Introduction: the Public Officer Ethics Act
In 2003, in a move towards bolstering ethical conduct within public service, Parliament enacted the Public Officer Ethics Act, 2003 (“the Act”). This legislation marked a significant milestone in Kenya’s governance, aiming to fortify the moral fibre of public officers by instituting a comprehensive Code of Conduct and Ethics.
The Act emerged from a pressing need to cultivate an integrity, accountability, and transparency ethos among public service officials. By mandating adherence to a Code of Conduct and Ethics, alongside requiring financial disclosures, the Act endeavours to rebuild public trust in public service. Its scope spans various roles within governmental and quasi-governmental bodies, encapsulating a broad definition of who constitutes a public officer.
A notable feature of the Act is the establishment of responsible commissions and bodies tasked with overseeing ethical compliance across various categories of public officers. These entities are empowered to enforce the Act’s provisions, tailoring specific codes of conduct to suit each sector’s unique needs and challenges.
At the heart of the Act are the specific and general Codes of Conduct and Ethics, which lay down the fundamental principles guiding public officers. These codes emphasize efficiency, honesty, conflict of interest avoidance, political neutrality, and the shunning of nepotism. Moreover, they mandate public officers to submit biennial financial declarations, enhancing financial transparency.
The Act establishes a robust framework for investigating and enforcing ethical breaches. Responsible commissions can initiate investigations, impose disciplinary actions, and, where necessary, refer matters for civil or criminal proceedings. Importantly, the outcomes of such actions are to be made public, reinforcing the Act’s commitment to transparency.
Despite its groundbreaking role, the Act’s general and broad provisions on conflict of interest gave rise to the need for a more detailed legislative approach focusing solely on the thorny issue of conflict of interest for public officers. This necessity has precipitated the development of the Conflict of Interest Bill, 2023, marking a significant advancement in clarifying and broadening the definition of conflicts of interest within public service. This Bill is pending debate in the National Assembly and is currently at the public participation stage.
Key Highlights of the Conflict of Interest Bill 2023 (“the Bill” ):
The Bill expands the understanding of conflict of interest as outlined in the Public Officer Ethics Act and defines conflict of interest as a conflict between a public official’s public duty and private interests, in which the public official has private capacity interests that could improperly influence the performance of his official duties and responsibilities.
At the heart of this definition is the dichotomy between public duty and private interests. Public duty refers to the responsibilities and tasks that a public official is expected to perform as part of their role. These duties are inherently public, meaning they are intended to benefit the public or the state rather than individual or private interests. Private interests, on the other hand, encompass any personal, financial, or other interests that the official or their close connections might have. These interests are considered private because they benefit the individual or a small group rather than the public.
The Bill specifies that a conflict of interest occurs when these two spheres—public duty and private interests—intersect in a manner that could compromise the official’s ability to perform their duties impartially. This is a crucial aspect of the definition and the Bill as a whole, as it acknowledges that the mere existence of private interests does not constitute a conflict of interest. Instead, the conflict arises when there is a potential for these private interests to influence, or appear to influence, the public official’s decisions and actions in their official capacity.
The Bill introduces specific provisions that regulate “gainful employment” and “complimentary treatment” for public officers.
Under the Bill, “gainful employment” refers to any work a person engages in for monetary compensation or remuneration. The Bill sets forth clear boundaries regarding such employment for public officers:
Public officers are prohibited from engaging in any gainful employment that is inherently incompatible with their official responsibilities. This means any external work that could potentially impair their judgement, result in conflicts of interest, or is directly regulated or overseen by the officer in their official capacity, is not allowed.
If a public officer wishes to engage in any gainful employment outside their official duties that is not prohibited by the Act, they must declare this employment within thirty days of taking up the employment. Additionally, they need to obtain permission from their reporting authority to engage in this external work.
The Bill explicitly bars public officers from engaging in gainful employment that could conflict with their public duties or where the employment is with an entity that the public officer is mandated to regulate or oversee.
Under the Bill, “complimentary treatment” includes any free treats offered as a favor or courtesy by individuals or entities that have significant official dealings with a public entity. Such treats could encompass offers for travel, holidays, hospitality, training, scholarships, or medical treatment. The Bill outlines the following restrictions on accepting such treatments:
Public officers are not allowed to accept any complimentary treatment unless it is required in their official capacity or under exceptional circumstances. This provision aims to prevent situations where such treatments could influence the decisions or actions of public officers in favor of the person or entity offering the treat.
In cases where a public officer accepts complimentary treatment under the allowed circumstances, they must declare this acceptance within forty-eight hours of receiving the treatment, detailing the nature of the treatment, the donor, and the circumstances under which it was accepted. This ensures transparency and allows for scrutiny to ascertain that the acceptance of such treatments does not lead to conflicts of interest.
The inclusion of “improper influence” in the definition of conflict of interest in the Bill is significant. It indicates that not all influences or considerations of private interests are inherently wrongful or prohibited. However, an influence is deemed improper when it diverts the public official from making decisions based purely on public interest and the merits of the matter at hand. This implies a deviation from the principles of fairness, impartiality, and integrity that are expected in the execution of public duties.
The definition of conflict of interest in the Bill concludes by tying the conflict back to the performance of the public official’s duties and responsibilities. This underscores that the primary concern of the Bill is how private interests might affect the actual or perceived integrity of public decision-making processes. The focus on performance highlights the practical impact of conflicts of interest, aiming to preserve public trust in the actions and decisions of public officials.
Like the Act, the Bill is intended to apply to all public officers. It outlines specific scenarios where a conflict of interest may arise for a public officer, including the acceptance of gifts, outside employment, and involvement in contracts with a reporting entity.
The Bill imposes a duty on public officers to take reasonable steps to avoid any real, apparent, or potential conflicts of interest and disclose any private interests affecting their official duties.
The Ethics and Anti-Corruption Commission (EACC) plays a central role in managing conflicts of interest, developing reporting systems, and providing advisory opinions.
It also establishes penalties for public officers who fail to comply with its provisions, including fines and imprisonment for more serious violations such as providing false information or failing to disclose conflicts of interest.
Conclusion
In conclusion, the introduction of the Conflict of Interest Bill, 2023, signifies a crucial advancement in Kenya’s ongoing commitment to enhancing ethical governance and accountability within its public sector. For our clients and the broader business community, it underscores the critical importance of conducting due diligence and maintaining rigorous compliance practices in all interactions with public officials.
If it becomes law, the Bill will safeguard the integrity of public decision-making processes and foster a more transparent and equitable business environment. As stakeholders in Kenya’s vibrant economic landscape, it is incumbent upon us to embrace the spirit of this Bill, ensuring that our engagements with public officers are conducted within the bounds of the highest ethical standards.
Our firm remains dedicated to guiding our clients through these changes, offering strategic advice to navigate the evolving regulatory framework effectively. Together, we can contribute to a governance culture that values transparency, integrity, and accountability, thereby reinforcing public trust in both the public and private sectors.
