What is corruption in Kuwaiti law? Setting the scope of chapter

In demarcating the scope of the chapter, this section adopts a working definition of corruption that helps the subsequent sections to delimit the Kuwaiti criminal responses to corruption.[1] In addition, this section re-states the special interest of the book in the grand corruption as prevalent pattern in Kuwait and links the analysis of counter-corruption measures with this pattern. This section does not recap that problem; rather, it identifies a link between the Kuwaiti legal responses and the problem of grand corruption. The focus on grand corruption in this book leads, among other things, to the discussion of select corruption offences, which tend to be associated with this corruption pattern. The analysis and critique of the counter-corruption measures will take a distinct tack in the context of grand corruption, given the difficulties that characterise such corruption. Grand corruption is different from petty corruption in that it often involves abuses of public office by senior officials. The sensitive decisions taken by those officials may have financial consequences, which necessitate the focus on specific offences that relate to the decision-making process or/and involve large sums of money. Also, the analysis of these offences is predicated on a presumption that they are assumed to be committed by high-level officials, which might impact the way in which they are analysed. The difficulties linked to offences committed by senior officials differ in their complexity from those committed by low-level officials. Proving misconduct in a complex investment decision is more difficult than proving corruption in everyday activities undertaken by lower-level service

Table 4.1 Laws and offences considered as corruption in Kuwaiti law

Act Offences

Anti-Corruption Authorin' and Financial Disclosure Act (ACAA) 2/2016 and its Statutory Instrument No. 300/2016 (ACAA-SI)

Anti-Money Laundering and Countering Financing of Terrorism Act (AML/CFT Act) 106/2013 and its Statutory Instrument No. 37/2013 (AML/CFT-SI) '

Competition Protection Act 10/2007

Conflict of Interest Act (CIA) 13/2018 and its

Statutory Instrument No. 296/2018 (CIA-SI)

Criminal Law Act 16/1960 (CLA 1960)

Criminal Law Act 31/1970 (CLA 1970) Disclosure of Commissions in Public

Procurement Act 25/1996

GCC Common Customs Act (GCCA) 10/2003 Income Tax Act 3/1955

Protection of Public Funds Act (PPFA) 1/1993

Illicit enrichment offence (IEO) and obstruction of Anti-Corruption Authority (Nazaha)

Money laundering offence (ML offence) and terrorist act and terrorism financing offences

Antitrust offences

Conflict of interest offence

Forgery, counterfeiting and obstruction of justice offences

Bribery and trade in influence

Non-declaration or false declaration of a commission

Smuggling offence

Tax evasion offences

Offences against public funds and office

Table 4.2 Categories of officials subject to the ACAA

Officials

Prime minister, ministers, and officials performing an executive function with the rank of Minister;

President and members of National Assembly

President and members of Municipal Council

Judges, prosecutors, lawyers of the Department of Legislation and Legal Advice, members of the Criminal Investigation Department, lawyers of the Municipality, arbitrators, members of the Experts Department, official receivers, liquidators, debt collectors, officials of the Land Registry, and notaries

Chairperson and members of the councils and authorities that perform executive functions and that are established by an Act, an Amiri decree or a Cabinet decision

Chairman, Deputy Chairman, Board of Trustees, Secretary General, Directors, and technical staff of Nazaha

Chairman, Deputy Chairman, Directors, and technical staff of the SAB

Officials of the Financial Controllers Bureau (FCB)

Senior officials, including:

  • • Deputy ministers
  • • Board of Directors, Directors, and Secretary Generals of the public authorities and agencies and other governmental bodies
  • • Ex officio senior officials in any governmental body
  • • Directors of departments in any governmental body

The two previous paragraphs include officials, diplomats, and military personnel who occupy such positions - permanently or temporarily

State representatives in the Board of Directors of companies that the state directly contributes to with 25% of its capital

Board of Directors of the cooperative societies and sports governing bodies such offences are key enablers of, and associated with, corruption as a predicate crime.[2] Others acts, such as counterfeiting, smuggling, and antitrust crimes, are excluded because they may not be committed in the course of an officeholder’s occupation. Reflecting Hart’s view of legal rules, while corruption has ‘a central core of undisputed meaning’, some other corruption crimes may be perceived as a group of acts that constitute the ‘penumbra’ of corruption’s core meaning. These crimes may be dealt with as economic crimes and be subject to other laws and enforced by other law enforcement authorities in Kuwait (such as the Competition Protection Agency and Kuwait Customs).

  • [1] As well as the non-criminal responses in chapter 5.3. 2 Nicholls et al. (2017).
  • [2] 2 Hart (2012, p. 12). 3 In general, there are limited data about the legislative history of laws, especially from the government and National Assembly. 4 Explanatory Memorandum of the CLA 1960, para.2. 5 Homad (1977, p. 13).
 
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