An Act of Parliament to provide for the management and regulation of conflict of interest.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
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| PART I — PRELIMINARY | ||
Clause 2 Interpretation | "Commission" means the Ethics and Anti-Corruption Commission established under section 3 of the Ethics and Anti-Corruption Commission Act, 2011. | The Commission will be responsible for administering the Bill as outlined in clause 5 of the Bill. |
"complimentary treatment" means a treat offered free of charge as a favour or out of courtesy by a person who has significant official dealings with a public entity and includes offers for travel, holiday, hospitality, training, scholarship or medical treatment. | Complimentary treatments can provide opportunities for networking and establishing beneficial connections in various fields. It can lead to future collaborations or business opportunities. As such our proposal is that the Bill expounds on what it considers to be ‘exceptional circumstances’ to warrant a public officer to accept a complimentary treatment as set out in clause 18 of the Bill. |
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"family" means: a. the spouse, common-law partner, dependent child or parent of a public officer; b. a dependent child of the spouse or common-law partner of a public officer; or c. a parent of the spouse or common law partner of a public officer. | We note that this definition is expounded to include not only a spouse, but also to include a common-law partner, which widens the scope of applicability of the Bill to this category of partners of public officers. Having a clear definition promotes transparency and accountability in the conduct of public officials. It ensures that their actions are subject to scrutiny and evaluation regarding potential conflicts of interest involving family members. |
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"gainful employment" means work that a person pursues and performs for money or other form of compensation or remuneration. | Clarifying what constitutes gainful employment helps identify potential conflicts of interest more effectively. Public officers are better equipped to recognize situations where their outside employment or business interests may conflict with their official duties, enabling them to take appropriate steps to mitigate such conflicts of interest. |
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"official duty" means any task that a public officer is mandated to perform within the specific scope of his employment as defined by a contract of employment, an Act of Parliament or the Constitution. | This definition reinforces the accountability of public officers by specifying that their official duties are tasks mandated by law, contractual agreements or constitutional provisions. It helps hold public officers accountable for failing to perform their obligations in accordance with set standards. |
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"private interest" means a personal benefit, privilege, exemption or advantage that a public officer or a person affiliated to a public officer may gain from the office that the public officer holds and which may influence the judgement of a public officer in the exercise of a public duty, but does not include interest in a decision or matter that: a. is of general application; b. affects a public officer as a member of a broad class of persons; or c. concerns the remuneration or benefits received by virtue of being a public officer. | By explicitly defining private interest and delineating exceptions, the definition helps prevent conflicts of interest from arising or being overlooked. It ensures that public officers are aware of the types of interests that may influence their judgment and decision-making, allowing them to take appropriate measures to avoid or mitigate conflicts of interest. Secondly, this definition promotes fairness and transparency in decision-making processes by requiring public officers to disclose and manage private interests that may impact their impartiality when performing their official duties. This transparency helps maintain public confidence in public institutions. |
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"public officer" means any person who renders government services, whether appointed or elected, full time or part time or permanent or temporary, and includes a state officer and a member, employee, consultant or volunteer of a reporting entity. | The definition ensures that all individuals who render government services are held to the same standards regarding conflicts of interest, regardless of their specific role or employment arrangement. This promotes fairness and equity in the application of the Bill, ensuring consistent treatment for all public officers. |
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"relative" means a person who is related to a public officer by birth, marriage, common law partnership, adoption or affinity and includes a public officer's father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, step-mother, stepson, stepdaughter, stepbrother, stepsister, half-brother, half-sister, or who is the grandfather or grandmother of the spouse of the public officer. | By including various categories of familial relationships, this definition ensures that a wide range of family connections are considered. This comprehensive approach helps capture potential conflicts of interest arising from diverse family ties. |
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"registrable interests" means the interests set out in the Second Schedule. | The Second Schedule provides a list of income, assets and liabilities which a public officer must declare. This is a good proposal as public officials are held accountable for their actions and decisions, including their financial dealings. Declaring income, assets and liabilities allows for scrutiny and oversight of potential conflicts of interest or unethical behavior. Secondly, requiring public officers to declare their financial interests prevents corruption by deterring public officers from engaging in activities that could benefit them personally at the expense of the public. |
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"reporting authority" in relation to a public officer, means an office or body that is responsible for a public officer for the purposes of this Act and includes an accounting officer, a person who exercises executive control over the resources of the entity or any office or entity exercising a function delegated by the Commission. | Defining this term promotes accountability by establishing clear lines of responsibility for overseeing and managing public officers. It ensures that entities with oversight functions over public officials are identified and empowered to monitor compliance with the Bill’s provisions on conflict of interest. |
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"reporting entity" means: a. a state organ; b. the national government or any organ or department of the national government; c. a county government or any organ or department of a county government; d. a state corporation within the meaning of the State Corporations Act; e. a public school within the meaning of the Basic Education Act, 2013; f. a public university within the meaning of the Universities Act, 2012; g. a company owned by the National Government or a county government; h. a body that uses public assets in any form of contractual undertakings including public private partnerships; i. a company in which the national or county government has controlling shares in accordance with section 125 of the Companies Act 2015; j. a college or other educational institution maintained or assisted out of public funds; k. an entity which renders a service involving the collection or administration of a levy, fee or funds authorized by legislation; and l. any entity that uses public money in the delivery of government programmes or services, whether for profit or not. | This proposal ensures that a public officer shall not be a party to a contract for the supply of goods, works or services with any reporting entity. This prevents a potential conflict of interest from arising. |
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"significant official dealing" means an engagement with an entity by a public officer at a level which, in ordinary circumstances, and taking into account the totality of the circumstances, would be construed as capable of influencing the decision of the public officer in relation to the entity, including: a. engagement as an employee or agent of an entity; b. undertaking a consultancy for or on behalf of an entity; c. rendering of advice to an entity, whether directly or indirectly, and whether formally requested or not; d. any dealing with an entity in a contractual relationship for supply of goods, services or works; or e. any engagement where the public officer exercises regulatory or oversight functions over the affairs of the entity, in whatever form. | The definition helps in identifying potential conflicts of interest that may arise from engagements with entities. By recognizing situations where influence could be exerted, it enables public officers to proactively address and mitigate such conflicts. |
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"undeclared asset" means any asset that is not disclosed in the prescribed manner in any declaration year. | By defining this term, the Bill promotes transparency by requiring public officers to disclose all their assets as required by law. This transparency helps prevent hidden conflicts of interest and promotes public trust in the integrity of public institutions. |
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"unexplained asset" has the meaning assigned to it in the Anti-Corruption and Economic Crimes Act 2003. | Defining this term creates a mechanism for holding public officers accountable for the acquisition of wealth that is disproportionate to their known sources of income. It discourages corrupt practices and promotes honesty and transparency in financial dealings. |
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"windfall gain" includes unexpected income which may result from inheritance, lottery prizes, gambling winnings, payroll bonuses, proceeds from insurance claims, settlement from lawsuits, discoveries from treasure hunting or bounty rewards. | Windfall gain has been listed as an income in the Second Schedule of the Bill that must be declared by a public official. This proposal ensures that income from diverse sources is appropriately identified and declared. |
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Clause 3 Objects of the Act | The object of this Act is to provide for the management of conflict of interest in the discharge of official duties. Without prejudice to the generality of sub section (1), the objects of this Act are to: a. promote objectivity and impartiality in official decision making; b. ensure that the integrity of decision makers is not compromised by private interests; c. enhance public confidence in the delivery of public services; d. provide a framework for the regulation and management of real, apparent or potential conflict between public interest and private interest; and e. provide an institutional framework for the management of conflict of interest. | Sub-clause (2)(b) helps maintain public trust in public institutions. It reduces the risk of corruption, favoritism and bias, thereby upholding the integrity of public service. Sub-clause (2)(c) strengthens trust between citizens and public institutions. This can lead to greater citizen engagement, cooperation and support for government initiatives. |
By clearly stating the objects of the Bill, it helps in interpreting and understanding its provisions. Further, objects ensure that the Bill is effectively implemented, applied consistently and aligned with its intended purposes. |
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Clause 4 Application of the Act | This Act shall apply to all reporting entities and public officers. | This clause provides a scope of what the Bill will cover when managing and regulating conflicts of interest involving public officers. |
PART II — ADMINISTRATION | ||
Clause 5 Administration of this Act | This Act shall be administered by the Ethics and Anti-Corruption Commission. | The Commission’s mandate often overlaps with efforts to combat corruption. Administering the Bill through the Commission allows for better coordination between conflict of interest management and broader anti-corruption initiatives, maximizing the effectiveness of both. |
Clause 6 Functions of the Commission | The functions of the Commission under this Act shall be to: a. oversee the management of conflict of interest for all public officers; b. develop an effective system for reporting violation of this Act; c. promote best practices and develop standards and guidelines for the management of conflict of interest; d. receive and process requests related to the management of conflict of interest; e. conduct inquiries on matters of conflict of interest and make recommendations to the relevant bodies; f. provide advisory opinions on conflict of interest on its own volition or on request by any person; g. conduct public awareness on the management of conflict of interest; h. analyse, seek for clarification and verify conflict of interest disclosures; and i. institute proceedings for forfeiture of undeclared or unexplained assets. | The functions of the Commission have been clearly stated to ensure that it does not perform tasks that are ultra vires. |
| PART III — CONFLICT OF INTEREST | ||
Clause 8 Conflict of interest | A public officer is in conflict of interest if the public officer: a. exercises an official power, duty or function to further his private interests or the private interests of another person or of his family, relative or associate; b. is in 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 c. has private interests that could conflict with the duties of the public officer in future. | For paragraph (a), we propose that a definition of “associate” is included in clause 2 of the Bill. The rationale for this is that the terms “relative” and “family” have already been defined in clause 2 of the Bill. This proposal enhances clarity by removing the ambiguity present in this paragraph. By identifying situations where conflicts of interest arise, this clause helps in preventing such conflicts from occurring. Public officers can be more vigilant by avoiding situations that may compromise their objectivity or integrity in the performance of their official duties. Thirdly, we propose the deletion of paragraph (c). The inclusion of potential conflicts of interest that could arise in the future adds a layer of uncertainty. It may be difficult to predict all future scenarios where conflicts could occur, making it challenging for public officers to proactively address such situations. |
Clause 9 Obligation to avoid conflict of interest | A public officer shall: a. take reasonable steps to avoid any real, apparent or potential conflict of interest in connection with the official duties of the public officer; and b. disclose details of any private interest of the public officer that affects the official duties of the public officer. | Mandating public officers to avoid conflicts of interest and disclose relevant private interests promotes ethical conduct. It emphasizes the importance of prioritizing their official duties over personal gain or bias. Secondly, by imposing obligations on public officers to avoid conflicts of interest and disclose private interests, the measure enhances accountability. Public officers can be held responsible for their actions and decisions, fostering trust in public institutions. |
Clause 10 Conflict of interest in decision making | A public officer shall not make a decision or participate in making a decision relating to the exercise of an official power or the performance of a duty or function if the public officer knows or reasonably should know that, in the making of the decision, the officer would be in conflict of interest. A person who contravenes subsection (1) commits an offence. | Prohibiting public officers from making decisions when they have a conflict of interest helps preserve the integrity of government processes. It ensures that decisions of public officers are made based on merit rather than their private interests. Secondly, the addition of sub-clause (2) is a good proposal as it acts as a deterrence in ensuring that public officers comply with the provisions of this clause. |
Clause 11 Participation in proceedings before Parliament or county assembly | Subject to the Constitution or any other relevant written law a member of Parliament or a member of a county assembly shall declare any direct pecuniary interest or benefit of whatever nature in any: a. debate or proceeding in the relevant House of Parliament or county assembly, as the case may be; b. debate or proceeding in any committee of the relevant House of Parliament or county assembly, as the case may be; or c. transaction or communication which the member may have with another person or other members of the relevant House of Parliament or county assembly, as the case may be. A Member of Parliament or a member of a county assembly who makes a declaration under subsection (1) shall not: a. participate in any deliberations in respect of which the member has made the declaration; or b. use any information obtained by the member in the discharge of the member's constitutional role to advance the member's private interests. A person who contravenes subsection (1) or (2) commits an offence. | Declaration of pecuniary interests prevents abuse of parliamentary power for personal gain and reinforces the principle that elected members of Parliament should act in public interest rather than their own private interests. |
Clause 12 Preferential treatment | A public officer shall not, in the exercise of an official power or in the performance of a duty or function, grant a person, whether directly or indirectly, any special consideration, treatment or advantage beyond what is allowed by law or written policy. A person who contravenes subsection (1) commits an offence. | By restricting the ability of public officers to give preferential treatment, this prevents favouritism or nepotism when a public officer performs their official duties. It ensures that decisions are based on merit rather than personal relationships or biases. Secondly, not allowing a public officer to provide preferential treatment while performing their official duties reduces opportunities for corruption or abuse or power. |
Clause 13 Misuse of official information | A public officer shall not, directly or indirectly, use or allow any person under the officer's authority to use any information that is obtained by the person in the course of performing official duties and is not available to the public to improperly further or seek to further the interest of the officer or the interests of another person. A person who contravenes subsection (1) commits an offence. | This clause helps in ensuring that public officers do not exploit information obtained during their official duties for personal gain or to benefit others improperly. It helps in maintaining transparency and accountability in public service. Secondly, this clause safeguards sensitive or confidential information obtained during the course of official duties from being misused for personal or unauthorized purposes. It helps in maintaining the confidentiality of government operations and protects sensitive data. |
Clause 14 Undue influence | A public officer shall not use his position to influence the decision of another person or another public officer so as to further his private interests or the private interests of another person. A person who contravenes subsection (1) commits an offence. | By preventing the misuse of public office for private gain, this safeguards public resources from being diverted or misappropriated for private interests. It helps in ensuring that public resources are utilized for the benefit of the public as intended. Secondly, by preventing public officers from unfairly influencing decisions, this rule promotes fairness and impartiality in the execution of official duties. It helps in maintaining public trust and confidence in government institutions. |
Clause 15 Offers of outside employment | A public officer shall: a. not allow himself to be influenced in the exercise of an official power or performance of a duty or function by plans for or any offer of outside employment; and b. disclose in writing to the reporting authority any offer of outside employment that could place the officer in a situation of conflict of interest, within seven days of receiving the offer. A public officer who accepts an offer of outside employment shall, within seven days of acceptance, disclose his acceptance of the offer in writing to the Commission and to the reporting authority. For purposes of this section "offer of outside employment" means a formal proposal made to a public officer to work for or privately do business with an entity which has official dealings with the reporting entity in which the public officer is serving. A person who contravenes subsection (1) or (2) commits an offence. | We propose the deletion of this clause. Public officers may have legitimate concerns about privacy and the disclosure of personal information, particularly if the outside employment is unrelated to their official duties. Requiring disclosure of outside employment could infringe on their privacy rights and raise concerns about undue scrutiny. |
Clause 16 Gifts and other benefits | A public officer, a member of the officer's family or a relative of the public officer shall not accept or request a gift or a favour from a person who: a. has an interest that may be affected by the carrying out, or not carrying out, of the public officer's duties; b. carries on regulated activities with respect to which the public officer's organisation has a role; or c. has a contractual or similar relationship with the public officer's organisation. Notwithstanding subsection (1), a public officer may receive a gift given in an official capacity, provided that the gift: a. is received as a normal expression of courtesy or protocol; b. is within the customary standards that normally accompany the public officer's position; c. is not monetary; or d. does not exceed such value as may be prescribed. Subject to subsection (2), if a public officer, a member of the public officer's family or a relative of the public officer accepts any gift or benefit, the public officer shall, within forty-eight hours of acceptance of such gift or benefit, or, if not on duty, within forty-eight hours of resumption of duty, make a declaration of such acceptance, giving sufficient details of the nature of the gift or other benefit accepted, the donor and the circumstances under which it was accepted. A person who contravenes subsection (1) or (3) commits an offence. | By prohibiting public officers and their family members from accepting gifts or favours from individuals or entities with interests that may affect the officer's official duties, sub-clause (1) helps in preventing conflicts of interest. It ensures that public officers make decisions impartially, without being unduly influenced by personal benefits. For sub-clause (2), allowing public officers to receive gifts allows for the exchange of symbolic gestures that fosters goodwill and cooperation. On the other hand, allowing public officers to receive gifts may create opportunities for individuals or entities to exert influence or gain favour with public officers. This could undermine the impartiality and integrity of decision-making processes. To conclude, a balance has been found by outlining the instances when a public officer may accept a gift. For sub-clause (2)(c), giving non-monetary gifts to a public officer has the following benefits: a. non-monetary gifts serve as gestures of goodwill and appreciation, helping to build positive relationships between the public officer and the relevant person; and b. giving non-monetary gifts may facilitate networking opportunities, allowing individuals or organizations to establish connections with public officers that could be beneficial for future collaboration or engagement. Fourthly, the addition of sub-clause (3) is a good proposal as it acts as a deterrence in ensuring that public officers comply with the provisions of this clause. |
Clause 17 Register of gifts | Every reporting authority shall maintain a register of: a. gifts received by public officers serving in the reporting entity; b. gifts given by the reporting entity to public officers; and c. donations received by the reporting entity for a specific cause. | Maintaining a register of gifts enhances transparency by providing a record of all gifts received by public officers. This transparency helps to build public trust and confidence in the integrity of public institutions. By documenting all gifts received by public officers, a register can help identify potential conflicts of interest and prevent improper influence on decision-making processes. It serves as a tool for identifying patterns or trends in gift-giving that may warrant further scrutiny. |
Clause 18 Complimentary treatment | A public officer, member of the officer's family or a relative of the public officer shall not accept any complimentary treatment for any purpose unless the complimentary treatment offered is required in his official capacity or in exceptional circumstances. Where a public officer, member of the officer's family or a relative of the public officer accepts a complimentary treatment in the exceptional circumstances referred to in subsection (1), the public officer shall, within forty-eight hours of acceptance of the complimentary treatment, or, if not on duty, within forty-eight hours of resumption of duty, make a declaration of such acceptance, giving sufficient detail on: a. the nature of the complimentary treatment accepted; b. the donor; and c. the circumstances under which the complimentary treatment was accepted. A person who contravenes sub section (1) or (2) commits an offence. | For sub-clause (1), we propose that the instances of exceptional circumstances for a public officer to accept a complimentary treatment are listed in this clause. Failure to list the instances creates challenges in determining the instances of accepting or rejecting a complimentary treatment. Further, this proposal enhances clarity by removing the ambiguity present in this sub-clause. Secondly, the requirement to declare acceptance of complimentary treatments serves as a deterrent against improper conduct, as public officers are aware that their actions are subject to scrutiny and disclosure. This can help prevent abuses of power or conflicts of interest. |
Clause 19 Contracts with public entities are prohibited | A public officer shall not be a party to or beneficiary of a contract for the supply of goods, works or services with any reporting entity. A public officer shall not be a party to or beneficiary of a contract for the disposal of goods with any reporting entity. A public officer shall not, in the exercise of official power, duty or function, award or influence the award of a contract in which the officer has a private interest. A person who contravenes any provision of this section commits an offence. | By preventing public officers from being parties to contracts with public entities, this rule promotes fair competition in the procurement process. It prevents preferential treatment or insider deals that could disadvantage other potential suppliers or contractors. |
Clause 20 Acquisition of interest in partnerships and private companies | A public officer shall not acquire an interest in a partnership, private company or any other legal entity that is a party to a contract with the reporting entity in which the public officer serves, under which the partnership, private company or legal entity receives a benefit. Subsection (1) shall not apply to interests acquired through trading in the regulated financial markets provided that the public officer shall not acquire controlling shares in the entity. A person who contravenes subsection (1) commits an offence. | By prohibiting public officers from acquiring interests in entities that have contracts with the reporting entity, this prevents conflicts of interest. It ensures that public officers do not have private interests that may influence their decision-making in relation to those contracts while performing their official duties. |
Clause 21 Conflict in recruitment | A public officer shall not: a. participate in or influence a recruitment and selection process in which the public officer has a private interest; or b. canvass for a candidate in a recruitment and selection process in which the public officer has a private interest. Subsection (1) shall not apply to appointment of personal staff permitted to the public officer as may be prescribed. A person who contravenes subsection (1) commits an offence. | By prohibiting public officers from participating in or influencing recruitment and selection processes in which they have a private interest, this prevents conflicts of interest. It ensures that recruitment decisions are made impartially and based solely on merit, rather than personal connections or biases. Secondly, by preventing public officers from canvassing for candidates in recruitment processes where they have a private interest, this ensures equal opportunities for all candidates. It prevents favouritism or unfair advantage for candidates associated with public officers. For sub-clause (2), we propose that a definition of “personal staff” is included in this clause. This proposal enhances clarity by removing the ambiguity present in this sub-clause. |
Clause 22 Collusion by public officers to conceal conflict of interest | A public officer shall not enter into an arrangement with a public officer of another reporting entity in furtherance of an action which would amount to concealing of a conflict of interest. A person who contravenes subsection (1) commits an offence. | By prohibiting arrangements that conceal conflicts of interest, this prevents corruption within the public sector. It reduces the likelihood of public officers abusing their positions for personal gain or engaging in unethical behaviour that could undermine public trust in public institutions. Secondly, prohibiting arrangements aimed at concealing conflicts of interest promotes accountability among public officers. It holds them accountable for their actions and decisions, ensuring that they are transparent and subject to scrutiny by the Commission and public. |
Clause 23 Restricted gainful employment | A public officer shall, while serving in a reporting entity, not engage in any other gainful employment which: a. is inherently incompatible with the official duties of the public officer; b. results in the impairment of judgment of the public officer in the execution of official duties; c. results in conflict of interest; or d. the public officer is mandated to regulate or exercise oversight. Where a public officer engages in gainful employment which is not prohibited under this Act, the officer shall, within thirty days of taking up the employment, make a declaration of the employment in the prescribed form and register the declaration with the reporting authority and the Commission. A public officer shall not engage in any other gainful employment without permission from the reporting authority. A person who contravenes any provision of this section commits an offence. | We propose the deletion of sub-clause (2). Requiring public officers to declare gainful employment that is not prohibited under the Bill may be perceived as an intrusion into their personal affairs. Public officers may feel that their privacy is being infringed upon or that they are being unfairly targeted for scrutiny, if their employment arrangements are not prohibited in the Bill. Secondly, we propose the deletion of sub-clause (3). Requiring public officers to obtain permission before engaging in gainful employment imposes restrictions on their personal freedom and ability to pursue additional income opportunities. It may be perceived as overly intrusive, as public officers have autonomy over their personal finances. |
Clause 24 Register of conflict of interest | The reporting authority of a reporting entity shall maintain a register of conflict of interest in the prescribed manner. The register referred to in subsection (1) shall: a. contain the particulars of the registrable interests of a public officer set out in the Second Schedule; b. state the nature and extent of a conflict; and c. be open to the public for inspection. | Maintaining a register of conflict of interest promotes transparency within the organization by providing a centralized record of potential conflicts that may arise among public officers. This transparency helps build public trust and confidence in the integrity of the reporting entity’s operations. Secondly, maintaining a register of conflict of interest enables the reporting entity to identify and assess potential risks associated with conflicts of interest among its public officers. This allows it to implement appropriate controls and mitigation strategies to prevent conflicts of interest from negatively impacting its operations. |
Clause 25 Political neutrality | An appointed public officer, other than a Cabinet Secretary or a member of a County Executive Committee, shall not, in the performance of his duties: a. act as an agent for, or further the political interests of a political party or political candidate; or b. manifest support for or opposition to any political interests of a political party or political candidate. A person who contravenes subsection (1) commits an offence. | By prohibiting appointed public officers from acting as agents for furthering the political interests of a political party or candidate, this maintains the neutrality and impartiality of public officers. It ensures that public officers prioritize their official duties over partisan politics. Secondly, prohibiting public officers from manifesting support for or opposition to political interests helps prevent conflicts of interest that may arise when public officers align themselves with specific political parties or candidates. It ensures that decisions and actions are based on merit, rather than political considerations. For sub-clause (1), we propose the deletion of the word “Cabinet Secretary”. By prohibiting Cabinet Secretaries from engaging in political activities, it ensures that Cabinet Secretaries prioritize their official duties to serve the entire population, regardless of their political affiliation. |
Clause 26 Public collections | An appointed public officer shall not: a. solicit for contributions from the public unless the President has, by notice in the Gazette, declared a national disaster and allowed a public collection for the purpose of the national disaster; b. participate in collection of funds from the public, either as a collector or promoter in a way that reflects adversely on the integrity and impartiality of the public officer or interferes with the performance of the of the duties of the public officer; or c. use official social media platforms or his place of work as a venue for soliciting or collecting funds. A public officer shall not use his official position to solicit funds or coerce any person to contribute towards a private fund collection. A person who contravenes subsection (1) or (2) commits an offence. | By prohibiting public officers from using their official position to solicit funds from the public, this prevents the misuse of authority for personal gain. It ensures that public officers do not abuse their power to coerce contributions from individuals or organizations. Secondly, prohibiting public officers from soliciting funds or coercing contributions helps maintain the integrity and impartiality of public institutions. It ensures that public officials prioritize their official duties and avoid conflicts of interest that may arise from fundraising activities. |
Clause 27 Prohibitions after leaving office | A former public officer shall not: a. act for or on behalf of any person in connection with any specific proceeding, transaction, negotiation or case in which the State is a party and with respect to which the former public officer had acted for, or provided advice to the State; b. be engaged by or act for or against his former employer for at least two years after ceasing to be a public officer; c. use information obtained in his official capacity and which is not available to the public to further the interests of another person or entity; or d. accept any appointment to a board of directors of, or employment with, a private entity with which the public officer had significant official dealings during the period of two years immediately preceding the termination of his service. The official dealings referred to in sub section (1) (d), may be either directly on the part of the public officer or through private affiliations. A person who contravenes subsection (1) commits an offence. | Prohibiting former public officers from using confidential information obtained during their tenure for the benefit of others helps protect the confidentiality of government information. This prevents the misuse or exploitation of sensitive information for personal gain or competitive advantage. By prohibiting former public officers from acting for or on behalf of any person in connection with specific proceedings or transactions in which they were previously involved on behalf of the State, this prevents potential conflicts of interest. This ensures that the interests of the State are protected and that former officers do not use their insider knowledge for personal gain or to the detriment of the state. |
Clause 28 Prohibition against representing people before reporting entities | A former public officer shall not, during the period of two years immediately preceding the termination of service represent, vouch for or defend any person, whether for remuneration or not, before any reporting entity with which the former public officer had direct and significant official dealings. | We propose the deletion of this clause. The restriction may impact the ability of individuals to access legal representation, particularly if former public officers with relevant expertise and experience are prohibited from representing them before reporting entities. This could potentially limit individuals' access to justice and their ability to defend their interests effectively. |
PART IV — COMPLIANCE MEASURES | ||
Clause 30 Duty to recuse | A public officer shall recuse himself from any discussion, decision, debate or vote on any matter in respect of which the public officer would be in conflict of interest. Where a public officer recuses himself under sub-section (1): a. the recusal shall be recorded in the minutes of the transaction in question; and b. the public officer shall, within sixty days after the day on which the recusal took place, file a declaration of the recusal with the reporting authority and the Commission in the prescribed form, providing sufficient details as to identify the conflict of interest that was avoided. | Public officers recusing themselves from discussions or decisions in which they have a conflict of interest helps prevent bias in decision-making. It ensures that the decision-making process remains fair, transparent and free from any improper influences. By recusing themselves from situations where they have a conflict of interest, public officers demonstrate a commitment to upholding integrity and impartiality in their decision-making processes. It ensures that decisions are made based on merit and the public interest, rather than for personal gain. |
Clause 31 Declaration of income, assets and liabilities by public officers | Every public officer shall submit to the Commission a declaration of the income, assets and liabilities of himself, his spouse or spouses and his dependent children under the age of eighteen years. The declaration referred to under sub section (1), shall be in Form 1 set out in the First Schedule. Notwithstanding the generality of subsection (1), a public officer shall in a periodical or final declaration provide information on any material change in, or changes affecting any of the categories of income, assets or liabilities in the schedule of mandatory declarations that have occurred within the two-year period prior to the declaration. For purposes of this section, "material change" means: a. at least twenty five percent increase or decrease in the value of an income, asset or liability; b. the disposal or acquisition of an asset or liability; c. changes in marital status; d. appointment to or changes in directorships; e. changes in membership in companies or partnerships and other legal entities howsoever established; or f. changes in membership in social associations, societies, clubs, foundations or trusts. | We propose the deletion of this clause based on the following reasons: a. mandating disclosure of financial information regarding spouses or dependent children may infringe upon their privacy rights. Spouses and children may not be directly involved in the public officer's duties or decision-making processes, and disclosing their financial details may be seen as intrusive; and b. the financial affairs of spouses or dependent children may not necessarily be relevant to the public officer's official duties. Requiring disclosure of their income, assets and liabilities may not serve a legitimate purpose related to transparency or accountability in government. |
Clause 32 Timelines for declaration | A public officer shall, within thirty days of appointment as a public officer, submit an initial declaration relating to his financial affairs for the period of one year prior to appointment. Every public officer shall, once every two years within the period of service, submit a declaration relating to the financial affairs of the public officer as at 1st of November of the declaration year, and such declaration shall be made within the month of December next following. A public officer shall, within thirty days after ceasing to be a public officer, submit a final declaration relating to his financial affairs as at the date he ceases to be a public officer. | The addition of timelines in sub-clause (1) is a good proposal as it ensures that a public officer submits a declaration of his financial affairs within a prescribed period without delays. Secondly, requiring public officers to disclose their financial affairs shortly after appointment promotes transparency and accountability in government. It allows for scrutiny of potential conflicts of interest and ensures that public officers are held accountable for their financial dealings. Thirdly, requiring public officers to disclose their financial affairs helps prevent corruption and unethical behaviour. It discourages public officers from using their positions for personal gain and promotes adherence to ethical standards and codes of conduct. |
Clause 33 Clarification | Upon receipt of the declaration made under section 31, the Commission shall analyse the declaration to ascertain: a. its completeness and correctness; b. whether the declaration raises possible issues of conflict of interest; and c. whether on the face of it, the declaration contains any discrepancy or inconsistency. The Commission may, within six months of receipt of a declaration, request, in writing, for clarification from the public officer who submitted the declaration under section 31. A public officer from whom clarification is sought under sub section (2) shall, within fourteen days of receipt of the request, provide the clarification to the Commission. A request for clarification may include a requirement that: a. the omitted information be provided; or b. any discrepancy or inconsistency, including a discrepancy or inconsistency arising out of the omission, be explained or corrected. The Commission may verify any information provided in the declaration. | We propose that the sub-clauses are re-numbered to correct the arithmetic error present in this clause. Secondly, we propose the deletion of this clause. Similarly, we have proposed the deletion of clause 31 as the financial affairs of spouses or dependent children may not necessarily be relevant to the public officer's official duties or responsibilities. Requiring disclosure of their income, assets and liabilities may not serve a legitimate purpose related to transparency or accountability in government. |
Clause 34 Access to declarations | Any declaration made under this Act shall be accessible to any person upon making an application to the Commission in the prescribed manner, if the applicant satisfies the Commission that he has a legitimate interest and good cause in the furtherance of the objectives of this Act. Notwithstanding subsection (1), a law enforcement agency shall have unrestricted access to the disclosures and compliance reports made by a public officer under this Act. A person who obtains information under subsection (1), shall not publish or in any way make public such information without prior written authority of the Commission. A person who contravenes sub section (3) commits an offence and shall on conviction be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years, or both. | We propose that the missing sub-clauses are added to this clause. This proposal enhances clarity by adding the missing sub-clauses to this clause. Secondly, we propose the addition of timelines in sub-clause (1). This proposal ensures that the Commission reviews the application form within a prescribed period without delays. |
Clause 35 Retention of information | The Commission shall keep information collected under this Act concerning a person for at least five years after the person ceases to be a public officer. | This clause adds a retention period for the Commission to keep records before disposal. We propose that upon expiry of the five-year prescribed period, the Commission disposes the records by way of recycling. This proposal ensures compliance with article 42 of the Constitution which provides for the right to a clean and healthy environment. |
Clause 36 failure to submit information | A public officer who fails to submit any information required under this Act, within the prescribed period, commits an offence. A reporting authority who fails to submit any information required under this Act, within the prescribed period, shall pay to the Commission a penalty of three million shillings. | The addition of this clause is a good proposal as it acts as a deterrence in ensuring that public officers comply with the provisions of this clause. |
Clause 37 False information | A public officer who submits information that the public officer knows, or ought to know, is false or misleading, commits an offence. | The addition of this clause is a good proposal as it acts as a deterrence in ensuring that public officers comply with the provisions of this clause by providing accurate information. |
Clause 38 Divestiture | A public officer shall within ninety days after the date of appointment or in the course of employment divest any private interest that would place the public officer in a conflict of interest situation. | We propose increasing the ninety-day period for an appointed public officer to divest his private assets to six months. Divesting private interests within a short timeframe may have financial implications for public officers, particularly if they need to sell assets or investments quickly. This could result in potential losses or difficulties in finding suitable buyers within the specified timeframe. Secondly, the ninety-day timeframe for divestiture may be insufficient for public officers to fully disentangle themselves from conflicting private interests, especially if the assets or investments are complex or illiquid. This could result in rushed or incomplete divestiture transactions. |
Clause 39 Methods of divestment | The private interests referred to in section 38 may be divested by: a. selling them in an arm's-length transaction; or b. placing them in a blind trust that meets the requirements of section 40. | This clause provides the methods of divestment that can be used by an appointed public officer to dispose or sell his private interests. |
Clause 40 Blind trust requirements | A blind trust shall provide that: a. the assets to be placed in trust shall be registered to the trustee unless they are in a registered retirement savings plan account; b. the public officer shall not have any power of management or control over the trust assets; c. the trustee shall not seek or accept any instruction or advice from the public officer concerning the management of the assets; d. the assets placed in the trust shall be listed in a schedule attached to the instrument or contract establishing the trust; e. the term of any trust shall be for as long as the public officer who establishes the trust continues to hold the office or until the trust assets are depleted; f. the trustee shall deliver the trust assets to the public officer when the trust is terminated; g. the trustee shall not provide information about the trust, including its composition, to the public officer except for information that is required by law to be filed by the public officer and periodic reports on the overall value of the trust; h. the public officer may receive any income earned by the trust and add to or withdraw from the capital funds in the trust; i. the trustee shall be at arm's length from the public officer and the Commission is to be satisfied that an arm's length relationship exists; j. the trustee may be: i. the public trustee; ii. a registered trustee; or iii. a listed company or a subsidiary wholly owned by a listed company, including a trust company or investment company, that is qualified to perform the duties of a trustee; or k. the trustee shall provide the Commission, on every anniversary of the trust, with a written annual report verifying the accuracy, nature and market value of the trust, a reconciliation of the trust property, the net income of the trust for the year preceding, and the fees of the trustee, if any. Despite subsection (1), general investment instructions may be included in a blind trust instrument or contract but only with the prior approval of the Commission. Oral investment instructions shall not be given with respect to a contract or instrument that establishes a blind trust. | By placing their private interests in a blind trust, public officials can mitigate potential conflicts of interest. This separation between personal financial interests and official duties helps ensure that decisions made in their official capacity are based on the public interest rather than personal gain. While public officials relinquish control over their investments in a blind trust, they still maintain their financial independence. The assets within the trust are managed by an independent trustee, ensuring that the public official's private interests are protected without compromising their ability to serve effectively in their role as a public official. We propose the deletion of sub-clause (1)(h). The correct course of action would be for the trustee to hold any income earned from the blind trust as long as the public officer continues to hold office. The purpose of a blind trust is to remove the public officer's knowledge and control over their private interests to prevent conflicts of interest. Allowing the public officer to receive income from the blind trust compromises the effectiveness of the blind trust. |
Clause 41 Confirmation of blind trust or sale | A public officer shall submit to the Commission: a. a copy of any instrument or contract establishing a blind trust; or b. proof of sale of any asset, gift, inheritance or other private interests that are the subject of divestment. | Submission of the blind trust or divestiture instrument to the Commission is proof that the private interests of a public officer have been sold or held in a blind trust respectively as stipulated in clauses 38 and 40 respectively. |
Clause 42 Confidentiality of divestment | The Commission shall, unless otherwise required by law, keep confidential any information provided by a public officer relating to a divestment under this Act. | Confidentiality safeguards proprietary information, trade secrets and other sensitive data related to the divestment. This protects the interests of the parties involved and prevents competitors from gaining insights that they can use. |
Clause 43 Assets given as security | A public officer shall not be required to divest an asset that has been given as security to a lending institution. Despite subsection (1), a public officer shall: a. disclose to the Commission the discharge of the secured asset referred to in subsection (1); and b. where the interests of the public officer in the asset would place the officer in a conflict of interest situation, take the necessary steps to divest the discharged asset in accordance with this Act. A public officer shall not charge an asset in order to defeat divestiture requirements under this Act. A person who contravenes sub section (2) or (3) commits an offence. | Requiring divestment of assets serving as collateral could potentially lead to default on loans if the public officer is unable to repay the debt without those assets. Exempting such assets from divestment helps prevent default and maintains the public officer's financial standing. |
Clause 44 Assets of minimal value | A public officer shall not be required to divest an asset if, in the opinion of the Commission, the asset is of such minimal value that it does not pose any risk of conflict of interest in relation to the duties and responsibilities of the officer. | We propose that a prescribed minimum value is provided in this clause. The determination of what constitutes "minimal value" is subjective and may vary depending on the interpretation of the Commission. This could lead to inconsistencies in the minimum value for divesting an asset for various public officers. |
Clause 45 Compliance orders | The Commission may order a person, in respect of any matter, to take any compliance measure that the Commission considers necessary for the compliance with this Act, including divestment or recusal. | The clause is silent on whether the Commission’s decision to order compliance measures is final. We propose that a person may appeal to the High Court if dissatisfied with the Commission’s decision. This proposal seeks to provide legal redress to a person who is dissatisfied with the Commission’s decision in this clause. |
Clause 46 Report on compliance with orders of the Commission | A report on compliance with an order made by the Commission under section 45 may contain a description of: a. the asset or the interest and the method used to divest it; b. the process to be put in place by the public officer to effect the recusal; and c. the steps taken by the public officer to comply with the order. | Reports provide a structured and organized way to document information, findings and conclusions. This documentation can serve as a reference point for future decision-making, analysis, or audits. |
PART V — COMPLAINTS AND CONDUCT OF INVESTIGATIONS | ||
Clause 48 Lodging of complaints and investigations | A person who alleges that a public officer has contravened any provision of this Act may lodge a complaint with the reporting authority or the Commission and the report shall be recorded in a register of complaints. The reporting authority or the Commission may investigate the complaint and determine whether the public officer has contravened this Act. A reporting authority or the Commission may initiate an investigation on its own volition. A public officer who is under investigation under this section shall be informed of the allegations made and shall be given a reasonable opportunity to make a representation relating to the issue before the investigation is concluded. A person who lodges a complaint against a public officer shall be informed of any action taken or to be taken in respect of the complaint. Where an investigation under this section is initiated while the public officer is in office, the investigations may be continued even after the public officer has ceased to be in office. The reporting entity or a reporting authority may take disciplinary action against a public officer serving in a reporting entity. | We propose that a template of a complaint form is included in the Schedule of this Bill. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity. Secondly, we propose the addition of timelines in sub-clause (2). This proposal ensures that the Commission reviews the complaint within a prescribed period without delays. For sub-clause (6), holding former public officers accountable for their actions, even after they have left office, sends a strong message that individuals are not exempt from scrutiny simply because they are no longer in public office. This can help deter unethical behaviour in public institutions. |
Clause 49 Discretion in investigations | Despite section 48, the Commission shall not commence investigations if: a. the subject matter of the request does not disclose an issue of conflict of interest under this Act; b. the subject matter of the request has been adequately dealt with or could more appropriately be dealt with according to a procedure provided for under another Act of Parliament; or c. the substance of the request is frivolous, vexatious or made in bad faith. If the Commission declines to commence an investigation, the Commission shall inform the person who lodged the complaint and give reasons for the decision. | For sub-clause (1), we propose the addition of the words “or reporting authority” immediately after the word “Commission”. Clause 48(2) of the Bill indicates that investigates can be conducted by either the Commission or a reporting authority. |
Clause 50 Suspension from office | Subject to the Constitution and any written law, a state officer or public officer may be suspended from office pending the investigation and determination of allegations made against that officer where such suspension is considered necessary. Despite sub section (1), the period of suspension of a State officer or public officer shall not exceed ninety days. | For sub-clause (1), the words “where such suspension is considered necessary is ambiguous”. We propose that the grounds for suspension are listed in this clause. By specifying the grounds for suspension, there is clarity regarding the circumstances under which a public officer may be suspended from office. This transparency helps to ensure that the suspension process is fair and consistent. |
Clause 51 Recommendations of the Commission | The Commission may, pursuant to an investigation conducted under this Act: a. recommend to a public entity to take disciplinary or other administrative action against a State or public officer alleged to have contravened the provisions of this Act; b. recommend to a public entity, appointing authority or the public officer, to take such measures as may be appropriate to ensure compliance with, or cessation of further violation of, the provisions of this Act; c. recommend to any other relevant public body to take appropriate action against a state or public officer, an associate to a state or public officer or a company in which a state or public officer has a controlling interest in; or d. recommend to the Director of Public Prosecution the prosecution of a person who contravenes this Act. Where a public entity, appointing Authority or public officer fails to implement the recommendations under subsection (1) (a) (b) or (c), the Commission may make an application before the High Court for appropriate orders requiring the public entity, authorized officer or public officer to comply. | We propose that a public officer who is dissatisfied with the Commission’s decision may appeal to the High Court, with a further appeal allowed to the Court of Appeal. This proposal provides legal redress to a public officer who is dissatisfied with the Commission’s decision. Further, we propose the addition of timelines which will allow the Courts to hear and determine the appeals within a prescribed period without delays. |
PART VI — MISCELLANEOUS PROVISIONS | ||
Clause 52 General penalty | A person who contravenes any provision of this Act for which no penalty is provided shall, upon conviction, be liable to: a. if the person is a natural person, a fine not exceeding four million shillings or to a term of imprisonment not exceeding ten years, or to both; or b. if the person is a body corporate, a fine not exceeding ten million shillings; and In addition to the penalty under subsection (1), the person shall be liable to a further mandatory fine if as a result of the conduct that constituted the offence the person received a quantifiable benefit or any other person suffered a quantifiable loss. The mandatory fine referred to in subsection (2) shall be determined as follows: a. the mandatory fine shall be equal to two times the amount of the benefit or loss described in subsection (2); or b. if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (2), the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss. | A general penalty clause acts as a deterrent in discouraging public officers from engaging in activities that violate the Bill. The potential for a penalty provides a strong incentive for compliance with the Bill’s provisions. |
Clause 53 Confidentiality | The Commission or any person acting on its behalf shall not, unless required by law, disclose any information that comes to their knowledge in the performance of their duties under this Act, unless the disclosure is, in the opinion of the Commission, essential for the purposes of carrying out its functions and exercising the powers conferred on it under this Act or is required by any law enforcement agency. | Assuring confidentiality can encourage individuals to cooperate with the Commission, knowing that their information will be handled discreetly. This cooperation is essential for conducting thorough investigations and obtaining accurate information. |
Clause 54 Protection of person making disclosure | A person shall not be penalized in relation to any employment, profession, voluntary work, contract, membership of an organization, the holding of an office or in any other way, as a result of having made or proposed to make a disclosure of information which the person obtained in confidence in the course of that activity, if the disclosure is of public interest. For purposes of subsection (1), a disclosure which is made to a law enforcement agency or to an appropriate public entity shall be deemed to be made in the public interest. A person shall make a disclosure under subsection (1) or (2) where such person has reasonable belief in the veracity of the information. Any person who provides false information maliciously intended to injure another person commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both. Disclosure of information under subsection (1) and (2) shall be information on conflict of interest. For the purpose of this section, a person is penalized if the person is dismissed, discriminated against, made the subject of reprisal or other form of adverse treatment or is denied any appointment, promotion or advantage that otherwise would have been provided or any other personnel action provided under the law relating to whistle blower, and the imposition of any such penalty in contravention of this section shall be actionable as a tort. | Protecting individuals from retaliation for making disclosures encourages whistleblowing. Whistleblowers play a crucial role in exposing wrongdoing, corruption or unethical behaviour, which can lead to improved transparency and accountability in public institutions. Secondly, this clause seeks to align the Bill with clauses 24, 25 and 26 of the Whistleblower Protection Bill 2023 which contain provisions on the protection of whistleblowers. |
Clause 55 Protection from liability | No criminal or civil proceedings shall lie against the Commission or any person acting on behalf of the Commission, for anything done, reported or said in good faith in the exercise of any power, or the performance of any function of the Commission under this Act. | This clause enhances accountability as the Commission or a person acting on behalf of the Commission can be held liable for actions not done in good faith. |
PART VII — REPEALS, SAVINGS AND TRANSITIONAL PROVISIONS | ||
Clause 58 Repeal of Act No. 4 of 2003 | The Public Officer Ethics Act 2003 (“the Public Officer Ethics Act”) is repealed. | This clause seeks to prevent a potential conflict of laws from arising once the Bill is assented into law. |
Clause 59 Saving and transitional provisions | Notwithstanding section 31, any entity which immediately before the commencement of this Act was designated as a responsible commission shall, upon such commencement, remain the responsible commission in respect of any declaration made by a public officer under this Act, until the administrative mechanisms referred to in section 47 are developed by the Commission. Any statutory instrument made under the repealed Act shall remain in force, so far as it is not inconsistent with this Act, until it is revoked or repealed by a statutory instrument made under this Act and shall be deemed for all purposes to have been made under this Act. A public officer who is in office at the commencement of this Act shall divest his assets in accordance with the provisions of this Act within twenty-four months of the commencement of this Act. | Transitional provisions facilitate the smooth implementation of legislative changes by providing a framework for transitioning from the old legal regime to the new one, ensuring a seamless transition for affected individuals. |
Clause 60 Consequential amendments | The Leadership and Integrity Act, the Ethics and Anti-corruption Commission Act (“the EACC Act”), the Anti-Corruption and Economic Crimes Act (“the ACECA”) and the Public Procurement and Assets Disposal Act (“the PPADA”) are amended in the manner specified in the Third Schedule. | The ACECA The Bill deletes section 42 of the ACECA as it contains provisions on conflict of interest. This is understandable as the Bill deals with the management and regulation of conflict of interest involving public officials. Section 26 of the Act is deleted as it contains provisions on gainful employment. This has been covered in clauses 2 and 23 of the Bill. |
The EACC Act The Bill proposes to amend section 11(1) of the EACC Act by prescribing additional functions to the Commission as conferred by an Act of Parliament. This proposal will be in line with the functions prescribed to the Commission under this Bill. |
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The Leadership and Integrity Act The Bill proposes to delete sections 6(3) and 6(4) of the Act which make reference to the Public Officer Ethics Act. This proposal will be in line with clause 58 of the Bill which repeals the Public Officer Ethics Act. Secondly, section 14 of the Act is deleted as it contains provisions on gifts or donations given to state officers. Gifts and benefits given to public officers has been covered in clause 16 of the Bill. This proposal seeks to prevent a potential conflict of laws from arising once the Bill is assented into law. Section 16 of the Act is deleted as it contains provisions on conflict of interest involving state officers, which have been covered in the Bill. Section 17 of the Act is deleted as it prohibits a state officer from participating in tenders to a public entity in which he or she is associated. This has been covered in clause 19 of the Bill. Section 18 of the Act is deleted as it prohibits a public officer from soliciting contributions from the public. This has been covered in clause 26 of the Bill. Section 23 of the Act is deleted as it contains provisions on political neutrality. This has been covered in clause 25 of the Bill. |
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The PPADA Section 59 of the PPADA is deleted and replaced with a new section which: a. prohibits a public entity from entering into a procurement contract with a public officer; b. prohibits a public officer from awarding a procurement contract to the public officer’s spouse or child; and c. mandates a public officer (with an interest in a public procurement or asset disposal) to disclose in writing the nature of that interest and prohibits the public officer from participating in any procurement or asset disposal relating to that interest. This proposal seeks to align the PPADA with clause 19 of the Bill. |