Kenya Bribery Act 2016: a precis for businesses operating in Kenya
Earlier this year Kenya became the latest African government to introduce enhanced anti-bribery and corruption legislation, enacting a law which - quite deliberately - bears more than a passing resemblance to the UK Bribery Act (UKBA). Like its UK counterpart, the Kenya Bribery Act 2016 (the KBA) places more of an onus on the private sector to prevent bribery. That said, whilst many aspects of the Act will be familiar to seasoned legal and compliance professionals, the KBA does contain some notable provisions, particularly relating to liability for corporates and mandatory reporting.
The KBA, which came into force in January 2017, contains the key offences seen in most developed jurisdictions and the OECD Anti-Bribery Convention: giving and receiving bribes and bribing of foreign public officials. There is no separate offence for bribing domestic public officials (as found for example in South Africa), but such cases would be prosecutable under the general offence of giving a bribe. There is also a prohibition on knowingly assisting in the giving or receiving of a bribe, and a separate offence for senior officers that consent to or connive in offences by private entities. For these purposes, a “private entity” includes those incorporated in Kenya or carrying on a part of their business in Kenya.
The KBA imposes (in section 9) a requirement on private entities to put in place bribery and corruption prevention procedures which are appropriate to their size, scale and the nature of their operations. A failure to do so with the consent or connivance of a director or senior officer gives rise to an offence by that individual, although seemingly not the entity itself.
Although guidance has yet to be published clarifying the government’s expectations in terms of “adequate” prevention procedures, one can expect that the forthcoming guidance will bear similarities to the UKBA guidance in terms of its key components: policies and procedures, “tone from the top”, risk assessment, due diligence, communication and training.
The Act also creates a strict liability offence for a private entity where a bribe is paid on that entity’s behalf by an associated person (e.g. an employee or agent) (section 10). Curiously, unlike the equivalent provision in the UKBA, the Act does not (at least explicitly) state that the maintenance of adequate prevention procedures (pursuant to section 9) would provide a defence. This may be an issue which is clarified by the Kenyan government or courts in due course.
Another notable provision is section 14, which requires persons in a “position of authority” in private entities (e.g. directors and senior officers) to report to the Kenyan Ethics and Anti-Corruption Commission knowledge or suspicion of bribery within twenty-four hours. Unlike some other legislation (for example in South Africa), there is no de minimis value for the underlying bribe before this obligation is triggered.
The Inside Africa team would like to thank Paul Ogunde, Walker Kontos, for his contribution to this blog post.