The Bribery Act, 2016 (the Act) was enacted by the Kenyan Parliament to provide for the prevention, investigation and punishment of bribery, amongst other things. The Act, which is largely modelled on the United Kingdom’s Bribery Act 2010, came into force on 13 January 2017. The Act is retrospective and will apply to any investigation, prosecution or court proceedings instituted before 13 January 2017.
A person is deemed to have committed an offence in terms of the Act if such person offers, promises or gives financial or other advantage to another person who knows or believes that the acceptance of financial or other advantage would in itself constitute the improper performance of a function or activity. An “advantage” is broadly defined in the Act and includes money, gifts, commission, valuable security, property, interest in property of any description, any office, employment or contract, amongst others.
Prior to the coming into force of the Act, the legislative framework that governed corruption and bribery was the Anti-Corruption and Economic Crimes Act, 2003 and the Public Officer Ethics Act, 2003, which largely dealt with corruption offences in the public sector.
The Act, however, has a wide scope of application as it applies to the general public, public officers and private entities in Kenya. The Act also has extraterritorial application in respect of conduct by a Kenyan citizen or a private or public entity outside of Kenya, which would constitute an offence under the Act if such conduct took place within Kenya.
A “private entity” is defined in the Act as any person or organisation that is not a public entity, such as companies incorporated in Kenya, foreign companies, partnerships or charities that carry on business wholly or partly in Kenya.
The Act provides that a private entity is deemed to have committed an offence under the Act if a person associated with it commits the act of bribery with the intention of obtaining or retaining business for the private entity or gaining an advantage for the private entity. Furthermore, a person is deemed to be associated with a private entity if the person performs services for the private entity in the capacity of an employee or an agent, or in any other capacity.
The Act creates a legal obligation on persons holding a position of authority in a public or private entity to report (within 24 hours) any knowledge or suspicion of instances of bribery, to the Ethics and Anti-Corruption Commission. Failure by such persons to report such an offence, on conviction, is liable to a fine of KSh5,000,000 and/or imprisonment for a term not exceeding 10 years.
In addition, the Act places an obligation on both private and public entities to put in place appropriate measures to prevent bribery and corruption. The Cabinet Secretary in charge of matters relating to justice is required, in consultation with the Ethics and Anti-Corruption Commission, to publish guidelines to assist private and public entities in implementing the procedures provided for in the Act. Pending the publishing of these guidelines, private entities will need to put their own procedures in place to ensure they comply with the Act.
The Act therefore does not only widen the scope of the legislative framework governing bribery and corruption by requiring private individuals and entities to comply with the Act, but also imposes severe penalties on persons or entities that contravene the Act. In addition, private entities in Kenya will now be required to take steps and implement measures to prevent bribery and corruption, and will need to ensure that their agents, employees and associates do not contravene the Act as they would be directly liable for such acts.