An appraisal of the Kenyan Bribery Act, 2016
By the Africa Legal Consulting Team
On 23rd December 2016, parliament enacted the Bribery Act which commenced on 13th January 2017. The preamble of the Act highlights its objective as “an Act of parliament to provide for the prevention, investigation and punishment of bribery.” The Act has extended the fight against corruption into the private sector as it imposes stringent anti-bribery laws to be observed by the companies and partnerships.
The Act creates four major offences; the act of giving or receiving a bribe, failing to report a bribe, bribery involving foreign officials, failure of a private entity to prevent bribery, failure of any entity to put in place measures to curb bribery and engaging in acts intended to enable bribery. The Ethics and Anti-Corruption Commission (“EACC”) has been tasked with the implementation of the Act across all spheres, both public and private. This legislation complements the Anti-Corruption and Economic Crimes Act. Investigation and prosecution of crimes under the Bribery Act is to be done in accordance with the provisions of the Anti-Corruption and Economic Crimes Act .
Under the Act, a duty has been imposed upon both public and private entities to put in place procedures appropriate for the prevention of bribery and corruption. Such measures must put into consideration the size and scale of the entity as well as nature of its operations. Failure to perform this duty has been identified as an offence under the Act. This provision targets the private sector which has had less involvement in the fight against corruption since the government has limited control over it. Further, a director or a senior official who inhibits implementation of this section is guilty of an offence.
A major highlight of the Act is the introduction of corporate criminal responsibility in the private sector. A private entity that fails to put in place measures to curb bribery can face criminal penalties for the actions. In some instances, the Act extends liability on the associated persons as well as the private entity itself. In partnerships, both partners and the partnership face sanctions where an act of bribery engaged in is meant to attract or retain business for the entity or advantage in the conduct of business by the private entity. EACC is charged with the role of assisting the private entities in laying down procedures for prevention of bribery and corruption in their businesses.
In addition to the above, Act also renders it an offence for any person to engage in an act which is intended to enable bribery by a person or a private entity such as obtaining the property intended for use in bribery. This provision has a deterrence value on both natural and juristic persons. Persons in positions of authority have a duty to report any suspicious acts within 24 hours after such detection failure to which they are liable for an offence under the Act. The Act has extra-territorial application and thus a Kenyan citizen or a body corporate registered in Kenya can be charged with a bribery offence regardless of the territory where the offence was committed.
The Act imposes the penalties for any offence committed, including a mandatory fine which shall be five times the benefit or loss acquired if the same is quantifiable. Natural persons may be imprisoned and/or fined whereas private entities face fines upon conviction. The amount of fines imposed on a private entity should not only be retributive but also deterrent on other private entities. Public and State officers who engage in acts of bribery are also barred from holding office whereas private entities are barred from transacting with the governments for ten years.
Finally, the Act lays out a specific provision for the protection of witnesses and whistle blowers. Witnesses in the prosecution of bribery cases are to be protected from any form of harassment or intimidation. Whistle blowers are granted elaborate protection measures and an employer who dismisses an employee for exposing bribery in an entity is guilty of an offence. The Witness Protection Agency and the law enforcement agencies are mandated with putting in place protection measures. The Act also has a retrospective application in relation to on-going investigations and prosecutions.
The enactment and commencement of the Bribery Act in Kenya to combat corruption in the private sector is a positive step towards reduction of corruption, which has become a challenge in many countries. In fact, many countries have enacted anti-bribery laws such as the UK whose Act was enacted in 2011 or the US which enacted the Foreign Corrupt Practices Act in 1977. The implementation of anti-bribery laws such as the Bribery Act is largely dependent on cooperation and good will of all the stakeholders.
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