For the conflict of interest law to work, President must lead way

President Uhuru Kenyatta was absolutely right in decrying the conflict of interest inherent in parliamentarians rushing to court as defence lawyers for public officers facing corruption charges.

The President’s remarks in his Jamhuri Day speech were seen to have been in direct reference to Senators Kipchumba Murkomen (Elgeyo-Marakwet) and Mutula Kilonzo Jr (Makueni), who were among the gaggle of lawyers representing Nairobi Governor Mike Sonko following his dramatic arrest.

The same would apply to Siaya Senator James Orengo, whose high-profile clients include Deputy Chief Justice Philomena Mwilu and Migori Governor Okoth Obado.

With the Senate the primary oversight body over county governments, it would, indeed, be odd if a governor summoned on audit queries found amongst his interlocutors the same lawyer who is defending him or her in a theft case in court.

There could be no clearer instance of conflict of interest but the President’s intervention takes on political hues, coming in the wake of Mr Sonko’s arrest.

President Kenyatta’s comments were not actually specific to lawyers-cum-legislators, he also mentioned teachers, doctors, engineers, accountants and other professionals who take up public service jobs yet retain private businesses.

This was, in fact, not some sudden realisation following Mr Sonko’s court appearance. A draft Conflict of Interest Bill had already been in circulation.

However, what could have been seen as a simply another initiative to beef up the anti-corruption war by replacing the Public Officers Ethics Act of 2003 with a stronger law could now turn into a political duel.

Immediate debate following the speech indicates that the whole matter could be reduced to factional wars in the governing Jubilee Party pitting a grouping loyal to the President against an insurgency revolving around his deputy, Dr William Ruto.

Once the Conflict of Interest Bill is tabled in the National Assembly, the President could find himself badly exposed if the well-meaning initiative is scuttled by the Ruto forces out to flex their superior numbers.

Another issue that could come up is fingers pointed at the President on the fact that the Kenyatta family’s vast business interests invariably include entities that do business with government.

President Kenyatta may not directly run the family enterprises but the Public Officers Ethics Act, the proposed Conflict of Interest law supposed to replace it as well as the Leadership and Integrity Act all make it clear that a public servant and immediate family must not be seen to benefit from business dealings with the government.

There are many instances where the President, due to actions he may not have directly influenced, could be perceived to be in conflict of interest.

This could be in Brookside Dairies selling produce to government, Heritage Hotels hosting official delegations and conferences, or NAS providing on-board catering for Kenya Airways and the Standard Gauge Railway.

Also worth scrutiny might be the CBA-NIC bank merger go-ahead from a ‘friendly’ market regulator, besides tax waivers.

Same issues would apply if commercial entities linked to Dr Ruto did business with the government — like if Weston Hotel became the preferred host for his office functions or Amaco Insurance provided services to State corporations.

These restrictions, including curbs on employment of family members in state agencies, diplomatic service or other government departments, apply not just to the President and the Deputy President but to state and public officers across the board.

There is actually not much in the proposed bill that is not already in the existing laws, as well as Chapter 6 of the Constitution, which lays out the integrity guidelines for public officers.

Problem is, the provisions have been rendered nugatory by unofficial policy of the Jubilee government, whose principals, Mr Kenyatta and Dr Ruto, were first elected in 2013 on demonstrated contempt for the leadership and integrity code.

The import of the new law will thus not be in novelty but in whether it will, like the existing ones, be ignored by those in power.

For the new law to be meaningful, the President must make deliberate steps to ensure family businesses do not place him in conflict of interest.

But even before that, he might have the headache of a Jubilee revolt in Parliament.

As they are wont to do every time a big shot is arrested, the pro-Ruto forces will be keen to adopt Governor Sonko and depict him as an innocent victim of President Kenyatta’s supposedly biased anti-corruption war.

It could get messy — even before we look at the threat of Mr Sonko’s penchant for releasing audio and video recording of private conversations.