By PRAVIN BOWRY

Ethics is not defined in Kenyan law but it can be stated to relate to the rules of conduct recognised in respect to a particular class of human action or a particular group or culture.

Ethics is also a code of behaviour that a person is expected to follow.

In business and legal ventures, this means behaving in a proper and professional manner.

Ethics in Kenyan law catapulted into significance after the enactment of the 2010 Constitution.

Article 79 of the Constitution establishes the Ethics and Anti-Corruption Commission (EACC) and later the Ethics and Anti-Corruption Commission Act was enacted.

Article 232(1) of the Constitution states that “high standards of professional ethics include values and principles of public service”.

There is a notable function accorded to the EACC under the Constitution — the power to oversee the implementation process and compliance with the provisions of Chapter Six of the Constitution on leadership and integrity.  Public and state officers, therefore, ought to conduct themselves in a very high moral and ethical manner and also in accordance with provisions of the Public Officer Ethics Act.

The functions of the EACC in relation to state officers are provided for under section 11 (1) as follows:

(a) develop and promote standards and best practices in integrity and anti-corruption; (b) develop a code of ethics; (c) receive complaints on the breach of the code of ethics by public officers; (d) investigate and recommend to the Director of Public Prosecutions, the prosecution of any acts of corruption or violation of the codes of ethics, and (e) recommend appropriate action to be taken against state officers and public officers alleged to be engaged in any unethical conduct.

And (f) oversee the enforcement of codes of ethics prescribed for public officers; (g) advise on its own initiative, any person on any matter within its functions; (h) raise public awareness on ethical issues; (i) subject to Article 31 of the Constitution, monitor the practices and procedures of public bodies to detect corrupt practices.

Since 2004 the Public Officer Ethics Act has been in force and is still intact. This Act established the specific Codes of Conduct and Ethics of public servants, such as teachers, armed forces, NIS and electoral commission personnel, co-operatives and universities.

It appears that the law deals only with ethics of public officers and state officers; professionals have to adhere to in-house ethical restrains most of which do not have the force of law, for instance, the Hippocratic Oath taken by doctors. 

Ethics and morals both relate to ‘right’ and ‘wrong’ conduct. However, ethics refer to the series of rules provided to an individual by an external source e.g. their profession and which such individual ought to adhere to. On the other hand, morals refer to an individual’s own principles regarding right and wrong.

It is a little surprising that the Ethics and Anti-Corruption Commission since its inception has made no impression whatsoever on its mandate on ethics. Kenyans remain totally uninformed as to what the Commission is doing in respect of ethical matters.

How does the Commission intend to nationally deal with the issues of ethics? How will breaches of ethics, firstly by Public Officers and then other Kenyans, be dealt with?

Accuser and judge?

Ethical matters cannot be punitive and dealt as criminal offences. What, therefore, are the sanctions the Commission hopes to impose  — reprimand, demotions, sacking, naming and shaming?

Ironically it appears that our Courts are more proactive on ethical matters. The Judiciary addresses various issues of governance, national values, patriotism, integrity, transparency and accountability as happened in the Matemu case.

Some recent past incidents do highlight the predicament of various regimes which fall under matters of ethics. Is it an ethical matter for senior public officers to commit adultery, even allegedly sire children and portray themselves as upright Kenyans? Or to have or disown children born out of wedlock? Is it ethical for prominent and so-called upright Kenyans to get married in churches and then have other wives which only surface after their deaths? 

The birth of a new vicious animal called “Vetting” on the Kenyan scene is very interesting. Vetting by boards, parliament, by in-house ad hoc committees all are matters touching on morality, criminality consciousness, abuse of office, et cetera but ultimately relate to ethical ethos.

The question which remains unanswered is who the Judge is of whether conduct is ethical or otherwise and who passes the judgment after due process. Will there be a Tribunal to deal with matters ethical? Will the Ethics Commission undertake investigations and bring culprits to face the consequences? Is there a risk of the Commission being the accuser, the judge and the executioner?

Is it ethical that Cabinet Secretaries with extremely high academic qualifications are being vetted by Members of Parliament, probably with questionable moral and academic qualifications? Do they have the adequate qualifications to interview the Cabinet Secretaries?

Laws on ethics are presently largely inconsequential but there is urgent need to fine-tune ethical shortcomings in the country. The writer is a lawyer.

bowryp@hotmail.com