Conflict of interest likely to arise if former governors join Senate

The new urge in several governors who now want to vie for Senate seats in the same counties they have served come general elections has been met with skepticism and even scorn. The trend has left Kenyans at a crossroads.

Should we bar former governors from senatorial and National Assembly positions in the August 9 elections? In my opinion, the argument that former governors, if elected senators, will interfere with the Senate’s oversight role over county governments is legitimate and timely.

The function of allocating national revenue among county governments calls for progressive accountability and responsibility, begging the question as to how outgoing governors elected to the Senate would deal with such possibility of conflict of interest when called upon to account by Senate for the decisions they took as government.

Extensive conspiracies, integrity issues and conceivable conflict of interest may cripple the activities of assemblies in the event that they are called as senators to oversight and audit the expenditures incurred during their term as governors. This is against the letter and spirit of the laws and the Constitution.

The desire of several governors to run as senators flies in the face of several principles of natural justice firmly flowing under various capillaries of the Constitution beyond the veins of morality in governance. Natural justice requires that no man should be judge in his own case.

That a judge must not have any direct proprietary interest in the outcome of the proceedings. An adjudicator must not be reasonably suspected of bias. Accordingly, justice must be the controlling idea in public administration.

It merits no mention that the Senate has been fashioned under Article 96 of the Constitution to epitomise and protect devolved governments; provide oversight of public funds, and offer checks and balances against the National Assembly.

In this respect, the failures of devolution may be ascribed to the indifference of the Upper House. This raises a haunting reflection on whether the Kenyan Senate has accomplished its constitutional calling.

Such reflection corrodes public confidence in a political system, otherwise critical to the working of a liberal democratic republic. The perception of a corrupt legislature would erode public confidence in institutions of governance. The sanctity of a public office and its authority is violated when a public official in a conflict of interest position initiates action.

Aspects of conflict of interest like the revolving door phenomenon must be tamed by legislative tools, including a mandatory cooling off period. This is a phenomenon in which a public official orbits between government offices with privileged information gathered during his former official capacity.

The prospect of an outgoing governor gaining an oversight role as senator on his or her earlier actions distorts the office holder’s decision-making in ways that harm public interest.

A true concern is that former governors may use their knowledge concerning financial and other sensitive government information acquired during their tenure to their own advantage in the Senate and its oversight committees.

Basic anxieties associated with conflicts of interest in the public sphere were captured in Moll v. Fisher by the Ontario High Court of Justice (1979). The bench concluded that conflict of interest rules are based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters.

The judgment of even the most well-meaning men and women may be impaired where their personal financial interests are directly affected. The court established that public office is a trust conferred by public authority for public purpose. This logic is persuasive in my view.

The driving consideration behind conflict of interest rules is the public good. In this context, a conflict of interest is essentially a conflict between public and private interests. The core apprehension in a conflict is the presumption that bias and a lack of impartial judgment will lead a decision maker in public service to prefer his or her own personal interests over public good.

The House of Lords in the UK and the Rajya Sabha in India for instance, usually attract the best crop of political leaders, men and women with highly proven records in their respective areas of expertise in society.

These are veteran and skillful office bearers, having their integrity above suspicion, whose acumen is relied upon to anchor the ark of statesmanship.

We, therefore, need to set to true time our laws and institutions to reasonably satisfy the citizen that public decision makers are exercising their duties with undivided loyalty to the public interest.

Dr Nyatundo is Adjunct Lecturer, School of Law, Africa Nazarene University and Visiting Lecturer, School of Law, Kisii University.