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Bribery: Employers risk fines, jail as Govt. moves in to protect whistleblowers

By Brian Okoth | May 28th 2022 | 3 min read
The government says private and public entities must come up with procedures to stop bribery and graft. [Courtesy of New Humanitarian]

The government has moved in to protect whistleblowers from being targeted by corrupt managers or co-workers in public and private institutions.

Attorney-General Kihara Kariuki says both private and public institutions will be required to publish anti-bribery and anti-corruption policies that will guide how the companies deal with suspected cases of corruption.

The AG published in the Kenya Gazette the guidelines that will help these organisations come up with their own documents that outline the procedures for prevention of bribery and corruption.

“The bribery Act 2016 requires public and private entities to establish procedures for the prevention of bribery and corruption. An entity that fails to establish bribery and corruption prevention procedures commits an offence,” said the Attorney-General in Gazette Notice Number 6022 published on Friday, May 27.

The AG said the Ethics and Anti-Corruption Commission (EACC) will assist the private and public institutions to come up with the anti-graft policies, which will be published and deposited as binding documents that allow the companies know what to systematically do should they have a corruption matter to report or investigate.

The AG said the relevant ministry will help the companies come up with the policies by providing detailed guidelines on what must be included in the documents outlining procedures for prevention of bribery and corruption.

“The Cabinet Secretary, in consultation with the EACC, is required to publish guidelines to assist private and public entities in preparation of procedures required under the Bribery Act,” said the AG.

Proposing a key element that must feature in the guidelines, Kihara said: “Each State officer, public officer or person holding a position of authority in a private entity shall report knowledge or suspicion of an act of bribery or corruption within twenty-four hours thereof.”

Citing the Bribery Act 2016, Kihara said: “A person who fails to report knowledge or suspicion acts of bribery or corruption within the specified period commits an offence.”

The Attorney-General further said that to win the war on graft, whistleblowers must be protected, as demanded by the Bribery Act.

He said the informants and witnesses must be protected from “intimidation or harassment for providing information on bribery or corruption or giving evidence in court”.

“Any person who demotes, admonishes, dismisses from employment, transfers to unfavourable working areas or otherwise harasses and intimidates a whistleblower, informant or witness will commit an offence and is liable, upon conviction, to a fine not exceeding Sh1 million or to imprisonment for a term not exceeding one year, or to both,” he warned.

He said the guidelines that he proposed are aimed at assisting public and private entities, or any other person, to prepare procedures for the prevention of bribery and corruption.

“During the development of the bribery and corruption prevention procedures, the entity shall assess and map out bribery and corruption risks in its operations and develop a plan to mitigate the risks,” said the AG.

While coming up with the procedures, Kihara advised the entities to ensure that an implementation team and structure are put in place.

“The implementation structure or arrangement shall ensure that there is commitment from the entity's leadership, involvement of all employees in the entity; where appropriate, incorporate members from external stakeholders of the entity, designate a senior officer or person acting in such capacity to oversee the implementation of the procedures in the entity, and ensure that necessary resources for implementation are provided.”

The guidelines, the AG said, must provide for reporting mechanisms, access to reporting channels, guarantee confidentiality and prompt action, outline protection measures for whistleblowers, informants and witnesses, and provide feedback mechanisms.

“The bribery and corruption prevention procedures shall designate a person or persons in authority to set up an enforcement structure,” he said.

The Gazette Notice was silent on when the private and public entities must come up with the document on bribery and corruption prevention procedures.

“The EACC may, on an entity's request, 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,” he said.

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