Pursuant to Section 12 (1) of the Bribery Act, 2016, the Attorney- General in consultation with the Ethics and Anti- Corruption Commission issued the Guidelines to Assist Public and Private Entities in the Preparation of Procedures for the Prevention of Bribery and Corruption. This article therefore seeks to highlight the salient provisions of the Guidelines.
Establishing procedures for prevention of bribery and corruption:
The Regulations provide that every public and private entitiy should establish procedures for the prevention of bribery and corruption, which shall be in writing and in the official languages.
The procedures are intended to provide an implementation structure arrangement, which ought to take into account the size, scale and nature of operations of the entity and the identified risks.
The implementation structure or arrangement ought to ensure that:
- There is commitment from the entity’s leadership.
- There is involvement of all employees in the entity.
- Where appropriate, incorporate members from external stakeholders of the entity.
- A senior officer or person acting in such capacity is designated to oversee the implementation of the procedures in the entity; and
- Necessary resources for implementation are provided
During the preparation of the procedures, the Cabinet Secretary in consultation with the Commission is required to publish guidelines to assist entities in the preparation of the procedures.
In line with the same, entities are required to assess and map out bribery and corruption risks in their operations and develop a plan to mitigate the risks.
The bribery and corruption procedures developed ought to provide for sufficient mechanisms to facilitate efficient and effective reporting of bribery and corruption within the entity and the Commission.
The reporting mechanisms are required to facilitate:
- A timely reporting.
- Access to reporting channels.
- Prompt action upon receiving a report;
- Protection of whistle- blowers, informants and witnesses; and
The reporting mechanism in place ought to provide for receiving, recording, processing and disseminating reports for appropriate action and feedback and take into account fair administrative action.
The Guidelines make provision for each State officer, public officer or person holding a position of authority in a private entity shall report any knowledge or suspicion of an act of bribery or corruption within twenty- four hours thereof failure of which amounts to committing an offence.
Protection of whistle- blowers, informants and witnesses:
The bribery and corruption procedures developed are required to provide effective measures for the protection of whistle- blowers, informants and witnesses, which shall include:
- Maintaining the confidentiality of the identity of the whistle blowers, informants and witnesses, details of the bribery or corruption report, and the sources of information relating to the bribery or corruption report.
- Establishing reporting channels for whistle- blowers, informants and witnesses who have suffered or reporting acts of bribery or corruption within the entity.
- Taking appropriate action on reports of retribution, victimisation or intimidation of informants, witnesses and whistle- blowers
- Instituting protection measures for whistle- blowers, informants and witnesses within the entity.
The Guidelines make specific provision for protection of whistle- blowers, informants and witnesses from intimidation or harassment for providing information on bribery or corruption or giving evidence in court.
They further provide that any person who demotes, admonishes, dismisses from employment, transfers to unfavourable working areas or otherwise harasses and intimidates a whistle- blower informant or witness commits an offence and is liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or both.
The procedures are required to designate a person or authority to set up an enforcement structure, which shall take into account the scale, size and nature of the operations of the entity and provide for appropriate action for violation of the law, regulations and bribery and corruption prevention procedures within the entity.
Collaboration and Co- operation with other Agencies:
The Guidelines also emphasize that the procedures should make provision for collaboration and co-operation with other agencies within the sector. The collaboration may be undertaken through:
- Joint planning
- Sharing information and best practice
- Mutual consultation
- Peer review
- Capacity building
Assistance by the Commission:
Upon the request by the entity, the Commission may advise the entity on the development and implementation of bribery and corruption prevention procedures. The Commission may also provide advisories generally on the development of bribery and corruption prevention procedures.
With the numerous cases Kenya has witnessed on corruption and the perceived level of corruption being high, the Guidelines are a step in the right direction as they provide for a framework to govern the entities and make provisions on the protection of whistle-blowers and informants. The guidelines bring about clarity on the policies to be developed, what they should cater for as well as the enforcement.
Please note that this article must not be construed as legal advice and for further information regarding prevention of bribery and corruption, for professional advice thereto, kindly do not hesitate to contact us at [email protected] or visiting our offices on 8th Floor, CMS Africa House, Nairobi or on 3rd Floor, Ritah Plaza, in Kakamega.