President William Ruto has suffered a major blow in his bid to have a law to rein in runaway graft in the country after a Senate committee rejected a majority of his reservations on the Conflict of Interest Bill.
The development now throws into a spin, the government's bid to have a law to deal with graft in the country.
The Bill seeks to put in place 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.
Governors, MPs and ministers have in the past been prosecuted on graft charges related to influence of multi-billion shilling tenders.
Consequently, the legislation was to 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.
However, Parliament watered down the original Bill leading to the President declining to assent to the piece of legislation, raising issues with some 12 clauses that he said were watered down by Parliament.
But in another fresh round of blow to the President, the Senate Justice and Legal Affairs committee rejected most of the proposals by the Head of State, concurring with only three reservations.
“The Senate fully accommodates the reservations by the President to clauses 30, 31 and 35 of the Bill but does not accommodate the reservations to clauses 2, 5, 6, 8, 12, 16, 17, 18 and 20 of the Bill,” read the report by the committee chaired by Bomet Senator Hillary Sigei, tabled before the House Thursday last week.
Interestingly, the accommodated clauses largely dwelt on semantics like definition of the term “material change” in relation to declaration of income assets and liabilities as well as EACC ascertaining “correctness and completeness” of declarations.
The National Assembly had done away with a provision in the Bill defining when a public officer is in conflict of interest by deleting the mention of family, relative or associate as well as where private interests of the officer impair or influence objective performance of an official duty or conflict with duties of the officer in future.
In their amendment, the MPs said conflict of interest will only arise where a public officer fails to declare or register a private interest that conflicts with the public interest.
But the President rejected the amendment noting that since conflict of interest entails real, perceived and potential conflict, the clause did not provide for perceived and potential conflict of interest which affected the effectiveness of the compliance measures in the Bill.
Striking the first blow, the committee rejected the proposal by the President, saying it is impractical to anticipate conflicts based solely on perceived scenarios.
The committee observed that such an approach could lead to unnecessary complications in implementation and enforcement.
“We recommend focusing on tangible and demonstrable conflicts to ensure clarity and effectiveness in governance,” read the report.
The President also wanted the return of a provision defining what a family and relative means in relation to a public officer as well as the meaning of undeclared assets.
The clause had been deleted by the National Assembly when it was considering the Bill before submitting it to the Senate.
The President noted that the absence of definitions of the words “family” and “relative” limited the scope of the Bill.
With the Bill as is, the President noted that public officers can bypass conflict of interest restrictions by using family members and relatives as proxies, thereby compromising the integrity of the conflict-of-interest framework.
Further, the Head of State said public officers may also conceal assets acquired through conflict of interest by failing to declare such assets, calling for empowering the EACC to institute forfeiture proceedings against public officers who fail to disclose assets.
However, the main point of contention was the definition of “relative” by the President to mean a person who is related to a public officer by birth, marriage, adoption or affinity.
But the committee rejected the proposed definition, saying it was too broad.
In another instance, the National Assembly introduced “good faith” to grant preferential treatment, saying that no proceedings shall lie against a public officer who grants special consideration, treatment or advantage in good faith.
But the President noted that the inclusion of a "good faith" exception negated the preventive purpose and gave room for a public officer to justify unlawful conduct through subjective claims.
The MPs, however, found allies in the committee which argued that accommodating the President’s proposal will create a strict liability offence and that this should be weighed against the risk of criminalising honest conduct.
“The Committee did not concur with the reservation, affirming that the determination of what constitutes "good faith" should remain within the realms and discretion of the courts on a case by case basis.”
MPs amended clause 16 by deleting reference to relatives of a public officer from prohibition against receipt of gifts or favour from engagement of a public officer.
President Ruto, however, insisted conflict of interest may arise as a result of gifts or other benefits granted to family members and relatives who may be used as proxies to indirectly influence public officers.
The Head of State added that a public officer should declare a family member or relative receiving a gift or favour within 48 hours complete with details of the same and the circumstances under which it was accepted, with an officer contravening the same deemed to be committing an offence.
Nonetheless, the committee differed with the President, saying the reservation is excessively broad as a public officer may not have a way of knowing that a distant relative has accepted a gift.
The panel further raised concerns of breach of privacy if a relative of a public officer is compelled to disclose their affairs.
In another instance of watering down the original Bill, clause 18 prohibited relatives of public officers from receiving complementary treatment.
MPs, however, removed the reference such that the prohibition against receipt of complementary treatment was only upon a public officer.
But President Ruto insisted that family members and relatives may be used as proxies to indirectly influence public officers, saying the amendment by the National Assembly should not stand.
The committee rejected the reservation, saying the proposed amendment is too broad and will expand the scope of prohibition on receiving complimentary treatment.
In yet another blow, the committee has rejected the President’s amendment to clause 20 prohibiting a public officer from acquiring an interest in a partnership, private company or any other legal entity that is a party to a contract with any reporting entity under which the partnership, private company or legal entity receives a benefit.
President Ruto had argued that the provision is necessary to prohibit public officers from acquiring an interest in a business that is a party to a contract with his or her reporting entity to ensure there is no conflict of interest in government contracting.
But the committee did not concur with the reservation, saying it is too broad, arguing that the prohibition did not specify the amount of control a public officer is prohibited from acquiring in a company or a partnership.
Another point of departure was which entity would be charged with administering the Bill once it becomes law.
The original Bill gave the mandate to the EACC but MPs sneaked in “reporting authority” who will oversee the management of conflict of interest for all public officers it is responsible for, in a bid to water down the powers of EACC.
The President, however, insisted the anti-graft agency be granted the exclusive mandate to administer the Act, noting that introducing multiple administrative structures by assigning the administration of the Act to reporting authorities and the EACC is counterproductive.
He argued that granting an institution other than the EACC the power to administer the Act would be inconsistent with article 79 of the Constitution which provides that the EACC shall ensure compliance with and enforcement of Chapter Six of the Constitution.
In another instance, one of the functions of EACC in the original Bill was to institute proceedings for forfeiture of undeclared or unexplained assets.
But the clause was amended by the National Assembly to remove the forfeiture function, replacing it with a new function of developing policies, standards, guidelines and promoting best practices for the management of conflict of interest.
President Ruto insisted on the original provision, arguing that public officers may conceal assets acquired through conflict of interest by failing to declare or explain such assets.
Therefore, he said, it is important to empower the EACC to institute forfeiture proceedings against public officers who fail to declare or explain assets.
“The Committee concurred with the reservation that the execution of this function be carefully structured to prevent conflict between the EACC and the Asset Recovery Agency,” said the report.
However, to avoid potential conflict, the Committee recommended that the Proceeds of Crime and Anti-Money Laundering Act be amended to provide for the specified role of the EACC in recovering proceeds arising from conflict of interest.
The Bill has faced many hurdles since its passage by the National Assembly in November, 2023 before subsequent endorsement by the Senate in June 2024, all with far-reaching amendments aimed at defeating the main objective of the Bill.
Mediation would follow but the mediated version of the Bill, approved by both Houses, was rejected by the President in April this year.
Article 115 (2) further provides that following receipt of the Bill for reconsideration, Parliament may amend the Bill in light of the President’s reservations or pass the Bill a second time without amendment.
Eyes will now be on the Senate if they will approve the report although it does not fully accommodate the President’s reservations.
Should the report sail through, supported by two-thirds of delegations in the Senate, the Bill will be sent to the National Assembly for concurrence and thereafter resubmitted to the President for assent.
