The Anti-Corruption Act of 2012 governs bribery in Zambia at the moment (the Anti-Corruption Act).
The Anti-Corruption Act does not specifically mention the term “bribe.” It is, nonetheless, included in the concept of corruption. Corruption, according to the Anti-Corruption Act, is defined as:
“The seeking, receiving, getting, providing, promising, or providing of satisfaction in exchange for a bribe or other personal temptation or inducement, or the misuse or abuse of a public office for personal gain or benefit.”
Corruption by or with public or private officers is specifically prohibited by the Act. The Act expressly bans an inducement or reward for doing or forbearing to do anything in connection with any matter or transaction.
The ownership of unexplained property, the concealing of property, the abuse of authority of office, the gratification of providing help with reference to a contract, and the gratification for inducing the withdrawal of a tender are also prohibited by the Anti-Corruption Act.
The UN Convention Against Corruption, the African Union Convention on Preventing and Combating Corruption, the Southern African Development Community Protocol Against Corruption, and other regional and international instruments on corruption to which Zambia is a party have all been domesticated by the Anti-Corruption Act since its inception. This, of course, is in addition to the Act’s local jurisdictional requirements.
Section 91 of the Act also states that the Anti-Corruption Act is applicable both within and outside Zambia, regardless of where any offence is committed. It goes on to say that the offence will be prosecuted as if it were committed within Zambia.
Foreign nationals are likewise included in the Act’s jurisdictional reach. Section 26, in particular, forbids and criminalizes corruption by or on behalf of foreign nationals. Section 92 adds to this by stating that an offense committed under the Act is presumed to be an extraditable offense under the Extradition Act’s provisions.
Sections 19 and 20 apply to both private and public entities in terms of liability. This includes government officials, private citizens, and, by extension, legal entities. Agents are also included in the category of people who can be held accountable for bribery under section 23.
The Act does not directly address a parent company’s liability for bribery committed by a subsidiary.
А parent firm with regards to its subsidiary will fall under this definitional element of an affiliate. Section 8 of the Act states that in a meeting, if a party’s associate becomes the subject of the meeting, the party must reveal such interest as soon as feasible.
As a result, other from the aforementioned responsibility, the act does not appear to hold a parent corporation liable for bribery by a subsidiary.
Section 19(2) of the Act states: “Any person who corruptly gives, promises, or offers any gratification to any public officer, whether for the benefit of that public officer or any other public officer, as an inducement or reward for doing or forbearing to do anything in relation to any matter or transaction, actual or pro forma, whether for the benefit of that public officer or any other public officer, as an inducement or reward for doing or forbearing to do anything in relation to any matter or transaction, actual or pro
As a result, a plausible interpretation of this Act clearly prohibits the use of facilitation or minor contributions to expedite government processes. As previously noted, such behavior comes well under the definition of an enticement or reward for services, both of which are illegal under the Anti-Corruption Act.
The Electoral Act of 2006 regulates political contributions. Bribery is defined as any person who corruptly offers or lends money in order to influence or prevent a voter from voting for a candidate.
There does not appear to be any specific mention to charitable contributions in the Anti-Corruption Act. However, it should be noted that a charity contribution can legitimately be considered a casual gift (as defined further below) if it is not made under false pretenses.
The Anti-Corruption Act has included corporate hospitality as a definitional part of a casual gift. A gift is defined as “any unsolicited gift of modest value, offered to a person in recognition or appreciation of that person’s services, or as a gesture of goodwill toward that person, and includes any inexpensive seasonal gift offered to staff or associates by a public or private body or a private individual on festive or other special occasions.” Furthermore, Section 90 establishes that the gratification provided qualifies as entertainment or a casual gift, which is a qualified defense.
As a result, it must be indicated that corporate hospitality must clearly come outside the ambit of a casual gift in order for it to not be considered bribery under the Act. Should the reward, however, go beyond that of a random gift, it risks turning into the illegal behavior of corrupt practices as stated above.
According to section 90, “it shall be a legitimate defense in any proceedings for a violation under this Act that the gratification provided or accepted is an entertainment or a casual gift.” As a result, the scope of the Act’s defenses is maintained limited. In the case of alleged bribery, the sole defense available is that the activity was done for entertainment or as a random gift.
The Anti-Corruption Commission is the organization in charge of regulating and enforcing bribery offenses under the Anti-Corruption Act (the ACC).
Individuals in various situations face a variety of consequences (mainly public officials). The sanctions in question also differ based on the nature of the offense. Having stated that, section 41 of the Act establishes penalties for general bribery offenses. Section 41 of the Act states that anyone convicted of an offense under the Act faces a maximum jail sentence of 14 years, regardless of whether they are a first-time or repeat offender. However, for successive offenders, a minimum term of 5 years is mandated, with a maximum term of 14 years as mentioned.
Out-of-court settlements are particularly allowed under Section 80 of the Anti-Corruption Act. More specifically, this section states that if the ACC is required to initiate proceedings against an individual, it is free to provide a personal notice to the accused telling them that they may settle the claim within a certain time period before court procedures are filed. As a result, subsection 2 gives the ACC the authority to negotiate and reach an agreement with the individual in such instances. Subsection 3 specifically states that the ACC may tender a written undertaking not to bring criminal charges against a person who: “(a) has made a full and true disclosure of all material facts relating to past corrupt conduct and illegal activity by that person or others; and (b) has voluntarily paid, deposited, or refunded all property acquired through corrupt conduct by that person or others.” The Act also requires that any settlement or undertaking made under this clause be registered in court.