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The Foreign Corrupt Practices Act (FCPA) is in the news, and not for a good reason. On 10 February 2025, US president Donald Trump signed an executive order directing attorney-general Pam Bondi to pause enforcement of the FCPA until she reviews current policies and guidelines and issues new ones. It is not known how long this will take, although the order specifies a period of 180 days with an extra 180 days available should Bondi deem it necessary.
Trump told journalists who were present at the signing that “It’s going to mean a lot more business for America”. In plain language, it can be taken to mean that Trump does not want US entities to be prevented from cutting corners when doing business abroad, because of the existence of a mere law that prohibits bribing.
Transparency International’s secretariat and US chapter have both issued strong statements criticising the move and refuting Trump’s justification that foreign bribery is a ‘routine’ business practice.
TI chairperson François Valérian said: “Weakening [the FCPA] will empower wrongdoers and send a dangerous signal that bribery is back on the table.”
Valérian added that the suspension of the FCPA is a “betrayal of US leadership in global anti-corruption efforts and a gift to those who profit from bribery and illicit financial flows … It risks undermining decades of progress in tackling cross-border corruption and puts international stability at risk. This pause will work to the advantage of unscrupulous business actors around the world who until now feared US criminal pursuits.”
Gary Kalman, ED of Transparency International US, said: “Bribery raises the cost of doing business, destroys the credibility of corrupt participants, and results in real harm to local populations.”
He cited the example of a US-based company which, during Covid, “sold millions of dollars of mobile hospitals made of junk parts, and reused medical equipment, to vulnerable countries. These agreements are widely believed to be the result of bribes. No doubt, countless patients suffered as a result.”
The world must not default to where bribery and corruption are the norm, added Kalman. “In the end, bribery is a lose-lose proposition.”
Both have called for the immediate reversal of the decision.
Experts have commented that pausing the FCPA does not decriminalise bribery, because the law is still in the statute books. And companies are still subject to anti-bribery laws in other jurisdictions.
FCPA application
What does the FCPA have to do with other countries, we hear you asking. The quick answer is that the FCPA is applicable worldwide. Passed in 1977, it makes it illegal for any US entity, whether an individual, a company, or a listed company, to offer or give a bribe to a foreign official, or for any foreign national or foreign company to do the same while in US territory.
The FCPA is enforced jointly by the US Department of Justice, which imposes criminal penalties, and the Securities and Exchange Commission (SEC), which imposes civil penalties. It plays a critical role in ensuring that entities face consequences for their corrupt acts, and that victims get justice.
The FCPA was internationalised in 1997 with the adoption of the OECD Anti-Bribery Convention which now has 46 parties, including South Africa. “By halting enforcement, the US administration is jeopardising the country’s commitments under the Convention, as well as under the UN Convention against Corruption,” says Valérian.
Local culprits
In 2020 Corruption Watch reported on the status of cases brought about and penalties paid by companies in FCPA cases. The data we drew from was presented as an interactive map titled Where the Bribes Are, which lists penalties imposed since 1977. It was published in 2011 by due diligence and investigations firm Mintz Group but does not appear to have been kept current as the data only goes up to 2021.
There have been several successfully prosecuted FCPA cases involving bribery within South Africa’s borders. In 2015 Japanese conglomerate Hitachi was charged by the SEC with violating the FCPA by inaccurately recording improper payments to the ANC in connection with contracts to supply boilers to the two multi-billion-dollar power plants Medupi and Kusile.
In December 2022 the Swiss company ABB agreed to a fine of $315-million in connection with the bribery of a high-ranking Eskom official via complicit third-party service providers.
In mid-2023 the SEC brought charges against the US-based Gartner company for entering into a “corrupt arrangement with a private South African company with close ties to South African government officials, knowing or consciously disregarding that all or part of the money paid to the private company would be used to bribe government officials to influence the award of consulting contracts to Gartner.”
In January 2024, German multinational SAP was fined over $220-million after being accused of making cash payments and political contributions, and giving luxury goods to government officials in South Africa and Indonesia.
At the end of that year, McKinsey and Company agreed to pay $122-million for bribes paid to South African government officials to secure consulting contracts at Transnet and Eskom.
