The Senate has given public officers including MPs, governors, ministers, principal secretaries and parastatal chiefs a free pass to openly bag government contracts after dismantling a proposed law to curb conflict of interest.
Senators passed radical amendments that effectively watered down the Conflict of Interest Bill, 2023, which was designed to discourage corruption in public procurement that saw government officials influence award of lucrative tenders to their own firms and those linked to their relatives and associates.
They quashed provisions prohibited government officers from seeking tenders with public entities and others that required regular declaration of wealth, including of their spouses and children, to curb unexplained accumulation of wealth. Governors, MPs and ministers have in the past been prosecuted on graft charges related to influence of multibillion-shilling tenders.
Tharaka Nithi Governor Muthomi Njuki and wife, Embakasi North MP James Gakuya, former Migori governor Okoth Obado, his children and proxies, ex- Kakamega governor Wycliffe Oparanya and his wife, former Kiambu Governor Ferdinand Waititu and his wife, Kwale Head of Treasury Vincent Mbito and his four brothers, and former Kasarani MP Elizabeth Ongoro are among those facing multimillion-shilling corruption charges either linked to county tenders or constituency development fund deals.
The Director of Public Prosecutions has clarified the asset recovery civil cases filed by EACC are the ones that have been withdrawn and that the criminal case prosecuted by the DPP is still ongoing.
The chair of the Committee on Justice, Legal Affairs and Human Rights, Mr Hillary Sigei (Bomet, UDA) and Narok Senator Ledama Olekina (ODM) engineered the amendments that stripped the Bill bare, backed by their 25 colleagues present during the session in the Senate on May 15.
President Ruto’s Cabinet had approved the Bill with radical sanctions to discourage public officials from doing business with government to amass ill-gotten wealth, a corrupt practice that has minted overnight millionaires from officers whose salaries do not match their extravagant lifestyles.
A dispatch after Cabinet approved the tabling of the Bill in Parliament said the legislation would “herald a new dawn in the management of public affairs by introducing strong legal safeguards against real, apparent, or potential conflict between the private interests of public servants on one hand and the public interest and their official duties on the other.”
“This paradigm shift, once enacted into law, would mark the end of the era where public servants would subordinate their official duties to their private and commercial interests,” stated the Cabinet statement in February last year.
However, Senators allied to the ruling Kenya Kwanza coalition were among those that voted to weaken the proposed law and defeat its initial purpose, sparking protests even from the anti-corruption agency, which has petitioned the National Assembly to salvage the Bill.
Mr Sigei rallied the House to amend clause 19 that prohibited public officers from securing contracts with public entities.
The implication of the deletion of the words “or beneficiary of” in two sub clauses effectively opens the door for public officials to benefit from tenders floated by State agencies, including those they head.
Public-private partnerships
“A public officer shall not be a party to or beneficiary of a contract for the supply of goods, works or services with any reporting entity,” the initial clause read.
The other had stated: “A public officer shall not be a party to or beneficiary of a contract for the disposal of goods with any reporting entity.”
According to the Bill, a reporting authority covers national and county governments, State corporations, public institutions of learning, a company in which the government has a controlling stake, a body that uses public assets in any form of contractual undertakings, including public-private partnerships, among others.
Mr Olekina also successfully moved an amendment to insert a new sub-clause that details circumstances a public officer can even be a party to a government contract.
“A public officer may be a party to a contract for the disposal of goods in relation to a computer, a telephone or any other device capable of storing personal information and the computer, telephone or the device was for the exclusive use of the officer,” reads Mr Olekina’s amendment.
Senator Olekina also rallied the House to delete another clause that barred a public official from having an interest in partnerships and private companies that bag government contracts.
By deleting clause 20 of the Bill, the Senate allowed public officers to acquire interests in partnerships, private companies and other legal entities that are a party to a contract with the public entity in which they serve in, and further allows them to have benefits through such partnership.
“A public officer shall not acquire an interest in a partnership, private company or any other legal entity that is a party to a contract with the reporting entity in which the public officer serves, under which the partnership, private company or legal entity receives a benefit,” the expunged clause read.
Senator Olekina rallied senators to delete an entire clause on declaration of income, assets and liabilities by public officers. “Every public officer shall submit to the commission a declaration of the income, assets and liabilities of himself, his spouse or spouses and his dependent children under the age of 18 years,” the expunged clause 31 stipulated.
He also orchestrated the removal of the subsequent clause 32 that imposed strict timelines for such declaration and required periodic disclosures that would have enabled Kenyans to keep track of the wealth of public officers.
“A public officer shall within 30 days of appointment as a public officer submit an initial declaration relating to his financial affairs for the period of one year prior to appointment,” read one of the deleted sub-sections.
“Every public officer shall, once every two years within the period of service, submit a declaration relating to the financial affairs of the public officer as at November 1 of the declaration year, and such declaration shall be made within the month of December next following,” added another expunged sub-section.
“A public officer shall, within 30 days after ceasing to be a public officer, submit a final declaration relating to his financial affairs as at the date he ceases to be a public officer,” it read.
Senators also removed an elaborate procedure by the commission to verify the information supplied is accurate and another provision that allowed access to the declarations by anyone upon application to the commission.
The deleted clause 37 of the Bill had made it an offence for a public officer to submit false, incomplete or misleading information.
Ultimately, the senators approved the deletion of clause 36 which now ensures it is no longer an offence for a public officer to fail to his or her submit wealth declaration.
Senator Olekina also sponsored the removal of provisions that restricted public officers from other gainful employment away from their line of duty.
By removing clause 23, the Senate allowed public officers to run private enterprises even at the risk of influencing their judgement or even if it may result to conflict of interest.
Another prohibited side hustles that “results in the impairment of judgement of the public officer in the execution of official duties.”
Other expunged provisions barred dabbling in private enterprises that amounted to “conflict of interest” or in areas that “the public officer is mandated to regulate or exercise oversight.”
The Bill had also required that a public officer discloses to the employer, within 30 days of taking up the employment, any other business that they are involved in.
“An officer shall not engage in any other gainful employment without permission from the reporting authority,” the Bill had provided. It defined gainful employment as work that a person pursues and performs for money or other form or compensation or remuneration.
Senator Olekina also rallied the House to scrap a requirement on maintenance of a register of conflict of interest that essentially was a disclosure of all other businesses a public officer was dabbling in.
The deleted provision required that the register compiled by the reporting authority shall contain the particulars of the registrable interests of a public officer set out in the second schedule.
In crafting the original Bill, President Ruto’s Cabinet had reviewed the previous Cabinet decision adopting the Ndegwa Commission Report of 1971 that recommended that public servants be given nearly unlimited scope to engage in private interests and commercial affairs.
Senator Olekina also targeted for deletion a raft of provisions that prohibited a public officer who had left office from actions that exploit government insider information. Another barred an officer who had left office from using “information obtained in his official capacity and which is not available to the public to further the interests of another person or entity.”
Senator Olekina also engineered the removal of a provision on suspension from office of an officer under investigation.
The Bill had been tabled in the National Assembly by Majority Leader Kimani Ichungw’ah on April 3, last year, and only passed on November 29, with significant amendments, the delay pointing to how unpopular it is among politicians.
Because the Bill touches on public officers in county governments, it was referred to the Senate where Majority Leader Aaron Cheruiyot tabled it in December with Senators on May 16 approving the changes that have upset the Ethics and Anti-Corruption Commission (EACC).
“The Senate voted to pass the Bill with major amendments and deletion of key progressive provisions thus totally negating the very essence of the proposed law. The Senate in effect weakened the Bill potentially rendering it an ineffective legal framework that, if enacted as proposed, would adversely affect anti-corruption efforts in the country and negate the gains made so far,” EACC chief executive officer Twalib Mbarak wrote in a June 3 letter to the National Assembly clerk Samuel Njoroge and copied to Mr Ichung’wah.
The Bill is due for reconsideration by the National Assembly once it resumes from recess later this month.
