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"id": 194645,
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"type": "speech",
"speaker_name": "Mr. Abdikadir",
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"speaker": {
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"legal_name": "Abdikadir Hussein Mohamed",
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"content": "Mr. Speaker, Sir, I oppose this Bill with the vehemence it deserves. This is a wrong law for this country. I will let the hon. Okemo know a secret. The genesis of this Bill is not the 4th Recommendations since I have a copy of them, plus nine more. The genesis really is the International Money Laundering Abetment and Anti-Terrorism Financing Act of 2001, Act 3 of the dreaded Patriot Act of USA. I believe most of us are aware of the history of that Act and the problems it has caused in the world. Mr. Speaker, Sir, I will refer to one of the clauses that I consider offensive in this Bill. There is a reporting offence created in this Bill. In other words, if you were to transmit any money or monetary instrument, you ought to report to the authorities. If you do not do so, then the Government can go ahead and take away everything that you have not reported. That is expropriation and it is unconstitutional. That is the Government attempting to rob people. Reporting is one thing, but being robbed of your rightful property is completely another thing. Whether it is the proceeds of crime or not. I refer to Clause 12(1) of the Bill. It says:- \"A person intending to convey monetary instruments in excess of the amount prescribed in the Third Schedule to or from Kenya shall, before so doing, report the particulars concerning the conveyance to a person authorised by the regulations for that purpose\". Clause 12(3) says:- \"A person who wilfully fails to report the conveyance of monetary instruments into or out of Kenya, materially misrepresents the amount of monetary instruments reported in accordance with the requirements of subsection (1) commits an offence\". Mr. Speaker, Sir, Clause 16 (4) of the Bill says:- \"A person who contravenes the provisions of Clause 12 shall on conviction, be liable- (a) in the case of a natural person, to imprisonment for a term not exceeding three years, or a fine not exceeding one million shillings, or the amount of monetary instruments involved in the offence, whichever is higher, or to both such fine and imprisonment\". Mr. Speaker, Sir, in other words, assume you had your Kshs1 million fairly earned, not from the proceeds of crime, but you just sold your house and you want to travel out of the country and you forego to report; this Bill then says that the Government will take away your Kshs1 million because you failed to report that you are going with your money out of this country, which is not an offence in itself. Mr. Speaker, Sir, the reason why I say this is the \"daughter\" of the American law is because there is a famous American Supreme Court case in which similar facts to this occurred. In 1994, a gentleman and his family--- It was called the Bajakejian case. It was decided in the Supreme Court May 8, 2008 PARLIAMENTARY DEBATES 949 in 1998. He was leaving the USA with his money amounting to US$367,000 to be exact, but he had not reported. The US Government decided that because he had not done so, they were going to seize him and he would forfeit that money. This case went all the way to the Supreme Court, which decided that reporting as an offence, so long as there was no underlying crime through which the funds were the proceeds, could not form the basis for this gentleman and his family to lose his property. This is exactly what this law brings because that particular Act later tried to correct that through this. This is expropriation that is being attempted and it is unconstitutional. Mr. Speaker, Sir, the other issue is that suspicion in most religions is frowned upon. In some of them, it is actually a sin. This Bill leaves it to a virtue. It actually requires Kenyans to be suspicious of each other. If they do not report that suspicion, then they are guilty of offences. I refer to Clauses 4, 5 and 6. I will quote them. Mr. Speaker, Sir, Clause 4 says:- \"A person who knows, ought reasonably to have known, or suspects that another person has obtained the proceeds of crime, and who enters into any agreement with anyone or engages in any arrangement or transaction whereby- (a) retention or the control by or on behalf of that other person of the proceeds of crime is facilitated; or (b) such proceeds of crime are used to make funds available to that other person or to acquire property on that person's behalf or to benefit that person in any other way, commits an offence\". Mr. Speaker, Sir, in other words, you ought to be suspicious. If you do not suspect, you are guilty. The same goes with Clauses 5 and 6. At least, in the case of Clause 6, the suspicion is limited to reporting institutions, which would be reasonable. Mr. Speaker, Sir, the third issue that I have with the Bill is that it changes the standard of proof we have for criminal law in this country. When we allowed the National Accord and Reconciliation Bill to attain our supremacy clause, I thought that was for that particular Act and for special circumstances. However, what we are allowing this Bill to do is to assail the Constitution and the guarantees given by the Constitution once again."
}