• Article 96 of the Constitution gives the senate the exclusive mandate to protect counties and their governments.
• The President said on assumption of state office or public office, the officers become the trustees of the people; with a constitutional, statutory and moral duty to administer public affairs and resources in fidelity with the law, and strictly for the benefit of the people.
Image: EZEKIEL AMING'A
The dramatic arrest and arraignment of Nairobi Governor Mike Sonko has sparked debate after two elected senators were part of his legal team in his graft case.
While some critics say Elgeyo Marakwet Senator Kipchumba Murkomen and his Makueni counterpart Mutula Kilonzo Jr were acting in conflict of interest, others say the duo owe no one an explanation as they were representing Sonko in their individual capacity as advocates.
Murkomen is the Senate Majority Leader while Mutula is the Senate Minority Chief Whip.
The two are part of the 12 advocates that lined up in court to defend the governor who is facing 19 counts related to corruption and other economic crimes at City Hall.
Siaya Senator James Orengo has also continued his legal practice despite the fact that he is a legislator.
Orengo represents Busia Governor Sospeter Ojaamong who is also facing graft charges.
What did President Uhuru Kenyatta say?
During the 56th Jamuhuri Day celebrations at the Nyayo National Stadium, President Uhuru Kenyatta was applauded to asking civil servants to stick to their jobs.
Uhuru said the Rule of Law, Good Governance, Integrity, Transparency and Accountability are the pillars of our constitutional democracy.
The President said on assumption of state office or public office, the officers become the trustees of the people; with a constitutional, statutory and moral duty to administer public affairs and resources in fidelity with the law, and strictly for the benefit of the people.
“State and public officers are not above law. Our constitutional order is a jealous one; it demands that state and public officers serve no other master but it,” he said.
Uhuru added, “One cannot serve as a legislator at the National or County Level while at the same time practising law, whether or not for gain. In the same way, judges and magistrates cease completely any legal practice while in office, similarly doctors, engineers, accountants and other professionals who take up state or public office, should give up private practice and devote their full time, energies and focus on public duties; and without the perception that they are using state or public office as a mere platform to advance other interests.”
“Is it fair and right for legislators who have control over funds and exercise oversight over the Judiciary to appear in courts as counsel? Is it fair on the judicial officer hearing the case or the other parties that, one party in the case is represented by persons who can literally change the law applicable to the dispute, control the career progression of the judge or magistrate or are able to speak with the voice of an entire arm of Government?”.
According to the president, the position is simple, “you either serve the public in the role you signed up for or you serve the Republic as a private practitioner; it is a profound conflict of interest to do both”.
What did critics say?
Nairobi Senator Johnson Sakaja said the legal move the two senators adopted prejudices their duty as senators who have the mandate to oversee counties.
Sakaja in a radio interview said Murkomen and Mutula are not just senators but leaders representing their parties in the house.
“That is an absolute conflict of interest. It is true the governor can have the lawyers of his choice or the best legal mind. But imagine a scenario where a court of appeal judge appearing as a lawyer for one of the judges accused in a matter,” he said.
THE PRESIDENT is right. In terms of interbranch comity, MPs cannot appear in court as counsel. Jurisprudence in Mwilu case where Orengo, Omogeni were allowed to act, was not only mistaken but often wrongly cited. The court did not interpret the meaning of comity between offices.
— Steve Ogolla (@steveogollaw) December 12, 2019
Steve Ogolla on twitter posted, “THE SENATE has a special mandate to oversight counties. As a consequence, Sen. Murkomen and Mutula Kilonzo have no right to appear in court on behalf of Gov. Sonko, unless they want to create the crisis of reverse oversight. The conflict of interest is massive and irreconcilable”.
His sentiments were echoed by advocate Donald Kipkorir who said, “Article 77 of the Constitution bars State Officers from engaging in any other gainful employment. Lawyers who are Senators & MPs break this Constitutional provision with impunity whenever they practice law. EACC, DPP & LSK should enforce this Article. Constitution is Supreme”.
What does the law say on the role of the Senate?
Article 96 of the Constitution gives the senate the exclusive mandate to protect counties and their governments.
It is the senate and the county assemblies that consider and vote on the financial accounts of the 47 county governments.
As senators, Murkomen and Kilonzo Jr will have to cast their vote when the matter finally gets to the House through the report of the watchdog committee that considers the accounts.
What does the Advocates Act say?
Murkomen argues that there is the presumption of innocence on the part of Sonko and that nothing in the law stops him from representing a client.
“What you are seeing is a coordinated assault on the counties and their governments,” Murkomen said, adding that he got involved in the case in line with Article 96, which mandates the senate to protect counties.
He argued that the issue was merely cropping up because of his involvement in the case.
Image: COURTESY
But the Advocates Act states that no person shall be qualified to act as an advocate unless he has been admitted as an advocate, his name is for the time being on the Roll and has in force a practising certificate.
“Qualification for admission as advocate Subject to this Act, no person shall be admitted as an advocate unless he is a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania and he is duly qualified in accordance with section 13,” the Act reads in part.
With regards to professional and academic qualifications, the Act states that a person shall be duly qualified if having passed the relevant examinations of any recognised university in Kenya he holds, or has become eligible for the conferment of, a degree in law of that university; or having passed the relevant examinations of such university, university college or other institution as the Council of Legal Education may from time to time approve, he holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve.
DPP's PROTEST
The issue of legislators representing clients in court became part of a heated debate between the DPP Noordin Hajji, Siaya Senator James Orengo and Nyamira Senator Okong’o Omogeni in the petition filed by Deputy Chief Justice Philomena Mwilu after her arrest and arraignment in court.
Hajji filed an application in the high court seeking the disqualification of Orengo and Omogeni from acting for DCJ Mwilu, because by virtue of their positions as lawmakers, they had accessed information that prejudiced the prosecution case.
But the High Court ruled that a party alleging a conflict of interest bears the burden of presenting clear evidence that the person said to be acting in conflict of interest is acting in a manner prejudicial to the interests of the other party.
Constitutional lawyer
The Star sought an interpretation from a constitutional lawyer over the matter.
According to Kibe Mungai, a situation where legislators act as counsels for any accused public servant is an absolute conflict of interest.
Mungai said are earning a full time salary from the tax payer’s money and thus such a move exposes the integrity of such individuals.
“Imagine a scenario where a lawyer is appointed as a PS who is the accounting officer in any given docket. Can this lawyer PS someday appear in court to represent another PS accused of graft,” Mungai posed.
According to him, Senators and MPs are state officers who are remunerated and cannot purport to defend another state officer accused by the same state.
VERDICT
These claims are mostly true.
In our analysis we have established that these legislators are giving the members of the public a raw deal.
They are taking advantage of the omission of law on conflict of interests to engage in private business.
This is backed up by the fact that President Uhuru Kenyatta on Jamhuri day directed the Attorney-General to fast-track the submission to Cabinet for approval and transmittal to Parliament, the Law on Conflict of Interest, which has been subject to stakeholders consultation.
This bill states that a public official is in conflict of interest if the official exercises an official power, duty or function that provides an opportunity to further the official’s private interests or those of the official’s relatives or friends or to improperly further another person’s interests.
A public servant will be in conflict of interest in a situation where the official’s private interests can reasonably be perceived to impair or influence the official’s ability to act objectively in the performance of an official duty; or has private interests that could conflict with the official’s duties in future.
Currently Kenya has no institutional framework for the management of conflict of interest.
Such framework will ensure the regulation and management of real, apparent or potential conflict between public interest and private interest.