New anti-graft guidelines published by the Attorney General last week could see Chief executive Officers (CEOs) in both public and private sectors face slapped with a Kenya shilling one (1) millions fine, or serve 10 years behind bars for failing to set up internal procedures for the prevention of bribery such as a Code Conduct for preventing bribery and corruption in their institutions or companies.
The guidelines follow the enactment of the Bribery Act, 2016 (Bribery Act), commenced on January 13, 2017. They bring on board the private sector as well as private individuals in the fight against corruption.
The top executives now join State and public officers in the list of persons required to fight and report graft. The CEOs will be required to report cases of bribery or corruption within their institutions to the Ethics and Anti-Corruption Commission (EACC) within 24 hours.
The Bribery Act the legal framework governing anti-corruption in Kenya supporting other legislation governing the offence includes the Anti-Corruption and Economic Crimes Act, 2003 (ACECA), the Ethics and Anti-Corruption Commission Act, 2011 (EACC), among others which combat corruption and other economic crimes.
Under the Bribery Act, offences include; giving or receiving a bribe; bribing foreign public officials; failure of a private entity to put in place procedures for the prevention of bribery; failure of a private entity to prevent bribery by a person associated with it; assisting a person or a private entity to give a bribe.
The Bribery Act makes public officials, private individuals and legal entities liable for bribery offence and covers activities to which a bribe relates performed by state officers, public officers, foreign public officials, private individuals, private and public entities and partnerships. It states private entities can be held liable for failing to put in place procedures for the prevention of bribery. This is where the CEOs are facing punitive measures as spelt out in the new guidelines.
The new guidelines require firms to have a written Code mapping out corruption risks and ways to combat graft and include hiring a senior executive to drive their anti-corruption agenda. The officer will handle enforcement actions, and is to be allocated a budget. Corporates must show proof of internal channels established to report graft and state of confidentiality in reporting and handling unethical practices.
A report by EACC revealed that 70 percent of all corruption cases in the country relates to procurement, especially in government ministries and departments, where corrupt officials and unscrupulous businessmen collude to steal public funds.
These new guidelines are timely and highly welcome as many investors cite graft as one of the biggest challenges to doing business in Kenya.