Should full-time state officer still have gainful employment? Sossion, Orengo cases

I wrote about this about 18 months ago but two interesting things have happened to bring me back to it.

Most recently, Wilson Sossion said he will concentrate on his role as a “nominated (I would say “list’) MP – having decided he was not going to be reelected as Knut secretary-general. How could he have been doing both - you might think - anyway? (To be fair, Mzalendo does tell us he spoke on 10 days in the House last year.)

Earlier, a court decided that lawyer members of Parliament could not represent people accused of corruption, especially if they might appear before a parliamentary committee. The judge also said, "He [the legislator-lawyer] is driven by a driver employed to drive him by the government, and then in court he submits with the authority of a senator.  … it does not require any taxing of the mind to find a glaring perception of conflict of interest.

To the accused person he has the senator as his advocate; driven to court in a State  vehicle; chauffeured by a state provided driver; and the vehicle fuelled by the state. To the accused, despite facing grave charges of economic crimes, his defence appears to have the blessings of the state.

And the involvement of Senator James Orengo and Otiende Amollo MP in the BBI appeal raises similar questions – not perhaps about conflicts of interest but about whether parliamentarians ought to be otherwise employed. I have no idea whether these gentlemen are being paid (so are gainfully employed) for this appeal.

PROHIBITION ON GAINFUL EMPLOYMENT

That recent case was about parliamentarians having a conflict of interest – violating Chapter Six of the Constitution.

What I want to focus on now is this: “A full-time State officer shall not participate in any other gainful employment.” (Article 77(1)).

Why this limitation?

Maybe there was some element of envy in people’s views expressed to the Constitution of Kenya Review Commission. After all, most people have no chance of ever holding one public office, let alone the chance of doing that and also having another job. In fact, there was a recommendation (not adopted) to the CKRC that “one person to one job employment policy should be adopted.”

However, the real concern underlying the provision about gainful employment is shown by this paragraph from the CKRC final report: “Parliament must be strengthened, with more control over its calendar and resources, and the ability to exercise greater supervision over and accountability by the Government. In order to achieve this, Members of Parliament must be full time legislators and being a parliamentarian should be seen as a career, rather than a stepping stone to ministerial or other forms of promotion”.

It links also to another recommendation. Although the CKRC recommended a parliamentary system of government, and generally in such systems Ministers are from the national parliament, it also recommended in 2002 that Ministers should not be MPs: “The President shall not appoint a Member of Parliament to the office of Minister or Deputy Minister”. (The Report said “all Ministers, except the Prime Minister and his/her Deputies, should be appointed from outside Parliament”.)

The feeling was the MPs tended to neglect their constituents, if they became ministers, or that ministers could not do a decent job, if they also had to be MPs. This provision did not survive the Bomas conference where MP-members ensured that their ministerial ambitions were respected.

Now in the BBI constitutional amendment Bill, the idea of MPs as ministers is back. The Bill would make it possible (not mandatory) for ministers to be appointed from the National Assembly – but not the Senate.

They do not really explain why. And in their Report in October last year they said, “The Committee makes this recommendation cognizant of the provisions of Article 77(1) of the Constitution of Kenya which bars state officers from receiving emoluments for more than one role.”

This is intriguing: They seem to be suggesting that the MP-ministers could not get extra money. Would they want the job? In fact in that Report they also said the Prime Minister should get only the MP’s salary. Clearly, if their amendments had passed, exactly the issue I am raising now would arise: what does Article 77(1) prevent members of Parliament from getting?

Let’s unpack the wording. Clearly Parliamentarians are state officers. In fact MPs did try to amend the Constitution to remove themselves from that category – so that they could fix their own salaries and it was not up to the Salaries and Remuneration Commission which fixes those of all state officers. The effort fizzled out.

ARE THEY FULL-TIME OFFICERS?

The Constitution does not say – despite the CKRC’s emphasis on this. What is full-time? Kenyan law is rather deficient on this. For example members of certain commissions are “full-time”, according to their Acts of Parliament but full-time is not defined.

One might say that people who earn as much as Kenyan MPs do, get housing and car allowances and pensions must be full time. But the SRC does fix these things for part time public employees as well. The fact that MPs get sitting allowances might seem to point the other way. Often the SRC says sitting allowances are not paid to full time employees. Or maybe it is just realistic – they won’t turn up if they are not paid!

What is gainful employment?

“Gainful” is no problem – it means earning money. But how about employment? It tends to imply a relationship with two sides – the employed and the employer. In some contexts it actually means something narrower: employed as an employee not as an independent contractor. An advocate is not an employee when hired to argue a case. And it would not include writing a novel, or tilling one’s own shamba, or earning interest on financial investments.

In fact, MPs tried to define this phrase to suit them.

The Leadership and Integrity Act 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”. But an ordinary law cannot define a phrase in the Constitution in a way that defeats the Constitution. This definition skates over the issue of “gainful” and is really about conflict of interest.

Should they be prohibited from earning outside?

A few years ago, a survey of attitudes on MPs outside interests was conducted in the UK. The results are fascinating. Most members of the public said MPs should not be able to earn outside. But some recognised greater complexity. And MPs also contributed. One said she was a nurse and that to retain her professional registration she had to work for some hours. She did 30 hours a month, which also helped her work as an MP.

The UK Committee on Standards in Public Life then recommended some changes in Codes of Practice for MPs. The Chair of the Committee said the issue was connected to questions like “The issue of MPs’ outside interests touches on broader questions facing our representative democracy. How do we ensure Parliament is open to and understood by the public? How can we make sure MPs are not subject to undue influence, while enabling them to engage fully in their decision making? And, most importantly, how can MPs and Parliament build and promote greater public trust?” These are questions Kenyans might well ask.

Maybe it is time to have a dialogue about this – and not just try to interpret the Constitution. There should be openness about what parliamentarians do – paid or not.

There should be a mechanism for guiding them on what is appropriate. And it is surely crucial that they (whose salaries we pay) be expected to reveal publicly what they do and what money it gets them.

To see a specimen look at the UK register as at last month end: https://tinyurl.com/MPRegUK21