The Attorney General on 7 October 2021 issued guidelines (the Guidelines) to assist public and private entities in the preparation of procedures for the prevention of bribery and corruption pursuant to the Bribery Act, 2016 (the Act).
The Act imposes a duty on public and private entities to put in place procedures for the prevention of bribery and corruption that are appropriate to the size, scale and nature of the operations of the entity.  More importantly, the Act provides that where a private entity fails to put in place the necessary procedures to prevent bribery and corruption and that failure is proved to have been committed with the consent or connivance of a director or senior officer of the entity, then that director or senior officer commits an offence. The director or senior officer, if convicted of this offence, is liable to a fine not exceeding KES 5 million and/or imprisonment for a term not exceeding ten years.  The published Guidelines are therefore critical in assisting entities to develop the relevant procedures for the prevention of bribery and corruption.
Some of the salient guiding principles provided under the Guidelines include:
- Risk Assessment and Management: In the development of bribery and corruption prevention procedures, an entity is required to assess and map out bribery and corruption-related risks within its operations and develop a plan to mitigate such risks
- Implementation Structure or Arrangement: The procedures are required to provide for an implementation structure or arrangement, which takes into consideration the size, scale and nature of operations of the entity and the identified risks. The structure is required to ensure that there is commitment from the entity’s leadership through the designation of a senior responsible officer and the involvement of all the entity’s employees. Where appropriate, the structure may also incorporate members from external stakeholders of the entity.
- Reporting Mechanisms: The procedures are required to provide mechanisms that facilitate timely reporting, access to reporting channels, confidentiality, protection of whistle-blowers, informants, and witnesses.
- Protection of Whistle-blowers, Informants and Witnesses: The procedures are required to provide effective measures for the protection of whistle-blowers, informants and witnesses. This includes maintaining the confidentiality of the identity of whistle-blowers, informants and witnesses, the details of the bribery or corruption report, and the sources of information relating to the bribery or corruption report.Additionally, these measures should include the taking of appropriate action on reports of retribution, victimisation or intimidation of informants, witnesses and whistle-blowers and instituting protection measures for whistle-blowers, informants, and witnesses within the entity.
- Enforcement Structure: The procedures are required to set up an enforcement structure which takes into consideration the scale, size, and nature of the operations of the entity and provide for appropriate action for violation of the law.
- Monitoring, Evaluation and Review: The procedures are required to include appropriate measures for monitoring, evaluating, and reviewing the effectiveness of the procedures, identification of emerging risks and making improvements where necessary.
- Collaboration and Co-operation with Other Agencies: The procedures may provide for collaboration and co-operation with other agencies within the sector or industry. This may be undertaken through joint planning, sharing of information and best practice, mutual consultation, and capacity building.
Given the gazettement of the Guidelines, we anticipate that the Ethics and Anti-Corruption Commission will begin enforcing the requirement to have procedures for the prevention on bribery and corruption in place for private and public entities. This is in line with the Commission’s objective of preventing bribery and corruption as well as investigating and bringing to justice those found guilty of these offences. Organisations no longer have the defence that the provisions of the Act are vague with regards to these requirements.
It is also important to note that Parliament is currently developing the Whistleblower Protection Bill, 2021. The Bill principally seeks to set out procedures for disclosing information on improper conduct within the public and private sectors and provide for a legal and institutional framework for the protection of whistleblowers. We shall share a detailed legal alert once the Bill has been enacted into law.
A&K, through its Dispute Resolution and Forensics and Investigations teams, has extensive experience providing investigatory, legal and advisory support to clients in relation to Anti-Corruption and Bribery matters. This includes the development and implementation of prevention procedures in line with the statutory compliance obligations, as well as assistance to clients on their risk assessment, management and mitigation processes. Through our affiliate Adili Trust One Limited, we provide state-of-the-art whistleblowing services for entities.
Read the original publication at Anjarwalla & Khanna