Editorial: What constitutes bribery?

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At the heart of almost every corruption scandal is greed and that greed often manifests itself as an illicit payment to a public official with the intent of gaining an advantage.  Whether that advantage is to get a contract, stymie an investigation or achieve ‘access’ to decision makers, there is always an intent to corrupt the system.
The illicit payment at the heart of the corruption falls under the wide umbrella of bribes.  No matter how someone may want to spin the characterization of these inducements, they are bribes.  They do not necessarily need to be cash payments either.  They can be ‘gifts’ such as cars, homes, sexual services and a host of other inducements to facilitate the good life.
What constitutes bribery?  That question and the resulting discussions have jumped to the fore recently with all the allegations floating around Odebrecht and the recent court cases related to the United Nations/John Ashe situation.  In defining bribery, some people, including a few lawyers, believe that a bribe is only a bribe if the action sought is actually performed.  We disagree entirely with that notion.  In our opinion, once the inducement has been offered and transferred, the act of bribery has occurred.  It makes no difference whether the person accepting the bribe actually does what he or she promised.  At that point, it simply means that the recipient of the inducement(s) has simply reneged on the agreement.  It is not a case of ‘there was no agreement’.  Old people would say it is a case of ‘tief tief from tief”.
So that we do not get too carried away with opinion, let’s visit the law books and see what they say.  It is worth noting, up front, that we are not legal practitioners and our interpretation of the laws is a layman’s interpretation.  So, we invite any lawyer in our land to help the people understand the topic from a more professional view and where we are misunderstanding, please correct us.
In our bit of paradise, we rely on The Prevention of Corruption Act, 2004 which is described (obviously) as “An Act to provide for the prevention of corruption.”  In section 3. (1) that Act states, “A person commits an offence if he – (a) corruptly solicits or accepts, whether directly or indirectly, property or a benefit or advantage for himself or another person for doing an act or for omitting to do an act in the performance of his actions as a public official”.
The pesky word there is “doing”.  Some interpret that as the person must ‘do’ what was agreed.  Our interpretation is different.  We believe that the crime is soliciting or accepting the inducement.  The “for doing” is simply to further define the reason for soliciting or accepting the inducement.  Put it this way, if you accept payment for washing a car and do not wash the car, did you not still accept payment?  In the world of corruption and bribery, the payment is called a bribe.  So, let us reword our previous example to make the point:  if you accept a bribe for laundering illegal money and do not launder the money, did you not still accept the bribe?  It seems clear to us!  To lend credence to this perspective, there have been instances of bribery stings undertaken by law enforcement (sometimes with the help of media), where a politician is charged with receiving an inducement even though the action agreed was never fulfilled. 
Let’s move on to the English law on this matter. The Bribery Act 2010 (available on legislation.gov.uk) describes in section 1, the “Offences of bribing another person”.  The Act states, “A person (“P”) is guilty of an offence if either of the following cases applies … Case 1 is where—(a) P offers, promises or gives a financial or other advantage to another person, and (b) P intends the advantage — (i) to induce a person to perform improperly a relevant function or activity, or (ii) to reward a person for the improper performance of such a function or activity.”
The act goes on to state: “Case 2 is where— (a) P offers, promises or gives a financial or other advantage to another person, and (b) P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity.”  It is important to note that “In cases 1 and 2 it does not matter whether the advantage is offered, promised or given by P directly or through a third party.”
All this seems pretty cut and dry to us.  So, when people try to shirk responsibility by saying they never received payment, the English law certainly contemplates that it only requires a promise of inducement and that payment could be made through a surrogate. Further, bribes can be concealed as “legitimate” transactions.
Back to our original point though.  Bribery, in our books, is simply the agreement to illegally manipulate the system for gain.  Whether money is passed or the manipulation occurs is immaterial.  What matters is the agreement and the intent.  If for example, a public official agreed to stymie an investigation, collected an inducement through a third party, disguised as a legitimate transaction, and then did not carry through with their end of the bargain, then they are still guilty of accepting a bribe (in our books).
In that example, the intent of the person seeking the advantage is clear. The agreement between the parties is clear.  The inducement is clear.  The only think that is not clear may be the extent to which the agreement was fulfilled.  And that has no bearing on whether there was a bribe or not.  We should add that this holds true whether or not the inducement was returned.
Corruption in the public service is a serious matter and it has ramification beyond our border.  As we stated recently, if we do not transparently demonstrate that we take the matter seriously then we play into the narrative that we are just another banana republic that has no interest in the rule of law.

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