President Uhuru Kenyatta touched a raw nerve when he directed the Attorney General to come up a Conflict of Interest Bill.
The Bill is meant to address numerous instances in which State and public officers find themselves in the middle of conflict of interest, without any regard to the dictates of Chapter Six of the Constitution on Leadership and Integrity.
Doubtless, the reaction by the Head of State was prompted by the manner in which senators and MPs appeared in court to defend a governor.
Under the devolved system of government adopted in 2010, Kenya’s legislative arm of government has two chambers – the National Assembly and the Senate.
Both are required to perform their respective functions in accordance with the Constitution.
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The National Assembly, in particular, is supposed to represent the people in constituencies and special interests, deliberate on and resolve issues of concern to the people, enact legislation, determine allocation of national revenue between the two levels of government, even as it appropriates funds for expenditure by the national government and other national State organs.
The National Assembly is also charged with the responsibility of exercising oversight over national revenue and its expenditure, reviewing the conduct in Office of the President, the Deputy President and other State officers and initiating the process of their removal from office if need be.
Senate’s role
The Senate, on the other hand, serves to protect the interests of counties and their governments.
To effectively represent and protect these interests, the Senate participates in law-making by considering, debating and approving Bills on counties, determining the allocation of national revenue among counties, and exercising oversight over national revenue allocated to the county governments.
Article 73 (2) of the Constitution on leadership and integrity demands of all State and public officers to declare “any personal interest that may conflict with public duties.”
Clearly, and stemming from the last function of the Senate of ‘exercising oversight over national revenue allocated to county governments,’ there is potential or real conflict of interest among senators, as public officials whose personal interests as practising private lawyers may be in conflict with their expected loyalty to the Senate as lawmakers with authority to oversight county governments.
A conflict of interest is a situation in which an individual has competing interests or loyalties because of their duties to more than one person or organisation. A person with a conflict of interest cannot do justice to the actual or potentially conflicting interests of both parties.
We have witnessed instances when governors, who have been cited by the Auditor-General, are summoned by the Senate to shed more light on allegations of misappropriation or embezzlement of funds and public resources.
Even when such matters are in court, there are high chances that the Senate, upon petition or on its own Motion, may find itself embroiled in hearing to determine whether a governor who has been impeached after being arraigned in court on corruption-related charges should be removed from office or not.
Public disclosure
While I agree with Murang’a Senator Irungu Kang’ata that Kenyans should continue to benefit from the skills of legislators who are lawyers, just as elected leaders in other professions are allowed to practice their trade, it should be mandatory for the elected leaders to make public disclosure of the facts and of potential conflicts or recuse themselves from a decision in which they are bound to be conflicted.
The public is yet to see lawmakers make public disclosure of potential conflict of interest, and the proposed statute will serve as a yardstick and guide that conflict of interest activities carry the risk of sanctions.
One is tempted to imagine that lawyers are bound by some code of professional conduct under the Law Society of Kenya, so that they are properly guided on potential conflict of interest before accepting a client.
Unchecked, the potential conflict of interest by legislators, who also double up as attorneys for accused governors, is that they will be on the side of an accused governor in court and try to represent the Senate against the same governor when the matter comes for consideration.
Suba Churchill is the presiding convenor of the Civil Society Reference Group, suba.churchill@gmail.com
