Chief-in-Editor Prof. Badria A. Al-Awadi
In another step to strengthen the rules of integrity, transparency, fortify the public office, combat corruption, and in response to the requirements of Law No. 47 of 2006 approving the United Nations Convention against Corruption, the National Assembly in Kuwait approved on December 13, 2022, the new Law No. 1 of 2023 regarding the prevention of conflicts of interest. This law replaces the old Law No. 13 of 2018 regarding the prohibition of conflicts of interest, which the Constitutional Court ruled in its session on May 1, 2019, to be unconstitutional, along with its executive regulations, due to fundamental defects in the legal formulation of its articles.
In order to bypass the observations and complaints of the Constitutional Court regarding the method of drafting rulings and their controls, the new law included twenty articles, including a statement defining conflict of interest and those subject to its provisions, what is meant by the special interest, the person associated with the subject, the influential percentage, disclosure, and the whistleblower. In Article (1), the legislator sought to be more precise and specific in defining the crime of conflict of interest, as he clarified in the first paragraph that what is meant by: “conflict of interest” is that the subject or any person associated with him owns an influential percentage in any company or financial activity that has dealings with His employer and related to his job work with his knowledge of that, or his role as mediator, agent, sponsor, or consultant for any company, or private establishment whose activity is related to his work and related to his job work with his knowledge.
Then the law clarified in the same article that what is meant by “the private interest” is the material or moral interest that the subject intends to achieve for him or any of the persons related to him, as a result of the decision or action he took or participated in taking, and that “the person related to the subject is every person related to him.” The subject is related by kinship, lineage, or affinity up to the second degree, and every person for whom the subject is a custodian, guardian, or guardian, and every natural or legal person with whom the subject has a business relationship, mediation, agency, or representation, and any financial activity and any company in which the subject participates, and any of the persons who are ancestors The male influences her decisions. The law defines the effective percentage as “the number of stakes or shares whose value is not less than 5% of the capital of the financial activity or company, and this percentage is determined by the total shares or shares owned by the subject and the persons associated with him.”
The law limited those subjects to its provisions in Article Two to those subject to the provisions of the Anti-Corruption Public Authority Law, all public officials and persons entrusted with a public service, as well as workers in companies if the state or one of the public bodies or public institutions contributes in them by no less than 25% of their capital. And obligated them to disclose cases of conflict within fifteen days and to get rid of them or to step down from the position under pain of prosecution as a perpetrator of the crime. According to specialists in this field, the number of those covered by this law exceeds fourteen thousand (14,000) governmental jobs, which places a heavy burden on the inspection bodies in the presence of a crime of conflict of interest and investigation thereof, namely the Public Authority for Combating Corruption and the Public Prosecution.
In addition to the procedures to be followed by those to whom it is addressed, including employees and administrative officials, the law includes severe penalties of fines and imprisonment for the accused, and obliges convicted persons to return or confiscate the funds obtained from the crime. The law permitted the court to remove them from office, and to order the annulment of the decision or action they took or participated in taking, and the consequences thereof. The law considers the conflict-of-interest crimes stipulated in this law to be corruption crimes, in accordance with the provisions of the law regulating the Public Authority for Combating Corruption (No. 2 of 2016).
The manifestations of the strictness of the law also appear in the fact that the criminal case in the crimes stipulated in this law does not fall, nor does the sentence imposed in it fall due to the lapse of time. The law added that the penalties stipulated in this law do not prevent the imposition of any more severe punishment that is prescribed in another law.
Thus, the legal system for combating corruption in Kuwait has witnessed an important addition to the approval of this law after considering the observations of the Constitutional Court and the criminal jurisprudence. The main challenge remains in the extent to which the provisions and procedures of this system are applied in a way that achieves its philosophy and objectives in preserving public funds and preserving the public function, and thus achieving the public interest and preserving the national wealth.
