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September 18, 2018

Katiba Corner: To our new ‘leaders’: Beware anyone bearing gifts

We can hope that a number of the people elected in August have come into their new offices full of not just enthusiasm but also determination to fight corruption, and to change society for the better.

Every time a few do manage to cling on to some of their ideals. But Kenyans will recall their own disappointment with how each Parliament (even if the “best educated ever” or the “youngest ever”) seems to become just as “bad” as the rest. The Ghais are unlikely to forget the experience of being teargassed and water-cannoned at the “Occupy Parliament” demonstrations in 2013. Though that Parliament was only two months old, its members had tried to vote themselves salary increases to the outrage of most Kenyans.

“Tried” because the Constitution actually prevents that type of corrupt practice and conflict of interest, by saying salaries and benefits of state officers — including MPs — are fixed by the Salaries and Remuneration Commission (Article 230( 4 )).

So, a first warning: Don’t fall into the trap of participating in any effort to benefit yourself. You will achieve nothing except tarnishing your name, and undermining your own ability to achieve change. Incidentally, in case there is any possible benefit not captured by Article 230, there is also Article 116( 3 ):“An Act of Parliament that confers a direct pecuniary interest on MPs shall not come into force until after the next General Election”. In other words, you would benefit only those elected next time round, having perhaps diminished your own chances of being among them! For county assembly members there is a similar provision.

 

INSIDIOUS THREATS

Perhaps the biggest obstacle to a person in public office being able to fight corruption is a perception that they are themselves corrupt. And the most insidious threats to a person’s determination to remain untainted — actually or in perception — are not the obvious issues like voting oneself a salary increase. (Indeed, one reaction in 2013 to the MPs’ efforts was “How could they be so stupid?”)

The greatest threats are likely to be much less obvious. The corrupt are skilful. It is all too easy to accept something that looks like an act of kindness, or some unproblematic benefit, only to realise that you are then under some sort of moral obligation to another person, and that, even if the debt is never called in, you will be seen as someone whose freedom of action has been compromised. This may be a much greater risk if the apparently generous person turns out to be someone with a dubious reputation of which you were unaware, or with plans that will need endorsement of the office you hold or the body of which you are a member.

 

JOHN PAUL MWIRIGI’S NEW CAR

Let us consider John Paul Mwirigi, MP Igembe South. He stood as an independent, and ran his campaign on a shoestring. It was an entirely commendable effort (and nothing in this article is intended to detract from his achievement). Mwirigi is alive to the risk of bribery, having commented that some of his opponents even bribed voters.

But then President Uhuru Kenyatta gives him a nice car. It looks like — maybe it is — a kind gesture, and a token of recognition of a young man’s struggles. Nothing is said, one hopes, about any quid pro quo (anything in return). But President Uhuru will want votes in Parliament in the future. It is hard to forget how he is reported to have told chiefs to vote for Jubilee because they had been given bikes! He is obviously a man who expects to get a return on investment — even if it is a government investment not his personally.

True, the president’s party has the largest number of seats (and votes) in the National Assembly. But party loyalties do not always carry the day; other methods may be needed to get support. Remember Martha Karua’s comment, “We are like the greatest auction house in Africa”? Is it not possible that Mwirigi will feel under some obligation to vote for things the President thinks are important? Or that, even if he honestly believes that something is the best approach, his support will look like that quid pro quo?

Mwirigi cannot join Jubilee without losing his seat. And even if he does not try to do that, his duty is to his constituents, to the Constitution and the people of Kenya more widely, with a strong dose of conscience. Emphatically not to the generous Uhuru.

 

THE LAW

I am not so much concerned with whether Mwirigi has broken the law. He may have done — but he may not.

The Leadership and Integrity Act says that state officers must not accept gifts from anyone with “an interest that may be achieved by the carrying out or not carrying out of the state officer’s duties”. There is room for lawyers to argue about whether the President’s potential interest in how the MP votes is enough. There is a risk in reading this provision too widely. It prohibits also taking hospitality. An MP could never accept a cup of tea from anyone if this law was read as applying whenever the giver of hospitality might in the future be affected by the way the MP voted.

Elected and other officials must understand both the Constitution — including the checks and balances involved in the separation of powers between the President and Parliament — and other laws such as the Leadership and Integrity Act (including the County Government Act, specially relevant for MCAs), and the older Public Officer Ethics Act, as well as regulations.

A state officer may receive a “non-monetary gift” (not in the form of money) if it is worth no more than Sh20, 000. All non-monetary gifts must be declared — in the case of an MP to the National Assembly — and it will be recorded in a register of such gifts. If the gift is worth more than Sh20,000, the officer must give it up to the “public entity” concerned. A car, it seems must be given up to the National Assembly in the case of an MP.

From the public’s perspective, the penalties are not high: Sh20,000 fine or maximum six months in prison — only if the maximum was given, rare for a first offender, would an MP be disqualified from sitting as a result.

 

THINKING AHEAD

Our laws and regulations could do with some overhaul. Even the Leadership and Integrity Act and its regulations are inconsistent. The regulations say any gift must be refused if the officer thinks that the giver’s motive is to compromise his or her “integrity, objectivity, and impartiality” or to create a risk of conflict of interest. The Act says it must be refused if it is given with that intention. And there is some confusion about whether the issue is only gifts given on official occasions, or received in an official capacity, or any gifts.

MPs — and other state officers — need a single, coherent, comprehensive document, setting out all their ethical responsibilities, rather than a number of documents that are not entirely consistent.

And there might be value in establishing some mechanism within Parliament to monitor ethics and advise members. There is already a committee, but committees of politicians only may be open to manipulation or at least suspicion. The South African one has been accused of being a “political hit squad and kangaroo court … on a witch-hunt against opposition parties”. Parliament might consider setting up its own body like the UK Parliamentary Commissioner on Standards, or the Canadian Conflict of Interest and Ethics Commissioner, whose role is “helping appointed and elected officials prevent and avoid conflicts between their public duties and private interests”.

Meanwhile, however, the newly elected should take great care. They are well paid; their official pay should take care of all their needs. They should need no favours or gifts, however exalted the giver.

 

 

 

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