President Uhuru Kenyatta and his Cabinet spent the last 120 days scrutinising a proposal from top businessmen on how to tame corruption.
The proposal, which was submitted to State House in late November last year, and handed to Attorney General Githu Muigai for review, is now ready for publication as a Bill.
With his State of the Nation Address scheduled for Thursday next week, the President will be keen to tell Kenyans and the world about the new addition to the country’s legal arsenal to tackle the corruption cartels.
The Bribery Bill, 2016, a copy of which The Standard on Saturday has seen, has radical proposals on the penalties for those caught in the corruption web – mandatory fines of five times the loot, a jail term of up to 10 years, and a mandatory ban of 10 years from doing business with the government, both at the national and county levels.
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The thrust of the law is that for the first time, it focuses on the giver of the bribe. With procurement in government being the biggest home of kickbacks and bribes, even private companies will be punished. The Bill proposes that all companies will have to set up a code of conduct to guard against bribery.
It will be an offence for any person to “request, agree to receive or accept, a financial or other advantage” or “to offer, promise or give financial or other advantage” with the intention of subverting the known legal processes.
Firms or individuals will also be required to pay back the amount. Culprits will be barred from being elected or appointed to any public office for 10 years from the day of their conviction in court.
“The requirement for private sector entities to adopt anti-bribery measures is informed by the fact that the private sector acts as the supply side of corruption in the public sector, hence the need to stop corruption at source,” reads a Cabinet memo seen by The Standard on Saturday submitted to State House.
If the person convicted is a director or a partner in a company, the Bill says, they will be “disqualified” from being director or partner, not just in that company, but also “in any other company in Kenya for a period of not less than 10 years”.
“In addition to the imprisonment or fine stipulated in this section, the court may order the convicted person or private entity, or in appropriate cases, a public body to pay back the amount or value of any advantage received... to the government,” reads the Bill.
Judges presiding over bribery cases will have the power to “order the confiscation of any property acquired as a result of the advantage received by the convicted person or private entity”.
The Bill also imposes a Sh1 million fine or a one-year jail term on anyone who “knowingly or negligently” exposes informants or witnesses to the corrupt cartels with an intention to muddy the waters.
The whole idea, according to the Bill and as per a Cabinet memo issued to the President and all the Cabinet Secretaries who attended a Cabinet meeting on Wednesday at State House, is to make sure that corruption is punished and the penalties are so punitive so as to deter the corrupt.
“In determining the fines... the court shall not only seek to mete out punishment for the offence committed but also seek to deter similar behaviour by the same or other private entities,” reads a clause in the Bill.
The Bill allows the courts to slap the offenders with a discretionary fine of up to Sh5 million.
Another clause gives the Judiciary sweeping powers to decide how punitive the punishment will be.
“Nothing in this section shall prevent the court from imposing such other deterrent sentence as may be deemed necessary in the circumstances of the case under consideration,” reads the Bill.
The Cabinet memorandum filed with State House by the AG justifying the Bill says the goal is to close down “the supply side of corruption”.
“It has been noted that most of the anti-corruption laws and measures have tended to focus on the public sector and public officials, leaving the private sector unregulated, yet the private sector acts as the supply side of corruption,” Prof Muigai noted in the memo.
The Bill extends the punishment not just to the official players whose names may appear in the official documents, but to their proxies and agents.
“Any person who knowingly or recklessly assists a person or a private entity to give or receive a bribe ...commits an offence,” reads the Bill.
The offence extends beyond taking a bribe to include hiding property acquired corruptly in the accounting records of any private entity.
It will not matter whether the offence has been committed by a Kenyan or a foreigner, or if it was done in a foreign land. It will be an offence for anyone not to report a case of bribery to the Ethics and Anti-Corruption Commission (EACC) within 24 hours after they got “knowledge or suspicion” of a dodgy transaction.
“A State officer, a public officer or any other person who, despite being aware of or suspicious of the commission of an offence under this Act, fails to report the act to the commission within the specified period commits an offence,” reads the Bill.
Muigai justified the Bribery Bill and added that the existing laws “do not give sufficient treatment and deterrent sentences for bribery, hence the raging incidents of bribery”. And with that, the AG now wants the existing cases in court to be subjected to the new law as soon as it is enacted by Parliament.
“The Bill contains far-reaching anti-bribery provisions whose implementation will lead to drastic reduction of bribery, in particular, and corruption generally, in all the sectors of the Kenyan economy,” says the Attorney General in his memo to the Cabinet.