Criminal liability of legal persons in Africa
#Compliancekeys14
In this week’s #ComplianceKeys14, the second to last article on this subject, we will briefly analyse the regulation of the criminal liability of legal persons and the status of Compliance Systems as a mechanism for exemption from said criminal liability in different African countries.
From the study carried out, it has been observed that the issue of the criminal liability of legal persons has not, for the time being, had a great deal of progress in the different jurisdictions analysed. Although most of the countries under study (Kenya, Morocco, Nigeria and South Africa) have allowed the attribution of criminal liability to corporate bodies, these countries do not generally have developed a system that would make it possible to foresee what criteria will be taken into account to determine this attribution.
In this respect, the case of Kenya stands out, where, although its criminal law does not expressly provide for the possibility of attributing criminal liability to legal persons, this has not proved to be an obstacle to the motivation via case law of the criminal liability of these entities by considering them equivalent, for the present purposes, to natural persons.
On the other hand, the exonerating (or mitigating) effect of Compliance Systems in the jurisdictions analysed has not been generally regulated either. However, this does not mean that companies operating in these States should not self-regulate, but rather the opposite. The adoption of effective Compliance Systems will make it possible to prevent the commission of criminal conducts within the legal entities operating in these countries, thus anticipating the barriers to corporate defence and avoiding the legal uncertainty caused by the lack of regulation in this area.
Finally, the South African regulation on the matter stands out positively, which succinctly establishes that legal persons may be liable for the actions or omissions of their directors or employees when certain circumstances are observed (that the actions or omissions have been observed in the exercise of the functions of the employee at the company, in the interest of the legal person, among others). The adoption of Compliance Systems may be taken into account positively, although not automatically.
A table with a summary of the status of the issue in the different countries analysed is attached below:
| Country | Nature of liability | Closed or open list of offences / infringements | Possibility of legal exemption due to Compliance |
| Egypt | Administrative | Closed list (sanctions regulated in specific administrative regulations) | Not regulated |
| Kenya | Criminal (not regulated differently from the criminal liability of natural persons) | Open list | Not regulated |
| Morocco | Criminal | Open list (although specific provisions are established with respect to terrorist offences, corruption of minors and discrimination) | Not regulated |
| Nigeria | Criminal | Closed list | Not regulated |
| South Africa | Criminal | Open list | Possibility of exemption or mitigation of criminal liability for the implementation of Compliance Systems, although this is not automatic. |
Compliance Department of Molins Defensa Penal.