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Anticorruption In Kenya

1. What is Kenya’s legislativex framework for dealing with bribery?

The Bribery Act, No.47 of 2016 (Bribery Act) is Kenya’s primary anti-bribery legislation. It began on the 13th of January, 2017.

The Anti-Corruption and Economic Crimes Act, No. 3 of 2003 (AECA), which governs the offence, provides for the prevention, investigation, and punishment of corruption and economic crimes (which include bribery). The Ethics and Anti-Corruption Commission Act of 2011 (EACC) creates the Ethics and Anti-Corruption Commission, which is responsible for enforcing bribery accusations.

Any inquiry or prosecution that was underway previous to the enactment of the Bribery Act shall be considered as if it had been initiated under Section 27 of the Bribery Act.

 

2. What is the definition of a bribe?

A bribe, according to the Bribery Act, is an act of giving or receiving offers, promises, or a financial or other advantage where the person knows or believes that giving or accepting the financial or other advantage would constitute improper performance of a relevant function or activity in and of itself (Section 5 and 6, Bribery Act).

The Bribery Act defines “function or activity” as any public function, any function carried out by a state officer or public officer in the course of their duties, any function carried out by a foreign public official in the course of their duties, any activity connected with a business, any activity performed in the course of a person’s employment, and any activity performed by or on behalf of a foreign public official (Section 7, Bribery Act).

The foregoing functions and activities must fulfil one or more of the following conditions: the person performing the function or activity is expected to I do so in good faith, do it impartially, and be in a position of trust by virtue of performing it.

 

3. What are the most serious violations of this legal framework?

  • Bribery of foreign public officials (Bribery Act, Section 5) – Bribery of foreign public officials (Bribery Act, Section 5) (Bribery Act, Section 8)

  • Failure of a private entity to put in place bribery-prevention procedures (Bribery Act, Section 9)

  • A private entity’s failure to prevent bribery by a person connected to it (Bribery Act, Section 10)

  • Assisting an individual or a private entity in bribing a public official (Section 13, Bribery Act)

  • A person who provides services on behalf of another person as an agent, employee, or in any other capacity is referred to as an associated person in the Act (Section 11, Bribery Act).

 

4. What is the legal framework’s jurisdictional scope?

The Bribery Act governs the actions of both governmental and commercial enterprises in Kenya, as well as acts carried out outside the country (Section 15, Bribery Act).

 

5. Who can be held accountable for bribery? (government officials, private citizens, legal entities, and so on.)

The Bribery Act applies to state officers, public officers, foreign public officials, private people, private and public entities, and partnerships who execute functions and activities that are related to bribes (Sections 7, 16 and 17, Bribery Act).

Furthermore, commercial entities may be held accountable for failing to put in place anti-bribery processes (Section 9, Bribery Act).

Bribery by a private entity or partnership must be proven with the consent or connivance of a senior official of the private entity or partnership, or a person acting in that position (Section 16 Bribery Act).

 

6. Can a parent firm be held accountable for bribery committed by a subsidiary?

Yes, a parent firm is responsible for its subsidiary’s bribery. This is in keeping with a company’s responsibility to prevent bribery as a result of a “person linked with the company’s” acts (Section 10 Bribery Act). An affiliated person is defined by the law as someone who acts as an agent, employee, or in any other capacity on behalf of another (Section 11 Bribery Act).

This would mean that a subsidiary would be considered an associated person under the Bribery Act if the subsidiary’s actions benefited the parent firm financially or otherwise.

 

7. Are bribes considered facilitation payments (small payments to expedite regular government action)?

Yes, bribes are considered facilitation payments if they match certain criteria. The Bribery Act defines an advantage in the context of a bribe as any payment paid to expedite or secure the performance of another person, among other things. The same position is supported by Kenyan jurisprudence.

 

8. Is there any restriction on political and charity contributions under the law?

Bribery for political and charitable contributions is not expressly prohibited under Kenyan law.

The Bribery Act would apply to any payments, whether in cash or in kind, made in favor of any political parties or candidates that are seen as an attempt to gain an unlawful corporate advantage. Political donations are typically permitted, as long as they are not utilized to achieve an improper or unfair benefit.

In-kind, service, and direct financial contributions are all valid forms of charitable assistance and donations. Individuals must, however, make sure that charity gifts do not qualify as bribes under the Bribery Act.

When a public or private entity fails to put in place measures to avoid bribery (Section 9 Bribery Act) and when a private entity fails to prevent bribery, the act may still be considered a bribe (Section 10 Bribery Act).

 

9. Is corporate hospitality subject to any legal restrictions?

Corporate hospitality is not specifically mentioned in Kenya’s anti-bribery legislation.

If there is enough evidence to establish that corporate hospitality was supplied with the goal of inciting action that amounts to a breach of an expectation that a person will act in good faith, impartially, or in line with a position of trust, it will be considered a bribe. This would have to be evaluated on a case-by-case basis to see if sufficient evidence could be shown to substantiate a violation of the Bribery Act’s provisions.

 

10. Do bribery offenses have any defenses?

Under the Bribery Act, there are no clear legislative defenses. However, the Kenyan Penal Code (Chapter 63, Laws of Kenya) allows a defense in situations where someone is forced to do something by threats of being killed or suffering grievous bodily damage if they refuse (Section 16 Penal Code).

 

11. What are the main anti-bribery regulatory or enforcement bodies?

The Ethics and Anti-Corruption Commission is the primary enforcement body for bribery (EACC). (Bribery Act, Section 14) The EACC’s principal responsibility is to receive and investigate bribery allegations, as well as to recommend to the Director of Public Prosecutions (DPP) that any acts of bribery be prosecuted (Section 11, EACC Act).

 

12. What are the legal ramifications of being convicted of bribery?

Where the Bribery Act does not specify a penalty, the general penalty is a fine of not more than KES5 million or a period of imprisonment of not more than 10 years, or both.

If found guilty of giving, receiving, or helping in the giving and/or receipt of a bribe, the offender faces a maximum sentence of 10 years in jail or a fine of KES5 million, or both, if convicted. If a person gained a quantifiable profit or another person experienced a loss as a result of the behavior, an extra fine may be levied. This additional fine will be five times the benefit or loss, or five times the amount of the benefit and loss if both occurred.

If a private entity is found guilty of failing to prevent bribery, they will face a fine as well as the possibility of having the entity (including public entities) repay the value of any benefit obtained.

Property acquired as a result of an advantage enjoyed by a convicted person or a private business may be confiscated by Kenyan courts.

Those who are convicted as state officers or public officers will be prohibited from holding public office. A person convicted of the crime is also barred from running for or being appointed to a state or public office for a period of not more than ten years after their conviction.

If the convicted person is a director of a business or a partner in a firm, he or she is barred for ten years from serving as a director or partner in that business or firm, as well as any other company or partnership in Kenya.

Any individual who is convicted of bribery, other than a natural person, is barred from doing business with Kenya’s national or county governments for ten years after their conviction (Section 18 Bribery Act).

 

13. Do you have any deferred prosecution agreements (DPAs) or other similar settlement options?

DPAs are not explicitly mentioned in Kenya’s legal framework. The EACC, on the other hand, can issue an undertaking not to bring criminal charges against a person who has fully disclosed all material facts relating to previous corrupt conduct and economic crimes (including bribery) and has voluntarily paid or refunded all property acquired through the corruption or economic crime, as well as all losses incurred as a result of the same. The agreement must be recorded in court (Section 56B, AECA).

The Kenyan legal system also allows for plea bargaining, in which an accused person or business agrees to plead guilty to a bribery accusation in return for a lesser/less lenient penalty. The prosecutor will be present during the discussions (Section 137A, Criminal Procedure Code, Chapter 75, Laws of Kenya).