A Review of the Kenya Bribery Act– Three Years on

Introduction

It is now three years since the Bribery Act, 2016, came into force on 13th January 2017. Kenyans anticipated that the reform in the law on bribery would be the new dawn in the fight against corruption, which they have termed as the cancer of the Kenyan economy. This research attempts to probe the effectiveness or otherwise of the Act in the fight against bribery in Kenya.

Background

The Act provides a framework for the prevention, investigation and punishment of bribery. Previously, the Anti-corruption and Economic Crimes Act, 2003 encompassed bribery as one of the forms of corruption. The Bribery Act now covers the intricacies of bribery comprehensively. Unlike the Anti-corruption and Economic Crimes Act which focused on graft within the public sector, the Bribery Act now outspreads deep into the private sector.

The Act has three new and diverse concepts from those in the Anti-corruption and Economic Crimes Act, 2003. These are, first, private citizens’ participation in the fight against bribery; secondly, the concept of transnational bribery; and lastly, matching the giver and the receiver of the bribe in terms of punishments.

Private Citizens Participation 

The impact of bribery and corruption in Kenya is widespread. The Bribery Act attempts to involve private citizens in the fight against bribery by imposing an obligation on them to report instances of bribery. The rationale behind this concept is that the Kenyan private sector is very liberalised. The most prominent providers of essential services, for example, education and health are now private entities. Some private corporations have the form of public organisations due to their size and their impact on society. Nevertheless, the law against corruption only targeted the public entities and state organs; thus, detached from the realities of the contemporary world. It was, therefore, crucial to include the private sector in the fight against corruption to capture corruption encountered in or engineered by the private sector. 

Under, the Act a public officer, state officer or a person in a position of authority in a public or private sector who witnesses an act of bribery must report it to the Ethics and Anti-Corruption Commission. Failure to do so amounts to an offence that attracts imprisonment for up to ten years or to a fine not exceeding five million shillings.

Besides, the Act mandates private entities to put in place adequate procedures to prevent and counter bribery.

Transnational Bribery

The world is a global village. Increasingly, states and individuals engage in commercial transactions across boundaries. It would thus be ineffective to target only bribery practices conducted within the territorial frontiers. The Act provides that an act or omission by a Kenyan citizen which constitutes an offence if done in Kenya shall constitute an offence if done outside Kenya. It also stipulates that an entity incorporated in Kenya which conducts business outside Kenya’s territorial boundaries is subject to the Act.

The punishment meted on the giver and the receiver

Formerly, the law focused on the receiver of the bribe as the originator of the action which constitutes bribery. It has ordinarily considered the giver as a whistleblower who deserves protection. The Act now defines what constitutes bribery as both giving and taking. It provides that a person commits the offence of giving a bribe if the person promises, offers or gives a monetary or any other advantage to a person, who knows or considers the acceptance of financial or other benefits would itself constitute the improper performance of the relevant function or activity. It further provides that a person commits the offence of receiving a bribe if the person demands, agrees to receive or obtains a monetary or any other advantage expecting that, as a result, a relevant activity or function should be done improperly by the person receiving the bribe or by another person.

Key Statistics under the Bribery 2016

To examine the effectiveness of the Act, we compare the available statistics under the Anti-Corruption and Economic Crimes Act and those under the Bribery Act.

In 2016, before the Act came into force, the 9th Annual Report of the National Ethics and Corruption Survey revealed that the average bribe stood at KShs.7,081.05. The Survey also indicated that the average number of times a bribe for bribery demands was 1.66 times. Among the reasons cited for why people agreed to pay bribe were: it was requested, to avoid service delay and because the public service provider expects that the receiver of the service would pay the bribe.

In 2017, the Survey indicated that the people who paid bribes to receive government services increased significantly to 62.2 per cent from 46 per cent in 2016. The average times a bribe was paid increased slightly to 1.33 from 1.27 times recorded in 2016. The average bribe dropped to KShs.5,058.75 in 2017 from KShs.7.081.05 in 2016. The average times a bribe was demanded reduced to 1.57 times from 1.66 in 2016.

Furthermore, the Survey revealed that the main reason why whistleblowers did not report many corruption and unethical conduct matters is that the whistleblowers dreaded potential harassment. The report pointed out that at a personal level, 61.7 per cent of the respondents admitted that they had done nothing to assist in the fight against corruption and promotion of ethical standards in the country. The perception of the government’s commitment to the fight against corruption declined from 53.5 per cent in 2015 to 42.8 per cent in 2016 to 42.9 per cent in 2017. The Survey showed that bribery was the most prevalent form of corruption encountered while seeking services from public offices.

In 2018, those who paid bribes to obtain government services increased by 11.9 percentage to 73.1 per cent. The average times a bribe was requested declined from 1.57 times in 2017. The average times a bribe was paid reduced from 1.33 times in 2017 to 1.24 times in 2018. The average bribe paid dropped from KShs.5,058.75 in the 2017 Survey to stand at KShs.3,833.14 in 2018, the lowest recorded since 2012. Only 5.8 per cent reported corruption and unethical conduct encountered compared to 94.2 per cent who opted out.

Concluding Observations

Although the surveys so far conducted do not precisely focus on the Bribery Act, the impact is not apparent. The statistics show that bribery continues to thrive even after the coming into force of the Act. For two years consistently after the enactment of this Act, the number of people who pay out bribes to obtain government services have continued to rise. Willing citizens have continued to fear potential harassment despite the specific provisions on whistleblowers protection in the Act. The data available does not quite show the impact of the Act on the private sector in the fight against corruption. Similarly, the data does not reveal the level of implementation of this Act.

 

In the upshot, the Bribery Act has been ineffective in the war against graft. Three years after its commencement, the country continues to struggle with the menace of corruption and the corruption index appears to be on an upward trend.