Highlights on the Bribery Act 2016

The Bribery Act 2016 is a recently enacted Act of Parliament to provide for the prevention, investigation and punishment of bribery. The Act came into force on 13th January 2017. The Act provides general bribery offences that include giving a bribe, receiving a bribe, bribery of foreign public official and function and activities that relate to a bribe.

Acts of Bribery

The law outlines the following as acts of bribery as offences;

• If a private person bribes another person intending to obtain or retain business for the private entity or advantage in the conduct of business by the private entity.
• A person who knowingly assists a person or a private entity to give or receive a bribe by;
  • Obtaining property intended for use in bribery,
  • Having possession of or transferring property which was obtained as a result of, or in connection with bribery, or
  • Being in possession of property which was obtained as a result of, or in connection with bribery; or
  • Recording property which was obtained as result of or in connection with bribery in the accounting records of any private entity.
• Consent to bribery or connivance to allow bribes by a senior officer of the public, private or partnership entity, or a person purporting to act in such a capacity, creates a bribery offence where both the officer and the body corporate or partnership are liable for prosecution.

Obligations to Develop Measures for Prevention of Bribery and Corruption

The Act places obligations on public and private entities to put in place procedures that are appropriate to their size, scale and nature of operations, for prevention of bribery and corruption. Failure to do so is criminalized if it is due to the consent or connivance of a senior officer. The Ethics and Anti-Corruption Commission (EACC) is required under the Act to assist public and private entities to develop and put in place procedures for prevention of bribery. In addition, the Cabinet Secretary in consultation with the EACC is required to publish guidelines to assist private and public entities in preparation of procedures required under the Act.

An entity, either public or private will be deemed to have committed a bribery offence when the offence has been committed by a senior officer or director of the private entity.

Reporting Acts of Bribery

Every state officer, public officer or a person holding a position of authority in a private entity, is expected to report any knowledge or suspicion of instances of bribery within a period of Twenty four (24) hours, failure to which a person is deemed to have committed an offence.

Protection of Whistle Blowers

The law, makes provisions for protection of whistle blowers from any form of intimidation or harassment arising from providing information to law enforcement or giving evidence in court. In addition, a person that demotes, admonishes, dismisses from employment, transfers to unfavourable working areas or otherwise harasses and intimidates a whistle blower or a witness, will be guilty of an offence and shall be liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

Penalties for Engaging in Bribery Acts

The Act prescribes penalties in form of convictions and fines for a person, private or public entity found guilty of a bribery offence. They include;