Trouble is brewing for teachers and the police after MPs rejected their bid to amend the Conflict of Interest Bill, 2023, currently before the National Assembly to protect their side hustles, which the Bill seeks to outlaw.
The Bill seeks to provide for the management of conflict of interest in the discharge of official duties under the general supervision of the Ethics and Anti-Corruption Commission (EACC). In doing so, it seeks to repeal and replace the Public Officers Ethics Act and amend the Leadership and Integrity Act, the Ethics and Anti-Corruption Commission Act and the Anti-Corruption and Economic Crimes Act.
This means public officers with a penchant for having one leg in public service and another in private practice will now have a choice to make between the two, or risk being pushed out of public service over conflict of interest.
If the Bill becomes law in its current form, Kenyans who take up state or public appointments will be required to give up private practice and devote their full time, energies and focus to public duties. It states, “A public officer shall take responsibility to avoid any, real, apparent or potential conflict of interest in connection with the official duties and disclose any private interest that affects the official duties of the public officer.”
The Teachers Service Commission (TSC) and the National Police Service Commission (NPSC) specifically had issues with clauses 8, 45 and 51 of the Bill. This led them into drafting alternative proposals for consideration by the Justice and Legal Affairs Committee as the Bill gets to the floor of the House for debate.
It is not clear whether their interest is motivated by the fact that teachers and police officers have a lot of side hustles.
For instance, the TSC, which is headed by Dr Nancy Macharia, had proposed the deletion of the word “perceived” appearing in Clause 8 of the Bill, which defines when a public officer is in conflict of interest, arguing that it may be subject to abuse.
On the other hand, the NPSC submitted that the word “perceived” be substituted with “can be demonstrated”.
“The former is not an objective measure of what would amount to actions or omissions that impair public officers’ ability to perform their duties,” argued NPSC as it further proposed substitution of “has interests” with “pursue interests.”
The NPSC’s justification for this proposed amendment was that public officers, among them the police, have diverse personal interests. The committee did not, however, agree with the views of the two commissions.
“The term ‘perceived’, as used in the clause, connotes the perspective that a reasonable person, or the court, may hold with regard to an act or omission by a public officer and whether the same constitutes a conflict of interest,” the committee recommended in its report to the House.
Clause 8 of the Bill states that a public officer is in conflict of interest if the officer exercises an official power, duty or function to further his private interests or the private interests of another person, or of his family, relative or associate.
This also includes a situation where the private interests can “reasonably be perceived to impair or influence the public officer’s ability to act objectively” in the performance of an official duty or could “conflict with the duties of the public officer in future”.
The committee though agreed with TSC on its proposal to reword Clause 45 of the Bill “to avoid abuse such that the power to take any compliance measures by the EACC is exercised after due process including a fair hearing”.
The Bill had provided that the commission may order a person to take any measure that the commission considers necessary for compliance with “this Act”, including divestment or recusal.
“The committee noted that it would be prudent for the commission to observe the rights guaranteed under the Constitution, including the right to a fair hearing and fair administrative action.”
