Current criminal counter-corruption measures

This section explores the criminal counter-corruption framework in Kuwait. For the purposes of this section, this framework is classified into three parts. The first explains specific corruption offences, based on the criteria identified above: bribery, diversion of public funds, abuse of functions, the IEO, and the ML offence. The second addresses the financial arrangements that deal with the proceeds of corruption. The third part addresses the provisions regarding whistleblowing, especially those related to corruption crimes. Furthermore, this section analyses the effectiveness and fairness of this criminal framework in practice. The analysis is enriched by different sources, including doctrinal analysis of legal texts, comparative law, empirical data collected during the fieldwork, and interviews conducted with experts in Kuwait to illustrate the legislative history of each crime.

Bribery

In Kuwait, prior to 1960, crimes were subject to the provisions of Fiqh (the theory of Islamic law based on Quran and Sunnah). However, in 1960, just before its independence in 1961, the Kuwaiti legislation criminalised bribery offences in sections 114-119 of the CLA 16/1960 (CLA 1960). The bribery offence is one the earliest responses to corruption in Kuwait. When it was first criminalised in 1960, there was no distinct legislative history of bribery. In 1970, bribery offences were re-enacted under the chapter of‘offences against the duties of public office’ in the CLA 31/1970 (CLA 1970). The 1970 amendments aimed to counter the proliferation of bribery at that time and the threats it posed to the state apparatus: ‘the Kuwaiti legislature re-enacted new provisions of bribery crime with more severity’. As the Explanatory Memorandum

of the CLA 1970 illustrates, the rationale beyond criminalising bribery was to protect the integrity of public office and to maintain trust in it. Bribery of national officials is specified in Article 15 of the UNCAC, which requires the criminalisation of ‘(a) The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage,’ and ‘(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage’. This section only analyses passive and active bribery of officeholders[1] and the subsequent reward offence. Some of the issues arising here will be compared with the UK Bribery Act (UK BA) 2010.

There are various prerequisites for those bribery offences to have occurred. The bribed offender should be an official. The official should also be competent: he/shc should have legal or factual authority to do what the bribe requires. However, bribery occurs when an official claims authority to do, or refrain from, what the bribe requires, or when the official mistakenly reckons that he/she has the legal authority. The criminal law has extended the officeholder definition beyond the concept of public officials within the meaning of the administrative laws. Section 43 of the CLA 1970 stipulates that the following categories of individuals are deemed officials:

  • 1 officials, clients, and workers of both the governmental bodies and the bodies that are supervised and overseen by the government;
  • 2 members of parliament and other local councils (elected and appointed);
  • 3 arbitrators, members of the Experts Department, official receivers, liquidators, and debt collectors;
  • 4 boards of directors, directors, officials, and clients of companies and enterprises in which the state has any capital contribution; and
  • 5 every individual that is charged with a public service.

As noted above, two bribery offences are discussed here. First, active and passive bribery offences involve situations where an official asks for, or accepts for himself/herself or for others, a promise or an undue advantage in exchange for performing or refraining from one of his/her official duties. The actus reus comprises the activity of either solicitation or acceptance, and undue advantage, including financial perks and other moral benefits. The mens rca requires general intent. Intent is defined in section 41 of the CLA 1960 as when the defendant wilfully commits the proscribed act to achieve the prohibited results. The

official should intend to take the undue advantage offered to commit the crime. It is then immaterial whether the officeholder intends to perform or refrain from their official duties.[2] The official must also know that he/she is being bribed to perform, refrain from, or violate, a duty. The official is liable to a sentence of up to 10 years’ imprisonment and a fine equal to twice the value of what was given or promised.

Second, the subsequent reward offence involves two forms. The first includes any official, who, without prior agreement, accepts an undue advantage as a reward from someone for whom the official has already performed, or refrained from, an act in violation of one of his/her official duties. The official is liable to a sentence of up to 5 years’ imprisonment and a fine of not less than 50 Kuwaiti dinars. The second form refers to the case where the performance or refraining by the official did not violate his/her official duties. For this offence, the official is liable to a sentence of up to 3 years’ imprisonment and a fine equal to the bribe or the advantage. The subsequent reward offence requires that the official should have already done what the briber wants and that there should be no prior agreement between the offenders. Notably, the actus reus here is limited to the acceptance of the bribe/reward. It is not crime if an official asked for a reward after hc/he had performed or refrained from one of his/her duties. The latter offence is still valid, despite the controversy over whether the CLA 1970 repealed the bribery-related provisions of the CLA 1960. The courts have emphasised that section 118 of the CLA 1960 does not contradict the new provisions of the CLA 1970, and each Act criminalises a different form of bribery.

Official-2 emphasised that ‘the current law on bribery aims to criminalise a wide range of potential abuses of the public office’. The CLA 1970 sends a message to officials that bribery is unacceptable to the extent that it criminalises ‘just thinking about engaging in bribery and even if the official does not have the official capacity to do what he or she promises’. The ability to apply bribery to many potential cases has led some professionals to think that bribery, as a legal text, is effective. It is not surprising then that NGO-3 stated that, ‘based on the relatively high rate of referrals by the public prosecutors and convictions by the courts, bribery is more effective than other corruption crimes’. Judge-1 also concluded that, ‘since its criminalisation, there have been numerous bribery cases that have ended with convictions’.

Despite this endorsement by the interviewees, the bribery offence has been beset with many practical problems and criticised by Kuwaiti professionals. Across the interviews, ‘the problem of difficulty with proving bribery’ could be inferred as an emerging pattern.'2 Some participants concluded that bribery, in the current situation, is not effective and is unable to bring the intended effect - that is, ensuring the integrity of officials. Lawyer-1 stated that, ‘from a practical perspective, the law on bribery in Kuwaiti law is of little value in combating bribery offences.’ Because of the requirements of the law, bribery is difficult to prove.[3] Lawyer-1 stated that the ‘bribery offence is difficult to prove in many cases as the Act requires that the benefit or the undue advantage should be proven to be in the possession of the offender.’ Official-4 added that the requirement that the offenders should be caught in flagrante delicto (caught red-handed) proves to be almost impossible, and ‘this is why there are many cases that have ended with acquittal’. Official-4 believed that the strict requirements of the bribery offence, which caused the perceived difficulty in proving it, lead to contradictions in implementing it: ‘while some low-level officials are easily caught for being bribed, other high-ranking officials escape justice although they have abused the public office’. The interviewees proposed solutions to overcome this difficulty. The legislature may encourage whistleblowers and grant them some privileges, such as criminal impunity. Judge-1 also suggested that the agents working in the law enforcement authorities should be well trained as one important factor that could enhance the effectiveness of the bribery offence.

The views of Lawyer-1 and Official-4 are arguably insufficient as explanations of the law. What they said (that the benefit should be proven to be in the possession of the offender, or they should be caught red-handed) are not requirements of the bribery offences in Kuwaiti law. The Kuwaiti criminal courts have emphasised on many occasions that the bribery offence may be proved by all means or types of evidence. In one bribery case, the court applied the general rule on criminal evidence established by the Kuwaiti Supreme Court, asserting that what matters in criminal trials is that the judge is persuaded by the evidence adduced; that the judge can infer the guilt or innocence of the defendant(s) from any admissible evidence or the facts of the case; and that the judge can decide whether what occurred - the offence as depicted by the prosecutor - is true or not. Consequently, the bribery offence does not have to be proved in a particular way. The tactics that police officers often use to catch bribed offenders in flagrante delicto should not be conflated with what the elements of the bribery offence in the statutes are: that is just evidence to be used to strengthen the case.

Official-2 mentioned a new aspect of proof-based difficulties, stating that criminal activities have become too complex to be proven: ‘the undue advantage may take the form of buying real estate abroad, and this complexity affects the ability to prove bribery, and hence, its effectiveness’. Bribery is a conventional offence, in the sense that the law requires material physical or moral benefits to be accrued to the official. This conception of bribery hinders it from keeping up with the complex forms that bribery may take nowadays. Lawyer-2 summarised the problem: ‘Bringing in evidence on bribery is difficult; it is not easy to find an official who is being bribed. In practice, bribes are not being paid through bank transfers but in cash. An important example of this problem is the “mul-ti-million deposit scandal”’. Therefore, the bribery law should be improved to keep pace with the non-traditional approaches used in committing bribery, such as an exchange of benefits that does not take the form of explicit bribery: ‘when an officeholder exploits his/her discretion with the intention of simultaneously achieving benefits for himself/herself and for others’.[4] Lawyer-1 argued that ‘the criminalisation of conflicts of interest in the Conflict of Interests Act rectifies some drawbacks that bribery is plagued with’. The conflict of interest offence can be described as a ‘modernised form of bribery’ as the legislature has criminalised other forms of unnamed benefits and advantages, such as the assumption that the possession by an official of a share in a business that deals with that official’s employer is a form of undue advantage.

Official-4 referred to another problem related to the mens rca required in bribery offences. This practice reveals another trick that is used by lawyers, which jeopardises the effectiveness of the bribery offence. Under the current law, it is difficult to prove that what is paid is in return for what the official did (especially when he/she discharged his/her duty properly). Some lawyers state, as a defence, that what has been paid is, in fact, just a debt that the official owed to the person. Lawyer-1, Lawyer-2, and Official-4 stated that the current law must be revised and amended in order for the bribery offence to be effective. Lawyer-1 suggested that the law should not require that all of the elements of bribery be proven by the prosecutor. In particular, Official-4 suggested the law should be revised in relation to the mens rea. The requirement of proving the offender’s knowledge that the bribe was paid because of what the official performed in order for bribery to occur is strict and obstructs the application of bribery in many cases. However, this problem of mens rea arises because of the legal construction of the bribery offence in section 35 of the CLA 1970 which covers cases where the bribed official discharges his/her responsibilities properly. In the latter case, it may be difficult to establish a link between the bribe paid and what the official did. In contrast, the mens rca is not expected to raise problems under the provisions of the UK BA 2010 where a bribe is ‘essentially an inducement or reward to a person with public

Criminal counter-corruption measures 139 or private responsibilities to discharge those responsibilities improperly’.[5] It is easier for the prosecutors to establish a link between the bribe paid and the improper performance of the officeholder.

Two interviewees emphasised the potential of financial disclosures, as stipulated in the ACAA, in combating bribery. They should be extended to include the junior officials because the existing financial disclosures arc limited to specific types of high-ranking officials. Lawyer-2 stated that, to facilitate the prevention of bribery, the exclusion of non-Kuwaiti officials from submitting financial disclosures may lead to the displacement of bribery to other nonKuwaiti actors. In practice, non-citizens occupy sensitive positions. One perceived risk is that bribes may be given to a non-Kuwaiti official who acts as a secretary of a high-level official (as in the reality of the public administration in Kuwait). Abusing the trust given to him/her, the secretary may engage in bribery in return for violating their public duties.

The awareness of the public has also been recognised as one measure to ensure that the bribery offence is effective. In 2013, a researcher studied bribery in Kuwait based on a sample of 600 persons. Among the results, he found that people tolerate bribery although they realise its illegality. He recommended that the government should develop strategies to raise people’s awareness. As stressed by one interviewee, ‘to ensure the effectiveness of the bribery offence, the civil society’s awareness of bribery and corruption should be raised’. NGO-3 said, ‘we are aware of the need to help people raise their awareness’, and that is why the non-governmental organisations (NGOs) and ‘... [our association] launched the campaign of “Report” to encourage people to report any bribery to increase the exposure of the corrupt’. This interest of the NGOs perhaps reflects the importance of whistleblowing and the potential role of informers in uncovering inherently secretive corruption acts.

Regarding the fairness of the bribery offence, the majority of the participants who discussed bribery did not mention any specific concerns about its fairness. As for its legitimate purpose, Lawyer-1 stated that bribery is a fair offence given that it aims to protect the integrity of the public office. With regard to respect for constitutional rights - safeguards provided for the suspect - NGO-3 contended that ‘bribery is fair and does not involve any potential infringements upon the civil liberties of people’. Judge-1 concluded that:

With respect to the constitutional rights of the suspect, bribery is a fair offence that is surrounded by several substantive and procedural safeguards

that arc established in the constitution and in the criminal justice laws ... if the procedures are violated, evidence gained based on those procedures then loses its legal value/validity.

The bribery offence was perceived on other occasions to be ''incomplete’, ‘not ideal’, or even ‘unfair’.[6] Official-2 stated that ‘we cannot say that bribery is unfair; rather, the fairness of bribery is “incomplete”’. This participant based his/her argument on the fact that bribery of employees in the private sector is not criminalised and ‘this does not correspond to the power of the private sector in Kuwait, which comprises individuals who have financial affluence, and a constant need to deal with the government’. As Official-2 emphasised, the existing bribery law does not correspond to the potential role of the private sector in Kuwait, where the public sector prevails: ‘the dependent, affluent private sector always needs a decision from an official so that it can penetrate the public sector’. The potential role of the private sector in the bribery offence becomes a more serious issue, ‘particularly in a rentier state like Kuwait’. Another participant shared this view on bribery and went on to say that the non-criminalisation of private sector bribery ‘... does not make bribery unfair’ and that ‘there is a difference between being fair and ideal; the way in which bribery is criminalised in Kuwait is fair, but not ideal’. The existing bribery law also provides more leniency for private sector actors. Because of this lenient treatment, the current law could be perceived as unfair. In Kuwait, both the briber (who can be from the private sector) and the bribed (always an official) are subject to the same punishment - 10 years’ imprisonment. However, the CJA 1970 differentiates between them on different occasions. First, if what the briber asked for is legal, whereas the bribed official is still liable for 10 years’ imprisonment, the briber will be subject to just 5 years’ imprisonment.’ Second, if the officeholder did not accept the bribe, the briber is liable for 5 years’ imprisonment, or 3 years’ imprisonment if what they asked for is legal.’

Though private sector bribery is beyond the scope of the book, two points related to the criminalisation of private sector bribery might be mentioned. First, the public-private distinction in Kuwait is justified based on the purpose of the existing bribery law, that is, protecting the integrity of public office.’ As Green argued, while private bribery should be criminalised, public sector bribery should be dealt with distinctly because of its ‘moral and political character’. Second, criminalising bribery that occurs wholly within the private sector

Criminal counter-corruption measures 141 necessitates a transformation in how the Kuwaiti policymakers perceive bribery. For example, Alldridge stressed that the changes in the bribery law in the United Kingdom are based on the assumption that the UK BA 2010 ‘gave up the idea that the essence of bribery is that it is an offence of disloyalty and embraced the idea that bribery undermines the proper operation of markets’.[7] Therefore, it may be argued that it is too early to call for the criminalisation of private sector bribery in Kuwait. Under the present circumstances, where corruption pervades the public sector in Kuwait, the focus should be on the bribery offences that involve the abuse of public office, including public sector corruption that involves actors from the private sector.

The construction of the bribery offence was a reason why some professionals perceived it as unfair. Official-5 criticised it for not including any legal excuses. According to the CLA 1970, it is considered bribery when an official receives an advantage from external parties in regard to performing legal activities that lie within his/her official capacity, and ‘this may lead, in some situations, to an unfair application of bribery’. Official-5 mentioned the Zakat House case. In this case, the Zakat House-a public body responsible for charitable fundraising -received funds from a philanthropist. Part of those funds went to the officials who were responsible for the distribution of the funds to the eligible poor. In the aftermath, the public prosecution charged a number of officials with bribery when they received payments. The charge was inconsistent with Sharia law, according to which those officials were entitled to that payment as ‘workers on Zakaf (those who collect alms). Again, this problem is linked to the construction of bribery offence in Kuwait (in particular, section 35) that extends to cases where the officials discharged their responsibilities properly. Compared with the UK BA 2010, this issue is not expected to arise because ‘One important limiting factor is that the giving or taking of the advantage must be linked to the improper performance of a relevant function or activity’.

  • [1] CLA 1970, s.35. 2 Ibid., s.36; CLA 1960, s.118. 3 See Al-Kandari and Ghannam (2006). 4 See Appendix 2 for the full text of the offences in Arabic. 5 CLA 1970, s.35. 6 Ibid.,s.38. 7 Al-Kandari and Ghannam (2006). 8 See also Hosni (2012).
  • [2] CLA 1970, s.35. 2 Case No. 770/2009, 26/10/2010 (Supreme Court - Criminal Division) 16. 3 CLA 1970, s.35. 4 Ibid., s.36. 5 CLA 1960, s.118. 6 Al-Kandari and Ghannam (2006). 7 CLA 1960, s.118; CLA 1970, s.36. 8 Case No. 19/1990, 19/3/1990 (Supreme Court - Criminal Division) 6. 9 Official-2. 10 Lawyer-2; Judge ■ 1.
  • [3] Lawyer-1; Lawyer-2; Official-2; Official-4; Judge-1. 2 For example, Lawyer-1; Judge-1. 3 Judge-1. 4 See, tor example, Case No. 328/2011,13/2/2012 (Supreme Court - Criminal Division).
  • [4] Lawyer-1. 2 Ibid.' 3 Official-4.
  • [5] Sullivan (2011, p. 88). 2 Official-4; Lawyer-2. Financial disclosures are addressed in section 4.3.4. 3 Lawyer-2. 4 Ibid. 5 Al-Qarioti (2013). 6 NGO-3. 7 Analysed in sections 4.3.7 and 4.4.2.1. 8 Lawyer-1; Lawyer-2; Official-2; Judge-1; NGO-3.
  • [6] Official-2; Lawyer-1; Official-5. 2 Official-2. 3 Lawyer-1. 4 Official-2. 5 CLA 1970, s.39, para.1. 6 Ibid., s.39, para.2. 7 Ibid., s.41, paras.1-2. 8 Explanatory Memorandum of the CLA 1970. 9 Green (2013, p. 65).
  • [7] See Alldridge (2012, p. 1181). 2 On this point, see self-regulation in private sector in chapter 5.3.2.2. 3 Official-5. 4 Ibid. 5 Ibid. Sec Quran, Surat Al-Tawbah (Repentance), Verse 9:60. 6 Sullivan (2011, p. 89). 7 See Appendix 2 for extracts of the full text of the PPFA.
 
Source
< Prev   CONTENTS   Source   Next >