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By Martin Mbugua
Njoroge Regeru & Company
Nairobi, Kenya, Africa

The Bribery Act (“the Act”) was assented into law on 23rd December, 2016 and effectively came into force on 13thJanuary, 2017.

The Act, generally deals with bribery and not other forms of white collar crimes like fraud and money laundering. The term “bribery” is defined under PART II of the Act in an open ended manner to mean the act of giving or receiving a financial or other advantage in connection with the "improper performance" of a relevant function or activity that is expected to be performed impartially.

The Act has a potentially wide territorial reach. For example, Section 15 of the Act provides that a citizen of Kenya, public or private entity commits an offence of offering or accepting a bribe if the act which forms part of the offence takes place in Kenya. The Act also provides an exhaustive list of persons who will be considered to be “associated persons” including persons performing services for or on behalf of another as an agent, employee or in any other capacity.

The offence of failure to prevent bribery applies to the broadly-defined “private entity”. For the offence to arise, the one who bribed must be “associated” with the private entity, a term which will apply to, amongst others, the organization’s agents, employees and subsidiaries. A Kenyan corporation which “carries on a business, or part of a business” in another country may therefore be guilty of the offence.

Changes Introduced by the Act

Section 18 of the Act has introduced heavier sanctions as potential consequences for both individuals and companies. These sanctions range from fines, imprisonment, disqualification, pay back orders and confiscation orders.

An individual found guilty of an offence under the Act shall be liable on conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years. A convicted person may also be liable to an additional mandatory fine if as a result of 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 suffered. The Court in determining the fine to be paid shall not only seek to punish but also to deter similar offences by the same or other private entities.

The Act has also introduced a “potentially unlimited fine” and up to ten years’ imprisonment for individuals who are found guilty of serious offences under Section 5 (bribing), Section 6 (being bribed), section 8 (bribing a foreign public official), section 10 (negligently failing to prevent bribery) and section 18 on unlimited fine for any company or partnership that is convicted of an offence.

The Act has introduced the concept of disqualification for persons who upon conviction will be barred from holding public office or state office and in case of a director, the position of a director. Juristic persons upon conviction shall be disqualified from transacting business with the national or county government for a period of ten years.

Under the Act, the Court may order the convicted person or entity to pay back the amount or value of any advantage received or property acquired to the government.

The idea of protecting the whistle blowers and witnesses will have a great impact on offenders.  Section 21 provides that a whistle blower in a case of bribery shall not be intimidated or harassed for providing information to law enforcement institutions or giving testimony in a court of law. The Act also criminalizes any action in relation to demotion, admonishment, dismissal from employment, transfer, harassment and intimidating a whistle blower or witness. The sanction created is a fine of one million shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment upon conviction.

It also amends section 39 of the Anti-Corruption and Economic Crimes Act, by deleting the words "on evidence" and substituting thereof the words "if it is satisfied that there are reasonable grounds to suspect." This means that the standard of proof required has been lowered under the Act and therefore any form of suspicion by the Ethics and Anti-Corruption Commission allows them to make an ex-parte application to the High Court for an order prohibiting the transfer or disposal of or other dealing with property

The Act also amends the Ethics and Anti-Corruption Commission Act, under section 11 (1) (d), by inserting the word "bribery" immediately after the word "corruption" therefore giving discretion to the Commission to investigate and recommend bribery acts to the Director of Public Prosecution.

The Act further amends Section 3 of the Anti-Corruption and Economic Crimes Act, 2003, by inserting the word "bribery" immediately after the word "corruption" which empowers the Chief Justice to appoint special magistrates to deal with bribery offences through a notification in the Kenya Gazette.

Conclusion

Accordingly, the Act has brought with it new measures to deal with bribery offences; lowered the criminal standard; introduced various duties upon entities and individuals. However, the gravity of the sanctions under the Act and its wide application is key in the fight against bribery. Nonetheless, the Act has not defined key concepts, among the notable ones include 'part of a business' which interpretation will be left to the courts to deliberate.