Recently newspapers carried a story about the Senate “watering down” the Conflict of Interest Bill. Indeed, this looks like a good example of what “GenZ” have been complaining about – corruption and use of national resources by those in power. It doesn’t make it any better, of course, that Senate was not acting in defiance of those recent expressions of public outrage, but in mid-May.
Corruption was certainly very present in the minds of the bodies that considered a new Constitution. Chapter Six – Leadership and Integrity - is the main relevant set of provisions. Article 75 says that state officers must always avoid “any conflict between personal interests and public or official duties.”
Conflict of interest
Corruption involves conflict of interest – it involves taking money that ought to go to the employer, using one’s position, and maybe employer’s property, to make money, making decisions on the basis of one’s own priorities or someone else’s (like a bribe payer) not the employer’s. This can be relevant in the private sector also.
Other situations not usually termed “corruption” may involve conflicts of interest. Imagine a public officer influencing government or Central Bank policy on interest rates to benefit their personal financial situation, or one who sells their own products to government direct – so concerned to get the highest price and not necessarily to supply the best quality. Or one who uses public time and equipment to carry on their own business, perhaps works so hard on their own affairs that they are too tired to do a proper job for their employers. How about the person who uses “inside information” to benefit their own business – or like Conservative Party insiders in the UK who placed bets on the election date just before the Prime Minister announced it. Potentially insiders might influence an election date to benefit from a bet!
Constitutional history
The risk of such conflicts lies behind various constitutional provisions. Examples include prohibitions or limits on public officers receiving gifts, on taking loans, keeping foreign bank accounts, or participating in any other “gainful employment” if a full-time state officer.
Something that did not survive early constitution drafts, however, was about declarations of assets (designed to reveal improperly obtained wealth). The first draft constitution had a long Schedule - the “Leadership and Integrity Code” - with detailed provisions about public officers declaring their assets and liabilities regularly, as well as those of their spouse(s) and minor children. A register of these declarations was to be kept and would be accessible to the public.
In the Committee of Experts’ first draft the requirement to include assets of one’s spouse and minor children disappeared – unless those assets were jointly owned.
It is no surprise that most of this stuff disappeared from the draft produced by those MPs in Naivasha in 2010 – in the same exercise that dumped Kenya into our current system of government. They left just the general statement about conflicts of interest. However, the Committee of Experts was a bit firm, and reintroduced some of the deleted provisions - but not the declaration of assets.
The final Constitution imposes Chapter Six responsibilities on state officers (meaning elected officials, Judges, Cabinet Secretaries, Principal Secretaries, members of Commissions and a few others), but says Parliament must extend them to public officers generally through a law.
Meanwhile, in that brief burst of reforming energy early in the Kibaki government in 2003, before Anglo-leasing immersed it in a slough of corruption, the Public Officers Ethics Act was passed. It requires asset declarations (including of spouse and minor children) and even the possibility of those declarations being accessible to anyone who satisfies the relevant Commission that he or she has a legitimate interest and good cause in furtherance of the objectives of the Act.
Regulations under the 2003 Act bar public officers from awarding any contract to themselves, or using their positions to collect money in harambees. Declarations must be scrutinised for signs of assets being suspiciously large in relation to the officer’s income or otherwise suggesting “impropriety or conflict of interest” and a report made to the relevant commission and may then go to the EACC.
In addition, the Leadership and Integrity Act of 2012 deals with some similar issues but only for state officers.
The new Bill
It’s not so new. In 2015 President Kenyatta said he was committed to fighting corruption, and a Task Force to review the anti-corruption framework recommended changes in the law that are have some echo in later Bills. In 2019 a Conflict of Interest Bill was drafted – on which the current Bill is clearly based.
To mention a few provisions – this Bill would replace the 2003 Act. It would limit acceptance of gifts by a public officer, and bans acceptance of “complimentary treatment (medical, travel, scholarship for example – it does not mention beauty treatment) from anyone who has “significant dealings with a public body” (why is this not drafted like the limits on accepting gifts – which rightly covers more possible donors?).
It would require declarations of assets at specified times, including of those held by a spouse or a minor child. (Why only minor children when an adult offspring could protect a parent by housing their ill-gotten assets?) The declarations may be accessed by people who have a good reason (this does not change the law much, though people tend not to be aware of this).
It would ban public officers from contracting with government bodies and to some extent from participating in Harambees as collector or sponsor – but not as contributor.
Public officers are supposed to get rid of assets that may give rise to conflicts of interest – or put them in a “blind trust”, meaning they are controlled by someone else and the owners are supposedly kept in ignorance of how they are being dealt with. This idea is used in the UK and the US (apparently President Trump put his in a trust that he was fully informed about); the device’s effectiveness is unclear and it may even help conceal wealth.
In Parliament
Both Houses of Parliament wanted to reduce the scope of the Bill though their amendment proposals were not identical - and the Senate would go much further.
The National Assembly did not want to have to deal with the EACC but to submit their declaration just to the Parliamentary Service Commission (and others to their relevant commissions) as under the 2003 Act. Senate went further and would remove the EACC entirely from the enforcement process.
The National Assembly wanted to restrict access to declarations of assets by members of the public. In fact the draft in the Bill is already in conflict with Article 35 of the Constitution because it is too restrictive of the right to information and does not even try to justify the limit on the rights, as Article 24(2) of the Constitution requires. Senate would remove all the provisions about declarations of assets.
The Senate would also remove the entire provision about not having certain “gainful employment”, but the National Assembly had not touched on it. Constitutional Article 77(1) banning any other “gainful employment” by a full time state officer still remains, though not really applied.
The National Assembly would delete the provisions about the blind trust (or selling off) completely.
The Nation’s statement about the Senate “watering down” the Bill is an understatement. “Emasculating” might be more appropriate.
What happens now?
The National Assembly cannot override the Senate’s amendments. If there is disagreement there must be a joint mediation committee of the two houses. If they cannot agree within 30 days the Bill dies.
This may be Parliament’s chance to redeem itself a bit in the eyes of GenZ, and the rest of us, and pass a Bill that really may tackle the issue - though we all know that the real problem is not the law.