Members of the National Assembly have ganged up against a proposed law that will deny them power to discuss and decide on their salaries and benefits.
If the law is passed, the MPs will also be barred from considering matters related to the National Government-Constituency Development Fund (NG-CDF) or National Government Affirmative Action Fund (NGAAF).
These are some of the far-reaching proposals in the Conflict of Interest Bill 2023 that is now before the House.
National Assembly Speaker Moses Wetang’ula was forced to delay the passage of the Bill after Rarieda MP Otiende Amollo questioned its constitutionality, noting that it proposes to give the Ethics and Anti-Corruption (EACC) excessive powers.
While urging the Speaker to shelve its consideration, Mr Amollo said that by discriminating against MPs and giving EACC unfettered powers, the government-sponsored Bill “is so fundamentally flawed from a constitutional prism”, unnecessary and unimplementable.
“I therefore urge you to direct its recall and suspension from further debate, for a full and proper reconsideration,” Mr Otiende said in a letter. Mr Wetang’ula acted on it swiftly.
“I have directed the Leader of Majority to pass on the letter and all the myriad issues raised by Mr Amollo, some with merit, to the Committee on Justice and Legal Affairs (JLAC) to consider the matter,” said the Speaker.
The Bill, fronted by Majority Leader and Kikuyu MP Kimani Ichung’wah, had already sailed through second reading and was set to undergo the third reading stage.
Mr Amollo noted that whereas the Bill is supposed to apply to all public officers, it unfairly and discriminatorily focuses on MPs and county assemblies. He cites clause 11, which makes it mandatory for MPs and MCAs to declare any direct pecuniary interest or benefit in debates or proceedings at the plenary or committees.
“Nowhere does it mention the Presidency, Cabinet secretaries, principal secretaries, Attorney-General, judges, ambassadors and others. This is an unfair targeting of MPs,” said Mr Amollo.
He argued that clause 2 of the Bill “directly” contradicts the separation of powers principle among the three arms of government, the Powers and Privileges Act and Standing Orders.
The Powers and Privileges Act and the Standing Orders give the Powers and Privileges Committee the power to deal with conflict of interest. However, according to the MP, “this Bill seeks to yank that from Parliament and assign it to the EACC so that it will end up regulating what we, as MPs, do in this Parliament”.
Other than requiring legislators to declare whenever there is conflict of interest, the Bill states that whenever such a declaration is made, no MP can participate in any debate or discussion in which they stand to benefit.
The Rarieda MP says the implication of this is that there will be no one to legislate on any issues affecting MPs because “we will all be in a conflict of interest”, which impinges on Article 94 (5) of the constitution. The article states that no person or body, other than Parliament, has the power to make provisions having the force of law in Kenya. This means that no MP can participate in any legislation or policy discussion on issues of MPs’ salaries and benefits.
The MPs are also unhappy with clause 12 of the Bill as it criminalises any conduct, even in good faith, as long as it’s not provided for in law or policy.
Although it is tasted in the Bill that it is intended to only address “management of Conflict of Interest”, it goes beyond this. Other issues it addresses include forfeiture of assets, declaration of income, divestiture, trusts and recusal orders and vests the function of recovering undeclared or unexplained assets on EACC without correlating this to the Asset Recovery Agency.
In seeking to appropriate ethical conduct of public officers for regulation only by EACC, Mr Amollo argued that the Bill seeks to oust the constitutional jurisdiction of the courts, Parliament and other constitutional commissions.
For instance, Dr Amollo said, the Bill defines a public officer in terms directly contradictory to the definition of the constitution and extends the definition to volunteers, consultants or persons who render “government services”, which has not been defined.
