- A. INTRODUCTION
The Guidelines to assist Public and Private Entities in the Preparation of Procedures for the prevention of Bribery and Corruption (“the Guidelines”) were published by the Office of the Attorney General, following the enactment of the Bribery Act, 2016 (“the Act”). The Act mandates the Cabinet Secretary for matters justice, in consultation with the Ethics and Anti-Corruption Commission (“the Commission”), to publish the said Guidelines. The Act widened the scope of the fight against bribery and prevention of corruption by extending the fight to the private sector. Before April 2016, the law against corruption only targeted public entities and state organs.
Corruption has been defined in the Anti-Corruption and Economic Crimes Act, 2003 as “any act of bribery, fraud, embezzlement or misappropriation of public funds, abuse of office, breach of trust and an offence involving dishonesty in connection with any tax, rate or levy imposed by any written Act or Law”.
- B. ABOUT THE BRIBERY ACT, 2016 (“THE ACT”)
The Act provides a framework for the prevention, investigation and punishment of acts of bribery. Bribery was previously considered a form of corruption under the Anti-Corruption and Economic Crimes Act 2003. Further, and as mentioned above, unlike the Anti-Corruption and Economic Crimes Act 2003, the Act contains provisions that apply to the private sector.
The Act attempts to involve private citizens in the fight against bribery and corruption by imposing an obligation on them to report instances of corruption. It imposes an obligation on a person in a position of authority in a public or private sector to report any acts of corruption to the Commission. Failure to do so is an offence that attracts imprisonment of up to ten years or a fine not exceeding five million shillings. The Act mandates private entities to put in place adequate procedures to prevent and counter corruption within their operations.
- C. THE GUIDELINES
The Guidelines were published for purposes of assisting public and private entities, or any other person, to prepare procedures for the prevention of bribery and corruption. Failure by an entity to establish these procedures amounts to an offence. Indeed, the Guidelines are part of the Act and should be read together with it.
We highlight some of the obligations prescribed by the Guidelines below:
- Obligations imposed on Private and Public Entities
- a. Reporting
The Guidelines require each State officer, public officer or person holding a position of authority in a private entity to report knowledge or suspicion of an act of bribery or corruption to the Commission within 24 hours of such knowledge, failure to which amounts to an offence. For such an offence, the private entity or its directors, senior officer(s) or other responsible person shall be liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding ten years, or both.
- b. Protection of Whistle-Blowers
All informants, witnesses and whistle-blowers must be protected from harassment or intimidation upon giving evidence in court or reporting acts of corruption within an entity. Entities are obligated to put in place protection mechanisms for such persons.
Acts such as demotion, admonition, dismissal, transfer to unfavorable working areas, harassment or intimidation of a whistle-blower, informant or witness is an offence that carries a fine not exceeding one million shillings or imprisonment for a term not exceeding one year or both, on conviction.
- c. Establishment of procedures for the prevention of bribery and corruption
The Act requires all entities to have in place procedures for the prevention of bribery and corruption. These procedures must take into account the size, scale and nature of operations of the entity concerned.
The Guidelines are in place to assist in the preparation of those procedures. According to the Guidelines, an entity may seek the Commission’s advice in the development and implementation of its procedures.
- Procedures for Prevention of Bribery and Corruption
The Guidelines provide the following principles to be considered by entities when developing their procedures for the prevention of bribery and corruption:
- a. Language
The procedures should be conducted in writing and in Kenya’s official languages. However, an entity may translate the procedures into any other language as may be dictated by the circumstances presented before it.
- b. Assessment of the risk of bribery and corruption within an Entity
An entity is required to map out bribery and corruption risk during the development of the procedures and develop a plan to mitigate those risks, if any.
- c. Implementation structure
The procedures should have an implementation structure which shall take into account the size, scale and nature of operations of the entity and any identified risks.
Additionally, the implementation structure should ensure commitment from the entity’s leadership and involvement of all its employees. The implementation should be supervised by a senior officer or any other person in such capacity.
The procedures may also incorporate external stakeholders of the entity and ensure that necessary resources for implementation are availed.
- d. Reporting Mechanism
The procedure should provide for sufficient reporting mechanisms to facilitate efficient and effective reporting of bribery and corruption within an entity. The mechanisms should facilitate timely reporting and receiving of feedback, access to reporting channels, prompt action and should ensure confidentiality and protection of the whistle-blowers, informants and witnesses.
- e. Reports
The procedures should provide for receiving, recording, processing and the dissemination of reports for appropriate action and feedback and should take into account fair administrative action.
- f. Protection
Procedures should ensure that the identity and details of informants, witnesses and whistle-blowers are kept confidential. The procedures should establish reporting channels, protection measures and should take appropriate action on reports of retribution, victimization or intimidation of informants, witnesses and whistle-blowers.
- g. Sensitization and enforcement structure
The procedures should provide for effective communication, training, awareness-creation and dissemination to internal and external stakeholders. They should also designate a person(s) in authority to set up an enforcement structure that will take into account the scale, size and nature of the operations of the entity.
- h. Monitoring and evaluation
The procedures should put in place measures for monitoring, evaluating and reviewing the effectiveness of the procedures, identification of emerging risks and improvements of the procedures.
- i. Collaboration
The procedures may provide for co-operation with other agencies within the sector or industry which may be in joint planning, sharing of information and best practice as well as mutual cooperation, peer review and capacity building.
- D. CONCLUSION
Since commencement of the Act on 13th January 2017, the number of people who pay out bribes to obtain government services have continued to rise. Informants, witnesses and whistle-blowers continue to fear potential harassment despite the specific provisions on their protection in the Act. In a Survey conducted by the Commission (National Ethics and Corruption Survey, 2017), over 63% of the respondents sought government services in 2016; out of these, 38.9% of the service seekers experienced some form of corruption either directly (27%), indirectly (9.8%) or as voluntarily participants (2.1%).Those who paid bribes to obtain services in public offices increased to 62.2% from 46% posted in the 2016 Survey.
There is no data that shows the impact of the Act in the fight against bribery and corruption. It is therefore hard to assess the level of implementation of this Act. We are hopeful that the Guidelines will increase the level of implementation of the Act and will aid in the fight against bribery and corruption in the public and private sectors.
Article by Ann Yvonne Muriithi