Conflict of interest: Which way for lawyers and MPs?

In Summary

• It is without a doubt that the Parliament of Kenya plays an important role in providing oversight to the various organs of the State. 

President Uhuru Kenyatta.
President Uhuru Kenyatta.
Image: FILE

Article 93(1) of the Constitution of Kenya, 2010 provides for the establishment of Parliament, National Assembly and the Senate.

The role of the National Assembly is provided for under Article 95. Among the role that National Assembly plays is to exercises oversight over national revenue and its expenditure and exercises oversight of State organs.

The Senate role is provided for under Article 96 of the Constitution. One of the role of the Senate is ensure that the interests of the counties and their government are protected. The Senate exercises oversight over national revenue allocated to the County Government.

 
 

Article 124(1) provides for the establishment of committees of Parliament to enable it play it’s active role, it may establish committees.

In order to ensure that there is smooth execution of Parliament’s mandate, Parliament has power to call for evidence as per the provisions of Article 125 of the Constitution.

It is without a doubt that the Parliament of Kenya plays an important role in providing oversight to the various organs of the State. The organs include County Governments, Constitutional established bodies e.g. the Office of the Director of Public Prosecutions, among others. Therefore, Members of Parliament must be capable of providing proper oversight and to play this critical role, it is of absolute importance that they do show and display a high level of independence and should not be conflicted in performance of their duties.

Article 260 of the Constitution of Kenya defines a “State office” to include a Member of Parliament. Articles 93 and 260 of the Constitution of Kenya, read together, a Senator and a Member of Parliament, is treated as a “State officer” for the purposes of both the Constitution of Kenya 2010 and the Leadership and Integrity Act 2012.

Chapter Six of the Constitution of Kenya 2010 contains the guiding principles on leadership, and display a clear concern to combat the dangers that flow from conflicts of interest in public affairs.

Article 73(1) of the Constitution requires that public trust be exercised in a manner that promotes public confidence in the integrity of the office. Article 73(2) further provides that one of guiding principles of leadership and integrity is demonstrated by the declaration of any persona interest that may conflict with public duties. Article 75 requires a State Officer to behave (whether in public and official life, private life) in a manner that avoids any conflict between personal interests and public or official duties (See: Section 16 of the Leadership and Integrity Act.

The duty to avoid a conflict between personal interests and public duties enshrined in Article 75(1) of the Constitution of Kenya 2010 is phrased in clear and mandatory language.

 
 

 

Leadership and Integrity Act, 2012

Article 260 of the Constitution of Kenya 2010 entails that a Senator, as a Member of Parliament, is treated as a “State officer” for the purposes of the Leadership and Integrity Act 2012. The Act prescribes a general leadership and integrity code for State Officers.

By virtue of Section 6(2) of the Leadership and Integrity Act 2012, the provisions of Chapter Six of the Constitution of Kenya 2010 are incorporated into the general code described in Section 6(1) of the Leadership and Integrity Act 2012. Section 11 of the Act requires that a State Officer carries his/her duties in a manner that maintains integrity of the office and if the State officer is a member of a professional body, observe and subscribe to the ethical and professional requirements of that body in so far as the requirements do not contravene the Constitution or the Act.

Thus, the scheme provided for by the Leadership and Integrity Act 2012 is focused on rooting out and addressing the dangers inherent in conflicts of interest in public affairs and, as an aid to doing so, places emphasis on the proactive declaration of actual or potential conflicts of interest on the part of State officers (including Members of Parliament).

Section 22(1) of the Leadership and Integrity Act 2012 provides;

A State officer shall not directly or indirectly use or allow any person under the officer’s authority to use any information obtained through or in connection with the office, which is not available in the public domain, for the furthering of any private interest, whether financial or otherwise”.

It is clear, therefore, that the Leadership and Integrity Act 2012 foresaw the problems that arise upon a State officer being in a position to use information to which he was privy as a result of his official duties for the benefit of his personal or private interests of any kind. Although certain exceptions were carved out, including the broad category of “other purposes not prohibited by law”, it is by no means clear that the activities of Members of Parliament and Senate, in representing a client in court against a party over which he or she has oversight and powers of compulsion, would fall within these carved out exceptions.

 

CONFLICT OF INTEREST

The Organisation for Economic Co-operation and Development (OECD), in Managing Conflict of Interest in the Public Service: OECD Guidelines and Country Experiences (2003), defined “conflict of interest” as;

a conflict between the public duty and private interest of public officials, in which public officials have private-capacity interests which could improperly influence the performance of their official duties and responsibilities”.

In Democracy Watch vs Campbell [2010] 2 FCR 139, the Canadian Federal Court of Appeal held;

The common element in the various definitions of conflict of interest is…the presence of competing loyalties…the idea of conflict of interest is intimately bound to the problem of divided loyalties or conflicting obligations…Any conflict of interest impairs public confidence in government decision-making. Beyond that, the rule against conflicts of interest is a rule against the possibility that a public office holder may prefer his or her private interests to the public interest”.

In the case of Uganda vs Patricia Ojangole Anti-Corruption Division, Uganda High Court Criminal Case No. 1 of 2014, Hon. Justice Lawrence Gidudu stated that;

“It is both the actual and the perception that counts when tracing conflict of interest in a transaction. It is what a reasonable person would conclude while viewing the transaction from a distance that counts. It is related to rule against bias. The old adage that justice must not only be done must be seen to be done applies to conflict of interest.

 The reason is that, by reason of multiple engagements, the fiduciary may be unable to discharge adequately the one without conflicting with his obligation in the other. It is not to the point that the fiduciary himself may not stand to profit from the transaction he brings about the parties. The prohibition is not against the making of profit but of the avoidance of conflict…

Section IV of the Code of Conduct for Members of Parliament in the United Kingdom provides for “general principles of conduct”, otherwise known as the seven general principles of public life. The following principles are included:

  1. the principle of “selflessness”: “Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends”;
  2. the principle of “integrity”: “Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;
  3. the principle of “honesty”: “Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

Section V of the Code of Conduct for Members of Parliament provides for rules of conduct. Paragraph 11 provides:

Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest”.

Members of the upper house, the House of Lords, are subject to similar duties to disclose relevant (financial and non-financial) interests when debating. The House of Lords’ Code of Conduct requires (at paragraph 7) that: “In the conduct of their parliamentary duties, members of the House shall base their actions on consideration of the public interest, and shall resolve any conflict between their personal interest and the public interest at once, and in favour of the public interest”. Members are not debarred from participating in debates in regard to which they have relevant interests, provided that “such interests are declared fully” (paragraph 15).

Canada’s Conflict of Interest Act provides for the substantive legislative provisions regarding conflicts of interest as regards holders of public office.

Canada’s Conflict of Interest Act provides (Section 4) that:

a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests”.

Section 5 of the Conflict of Interest Act requires:

Every public office holder shall arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest”.

Furthermore, Section 6(1) requires:

No public office holder shall make a decision or participate in making a decision related to the exercise of an official power, duty or function if the public office holder knows or reasonably should know that, in the making of the decision, he or she would be in a conflict of interest”.

In Canada, members of the Senate are also subject to the ‘Conflict of Interest Code for Senators’, which provides for a number of general and specific duties bearing a broad similarity to those required by the relevant applicable law in Kenya.

Section 2(1) of Canada’s Conflict of Interest Code for Senators provides as follows:

Given that service in Parliament is a public trust, the Senate recognizes and declares that Senators are expected … (b) to fulfil their public duties while upholding the highest standards so as to avoid conflicts of interest and maintain and enhance public confidence and trust in the integrity of each Senator and in the Senate; and (c) to arrange their private affairs so that foreseeable real or apparent conflicts of interest may be prevented from arising, but if such a conflict does arise, to resolve it in a way that protects the public interest”.

Thus, it is the public interest that prevails over the private interest in the event of a conflict of interest, and the private affairs must be regulated or rearranged accordingly.

Furthermore, Section 9 of the Conflict of Interest Code for Senators provides as follows:

A Senator shall not use or attempt to use his or her position as a Senator to influence a decision of another person so as to further the Senator’s private interests, or those of a family member, or to improperly further another person’s or entity’s private interests”.

The Canadian legislature apparently foresaw the potential for a conflict to arise upon a Senator becoming privy to information through his official role that had the potential to benefit his own or another’s private interests. Thus, Section 10(1) of the Conflict of Interest Code for Senators provides as follows:

If as a result of his or her position, a Senator obtains information that is not generally available to the public, the Senator shall not use or attempt to use the information to further the Senator’s private interests, or those of a family member, or to improperly further another person’s or entity’s private interests”.

Thus, a Senator is required to exercise judgement in terms of understanding whether he “reasonably ought to know” that information “may” be used to further his own or another’s private interests.

Thus, the Canadian regime is clearly designed to prevent a Senator whose participation on a committee with the ability to receive privileged information and to make decisions on matters touching on his private interests gives rise to a conflict of interest from continuing to participate in the committee. Withdrawal is required.

 

Right to Legal Representation vis-à-vis Conflict of Interest

While Article 50(2)(g) of the Constitution provides for the right to legal representation, this right in my humble view is not absolute if the choice of Advocate will lead to issues of conflict of interests arising. Hon. Lady Justice G.W. Ngenye - Macharia, in the case of Maina Njenga vs Republic (2017) eKLR when faced with the question of an accused person right to choose Counsel of his choice, held that;

Yes, it is true that the right to a fair trial is not, in the terms of this provision, limited. The question therefore, is whether, by virtue of this provision, the right to representation by counsel of one’s choice is automatically unlimited. Determination of this question ultimately goes back to the question whether, representation by an advocate of one’s choice, would be in advancement or violation of the course of a fair hearing. If not, whether justifiable reasons would exist to disqualify an advocate from representing an accused person without subverting a fair trial.

… it was held that a litigant’s right to legal representation by an advocate of his choice is not absolute.

… In the Barristers Conduct Rules of the Bar Association of Queensland, this duty is couched in the following terms:

A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.

 

CONCLUSION

Overall, there exist clear dangers as a result of the conflicts of interest in public affairs. Public confidence in the various Committees of the Parliament of Kenya is unlikely to be maintained by the presence of members who have a vested interest in using their oversight and powers of compulsion against various Government agencies for the benefit of their private clients who stand accused of corruption and are the subject of investigation by state authorities and prosecution. Accordingly, the private affairs of those members must be regulated.