Criminal laws against “illicit enrichment” or “unexplained wealth” are among the more potent tools in the anticorruption toolbox. Though details vary across countries, typically an illicit enrichment law criminalizes a public official’s failure to provide a legitimate explanation for their possession of assets in excess of their lawful sources of income. The advantage, from an anticorruption perspective, of criminalizing illicit enrichment is the alleviation of the burden on the prosecution to gather evidence sufficient to prove bribery or embezzlement, which can often be difficult or impossible. Corruption can be inferred, the logic goes, from the government official’s possession of unusual and unexplained wealth. A further advantage is the law’s ability to capture instances of “influence peddling,” where a public official’s conduct might not have violated the specific laws on bribery and embezzlement, but still involves exploitation of authority to obtain gratuitous favors or preferential treatment that may show up in the form of unexplained wealth.
Illicit enrichment laws, however, have proved controversial because they seem to shift the burden of proof from the prosecution to the defendant, thus violating the bedrock principle of the presumption of innocence. Many experts disagree with this criticism, and constitutional courts in many countries have rejected it. However, some governments, and some constitutional courts, continue to maintain that illicit enrichment laws are incompatible with constitutional guarantees related to the presumption of innocence.
Reasonable people can disagree about whether illicit enrichment laws in any given country are constitutional, but one would think that the issue would be settled one way or the other. In Egypt, however, this constitutional controversy has led to a bizarre legal limbo that has persisted for nearly two decades.Continue reading →: Nearly 20 Years in Legal Limbo: Egypt’s Illicit Gains Framework
Egypt has an ”Illicit Gains” law on the books, but in 2004 Egypt’s Court of Criminal Cassation reversed the conviction of a former public official (the ex-Governor of Giza), after concluding that convicting the defendant under this law would contravene Article 66 of Egypt’s 1971 Constitution (now replaced by Article 96 of the 2014 Constitution). The Court of Cassation lacks the power to declare a law invalid; only Egypt’s Constitutional Court can do that. So instead of declaring the Illicit Gains law a nullity, the Court of Cassation refused to enforce it, on the grounds that the court had a judicial duty to apply the Constitution above the conflicting statutory law in the particular case at hand. But the law itself remained on the books.
One might have thought that, in the wake of this decision, either Egypt’s Illicit Gains Authority (IGA), which enforces the Illicit Gains law, would stop bringing cases under the law, or the Constitutional Court would rule conclusively on whether the law is constitutional. But neither of these things has occurred. The Constitutional Court has not intervened, the law remains formally valid, and the IGA continues to bring cases under it. When those cases result in convictions, the Court of Cassation, following the logic of the 2004 ruling, has routinely reversed these convictions. But the Court of Cassation does not operate under a system of binding precedent, which means that the Court of Cassation might still affirm a conviction under the Act, and in rare instances it has done so.
This state of affairs has persisted for almost 20 years now, creating legal uncertainty as well as fostering serious risks of arbitrary enforcement and political abuse. It is easy for the IGA to bring cases and win initial convictions, since it is exceptionally difficult for civil servants to provide legitimate explanations of every slight excess above their lawful income for what are often 20-year careers. The problem is compounded by the generous 10-year statute of limitations, which begins running not at the date of the alleged offense, but rather from the day the defendant left their official position. True, if and when the case is appealed to the Court of Cassation, that Court is very likely to reverse the conviction. But the threat of investigation and prosecution is itself sufficient to harass and intimidate political adversaries.
There are a number of possible solutions to this dangerous legal limbo. Most obviously, the Constitutional Court could stop shirking its responsibility and provide a firm answer to the question whether the Illicit Gains law is unconstitutional. If the Court affirms the validity of the law, legal certainty would be restored. But such a ruling would establish a dangerous precedent, legitimating Parliament’s shifting of the burden of proof in relation to hard-to-prove crimes. Alternatively, if the Court invalidates this law and Parliament does nothing in response, this would mark an end to any attempt to increase enforcement against public officials’ illicit enrichment. Thus, the better option would be for Parliament to take the initiative to amend the law as soon as possible to make it less offensive to the presumption of innocence:
- First, Parliament should set a threshold for what counts as “excess assets” sufficient to trigger the requirement to proffer a legitimate explanation. This excess should be “appreciable,” not just any apparent excess in the official’s assets in relation to their lawful income
- Second, Parliament should clarify what counts as a “legitimate explanation” by treating the defendant’s explanation as presumptively valid unless the IGA’s investigation reveals contra-indications and/or suggestions of deceit. In other words, the prosecution would retain the burden to prove beyond a reasonable doubt that the explanation proffered by the accused is false or fraudulent. By explicitly lowering the standard of proof on the defendant in this way, the “switched” burden of proof is rendered more reconcilable with the presumption of innocence.
These amendments would narrow the scope of the law sufficiently to alleviate the apparent tension between the law’s burden-shifting structure and the constitutional guarantee of the presumption of innocence. This not only substantively improves the law, but makes it more practically applicable as the Court of Cassation would likely feel comfortable affirming convictions under this more narrowly targeted and constitution-friendly offense.