1. Bribery in the home (private to public)
1.1 The Legal Environment
The Penal Code contains the Egyptian Anti-Bribery Law (the “Law”). Bribery is addressed under Articles 103 to 111.
Any problematic behavior, as well as a payment or promise of payment or advantage to a public person, is punishable under the law (i.e., public or government employees).
According to Egyptian law, the following three factors must be present for an act of bribery to be valid:
The beneficiary must be a government employee (subject to some exceptions set out below).
There must be a “gift,” “benefit,” or “promise” that will serve as the crime’s material/physical element.
The required criminal intent must be present (mens rea).
1.2 What is the definition of bribery?
A public official who breaches or abuses the duties of his or her position with the goal of being rewarded for his or her actions is susceptible to jail, according to the law.
In view of the aforementioned, the Law prohibits a public official from “dealing” or “peddling” in his official role. The offeror of the bribe, the recipient, and any intermediary (between the briber and the recipient) are all subject to the same penalties under the law.
“Any advantage, of whatever value, gained by the bribe receiver or by the person either selected by him for receipt of such (or knowing and agreeing to his or her appointment”) shall be regarded a promise or a gift,” according to Article 107.
The promise or payment of money (or other tangible advantage) received or sought by an official, or the briber’s willingness to erase a debt of the bribe receiver, appears to be the benefit comprising the “bribe.”
Furthermore, the law makes no distinction between a benefit obtained by an official for himself or herself and a benefit requested or accepted for someone else. Bribery is a crime that begins with the request and does not depend on the recipient, whoever he or she was.
The provisions of the Law are so wide that they cover nearly every type of trading on a position or its duties (or an effort to do so), regardless of the benefit’s “timing.” Bribery may exist even if there is no agreement between the official and the other party, and an official may be labeled a recipient of a bribe even if he did not take a payment. As previously stated, even if the official’s request is not accepted by the other party, the Law deems it a complete offense. This is because an official who offers his position “for sale” is just as guilty as the person who completes the bribery deal.
Bribery is not considered to have occurred unless the recipient of the bribe realizes, at the time of the request or acceptance of a promise, or the taking of a gift, that it is the reward for performance, or abstention from performance, of a duty within the scope of his authority, or that he claims or erroneously believes is part thereof.
It’s also worth noting that whether the benefit was received before or after the Act has no bearing. If a public official accepts a gift from a stranger, thinking it was given in good faith, the official has not engaged in bribery. Similarly, if he appears to accept the offer in order to aid the offeror’s arrest, the foundation for the crime of bribery has not been met.
1.3 What is a public official?
According to Article 111 of the Law, the following are deemed “public officials” for the purposes of the Bribery provisions:
Members of the general or local legislative assemblies, whether elected or appointed.
Arbitrators and experts, debtors’ trustees, liquidators, and judicial receivers.
Anyone entrusted with public duty.
Members of the board of directors, as well as managers and employees of associations, companies, societies, foundations, or establishments if the state or one of its public authorities contributes to their funding at any level and in any form.
The Egyptian courts have also decided that certain organizations, as indicated in their articles of association and similar documents.
Trading on one’s position is not considered bribery in Egypt unless the relevant act was carried out with the official’s approval. Any conduct within the legal boundaries of the official’s assumed position is referred to as “duties of the post.” Even if the official wrongly believes or says that the requested/promised act is within the official’s duties (i.e., “illusory competency”), this element of the bribery crime is met.
1.4 Bribery’s Consequences
(a) For the individuals involved:
Depending on the crime charged against the accused, he or she may be imprisoned for a period of time up to a year.
A fine of not less than EGP 1,000 may be imposed in addition to the fine, depending on the crime charged against the accused.
In all situations, the judgement will order the confiscation of any bribe money paid by the briber or middleman.
Ancillary Penalties may be imposed on the accused, including: (A) Depriving the accused of the rights and benefits set forth in Article 25 of the Penal Code, which include:
Acceptance in any government service, whether direct or indirect, or in the quality of an entrepreneur or concessionaire, regardless of the service’s importance
The awarding of a rank or a medal is a form of decoration.
Unless it is for evidential fact-finding, testifying before the courts for the duration of the penalty
During his detention, he was in charge of managing his finances and property.
Remaining a member of the probate councils, directorate councils, municipality or local councils, or any general committee from the date of the final judgement against him
If a rigid imprisonment penalty is finally ruled against him or her, his or her ability to be a member of one of the bodies mentioned in the fifth clause, or an expert or witness on contracts, would be revoked.
The bribe’s substance is confiscated.
In addition, he or she is unable to serve on the board of directors of a joint stock company or as a management of a limited liability corporation under Article 89 of the Companies Law No. 159 of 1981.
(b) For the company/legal entity: The Law does not embrace the notion of criminal liability for legal entities such as companies, save in the case of particular financial offenses unrelated to bribery. “Legal entities are not criminally accountable for crimes done by their representatives,” the Egyptian Court of Cassation has historically concluded. “The persons who conduct the crime are the ones who are personally liable.”
1.5 Contributions from politics
Article 111 of the Law defines “public officials” as members of the general or local legislative assembly, whether elected or appointed, for the purposes of the bribery prohibitions.
Furthermore, Law No. 40 of 1977 governs political parties’ incorporation and financial resources. To this aim, the law stipulates that such resources be derived via subscriptions, contributions, and non-trading investments.
Furthermore, the stated statute states that political party money are considered notably public monies in the same sense as the Law, and that the party’s managers and staff are regarded public officials in the same sense as the Law’s definition of “public official” in Article 111.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, amongst others)
In principle, the law does not distinguish between little and large gifts. The Law applies to all amounts, no matter how small.
As a result, payments for “grease” or “facilitation” are strictly considered bribes.
Entertainment costs and minor presents given on special occasions, on the other hand, may be accepted as long as they are not presented or received with the intent of corrupting a government employee.
In general, the amount spent on corporate entertainment should be acceptable in comparison to what is conventional and appropriate in the context of the event. A routine business lunch or supper that is neither expensive nor infrequent is unlikely to elicit any suspicions of inappropriate motives or dishonest intent.
It is not proper, and hence not encouraged, to invite public officials to meals at restaurants that are not frequented by ordinary businessmen, or, after a study of the facts and circumstances, to a restaurant that is regarded excessive in light of the public official’s normal behaviors.