The legal profession in Kenya and its anti-money laundering obligations or lack thereof
| Published date | 07 May 2019 |
| DOI | https://doi.org/10.1108/JMLC-01-2018-0010 |
| Pages | 247-256 |
| Date | 07 May 2019 |
| Author | Constance Gikonyo |
The legal profession in Kenya and
its anti-money laundering
obligations or lack thereof
Constance Gikonyo
Department of Private Law, University of Nairobi School of Law, Nairobi, Kenya
Abstract
Purpose –The purpose of this paper is to examine the inclusion of lawyers in Kenya’s anti-money
laundering regime and the role they can play towards assisting in detection and gate-keeping of potential
money laundering activities. Kenya is a transit point for trade-based money laundering. Accordingly, it is
vulnerable to money laundering that can be facilitated by legal professionals, through their misuse by
criminals.These professionals can be both enablersand perpetrators.
Design/methodology/approach –The study is secondary in nature. It is based on reviewing relevant
literature and analysing the Proceeds of Crime and Anti-Money Laundering Act and the Proceeds of Crime
and Anti-Money Laundering Regulations. The legislation and the rules form the core of Kenya’santi-
money laundering regi me.
Findings –The omission of legal professionals from Kenya’s anti-moneylaundering regime constitutes a
big gap under its preventative mechanisms.Further, it makes them attractive to criminals because they are
under no legal obligation to reportpotential money laundering activities. Ultimately, the inclusionof lawyers
as DNFBPs is necessary.This would seal the extant regulatory gap and ensure enhanced awarenessamongst
the legal professionalsof the money laundering risks that they face.
Originality/value –Given Kenya’s money laundering susceptibility, it is necessary and prudent to
critically consider the inclusion of legal professionals in its anti-money laundering mechanisms. The
paper seeks to make a practical and scholarly contribution in considering the issue and possibly
trigger further discussions, as well as the necessary legislative and policy changes. This would
positively enhance the success of Kenya’s anti-money laundering regime in detecting money
laundering activities.
Keywords Kenya, Money laundering, Advocate, Lawyer
Paper type Research paper
Introduction
In 2013, the Financial Action Task Force (FATF) published a typologiesreport highlighting
the potential role of legal professionals’involvement in money laundering activities. The
organisation identified vulnerabilities that make legal practioners susceptible to misuse for
money laundering purposes, when undertaking their professional roles. Specifically, abuse
of lawyers’role(s) is possible in facilitating any of the three money laundering stages;
placement, layering and reintegration. This is likely when handling transactions such as:
“buying and selling of real estate, securities or other assets; managing clients' money;
management of bank savings or securities accounts; organisation of contributions for the
creation, operationor management of companies; creation, operation or management of legal
persons or arrangements and; buyingand selling of business entities”(FATF, 2013a, p. 13).
These transactions facilitate integration through the purchase of real estate or other assets.
Additionally, they can aid the placementand layering processes through the use of the legal
practitioner’s client account (Choo, 2014;Middleton, 2008). Essentially, legal professionals
Legal
profession in
Kenya
247
Journalof Money Laundering
Control
Vol.22 No. 2, 2019
pp. 247-256
© Emerald Publishing Limited
1368-5201
DOI 10.1108/JMLC-01-2018-0010
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