The conflict between anti-money laundering reporting obligations and the doctrine of confidentiality for legal practitioners in Kenya
| DOI | https://doi.org/10.1108/JMLC-05-2020-0055 |
| Published date | 06 July 2020 |
| Date | 06 July 2020 |
| Pages | 607-620 |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial compliance/regulation,Financial crime |
| Author | Njaramba E. Gichuki |
The conflict between anti-money
laundering reporting obligations
and the doctrine of confidentiality
for legal practitioners in Kenya
Njaramba E. Gichuki
School of Law, University of Nairobi, Nairobi,
Kenya and Wanyaga and Njaramba Advocates, Nairobi, Kenya
Abstract
Purpose –The purpose of this paper is to assess the balance between anti-money laundering reporting
obligationsand the doctrine of advocate–client confidentialityfor legal practitioners.
Design/methodology/approach –The methodology adopted for this research is secondary research
and analysis.
Findings –The doctrine of confidentialitybetween advocates and clients and reporting obligations under
the anti-money laundering regime are relevant issues today more than ever. The equitable doctrine of
confidentiality seeks to protect confidential information provided by one party to another in circumstances
that import an obligation not to disclose that information or to use it for unauthorised purposes. The
Constitution guarantees fairtrial. Money laundering is a menace that should be fought from all fronts. Self-
regulationis the best bet to address money laundering for legal practitioners.
Originality/value –This paper is the work of the author and has not been submitted for publication
elsewhere.
Keywords Money laundering, Reporting obligations, Advocate–client confidentiality
Paper type Research paper
1. Introduction
1.1 Money laundering
Money laundering refers to the introduction of illegally or otherwise illegitimately acquired
money into the system with the aim ofconcealing the illegitimate source thereby sanitising
the money. It is the process by which funds derived from criminal activity are made to
appear as though they have been legitimately obtained, through a series of transactions
aimed at providing a cover for the actual sourceof the money (Stessens, 2000). In essence, it
is the process of making illegallygained proceeds appear as legal (Gichuki, 2013).
The Proceeds of Crime and Anti-Money Laundering Act [1] (POCAMLA) defines money
laundering as an offence involving the knowingly or negligently engagement, transaction or
otherwise involvement in connection to property that is or forms part of proceeds of crime. This
may be with an intention to disguise the nature and/or the source of such property, or to aid
culprits in avoidance of prosecution [2]. Money laundering is also defined to include acquisition,
possession or use of proceeds of crime[3], as well as financial promotion of an offence [4].
Money laundering is one of the most reported illegal practice around the world (Ali
Raweh et al.,2017).Efforts are being made worldwide to enact legislation to control financial
systems and regulate all the channels that may be used to conceal illegally obtained money
(Ali Raweh et al.,2017).
Legal
practitioners in
Kenya
607
Received19 May 2020
Revised5 June 2020
Accepted5 June 2020
Journalof Money Laundering
Control
Vol.24 No. 3, 2021
pp. 607-620
© Emerald Publishing Limited
1368-5201
DOI 10.1108/JMLC-05-2020-0055
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