Mapping and Scoping of
Anti-Corruption Measures in Public Finance Management [PFM]: A Survey of the Federal Government and Six Nigerian States

This is the second article in a series examining the UK Bribery Act. The first article was published in the 1st issue, May edition of the Regulation and Investment review. This article will evaluate the kinds of conduct prohibited by the UK Bribery Act, and indicate business conduct that entities need to look out for and prevent. This is important in our jurisdiction, given the application of the UK Bribery act to both businesses and individuals in the UK, and also in specific cases to individuals and businesses in other jurisdictions including Africa. This extra-territorial jurisdiction makes it possible for the Serious Frauds Office (SFO) or other relevant bodies proceed against such persons, even though they may reside and have businesses outside the UK.[1]

The UK Bribery Act ensures that the offer, promise or giving of financial or other advantage for purpose of inducing or rewarding a person for improper performance of relevant function or activity is an offence. On the other side of the coin, it is an offence for a person to requests or agree to receive or accept a financial or other advantage for improper performance of a function or activity. The Act however considers the former as an active form of bribery and the latter as passive. The language covers offending conduct in the public sector, as well as in the private sector, and also situations where request is made, or offer, promise or giving is carried out directly with the person performing the functions or through third parties, whether or not such third parties are concerned with performance of the function. Thus section 1 and 2 of the Act establishes the following offenses;

When a person requests, or agrees to receive or accepts a financial or other advantage;
• Intending that a relevant function or activity should be performed improperly whether by the person or another.
• Where the requesting, agreeing or accepting such advantage itself constitutes the improper performance by that person of a relevant function or activity.
• As a reward for the improper performance whether personally or by another person of a relevant function or activity.
• Where in anticipation of or as a consequence of requesting or agreeing to receive or accept the advantage a relevant function or activity is improperly performed.
In most circumstances it would not matter that the receiver knows or believes, that the performance of the function is improper, nor does it matter that the acceptance, agreement to accept was through a third party, as long as the relevant officer consented. It does also not matter whether the advantage is for the receiver or to the benefit of another person.
• And where as a consequence, a relevant function or activity is performed improperly by either that person or by another person at the person’s request, assent or acquiescence.
Sections 3, 4 and 5 of the UK Act provide further clarity in understanding Sections 1 and 2. The function or activity in accordance with section 3 may be either of a public nature, connected with a business (trade or profession), performed in the course of a person’s employment, or performed by or on behalf of a body of persons (whether corporate or unincorporated). Section 4 helps us to understand improper performance of a relevant function or activity in two ways. One, it is improper performance when a relevant function or activity is performed in breach of a relevant expectation or two when a failure to perform is in itself a breach of a relevant expectation. Section 5 specifies a test for determining relevant expectation. It is what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity. In deciding what a person would expect in relation to the performance of a function, where the performance is not subject to UK law, local customs or practices are to be disregarded unless permitted or required by written law applicable in the territory concerned. Thus, an established custom of traditional gifts may not exonerate a person, if the gift was intended to or given to secure or reward improper performance of a function or activity.