Until 2012, offences related to bribery, misuse of authority by public officials and misuse of public funds were the subject of several laws including, but not limited to, the Penal Code (Law No. 16 of 1960), Law No. 1 of 1993 regarding the Protection of Public Funds and Law No. 30 of 1964 establishing the State Audit Bureau. The enactment of Law No. 24 of 2012 relating to the Establishment of the Public Authority for Combating Corruption and Financial Disclosure (the “Law”) and the related Executive Regulations that were recently issued under Decree No. 77 of 2015 (the “Regulations”) introduced significant changes to the legal landscape relating to bribery and related offences. The key highlights of the Law and Regulations are summarized below:
Scope of application
The Law supplements the existing legislation relating to bribery, misuse of authority by public officials and the use of public funds noted above. The Law provides that offences under the laws noted above and offences such as tax evasion under Decree No. 3 of 1955 (as amended), offences relating to manipulation of public tenders and auctions by public officials, offences under the Competition Law (Law No. 10 of 2007), money laundering under Law No. 106 of 2013, smuggling under Law No. 10 of 2003, fraud and the making of counterfeit products under the Penal Code shall be considered “corruption crimes” and shall fall within the scope of the Law. The Law also makes it clear that the penalties provided for under the Law shall not prevent the application of stricter penalties provided for under other laws. It remains to be seen how this dual legislative approach will be implemented by the authorities and courts in practice.
Establishment of the Public Authority for Combating Corruption (the “PCA”)
The Law establishes the PCA as an independent authority to oversee the implementation of the Law and existing legislation relating to bribery, misuse of authority by public officials and misuse of public funds. To facilitate execution by the PCA of its mandate, it is granted extensive powers and authority including, but not limited to, providing protection to informants and compelling government and private entities and individuals to disclose any information that the PCA may consider relevant to its investigations.
Disclosure obligations imposed on certain public officials
The Law obliges certain categories of public officials to periodically disclose certain information within specific timeframes during their tenure of office and after they leave office. The information to be disclosed is relatively extensive and includes details relating to real estate fully or partially owned, used or controlled by the public official, movable assets owned by the public official, financial securities and shareholding in companies and bank accounts held by the public official or his sons and other persons under his control or guardianship. Failure by a public official to make the required disclosures within the applicable timeframes or incomplete or inaccurate disclosure attracts criminal sanctions including monetary fines ranging between KD 500 to KD 30,000 and imprisonment for terms ranging between 90 days to 3 years.
Recognising the importance of informants in combating offences under the Law, the Law grants the PCA the authority to take measures to protect persons who disclose information relating to the commission of offences under the Law. A wide range of measures are provided for by the Law including concealing the identity of informants, providing security and changing the domicile, residence or place of business of informants, exemption from legal proceedings and compensation by the State for financial and moral damages incurred by an informant as a result of disclosing information relating to commission of an offence. Witnesses, experts and employees of the PCA are afforded the same protection as that offered to informants. In addition, the PCA may extend the same protection to spouses, relatives and other persons who have a close relationship with the informant.
Obligation to cooperate and report
Government and private entities as well as individuals are obliged to cooperate with the PCA in the performance of its obligations. Any person who becomes aware of the commission of an offence under the Law and related legislation is obliged to report same to the PCA. Refusal or failure to do so attracts criminal sanctions including monetary fines of up to KD 10,000 and imprisonment for a term of up to 3 years.
Revocation of contracts
Underscoring the importance of ensuring that bribery is not committed during the process of bidding for and executing government contracts, amongst other measures, the Law authorizes the PCA to make recommendations for termination of contracts which violate the Law or related laws.
Perpetrators who notify the PCA, the Public Prosecution or other competent authorities of an agreement to commit any of the offences falling within the ambit of the Law before its commission are to be exempted from punishment. Also exempted from punishment are perpetrators who, after participating in the commission of an offence but before investigations commence, notify the authorities and their assistance enables the authorities to apprehend other perpetrators or seize funds which are the subject of the offence or capture perpetrators in another offence of a similar nature and scale.
No limitation period
The Law provides that no limitation period shall apply to offences and penalties imposed under the Law.
Beneficiaries may be joined to proceedings
The Law grants courts the authority to join any person who is considered to have benefited from an offence under the Law to proceedings initiated under the Law and to order the seizure of any monies they may have obtained as a result. The Law and Regulations do not, however, clarify what criteria will be used in making a determination whether or not a particular person has benefitted from the commission of a crime falling under the Law. This may be intentional and could have been done to avoid fettering the discretion of the court when making a determination on this issue.