- Editor-in-Chief
The Parliament of Kenya enacted an Act, The Bribery Act, 2016 No 47 of 2016 to provide for the prevention, investigation and punishment of bribery, and for connected purposes. The Act was assented to on 23rd December 2016 and its date of commencement was 13th January 2017. The enforcement of the Act is the responsibility of the Ethics and Anti Corruption Commission (EACC) and the Act applies to public and private entities.
Reading through the interpretation section at the onset and the rest of the clauses, it is evident that the Act casts its net wide to criminalize intent, the intricate webs involved in bribery transactions as well as the different forms in which bribes are offered. Take for instance, the definitions of giving and receiving a bribe. A person commits the offence of giving a bribe if the person offers, promises or gives a financial or other advantage to another person, who knows or believes the acceptance of the financial or other advantage would itself constitute the improper performance of a relevant function or activity. On the other hand, a person commits the offence of receiving a bribe if the person requests, agrees to receive or receives a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly whether by that person receiving the bribe or by another person.
The Act also shifts the burden of preventing bribery and corruption to the Boards and management teams of public and private entities by requiring that anti bribery and anti corruption procedures are put in place, appropriate to the size and nature of operations. This is in line with effective risk management practice that requires Boards and management teams to provide sufficient risk oversight by ensuring that risks are comprehensively identified and mitigation actions are effectively designed and implemented. The Act states that the EACC shall assist private entities, public entities, and any interested person, to develop and put in place these procedures. Important to note is that Boards and management teams of private entities will be held personally liable if, with their consent, these procedures are missing from their organizations. However, a private entity will be guilty under this Act if a ‘person associated with it’ is party to a bribery transaction for the benefit of the private entity.
The Act criminalizes the possession, handling and record keeping of property obtained in connection with bribery, terming these acts as activities intended to enable bribery. A private entity is guilty under this Act if it’s Board and/or management commits these acts deemed to enable bribery.
In addition to placing the responsibility to prevent bribery and corruption to an entity’s Board and management, the Act places a responsibility on every state officer, public officer or any other person holding a position of authority in a public or private to report to the EACC within a period of twenty-four (24) hours any knowledge or suspicion of instances of bribery. Moreover, a State officer, a public officer or any other person who, despite being aware of, or suspicious of the commission of an offence under this Act, fails to report the act to the EACC within the specified period commits an offence. Discussions on the enforcement of this reporting requirement have ignited debate on the practicality of the reporting deadline and the veracity of proof of knowledge or suspicion.
Penalties for contravention of this Act are:
> an individual found guilty of giving and/or receiving bribes and/or enabling acts of bribery shall be liable on conviction, to imprisonment for a term not exceeding ten years, or to a fine not exceeding five million shillings, or both and may be liable to an additional mandatory fine if, as a result of the conduct constituting the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss. The mandatory fine shall be equal to five times the amount of the benefit or loss. If the conduct that constituted the offence resulted in both a benefit and loss, the mandatory fine will equal to five times the sum of the amount of the benefit and the amount of the loss.
> In addition to the imprisonment or fine stipulated, the court may order the convicted person or private entity, or in appropriate cases, a public body, to pay back the amount or value of any advantage received by him to the Government, confiscate any property acquired as a result of the advantage received by the convicted person or private entity, bar the offender from holding public office, company directorship and/or transacting business with the national or county government all for a period of ten years after such conviction.
The Act provides for the protection of whistle blowers and witnesses under the Witness Protection Agency. Any person who knowingly or negligently discloses the information of informants and witnesses and a result of which those informants are harassed or intimidated commits an offence and shall be liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both. In addition, a person who demotes, admonishes, dismisses from employment, transfers to unfavorable working areas or otherwise harasses and intimidates a whistle blower or a witness is guilty of an offence and shall be liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.
Some critics argue that little impact has been observed from the enactment of the Anti-Corruption and Economic Crimes Act (2003), the Public Officer Ethics Act (2003) and the Leadership and Integrity Act (2012) just to highlight a few of the prominent Acts that sought to address the scourge of bribery and corruption and consequently view the intended redress from the Bribery Act (2016) with cynicism.
On the flip side, there are organizations committed to the fight against bribery and corruption such as those that are signatories to the United Nations Global Compact (UNGC), a voluntary initiative based on CEO commitments to implement universal sustainability principles among them, anti-corruption. More recently, there has been the Blue Company project, an initiative of volunteer institutions whose objective is to encourage companies to fight corruption in all its forms recognizing that corruption is a scourge that affects the allocation of resources in Kenya resulting in increased cost of doing business, stunted development, widening income disparities and inefficient service delivery. Such initiatives mean that member organizations willingly subject themselves to a public audit relating to their ethical practices and are more likely to comply with the Bribery Act 2016.
I encourage you to read the Bribery Act 2016 in its entirety and the UNGC Principle 10 on anti-corruption to assist your organizations to develop a compliant and sustainable anti-bribery and anti-corruption framework.
References:
1. The Bribery Act 2016
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/BriberyAct_47of2016.pdf
2. UNGC Principle Ten: Anti-Corruption
https://www.unglobalcompact.org/what-is-gc/mission/principles/principle-10
3. The Blue Company Project