Legality principle

Before moving on to study the illicit enrichment provision, it is crucial to understand more hilly why the pre-existing criminal justice system failed to secure convictions in most of these political misconduct cases.

Kuwait recognises the following right under Article 32 of the Constitution, repeated also in Article 1 of Criminal Law no. 16 of 1962: ‘No crime and no penalty may be established except by virtue of law.’ In respect to this legality principle, the prosecution in the Parliament scandal of 2011 came to the conclusion that there was a lack of clear criminal legislation that condemns MPs for accepting gifts from the then prime minister. Their conduct was perceived as unethical but not criminal.

Difficulties in enforcement also arose under the Bribery Law No. 42 of 1971 which prohibits public officials from requesting, accepting, or taking a promise for performing or abstaining from performing an inherent function of his or her position, even if he or she mistakenly believes such a function falls within the scope of his or her official duties.^[1] Hence, the fundamental conditions under the Bribery Law are as follows: the recipient must be a public official abusing his or her ‘official duty’; there must be a benefit or promise that constitutes the material element of the crime; there must be criminal intent. In principle, no conviction would result if there were an absence of proof that the public official had requested or agreed to receive a financial or non-fmancial advantage. Hence, according to this restriction, the Bribery Law cannot be applied in the hypothetical situation of a significant increase in the wealth of public officials.

As for Law no. 1 of 1993 Regarding the Protection of Public Funds, two conditions must be fulfilled: first, the perpetrator is a public official, and, second, the stolen money must comprise public funds. The foundation of the crime requires two further elements. First, the public official must commit one of the criminal offences stipulated in Articles 9,10, 11, 12, and 14 - namely, the ‘embezzlement of public funds,’ ‘stealing or facilities stealing,’ ‘improper preferment to gain interest,’ or ‘grave damage to public funds due to negligence.’ Second, the intent element must also be fulfilled.^[2] Clearly, this law merely remedies the embezzling or stealing of public funds by public officials, but it lacks a comprehensive response to fight more subtle forms of corruption.

As far as money laundering is concerned, the provision of this law is also insufficient to criminalise MPs’ corruption.^[3] According to Article 2 of the Law No. 106 of 2013 Regarding Combating Money Laundering and the Financing of Terrorism, ‘a person shall be considered a perpetrator of the money laundering crime if he or she knew that these monies were obtained from a crime and deliberately undertook the following.’^[4] The element of money laundering requires the conversion or transfer of property that derives from proceeds of crimes for concealing illicit gain, as described in the UNCAC. Hence, the prosecution must initially determine that criminal conduct has occurred and must establish a link between the property being laundered and that criminal conduct.^[5] For this purpose, the money laundering offence could not be imposed on Kuwaiti MPs due to the absence of criminal conduct.

Following the serious ongoing corruption incidents, criminal legislation has been developed in response to each occurrence but has remained deficient in various ways.

• [1] Article 35 states, ‘Any public official who asks or accepts for himself or for third party a promise or a gift to perform or to abstain from any of the activities of his office shall be penalized.’
• [2] Articles 9, 10, 11, and 12 of Law No. 1 of 1993 Regarding the Protection of Public Funds.
• [3] On March 10, 2002, following the 9/11 attacks, the government of Kuwait enacted Law No. 35 of'2002 for Combating Money Laundering Operations, believing that it would comply with all international obligations. However, this Law excluded financing terrorism. This 2002 Law was abolished and substituted by Law No. 106 of 2013 Money Laundering and Financing Terrorism, which responded to the FATF’s later criticism and monitoring process: (see FATF, 'Improving Global AML/CFT Compliance: on-going process - 27 February 2015’ ).
• [4] Article No. 2 of the Kuwaiti Money Laundering and Financing Terrorism Law No. 106 of 2013 is compatible with Article No. 23 of the UNCAC that stipulates: ‘(a) (i) The conversion or transfer of property, knowing that such property is the proceeds of crime.’
• [5] Alldridge, P., Money Laundering Law (Hart Publication, 2003) 4.