By CPA Ondimu Stanislas
One of the manifestations of corruption, common in Kenya, is bribery. The private sector (the supply side) initiated the Anti-Bribery Act, Cap 79B, which was enacted into law and came into force on 13th January 2017.
The Anti-Bribery Act Cap 79B is modelled on the United Kingdom Anti-Bribery Act and was enacted to aid in the prevention, investigation and punishment of bribery in Kenya. Its ambit covers both public and private sectors. The Act provides for a wide range of bribery offences and grants the Ethics and Anti-Corruption Commission a robust mandate to combat bribery in the public and private sectors. The Act also provides protection for whistle-blowers to encourage disclosure of not only bribery but also all forms of corruption. The scope of application of the Act covers the public sector, private sector, private persons, registered businesses, partnerships, foreign public officials, and non-governmental organisations, among others.
The Anti-Bribery Act, Section 9 (1), requires all public and private entities to put in place procedures appropriate to their size, scale, and nature of operations for the prevention of bribery and corruption.
To fully operationalise this law, the Anti-Bribery Act Cap 79B, under sections 12(1) and 22, requires the Attorney General to publish Regulations and Guidelines to assist private and public entities in preparing procedures for the prevention of bribery and corruption. The Anti-Bribery Regulations, 2022 were published on 24th May, 2022, via Kenya Gazette Supplement No. 82 as Legal Notice No. 88, while the Guidelines to assist private and public entities in the preparation of procedures for the prevention of bribery and corruption were gazetted on 27th May, 2022, via Kenya Gazette Vol. No. CXXIV-NO. 96 as a Gazette Notice No. 6022.
It’s a requirement under this legislation that the established procedures for the prevention of bribery and corruption in both public and private entities must be in writing, in the official languages, and may also be translated into any other language. Surprisingly, many entities have not put these procedures in place, contrary to Anti-Bribery Regulation 13(1), which requires that the procedures for the prevention of bribery and corruption be established within six months of the publication of the Guidelines, which was 27th November, 2022.
Guiding principles
Regulation 13(2) provides the minimum guiding principles to be incorporated into procedures for the prevention of bribery and corruption. These are:
(i) bribery and corruption risk assessment and management;
(ii) communication and training processes;
(iii) internal mechanisms for reporting acts of bribery and corruption;
(iv) mechanisms for the protection of whistle- blowers, informants and witnesses; and
(v) compliance, monitoring and review mechanisms.
Liability for failure to put in place Procedures
Private Entities that fail to establish and put in place the procedures for prevention of bribery and corruption commits an offence under section 9 (2) of the Anti-Bribery Act Cap 79B and the private entity or its directors, senior officers or other responsible person are liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding ten years, or to both under section 19 of the Anti-Bribery Act Cap 79B. Although public entities are required to put in place procedures to prevent bribery and corruption, there is no prescribed offence or liability for failure to comply with this provision.
Important Features of the Procedures
1. Top-level management to commit to prevent and foster a culture in which bribery and corruption are not acceptable (zero tolerance) and to communicate internally and externally. It will foster an ethical environment and provide leadership in determining resistance to bribery and corruption. It will implement the prevention of bribery and corruption measures that are put in place.
2. Appoint a senior officer/manager to be in charge of compliance and ensure that bribery and corruption is detected and appropriate action is taken against the violation of the Anti-Bribery Act Cap 79B.
3. The entity should develop well-documented policies that explain how employees, business partners, and third parties should behave. Clearly specify unacceptable and non-compliant behaviour. These policies may include: Anti-bribery and corruption, Codes of conduct and ethics, Whistleblower protection, Conflict of interest, Hospitality, gifts and donations, Collections and harambees, Anti-fraud policy and other related policies.
4. The bribery and corruption risk assessment and management are a precondition for determining the entity’s risk exposure. The entity should identify, assess, and map potential bribery and corruption risks in its operations; design and implement intervention measures to mitigate those risks; monitor, evaluate, and review the intervention measures; and document and maintain a record of the bribery and corruption risk assessment and mitigation process.
5. The entities should provide mechanisms for bribery and corruption reporting. These should include various reporting channels, such as in-person, by writing, email, telephone, reporting boxes, an anonymous reporting system, third parties or agents, and a web portal. The reports should be handled promptly with utmost confidentiality, and feedback given. Section 14(1) of the Anti-Bribery Act requires that every state officer, public officer or any other person holding a position of authority in a public or private entity report to the Ethics and Anti-Corruption Commission within a period of twenty-four hours any knowledge or suspicion of instances of bribery.
6. Provide an elaborate and effective mechanism for protection of whistle- blowers, informants and witnesses by maintaining confidentiality of the identity details and sources of the bribery and corruption reports; establishing reporting channels on acts of retribution, victimization and intimidation for reporting acts of bribery or corruption within the entity; taking appropriate action on reports of retribution, victimization or intimidation and putting in place measures for protection such as anonymous reporting and Whistle Blower Policy.
7. Continuous communication and training programmes to all members of the entity and the stakeholders. This includes having effective internal and external channels of communication, training on the prevention of bribery and corruption for the governing body, top management, and all employees, and carrying out regular sensitisation, awareness creation, and dissemination to all stakeholders.
8. Explore opportunities for collaboration and co-operation with other entities within the sector or industry to prevent bribery and corruption.
9. The entities are to put in place a monitoring and evaluation framework to ensure compliance with and the effectiveness of the procedures, identify emerging risks, and make improvements where necessary. The procedures are to be reviewed periodically.
Advisory
The Ethics and Anti-Corruption Commission is given the role of assisting private entities, public entities, and any interested person to develop and put in place procedures for the prevention of bribery and corruption, and for the implementation of procedures under Section 9(3) and Section 12(3) of the Bribery Act. To this end, the Commission has developed Model Procedures that can be customised and are available on the EACC website (www.eacc.go.ke)under the downloads section.
Further, the Chief of Staff & Head of Public Service has issued Circular Ref No. OP/CAB.3/7 dated 30th June 2025 addressed to all Principal Secretaries/ Accounting Officers, which requires public entities to put in place the Procedures for Prevention of Bribery and Corruption in the Public Service by 30th September 2025 and report to EACC. The accounting officers shall be held accountable for failing to comply and for deliberately taking no efforts to eliminate bribery and corruption. He directs that henceforth, Corruption Prevention be a target in the Performance Contract w.e.f 1st July 2025.
Ignorance of the law is not a defence; it’s important that both public and private entities note this requirement and ensure that procedures to prevent bribery and corruption are in place.
The Author works with the Ethics and Anti-Corruption Commission.
Email; [email protected]
