The anti-graft agency has warned public officials against flouting an often-ignored legal requirement that they declare all gifts they receive or give and hand over any gift worth more than Sh20,000.
The renewed enforcement drive could land hundreds of officials in trouble with the law, especially during the festive season when they are supposed to receive gifts by virtue of their positions.
The law came under fresh scrutiny in October during the impeachment trial of former deputy president Rigathi Gachagua, who was accused of accepting gifts, including cows that he said were donated to him in the Rift Valley and were worth more than the prescribed value. The accusations that he did not register the gifts were based on his previous admission of receiving them.
The Ethics and Anti-Corruption Commission (EACC) is mandated to document the two registers from public entities, and track the generous gifts public servants receive or give out annually.
The Public Officer Ethics law only permits an individual to keep non-monetary gifts and to declare and surrender presents that exceed a value of Sh20,000 to their organisations.
As per section 14 of the Leaders and Integrity 2012 law, on gifts or benefits in kind, civil servants are required to declare any gifts they receive or give will in office.
“The commission shall make and publicise regulations regarding receipt and disposal of gifts…. A State officer who receives a gift or donation shall declare the gift or donation to the Commission and the public entity which the State officer represents.”
It goes on: “Every public entity shall keep a register of— gifts received by a State officer serving in the public entity; and gifts given by the public entity to other State officers.”
In this case, as per the Act, a gift or donation given to a State officer on a public or official occasion shall be treated as a gift or donation to the State.
The law also states, “A State officer may receive a gift given to the State officer in an official capacity, provided that— the gift is within the ordinary bounds of propriety, a usual expression of courtesy or protocol and within the ordinary standards of hospitality; the gift is not monetary; and the gift does not exceed such value as may be prescribed by the Commission in the regulations.”
So elaborate are the requirements in dealing with gifts or donations issues, even as it states without limiting the generality.
“A State officer shall not— accept or solicit gifts, hospitality or other benefits from a person who— has an interest that may be achieved by the carrying out or not carrying out of the State officer’s duties; carries on regulated activities with respect to which the State officer’s organisation has a role; or has a contractual or legal relationship with the State officer’s organisation; accept gifts of jewellery or other gifts comprising of precious metal or stones ivory or any other animal part protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora; or any other type of gift specified by the Commission in the regulations.”
The regulations EACC has on the gifts allow them to ascertain whether any state or public officers have breached the rules on gifts, and for them to inform the public entity the “required disciplinary measure be taken against the officer.”
The regulations also mandate the public entity to submit to the commission within 30 days after the close of a financial year.
In seeking to substantiate charges against Mr Gachagua by Kibwezi West MP Mwengi Mutuse, senators called witnesses on the allegations of financial improprieties.
Mr Gachagua was accused of engaging in illegal financial transactions under the Anti-Corruption and Economic Crimes Act and the Proceeds of Crime and Anti-Money Laundering Act. He is alleged to have engaged in financial misconduct including misappropriation of public funds and illegal financial dealings.
He dismissed the claims, giving a breakdown of his alleged wealth, amassed in two years, attributing part of it to gifts from his late brother Governor Nderitu Gachagua.
EACC Chief Executive Officer (CEO) designate Abdi Mohamud, who was then the deputy CEO, told senators that gifts with a value of more than Sh20,000 should be declared and be handed in by all public and state officers.
Nevertheless, Mr Mohamoud, whose appointment is to take effect on January 11, 2025, put a rider that the moral agency was yet to investigate the existence of the material cows that are involved in the issue.
“If indeed cows have been donated to any public officer, those donations are supposed to be donated to the state. In addition, the officer within 48 hours is supposed to hand in those donations to the institution that employs them,” Mr Mohamoud told the senators.
He was responding to questions on whether Mr Gachagua should have declared and surrendered his cow gifts to the EACC.
Mr Mohamud this week told Nation.Africa the gift registers filed by various public entities are documented annually.
“These are personal details that are confidential as per the Bill of Right in the constitution. They can only be made public through a court order and for specific individuals,” he explained.
In the 10th parliament Speaker of the National Assembly Speaker Kenneth Marende directed that regulations governing how such gifts are handled be spelt out in the Public Officer Ethics Act of 2003.
Then former Prime Minister Raila Odinga declared and handed over presents he had received on an official visit to Turkiye.
The items, which included a hand-made Turkish glass bowl and a decorative brass ewer and plate, were gifted by a Turkish businessman in Istanbul during the conference on Somalia.
Speaker Marende stated the coated plates as a value of Sh50,000, adding that the National Museums of Kenya- the custodians of culture and heritage will benefit.
Although every institution is bound by law to keep a gift register which is submitted to the EACC, particulars have not been made public in the past.
The gift register is in two parts, the register of gifts received and the register of gifts given.
Similarly, a public entity shall store any gift received and maintain it in good condition until it is donated or otherwise utilised.
