The Conflict of Interest Bill 2023 is headed for mediation after the National Assembly rejected amendments by the Senate that watered down the legislation, including giving public officers a free pass to openly bag government contracts.
While disagreeing with the Senate's changes to the Bill, members of the National Assembly said the country needs strong legislation to deal with corruption in the public sector and not a law without any enforcement mechanism.
Senators passed radical amendments that effectively watered down the proposed law, which was designed to discourage corruption in public procurement that saw government officials influence the award of lucrative tenders to their firms, those linked to their relatives and associates.
The Senate changes that dismantled the Bill came as President William Ruto last Wednesday outlined a series of measures to tackle corruption and indicated his readiness to veto any flawed legislation from Parliament.
Leader of the Majority in the National Assembly, Kimani Ichung’wah, led the charge against the Senate amendments, which he said undermined the fight against rampant corruption in the public service.
"We must stand with the people of Kenya. This Bill is critical in the fight against corruption but the Senate amendments have made it dysfunctional,” said Mr Ichung’wah.
“The Bill creates a fertile ground for corruption and conflict of interest to continue taking root in our republic," added the Kikuyu MP.
Given the standoff between the two Houses, a committee of equal representation from the National Assembly and the Senate is required to within 30 days of its formation reach a compromise version of the Bill.
If the 30 days lapse before the mediation committee reaches a middle ground, the Bill will be lost and can only be reintroduced after six months, a development that will deal a blow to the efforts to address corruption in public procurement.
Mr Ichung’wah noted that the time is ripe for the National Assembly to rise to “the real fight against corruption.”
“We must be the House that stands with the people of Kenya, who have spoken loudly, and told us that conflict of interest and theft of public resources must end immediately," Ichung’wah stated.
The government-sponsored 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).
The Bill as originally published sought to repeal and replace the Public Officers Ethics Act as well as amend the Leadership and Integrity Act, EACC Act, and Anti-Corruption and Economic Crimes Act
It sought to bar public officers from dabbling in private practice that would influence their decisions in public service.
The Bill also proposed that Kenyans, who take up state or public appointments, will be required to give up private practice.
“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,” read the Bill before Senate changes.
Clause 8 of the Bill before Senate alterations stated 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 his family, relative, or associate.
This also includes a situation where the private interests of the public officer can “reasonably be perceived to impair or influence the public officer’s ability to act objectively” in the performance of an official duty or has private interests that could “conflict with the duties of the public officer in future.”
The Bill had designated EACC as the administrator, granting the agency the authority to initiate proceedings for the forfeiture of undeclared or unexplained assets by public and state officers.
It also barred public and state officers from engaging in transactions that could lead to conflict of interest.
However, the Senate's amendments removed the EACC as the Bill's administrator as it eliminated all provisions related to conflict of interest from the Public Officer Ethics Act, the Leadership and Integrity Act, and the Anti-Corruption and Economic Crimes Act.
The net effect of the Senate changes is that the management of conflict of interest in public institutions will be without any enforcement mechanism. This means that enforcement will only be dependent on the public officer’s goodwill.
EACC described the Senate amendments as giving a leeway to the public officers to trade with public entities they work for including awarding or influencing the award of tenders to themselves and their family members without sanctions.
The Senate removed the provisions on conflict of interest in the ACECA and the Leadership and Integrity Act, which decriminalised conflict of interest as a form of corruption as it deleted the jurisdictional mandate of EACC to institute an investigation on conflict of interest.
The Senate also removed the proposal in the Bill allowing unrestricted access to wealth declarations by law enforcement agencies to detect unexplained wealth as well as deletion of all the compliance and enforcement measures including proposed offences.
Gilgil MP Martha Wangari underlined the potential negative impact of the Senate's amendments to the fight against corruption.
"The saddening thing about the Senate amendments is that they take us back in the fight against corruption. The issues the country is grappling with and the accountability being pushed by Gen Zs could be sorted if we dealt with corruption,” said Ms Wangari.
She added: “Year in and year out, we have had pilferage issues at the national and county levels, so anything that will jeopardise that fight should be rejected."
Funyula MP Wilberforce Oundo castigated the Senate for watering down the Bill “effectively making it practically impossible to hold accountable elected leaders.” “
We are taking this country into the abyss. What the Senate did was a great disservice to this country. I think the Senate is suffering from an inferiority complex," said Dr Oundo.
