Preventing The Abuse Of Asset Recovery Law

The furore over the draft asset recover proclamation submitted to Parliament a fortnight ago has apparently prompted the Minister of Justice to give a press briefing this week in its defense. Arguing that the draft proclamation aims at tackling economic crimes, whose magnitude and complexity he said are growing alarmingly, the minister said the absence of a comprehensive framework to combat economic crimes that have sweeping impacts on the national economy necessitated the adoption of a law that enables the recovery of illicitly gained or unexplained assets and fills the gaps observed in this regard in in scattered legislations. He also maintained that the draft is vital in terms of promoting transparency and accountability as well as laying the legal foundation for international cooperation in fighting economic crimes. While the considerations cited in the draft proclamation to justify its enactment may be tenable, there are a host of concerns that need to be addressed before legislators approve it.

One of the criticisms levelled against the draft proclamation is the fact that it allows recovery claims in respect of unexplained assets obtained up to 10 years prior to its promulgation by lawmakers. True, as the justice minister explained the principle of non-retroactivity is explicitly enshrined under the Ethiopian constitution in the context of criminal laws. This, however, does not imply that the principle should not be applicable outside the realm of such laws. Retroactive laws are liable to lead to infringements of the fundamental principles of equality, certainty and predictability underlying the rule of law. If individuals do not have confidence that any act that they believe to be lawful today can be deemed to be unlawful and subject to penalty at any given moment in the future, the ensuing chaos is bound to have all manners of harm on them and society as a whole. That is why it makes sense that all laws apply prospectively despite the absence of a specific affirmation of their non-retroactivity.

The pitfalls of the retrospective application of the draft asset recovery law is laid bare by its provision stipulating that the assets of anyone who maintains a lifestyle disproportionate to the legitimate income from his present or past occupation will be confiscated unless he can produce authentic documents demonstrating he has the means to acquire such assets. In a country like Ethiopia where the majority of citizens make their living in the informal sector of the economy or acquire property using funds secured through informal channels and thus do not possess formal documentation proving they have a legitimate source of income, requiring them to furnish such proof is tantamount to confiscating their properties. Although the 10 million birr threshold set by the draft to initiate a claim to recover an unexplained asset that was obtained up to 10 years before it becomes law may seem to limit its retroactive application, it undoubtedly will sound the death knell to the significant number of individuals whose assets are worth more than that figure.

Another area of valid concern is the very real possibility that asset recovery law is prone to be abused for political or personal gain. There is no escaping the likelihood that the law may be used to coax or compel critics of the government who have been a thorn in its side to self-censor on pain of losing their property. This can have a chilling effect on the exercise of freedom of thought and speech, curtailing the free expression of diverse ideas and ultimately constricting the democratic space. Aside from targeting detractors, the law is susceptible to misuse by powerful government officials and individuals who exert influence over them for corrupt purposes or to settle a score. Accordingly, every precaution must be taken to ensure that the implementation of the law does not result in the violation of basic liberties or otherwise entail grievous socio-economic consequences.

As Parliament debates on the draft asset recovery law, legislators have the duty to ensure that it has adequate guardrails that prevent the specter of its abuse. Inasmuch as the drafters claim that the draft indeed features various tools geared towards this end, they must acknowledge that these mechanisms need to be strengthened. From ensuring transparency and accountability in the asset recovery process to limiting its retroactive application, protecting the due process rights of individuals whose assets are targeted for recovery as well as putting in place a well-considered system for the proper management and disposition of recovered assets so that they are not vulnerable to mismanagement or corruption, it’s of the essence that lawmakers give due consideration to these and other safeguard mechanisms before they greenlight the law. It’s only then that its intended objectives can be duly achieved.