• If a Senate committee reported that allegations against Governor Mike Sonko were justified, the House would vote on whether he should be removed as governor.
• What would senators James Orengo (Siaya), Kipchumba Murkomen (Elgeyo Marakwet) and Mutula Kilonzo Jr (Makueni) do? Vote to remove Sonko?
President Uhuru Kenyatta was incensed by three Senators appearing in court for Nairobi Governor Mike Sonko.
There has been much talk of “conflict of interest”, with commentators saying this is not compatible with the Senate’s role of overseeing the Executive.
The problem is perhaps best understood by continuing with the Sonko story. Nairobi MCAs are thinking about impeaching him. This would involve the County Assembly passing a motion to remove him. The motion would then go to the Senate, which would probably appoint a committee to look into the allegations. If the committee reported that the allegations were justified, the Senate would vote on whether he should be removed as governor.
What would senators James Orengo (Siaya), Kipchumba Murkomen (Elgeyo Marakwet) and Mutula Kilonzo Jr (Makueni) do? Vote to remove Sonko? If they voted against removing him, would anyone believe this was the result of their objective assessment that he ought not to be removed?
In fact, Senate’s own rules say, “A Senator shall not vote on any question in which the Senator has a pecuniary interest.”
So, unless they have volunteered their services free of charge to Sonko, these senators have disabled themselves from voting on something that is an important role of the Senate: This is a dereliction of their duty to their constituents – and might merit a recall.
'THERE IS NO WRITTEN LAW'
However, there is a written law that prevents them from practicing as lawyers, at least in this situation. That law is the Constitution.
Chapter Six on Leadership and Integrity says any state officer (and that includes a Senator or MP) must behave in a way that avoids “any conflict between personal interests and public or official duties”.
Voluntarily acting in a way that prevents oneself from voting, by getting a personal financial benefit, is a clear way of creating “conflict between personal interests and public or official duties”.
Even if, improbably, the Senators appeared for Sonko without payment, the conflict of interest would not be financial, but would still exist. Yes, it is true that a lawyer need not believe in the innocence of the people he or she represents in court. Everyone is entitled to a defence. But to appear free - especially if the accused person will have no difficulty getting a lawyer - looks like an expression of a belief in that person’s innocence. For three senators to turn up is to make a statement of support.
The senate’s role in impeachment is rather like that of a court – so the senators should observe the same sort of impartiality we expect of judges. Even if the impeachment grounds could not be the same corruption charges, the senators would seem to have prejudged the matter.
Even if the Senate rules would not prohibit such a lawyer voting, it would surely “demean the office the officer holds” – something also prohibited by the Constitution.
FULL-TIME STATE OFFICERS
The Constitution also says: “A full-time State officer shall not participate in any other gainful employment”.
This was in every draft of the Constitution from 2002 to 2010. And clearly, the drafters of the Constitution had parliamentarians in mind. Way back in 2002, the Constitution of Kenya Review Commission “Short Report” said: “In their submissions to the Commission, the people were very critical of the way in which Parliament operates and to some extent of its make-up. The general disillusionment was shown by the following common submissions: Parliamentarians should work full time….”
On a few occasions, there have been court challenges to parliamentarian advocates. In one, Orengo succeeded in arguing that he was not gainfully employed. This may sound eccentric, to say the least. It was based on the Leadership and Integrity Act that says “gainful employment” means work that is “is inherently incompatible with the responsibilities of the State office or which results in the impairment of the judgement of the State officer in the execution of the functions of the State office or results in a conflict of interest”.
This seems to be another example of Parliament passing law designed to limit their own accountability. It is a bit like the provision in the Elections Act that made it virtually impossible for any legislator to be recalled, despite the Constitution saying the electorate has the right to recall parliamentarians. An Act of Parliament cannot change the Constitution.
Admittedly, the issue is not simple. Should an MP stop farming? Or writing a novel? Should “employment” mean “having a job”? If so, maybe appearing in court is not covered.
The judge in the case where the role of Orengo was raised said there was nothing to show that appearing in the court case had interfered with the senator’s performance of his public duties. There did not seem to be any rule or understanding that senators work 9am to 5pm, for example.
But in the current case, surely representing Sonko does impair those senators’ judgment (and we have seen they are probably debarred by Senate rules from expressing their judgment by voting).
Plenty of other people who become legislators have to give up their jobs. A public officer cannot be elected to Parliament (Article 99(2)(a) of the Constitution). They cannot, for example, just take leave for five years. Most private employers would not keep a job open for five years, either. So one’s heart should not bleed for a lawyer who has to give up practice.
Some parts of the Law Society Of Kenya have weighed in on the senators’ side. But the LSK Code of Practice (Rule 147) seems not to envisage that a full-time public officer would practice as an advocate at all.
Some commentators have suggested that in other countries, it is not permitted for lawyer legislators to practice, especially in court. In the UK it used to be quite common. As a law student, I learned that Parliament’s sitting hours (mainly in the afternoon) were arranged to enable this. Most, it seems, do not now continue with their practices.
UK lawyer MPs – like all others – have to declare their earnings, which are published online. Public opinion surveys have shown that a majority of the British public disapprove of MPs having other jobs.
Last year, the Indian Supreme Court decided it could not bar MP/advocates from being MPs and practicing their profession – but the case was about lawyers’ professional ethics and not about “arguments that India needs dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so”.
But what happens in other countries is largely irrelevant. We could argue that Kenya’s Constitution was precisely designed to achieve “dedicated and full-time legislators”.
In the US, there are legal limits on what members of Congress may do. They may not earn income from certain professions - including legal practice.
One House report explained this: First, substantial payments to a Member of Congress for rendering personal services … presents a significant and avoidable potential for conflict of interest; second, substantial earnings from other employment [are] inconsistent with the concept that being a Member of Congress is a full-time job; and third, substantial outside earned income creates at least the appearance of impropriety and thereby undermines public confidence in the integrity of government officials.
Does this not neatly summarise the objections?
It may be that there is some inconsistency in the President’s position – since he was apparently happy to be represented by lawyer/parliamentarians in election petitions. But the President was not at imminent risk of appearing before the Senate on an impeachment charge. Of course, the President’s respect for the legal system, including judges, is notable by its absence.
The truth is that the Senators have displayed little regard for their profession’s ethics, for their constituents, and for the Constitution.
It is equally true that a serious debate on this issue of what parliamentarians may legitimately do beyond their parliamentary duties is desirable – but probably will not happen.