Corruption has indeed proved to be one of the biggest vices ailing Kenya. The 2015 Global Corruption Perception Index (“CPI”) ranks Kenya at position 139 out of 168 countries.
The legislative journey on corruption in Kenya has been an eventful one. In 2003, the Anti-Corruption and Economic Crimes Act, No 3 of 2003 (ACECA) was enacted as the substantive anti-corruption legislation and to implement the United Nations Convention against Corruption ratified by Kenya on 9th December 2003. Unfortunately the ACECA was plagued with various problems. Sections 26 and 30 of ACECA were challenged on constitutional grounds for requiring suspects to supply self-incriminating evidence to the Ethics and Anti-Corruption Commission (“EACC”) which would later be used against them breaching privacy, fair hearing and natural justice tenets. Section 55 was declared unconstitutional by Justice Rawal in KACC vs Stanley Mombo Amuti (2011) eKLR for shifting the burden of proof to suspects.
Kenya further enacted various legislation to tackle corruption such as; the Public Officer Ethics Act, No 4 of 2003 (POEA), the Proceeds of Crime and Anti-money Laundering Act No.9 of 2009, the Ethics and Anticorruption Commission Act No. 22 of 2011, the Leadership and Integrity Act No. 19 of 2012, and the Public Procurement and Asset Disposal Act No.33 of 2015. These laws regulate corruption mainly in the public sector.
These acts had not criminalized the bribery of foreign public officials and officials of public international organizations. There were no provisions for bribery prevention procedures covered under any of the laws. Further, they lacked provisions that catered for bribery in the private sector.
This gap in legislation prompted the Kenya Private Sector Alliance to champion the Bribery Bill in November 2015. The Bribery Act, No. 47 of 2016 (“the Act”) was thereafter assented to on 23rd December 2016 and Commenced on 13th January 2017.
Debates in the National Assembly revealed that there was indeed need to deal with corruption in the private sector. Private sector entities are the ‘givers’ while the public sector entities are the ‘takers’ in most bribery cases.
In line with the OECD Anti-Bribery Convention and the United Nations Convention against Corruption (UNCAC) most countries Kenya included have taken measures to streamline their anti-bribery laws focusing on the following thematic areas;
The Act does not define bribery but relies on the terms used under Part II of the Act to mean; an offer or request, promise or agreement to receive or the giving or receiving of a financial or other advantage to a person whether directly or indirectly through third parties who know or believe such acceptance or giving would constitute the improper performance of a function or activity.
The General offences described under Part II of the Kenyan Act include; giving a bribe; receiving a bribe; and Bribery of foreign officials.These offences largely borrow from the United Kingdom (“UK”) Bribery Act of 2010 which is considered a superior statute.
Other offences include instances where a senior officer consents or connives to cover up a bribery offence and where there is failure by an entity to prevent bribery. Further, the Kenyan Act places an obligation to report any knowledge or suspicion of instances of bribery within 24 hours. Failure to do so constitutes an offence. This however would not be a liability offence and the prosecution would not need to prove any such intention of not doing anything. These offences permeate not only to the perpetrators but to all parties that play any role in the bribery transaction.
Criminalisation of foreign bribery
Section 8 of the Kenyan Act opens up any Kenyan citizen or Private entity to prosecution in Kenya for giving or receiving bribes outside its’ jurisdiction. This is to put an end to bribery and other practices involving facilitative payments outside the Kenyan jurisdiction.
Other Countries such as China and Russia are either criminalising foreign bribery or clarifying the scope of existing laws to accommodate the same as is the case in Israel. This is an effort to combat bribery globally.
The Act caters for corporate liability as well as some administrative liability where bribery is proved. Private entities; companies, Partnerships and various forms of organisations shall face penal consequences under the act such as a ten year ban for non-natural persons from transacting business with the national or county government.
Previously bribery was considered an individual act but now there is corporate liability which has been entrenched into the bribery laws of many states such as the UK.
The Bribery Act imposes severe consequences for offenders ranging from 10 years imprisonment, fines not exceeding Kshs. 5 million, five times the amount of any quantifiable benefit/loss, disqualification of businesses, directors and partners for 10 years and 1 year imprisonment for directors, partners and other senior officers.
The Court has been given the discretion to impose any other deterrent sentence that it may deem necessary based on the varied circumstances. The penalty clauses in the Act were strongly debated in the National Assembly, many members felt that Bribery should be considered a capital offence. These proposals were not adopted in the Act. The penalties were maintained as they were found to be deterrent enough to provide the courts with flexibility in enforcement.
Criminalisation of commercial bribery and Anti-bribery measures
The Act imposes requirements under Part III for Private entities to have in place procedures appropriate to its size and scale for the prevention of bribery. Senior officials shall be held liable if procedures are not set up. The EACC is mandated to assist both private and public entities to develop these procedures. This will have an effect on various business practices which may be deemed to fall under the definition provided for in the bribery act. Examples include; facilitative payments between businesses and other forms of gifts or advantages that private to private or public to private entities may engage in.
The Act provides that the Cabinet Secretary shall in consultation with the EACC; publish guidelines to assist private and public entities in the preparation of Anti-bribery Procedures. This provision seeks to delegate responsibility so as to enhance accountability.
Whistle blower protection
The Act mandates the Witness Protection Agency as established under the Witness Protection Act to offer protection to whistle blowers and witnesses to the extent as may be determined by them. The Act further leaves room for other law enforcement agencies to intervene in protecting the identity of witnesses and informants.
CHALLENGES IN ENFORCEMENT OF THE ACT
It is of concern that many individuals, who engage in corrupt activities, are not deterred by the knowledge that they are engaging in unlawful conduct, but rather by the risk of getting caught and successfully prosecuted. To meaningfully combat corruption, a collective effort is required by all enforcement agencies. The main enforcement agencies under the act are the EACC and the Cabinet Secretary for matters relating to justice. The former has been granted prosecutorial powers while the latter may publish guidelines in consultation with the EACC.
Despite the support that will be offered to the EACC by other entities inter alia the Ministry of Justice and the Criminal Investigation Department, there will be great reluctance and lack of trust by the public to report bribery cases to the EACC due to its past problems.
The penalties provided under the Act are lenient to organisations that consider the Kshs. 5 million penalty a drop in the ocean of funds that they deal with. This will pose a challenge to the courts while effecting punishment.
It will be a challenge to enforce the reporting of bribery within 24 hours, the time limit may be unreasonable for most witnesses and it will also be a challenge to force persons to be witnesses.
Section 27 (2) retrospectively applies the Act to on-going investigations, prosecutions or court proceedings. This may be legally challenged as it is against the universal Declaration of Human Rights.
Both public and private entities should review their gift, hospitality, facilitation payments and promotional expense guidelines and policies. Further, entities should conduct due diligence through various compliance programs on their exposure to bribery and expand their anti-bribery programmes to include all “associated persons” including third parties that may be a risk or liability to the entity. These procedures if applied may offer a defence for companies under the Act and may further help in sentence mitigation.
The Anti-corruption laws should be consolidated and effectively utilised. In addition, there needs to be a thorough clean up of the EACC in order to empower it to enforce the Act efficiently and effectively. A renewed sense of goodwill by the government is required in order to speed up the enforcement of the Act.
Instead of the 24 hour time limit, a time limit should be set to regulate the time frame between reporting and conclusion of cases.This is to prevent the clogging of the justice system by unconcluded bribery cases.
The Act may be renamed to read as the “Anti-Bribery Act” this is to give effect to the negative connotation of bribery.