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The Bribery Act

An Act Of Parliament To Provide For The Prevention, Investigation And Punishment Of Bribery, And For Connected Purposes.

· To extend the fight against corruption by criminalising bribery in the private sector;

· To provide for specific requirements for private entities to enact procedures for bribery prevention;

· To create a legal obligation for every person who becomes aware of an act of bribery to report the matter to the Ethics and Anti- Corruption Commission; and

· To provide an effective co-ordination and accountability framework in the prevention, investigation and prosecution of acts of bribery.

· ‘Bribery’ is made up of two parts: giving a bribe and receiving a bribe.

· Someone commits the offence of giving a bribe when they offer, promise or give a financial or other advantage to another person, who knows that accepting this advantage would constitute the improper performance of a relevant function or activity. This can be done directly or indirectly or even via a third party.

· The offence of receiving a bribe occurs when:

  1. someone receives a financial or other advantage intending that, the result would be that a relevant function or activity should be performed improperly whether by that person receiving the bribe or by another person;
  2. the recipient requests for, agrees to receive or accepts a financial or other advantage and the request, agreement or acceptance itself constitutes improper performance of a relevant function or activity.
  3. in anticipation of or as a consequence of a person requesting for, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by that person, another person at the recipients' request.

· Under s. 5 and 6 of the act, someone commits the offence of bribery when they engage in the above activities i.e. giving or receiving a bribe

· Under the act, ‘relevant function or activity’ is defined as including:

  1. Any function of a public nature,
  2. any function carried out by a State officer or public officer, pursuant to his or her duties,
  3. any function carried out by a foreign public official, pursuant to his or her duties;
  4. any activity connected with a business;
  5. any activity performed in the course of a person's employment, and
  6. any activity performed by or on behalf of a body of persons whether corporate or otherwise.

· The function or activity should also fulfill the following conditions:

  1. It has to be performed in good faith
  2. It is to be performed impartially
  3. The person performing it is in a position of trust due to performing the activity

· Any person who bribes a foreign public official with the intention of influencing that official's capacity commits an offence.

· The offence is committed via:

  1. directly or through a third party, the person promises or gives any financial or other advantage to the foreign official or to another person at the foreign official's request or with the foreign official's assent or acquiescence; and
  2. the foreign official is neither permitted nor required by the written law applicable to him or her to be influenced in his or her capacity as a foreign public official by the offer, promise or gift.

Duty to have in place procedures for the prevention of Bribery:

· Public and private entities are required to put in place procedures for the prevention of bribery and corruption appropriate to their size and the scale and to the nature of their operation. The Ethics and Anti-Corruption Commission will assist public, private entities and any other party to implement procedures.

· The Cabinet Secretary shall, in consultation with the Commission, publish guidelines to assist private and public entities in the preparation of procedures required under this Part. The guidelines shall be in the Gazette or any other way that the Cabinet Secretary may consider appropriate. T

Any conduct that constitutes bribery within the meaning of the Act by a citizen or a private or public entity which takes place outside Kenya, will be considered an offence if the conduct is an offence in Kenya. This applies whether the offence takes place within or outside of Kenya

Section

Offence

Ingredients

Penalties

5

Giving a bribe

The offence of giving a bribe constitutes offering, promising or giving a financial or other advantage to another person, who knows or believes that the acceptance of the financial or other advantage would itself constitute the improper performance of the relevant function or activity. The offence of is committed whether the person to whom the advantage is offered, promised or given is the same person who is to perform, or has performed the function or activity concerned, or whether the advantage is offered, promised or given by a person directly or through a third party.

Liable on conviction, to imprisonment for a term not exceeding ten years, or to a fine not exceeding five million shillings, or both; and may be liable to an additional mandatory fine if, the person received a quantifiable benefit or any other person suffered a quantifiable loss.

The mandatory fine shall be-

(a) equal to five times the amount of the benefit or loss described above

(b) if the conduct that constituted the offence resulted in both a benefit and loss equal to five times the sum of the amount of the benefit and the amount of the loss.

(3) Any other person who commits this or the offence of receiving a bribe shall be liable on conviction to a fine not exceeding five million shillings.

 

6

Receiving a bribe

The offence is committed when

a)a person requests, agrees to receive or receives a financial advantage intending that, in consequence, a relevant function or activity should be performed improperly whether by that person receiving the bribe or by any other person; or

b)the recipient of the bribe requests for, agrees to receive or accepts a financial or other advantage and the request, agreement or acceptance itself constitutes the improper performance by the recipient of a bribe of a relevant function or activity; or

 

c)in anticipation of or as a consequence of a person requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by that person, or by another person at the recipients’ request, assent or acquiescence

As above

8

Bribery of foreign public officials

Anyone who bribes a foreign public official intending to influence his capacity commits an offence. This offence is committed if:

a)directly or through a third party, someone promises or gives any financial or other advantage to the foreign official or to another person at the foreign official's request or with the foreign official's assent; and

b)the foreign official is not required by the written law applicable to him or her to be influenced in his or her capacity as a foreign public official by the offer, promise or gift. The law applicable to a foreign official is either:

i)shall where the performance of the functions intended to be influenced would be subject to the law of Kenya;

ii)where the official is an agent of a public international organization, the applicable written rules of that organization; or

iii)in any other case, the law of the country or territory which applies to the foreign official so far as that law is contained in -

a)any provision made by or under legislation, applicable to the country or territory concerned, or

b)any judicial decision which is so applicable and is evidenced in published written sources.

Influencing a foreign public official could mean either an omission to perform his function or any use of the official’s position.

 

13

Activities intended to enable bribery

Any person who knowingly assists a person or a private entity to give or receive a bribe by-

(a) obtaining property intended for use in bribery;

(b) using, having possession of or transferring property which was obtained as a result of or in connection with bribery; or

(c) property which was obtained as a result of or in connection with bribery; or

(d) recording property which was obtained as result of or in connection with bribery in the accounting records of any private entity

commits an offence.

 

 

10

Failure of private entity to prevent bribery

A private entity commits an offence if a person associated with it, bribes another person intending to obtain or retain business for the private entity; or advantage in the conduct of business by the private entity.

Liable on conviction to a fine. In determining the fine to be paid, the court shall seek to deter similar offences by the same or other private entities as well as mete out punishment for the offence committed. The court shall order the confiscation of any property acquired as a result of the advantage received by the convicted person or private entity.

21 (2)

Protection of whistleblowers

A person who demotes, admonishes, dismisses from employment, transfers to unfavourable working areas or otherwise harasses and intimidates a whistle blower or a witness is guilty of an offence

Liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

 

 

Any person who knowingly or negligently discloses the information of informants and witnesses as a result of which those informants are harassed or intimidated commits an offence.

Liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

14

Duty to report bribery

Every state officer, public officer or any other person in a position of authority in a public or private entity must report any knowledge or suspicion of instances of bribery within 24 hours. Failure to do so results in committing an offence.

 

 

15

Territorial application

Conduct by a citizen of Kenya or by a private or public entity which takes place outside Kenya, shall constitute an offence if the conduct is an offence under this Act as if it took place in Kenya. This is irrespective of whether the acts or omissions which form part of the offence take place within or outside Kenya.

 

 

 

Should private or public entities fail to enact measures to prevent corruption, then any director or officer deemed to have instigated this will have committed an offence.

 

· In addition to the imprisonment or fine stipulated, the court may order the convicted person or private entity, or in appropriate cases, a public body, to pay back the amount or value of any advantage received by him to the Government.

· In addition to the penalties prescribed, the court shall order the confiscation of any property acquired as a result of the advantage received by the convicted person or private entity.

· If the convicted person is a director of a company, such person shall be disqualified from holding the position of director in that or any other company in Kenya for a period of not more than ten years.

· If the convicted person is a partner in a firm, such person shall be disqualified from serving as a partner in that or any other firm in Kenya, for a period of not more than ten years.

· Any person who is convicted of an offence under this Act, for which no penalty is expressly provided, shall be liable on conviction to a fine not exceeding five million shillings, or to imprisonment for a term not exceeding ten years, or to both.

· If the convicted person is a State officer or a public officer, such person shall be barred from holding public office, in accordance with the provisions of the Constitution, the Anti-Corruption and Economic Crimes Act, 2003, the Public Officer Ethics Act, 2003, and the Leadership and Integrity Act, 2012.

· A person who is convicted of an offence involving bribery shall be disqualified from being elected or appointed to hold a state office or a public office for a period of not more than ten years after conviction.

· A person, other than a natural person, convicted of bribery, shall be disqualified from transacting business with the national or county government for period of ten years after such conviction.

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