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FIU and SARA
The Financial Intelligence Unit (FIU) should be clear about just what is involved in the signing of a Memorandum of Understanding (MOU) with the State Asset Recovery Agency (SARA). The FIU has been established as an autonomous body and should not allow itself to be communicating financial information to a highly politicized arm of the State.
The Anti-Money Laundering and the Countering of the Financing of Terrorism Act allows the FIU to enter into agreement with domestic agencies in order to share information. But that section contemplates the sharing of information for reporting and investigative purposes which means that it either has to be of a general nature or is communicated as part of an investigation.
In relation to the former, it can, for example, refer to the level of suspicious transactions within the financial system. In relation to the latter, FIU must be of the opinion that the information shared is of evidential value to an investigation.
The responsibilities of the FIU relate to the collection of information, the analyzing and compiling of such information and its dissemination. In terms of prosecution, the FIU has to deal with the prosecuting agencies of the State which is the police.
The Special Organized Crime Unit is part of the police and therefore it is for the Commissioner of Police to forward reports, which may lead to prosecution, to the SOCU.
SARA is empowered to investigate the misappropriation of misuse of state assets, including its theft and use in corruption. SARA has the powers also to approach the courts to recovery stolen state assets or to freeze assets which it feels may have been stolen.
SARA’s role in FIU-instigated investigations should generally only occur after prosecution and conviction. If the court finds that persons or agencies have been complicit in diverting or misappropriate state assets, this is a license for SARA to undertake action to recover those assets.
The highly politicized nature of the unit however presents some dangers since its powers can be used for persecution rather than prosecution.
The FIU should be aware of the criticisms, which are being made against the Special Organized Crime Unit. That Unit is said to be undertaking a political witch-hunt. It has already muddied its reputation following an incident in which a solider was used to undertake surveillance of the home of someone. That solider, who should not have been involved in that operation, and his wife were both killed after the vehicle in which they were travelling crashed.
The report of the Board of Inquiry into that incident has not yet been made public nor has there been any report of disciplinary proceedings into the matter.
SARA has not yet repossessed a single public asset since its establishment. But its excuse is that it was waiting for its work to be strengthened via legislation.
The FIU should therefore approach with caution the information it shares with SARA. The FIU is duty bound to protect the confidentiality of the information in its possession but may share that information for the purposes of prosecution or investigation.
However, it is unreasonable and risky to ask the FIU to be sharing information with SARA unless that information is in such a state as to lead to either prosecution of the recovery of state assets.
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