Recent news stories in sections of the Ghanaian media, quote comments made by Mr. Burkason - who is apparently the CEO of the UK Ghana Chamber of Commerce (UKGCC) - at a forum held by the organisation, in Accra.
Members of the UKGCC who happen to hold British passports, must always remember that the UK's anti-bribery laws - which incidentally are the most stringent in the world and have even more teeth and bite harder than the U.S. Foreign Corrupt Practices Act - ought to underpin whatever they do abroad, in their sundry commercial undertakings, at all material times.
Alas, there are serious consequencies under the UK anti-bribery laws, for all their actions and inactions overseas, whiles conducting business. Thus, the fact that in their view certain aspects of Ghanaian traditional culture breed corruption, will not hold water, if they fall foul of those laws - and dare use that in their pleadings before judges in UK law courts.
In light of that, for their information, today, we have culled content from the website of the international law firm Norton Rose Fulbright. One hopes that all the members of the UKGCC will familiarise themselves with it - since it is most unlikely that they can successfully bribe their way out if they are caught breaking those laws overseas and are charged by the relevant UK authorities.
Please read on:
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UK Bribery Act: 10 key points
Publication | July 2011
International context
Corruption offences
Strict provisions
The new corporate offence
The Guidance
Associated persons
Extra-territorial reach
Adequate procedures
Penalties
Action plan
International context
Having entered into force on 1 July 2011, the UK Bribery Act (UKBA) has become the most stringent legislation combating corruption in the world, going beyond the scope of the United States Foreign Corrupt Practices Act (FCPA).
The key measure of the UKBA is the introduction of a new corporate offence of a company failing to prevent bribery by its associated persons - punishable by an unlimited fine. The UKBA also has wide extra-territorial reach. The new corporate offence applies to any company in the world that conducts business in the UK. The only defence to such a charge is to put into place “adequate” anti-bribery procedures, on which the UK Ministry of Justice (MOJ) has published guidance (the Guidance).
Encouraged by the OECD, several states have started to adopt legislation imposing similar preventive measures on companies. Furthermore the strictness and the ambition of the UKBA are part of a significant worldwide trend of amplified anti-corruption enforcement - which is set to boom in a similar fashion to competition law in the nineties. The enforcement of anti-corruption legislation is growing in the course of increasingly publicised proceedings, which have already generated several billion Euro in fines worldwide.
Corruption offences
The UKBA (available here), organised in “sections”, starts by defining the standard offences: active corruption (section 1), passive corruption (section 2) and the active bribery of a foreign official (section 6) which, although similar to section 1, has a lower threshold required for it to be prosecuted.
In each of the above offences, bribery will have taken place if a person improperly performs their function or activity for an advantage, whether financial or otherwise. The UKBA legislates against both private corruption (e.g. the employee of a company) and public corruption (e.g. a government official). Generally, a bribe will be caught by the UKBA regardless of whether the “price” of corruption (i) is being paid directly or through an intermediary or (ii) that it is meant for the corrupt person or a third party.
The above offences are constituted even if only an attempt to bribe is made; both the offer of a bribe (active) and the solicitation of a bribe (passive) are punishable. These offences concern, first and foremost, the individuals involved - but a body corporate may also be targeted if the offence was committed by the “controlling mind” of the corporate entity. In that latter case, its directors and senior officers may also be prosecuted if their consent or connivance to the bribe is proved.
Strict provisions
Contrary to US law, but in line with most other jurisdictions, the UKBA does not provide an exemption for “facilitation payments” - those payments made to ease bureaucratic process (e.g. to expedite an authorisation or a decision).
Similarly, gifts and other entertainment are can be potentially be characterised as bribery. In the Guidance, the MOJ’s opinion is that those corporate gifts, made to business contacts, will be legitimate if (i) they are reasonable and proportionate and (ii) aimed at cementing relationships or presenting products or services.
The new corporate offence
Section 7 contains the key new measure of the UKBA, introducing criminal liability on corporate bodies that fail to prevent bribery. Under this section an offence will be committed:
by a corporate body carrying on business, or part of a business, in the United Kingdom,
when one of its associated persons, performing services for or on behalf of that corporate body (e.g. an employee, subsidiary, joint venture partner or agent),
is guilty of a corruption offence (as per sections 1 or 6, wherever the facts took place, whether prosecuted or not), with the intention to retain business or an advantage for the corporate body,
unless the corporate body can prove that it had in place adequate procedures designed to prevent its associated persons from undertaking such conduct.
Therefore the UKBA makes the implementation of adequate procedures necessary, as preventive measures. Section 9 of the UKBA states that adequate procedures are subject to governmental guidance.
The Guidance
The Guidance, published by the MOJ on 30 March 2011 (available here), elaborates on what constitute adequate procedures and provides guidance on other concepts under the UKBA. The recommendations in the Guidance are expressed by the UK Government, however, the effects of the UKBA will ultimately be decided by the interpretation made by the courts. Moreover the decision to prosecute will be in the hands of the Directors of the Serious Fraud Office and the Director of Public Prosecutions. The Director of the SFO, Richard Alderman, has stated publicly that the SFO will interpret the legislation broadly and that they are not bound by the contents of the guidance, in particular with regard to the concepts of associated persons and the extra-territorial reach of the Act.
In this regard, the Attorney General of the United Kingdom and the Director of the Serious Fraud Office have also published their own guidance. They state that if there is sufficient evidence to prosecute, the public interest in prosecuting must be also be considered. The investigation could be limited if the prejudice caused is “minor and was the result of a single incident”, and there has been a “genuinely proactive approach of self-reporting and remedial action” by the business.
Associated persons
The concept of associated person is broad in the Act (section 8) - any person, whether an entity or an individual performing a service for, or on behalf of, the relevant corporate body, including employees, subsidiaries or agents. However, the Guidance suggests that the corporate criminal liability resulting from those associated persons would not necessarily be triggered by the mere shareholding or a simple investment, as in the case of a joint venture or a subsidiary. The degree of control by the corporate body, over the subsidiary or the joint venture, would be a relevant element, according to the Guidance, in measuring the level of association. The courts and the prosecutors will take each case on its merits and assess the nature of the relationship between the parties.
Extra-territorial reach
Broadly, an offence under sections 1, 2 and 6 may be prosecuted under the UKBA if any act or omission forming part of the offence (i) takes place in the UK or (ii) is done by a person having a “close connection” with the UK (e.g. a place of incorporation, citizenship or place of residence).
The new corporate offence (section 7), has even greater territorial scope and impact, as the UKBA creates the need for the implementation of adequate procedures within any company:
when it carries on a business or part of a business in the UK. This broad criterion has caused an uncertainty as to which organisations are caught under section 7. The Guidance suggests that the mere listing of securities in the UK would not demonstrate, per se, that a company carries on a business there. The Director of the SFO, on the other hand, has indicated on a number of occasions that the SFO intends to take a wide view of the extra-territorial jurisdiction of the Act. Ultimately, the territorial scope of the Act will be a matter for the English courts to decide, following a detailed factual analysis.
when partnering companies falling within the scope of the UKBA. As companies, UK-based or not, can be held responsible for their associated persons, with whom they are in business the non-complaint partners may risk to be quarantined until they can demonstrate some adequate procedures.
Adequate procedures
The Guidance highlights the six principles that should guide UKBA compliance. The procedures that Companies must implement should be guided by the following principles:
are proportionate (i) to the risks faced by the company and (ii) to the nature, scale and complexity of the company;
follow an internal and external corruption risks assessment - this analysis should be periodic, informed and documented;
undertake audits and due diligence procedures relating to the persons who perform services for, or on behalf of, the organisation, in order to mitigate identified bribery risks;
are well communicated and understood, both internally and externally (i.e. agents and other third parties performing services for the group), in particular through effective training adapted to the type of risks and interlocutors;
are the subject of a periodic control and review;
are part of a visible and unambiguous support of the company’s top level management, which must forbid any form of corruption - this must be reflected in the values, the communication and the strategy of the company.
Penalties
An individual guilty of one of the offences (sections 1, 2 and 6) risks an unlimited fine and up to 10 years imprisonment.
The corporate bodies risk an unlimited fine.
It is worth noting that under the terms of another UK law, the Proceeds of Crime Act 2002, a civil action is available against the author of an offence (whether or not criminally convicted), allowing for the confiscation of the proceeds obtained through the offence. The current position of the UK courts is that such confiscation may, for example, amount to the total value of the contract generated by the corruptive behaviour - and not only to the mere benefit that has been derived from it.
For companies, those direct penalties are in addition to the potential indirect sanctions, such as the loss of public financing or the exclusion of public procurement procedures.
Action plan
The UKBA applies as from 1 July 2011. It is of the utmost importance that companies, starting with their top management, reach a thorough understanding of the legislation and its implications. Despite the fact that the vast majority of the large groups have existing compliance programmes, only very few of them have already adapted them to these strict new standards.
Overall, the UKBA aims to profoundly change the corporate attitude towards bribery, for a long time maintained or tolerated. There is now a strong “best endeavours” obligation on the companies to satisfy. Once their top management support is secured, companies should start their proper and detailed risk assessment process - in order to create or amend their procedures and policies accordingly.
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End of culled content from the website of Norton Rose Fulbright.
That, dear reader, is the UK Anti-Bribery Act, in black and white. To quote a phrase used in Ghanaian local parlance, this blog's advice to all Brits with Ghanaian heritage, who run businesses both here and the UK, which leverage the Ghanaian market: "Over to you, Joe Lartey!" Hmm, Oman Ghana, eyeasem o: asem kesie ebeba debi ankasa.
Finally, for the benefit of our many young readers in the UK and Ghana - especially those of them who happen to be entrepreneurs or aspire to become one at some point in the near future - we have culled and posted Ghanaweb.com's version of the story reporting Mr. Tony Burkson's comments at the launching of the The Private Sector Anti-Corruption Group (PSACG), which is an initiative of the UKGCC.
Please read on:
"The Private Sector Anti-Corruption Group (PSACG), an initiative of the UK Ghana Chamber of Commerce (UKGCC), has bemoaned the deep-seated corruption in leading state institutions that stifle the growth of businesses in the country.
PSACG was outdoored when over 30 heads of prominent private companies in Ghana met at the maiden edition of a safe space forum in Accra to discuss the impact of corruption on businesses in Ghana and the reforms needed to curb the canker.
Addressing participants at the forum, Chief Executive Officer of the UKGCC, Tony Burkson, said, “the reason why we took this initiative is because we feel that the private sector has been missing in the fight against corruption and, therefore, there is the need to get actively involved in the fight together with government and CSOs.”
The members revealed some subtle means used by the state regulatory and services institutions to force companies to oblige to corrupt demands.
“The system forces us to indulge in corruption. We are left with no choice as our competitors participate in it and their businesses are doing well,” said one of the participants at the forum.
According to PSACG, Ghana has adequate and stringent laws to regulate the conduct of business for the mutual benefit of government and companies.
They have therefore called for enforcement of these laws to serve as a deterrent to persons and organizations involved in the act. To encourage reporting of corrupt acts, they also urged government institutions to sign on to the Foreign Corrupt Practices Act (FCPA).
The government was also urged to take a critical look at the nation’s importation processes, where corruption is noted to be rife.
The members proffered other measures such as transparency of business processes, cultural change and fair remuneration packages as reforms needed to end corruption in Ghana.
On their part, however, members of PSACG committed to complementing the efforts of government and civil society organisations in the fight against corruption.
They also committed to review their own codes of conduct, compliance, and ethics along with all other corresponding policies and procedures in order not to give any chance to corruption in their business operations.
PSACG will be officially launched as an organization in May 2018 and the key recommendations and areas of reform for the Government by the 30 heads of prominent private companies will be published.
About the Private Sector Anti-Corruption Group
The Private Sector Anti-Corruption Group is driven by the UK Ghana Chamber of Commerce (UKGCC) with support from the Canada Ghana Chamber of Commerce (CGCC), European Business Organization (EBO), the Ghana Netherlands Business and Culture Council (GNBCC), and the American Chamber of Commerce, Ghana (AMCHAM).
Its members are multinational and local private companies that uphold the cause and principles of the group. It is opened to private companies that abhor corrupt practices and are willing to conduct their business operations in all fairness and genuineness.
The overarching aim of PSACG is to add value to the efforts of businesses and local aspirations in Ghana to reduce corruption.
Copyright © 1994 - 2018 GhanaWeb. All rights reserved."
End of culled content from Ghanaweb.com.
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