisions relating to illicit enrichment

Illicit enrichment is established in International conventions against corruption and the municipal law of various countries.The conventions which establish the crime of illicit enrichment define the crime as a significant increase in the assets of a public official, which he/she cannot reasonably explain in relation to his or her lawful income. The UNCAC however goes a step further, than the terms of these other conventions, and adds the mental element and states that the illicit enrichment occurs when committed ?intentionally?. The Inter-American Convention against Corruption (IACAC), on the other hand, adds the element of time and states that the increase of assets for which one cannot explain, must take place during the performance of one?s functions.

3.3 Background of the crime of illicit enrichment

3.3 Background of the crime of illicit enrichment


A scholar on Anti-Corruption, Guillermo Jorge, traces the steps of how the crime of illicit enrichment came to be included in the international anti-corruption legal regime. The IACAC, which was among the first conventions to adopt the crime, was inspired by Latin American criminal law where the crime of illicit enrichment is established in more than ten nations19.

He states that the idea was first put into law by American Policy makers in a bid to control the crime of money laundering. Later on, the crime was internationalised through the 1988 UN convention against the illicit Traffic of Narcotic Drugs and Psychotropic Substances21 and subsequently adopted by the UN convention against transnational organised crime. Later on the idea was embraced by UNCAC in its Article.

3.4 UNCAC and illicit enrichment

3.4 UNCAC and illicit enrichment

Guillermo Jorge, in discussing the crime of illicit enrichment within the UNCAC,analyses, which analysis this paper agrees with, that the UNCAC embraces the idea of the ?profit oriented? approach, as a new paradigm of criminal law. He mentions the provisions that are manifest of this shift of criminal law paradigm as far as crimes of acquisition are concerned. The ultimate provision under UNCAC is however Art. which specifically makes it obligatory for states to criminalise illicit enrichment.

3.5 The characteristics of the offence of illicit enrichment

3.5 The characteristics of the offence of illicit enrichment

The basic elements of a crime are actus reus and mens rea. It is noted that there is lack of certainty as to how these elements exist within the context of the crime of illicit enrichment. The actus reus of the crime seems to be the ?possession? of wealth coupled with the ?omission? to justify in accordance to one?s legal income. In this regard, and in agreement with the thoughts advanced by Dan Wilsher, there is an element of confusion expressed by Article 20 UNCAC. This means that a government official, for instance, is required to explain the fact of wealth alone, failure to which would mean that the official must have traded on the governmental authority vested on him for personal gain. This research observes therefore that the prosecution need not prove the ?illegitimacy of the wealth? but the fact that the wealth is ?not legitimately acquired.? Due to these characteristics of the crime of illicit enrichment, its criminalisation has been seen to fall into conflict with human rights law standards of fair trial as is explained below.

4.0 Tensions between illicit enrichment and human rights standards of due process

4.0 Tensions between illicit enrichment and human rights standards of due process

The due process rights are a compound of guarantees founded in international human rights law, which are accorded to any person who is allegedly liable in a civil offence or suspected of a criminal offence28. As far as the prosecution of illicit enrichment goes there are certain obvious rights that are likely to be limited.

4.1 Presumption of Innocence

4.1 Presumption of Innocence

The presumption of innocence is enshrined in many constitutions of the world, and virtually every human rights treaty. It basically provides that all persons are assumed to be innocent until proven guilty. The presumption of innocence is manifested in the following facets:

i.that the prosecution of the offence should not commence from a construct of assumption of guilt;

ii.that it is upon the prosecution to prove the guilt of the accused person (burden of proof);

iii.that it is the right of the accused not to testify against himself/herself; and

iv.that the accused has a right of silence.

The presumption of innocence is invoked because the crime of illicit enrichment hinges upon presuming that the accumulated wealth, is corruptly acquired, unless the contrary is proved. The elements of presumption of innocence manifest themselves in various ways as far as illicit enrichment is concerned.

4.1.1 The burden of proof

4.1.1 The burden of proof

This right is instituted in Common Law traditions and Human Rights law. Alternation of this guarantee is said to occur when either there is a shift from the ordinary bearer (who isthe prosecution) and the lowering of the standard (from beyond reasonable doubt).

There are various views of how the alteration of this guarantee occurs. It has been said that the prosecution is relieved of the full burden of proof since it need not directly adduce evidence of corruption but shifts the burden of proof to the accused requiring him to refute that the wealth is illicitly acquired35. This paper observes that the prosecution merely suspects that the wealth of the accused was illicitly acquired and places the burden of proof to the accused to adduce the contrary, whose sufficiency or insufficiency will lead to his
conviction or acquittal. This is out of character for ordinary criminal cases where the conviction or acquittal does not depend on the extent of accused person?s defense but on the proof of the prosecution?s case beyond reasonable doubt.

Other views are that the lowering of the standard of proof from ?beyond reasonable doubt? occurs in that the prosecution is not legally mandated to prove beyond reasonable doubt that the wealth is disproportionate to the legal income,36 and that the standard of conviction would be met if there was an unusual increase of one?s assets unaccompanied by commercial legal activity. This paper concurs with the above authors that the offence as it is, limits the human rights standards of presumption of innocence.

4.1.2 The right of silence

4.1.2 The right of silence

As stated above, the right of silence is viewed as part of the right of presumption of innocence. The crime requires that one shall adduce evidence to rebut the prosecution?s suspicion of illicitly acquired wealth. This means that if one opts to keep silence, he/she can be liable for conviction38. The right of silence requires the prosecution to prove its case even if the accused elects to be inactive throughout the trial. The crime of illicit enrichment limits this right since it is its exercise (keeping silent and not disproving the suspicion of illicitly acquired wealth) which causes one to be presumed guilty.

Despite these criticisms, illicit enrichment remains imperative in fighting corruption. What then would be considered as justified limitations to the above rights in order to strike a balance between individual rights of due process and the war against corruption

5.0 Overcoming the Challenges of prosecuting illicit enrichment:

5.0 Overcoming the Challenges of prosecuting illicit enrichment:

The Compromise The first issue here is whether the due process rights are absolute or whether reasonable limitations can be made in light of the imperative nature of the crime of illicit enrichment in the fight against corruption. This research agrees with the fact that these rights are not absolute and legitimate inroads can be and have been made.


As far as the burden of proof is concerned, courts have agreed to shift the burden so as to give way to statutory exceptions, to public policy needs and to strike a fair balance between the community and individual interests. In the case of illicit enrichment a choice must be made whether to respect the community?s collective interests of fighting corruption or upholding the individual human rights of due process. Ndiva Kofele-Kale, a scholar in this subject area, condenses the discussion to a simple framework for striking a balance between these competing interests. He makes a proposal for a test of proportionality which is echoed by other writers4, Human Rights Institutions and several countries? jurisdictions. This research adopts these proposals which are discussed below.

Ndiva notes the practice of European Court of Human Rights in the case of Salabiaku V France which stated that presumptions of fact (such as the presumption that disproportionate wealth is illicitly acquired) operate in every legal system and are in fact not prohibited. The case however cautioned that these presumptions must be confined to reasonable limits which take into Wilsher, account the importance of what is at stake, and at the same time maintaining the rights of the accused46.

This logic is echoed in few other jurisdictions.

In the Hong Kong case of Attorney-General v Lee Kwong-kut stated that any restriction on the presumption of innocence is justifiable as long as there is a rational link between the presumed fact and the proven fact, and further that the presumption (in our case the presumption that the wealth is illicitly acquired) is a proportional response to the social problem being addressed48. This principle was also stated in the case of Sin Yau Min, where the court stated that a presumption of innocence can be limited provided that such a limitation is rational and proportional. In the same jurisdiction, the court in AG v Hui Kin-Hong emphasized the importance of finding an acceptable balance between the presumption of innocence and curbing corruption from society.

Romanian Legislative framework also sheds some light on these issues. Romanian Courts have stated that the presumption of innocence ceases to function when there is clear evidence that the assets have been illicitly acquired. The High Court of Cassation and Justice in Romania
affirmed that a prima facie case of illicit acquisition of the wealth is the condition for reversing the burden of proof.

6.0 Conclusions and Recommendations

6.0 Conclusions and Recommendations

The assertions above boil down to the ultimate question of whether the society?s need to fight corruption through illicit enrichment is justified despite the limitations that the crime allegedly poses to due process rights as discussed above. The World Bank?s findings indicate that corruption is the greatest obstacle to economic and social development. For instance in the African continent it was estimated in 2004 by the African Union (AU) that the continent loses an estimated 148 billion USD annually to corruption. This amount is a representation of 25% of the continent?s Gross Domestic Product (GDP). This is a clear indication that the need to fight corruption is a priority because its effects are reverberated to the social, economic and legal life of a state. This research observes that in-roads can be and have been be made in order to ensure effective prosecution of the crime of illicit enrichment.

In as much as the crime of illicit enrichment is effective in fighting corruption, various other ways must be invoked to complement it.

In summary, these are:

In summary, these are:

- Enforcement of asset declaration provisions56 and the penalisation of false declarations.

- In Rem forfeiture actions against stolen property such as is the case in South Africa and the United States.

- Enforcement of money laundering provisions to ensure that illicitly acquired wealth does not become difficult to trace.

- Alternative ways of deterrence such as the institution of civil suits. A civil action can also be instituted under the offence of unjustified enrichment, but only for as long as the pre-requisites for such a suit have been met. A good basis of such a suit could be where one proves loss suffered as a result of ultra vires demands of public authorities.