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Your honour! Why State officers who ‘moonlight’ could be in for big shock

WORK LIFE
By Everlyne Kwamboka | January 5th 2020

MPs practicing as lawyers are facing a major hurdle ahead if a proposed law seeking to stop them from moonlighting comes into force.

The elected leaders, who have been mainly appearing in court to represent prominent personalities, are said to be banking on their colleagues who they claim may need legal assistance in future, to save them from passing the proposed Bill on conflict of interest.

Political analyst Hamman Manyora says any legislator who votes against the Bill when tabled in Parliament will be unpopular since the public is in support of it.

“The way the President has presented it to the public, it is like those defending litigants in court are defending thieves. Senators should know that their mandate is mainly to oversight counties and if this is removed, they have no job,” he said

Steve Ogola, a political analyst, said given the number of senators and MPs practising law, the Bill will be approved by both Houses of Parliament because they are a few compared to those in other professions that do not moonlight.

“The MPs should know that if they do not pass the Bill, someone can go to court to seek an interpretation on whether sitting legislators can practice as lawyers at the same time,” he added.

In a tweet, Senior Counsel Ahmednasir Abdullahi said senators and MPs represent clients, not for the sake of money, but cheap politics.

The Bill, prepared by the Ethics and Anti-Corruption Commission (EACC) seeks to ensure that the integrity of public officials in decision-making is not compromised by public officials’ private interests.

It is aimed at strengthening the State powers to fight corruption by proposing jail terms and Sh5 million fine for officers who do not disclose any conflict of interest.

President Kenyatta directed the Attorney General Kihara Kariuki to fast-track the submission to Cabinet for approval and transmission to Parliament the Law on Conflict of Interest that has been subject to stakeholders’ consultation.

Angered by legislators who are expected to oversight some prominent personalities facing charges in court, the President queried whether it was fair and right for them to do so.

“One cannot serve as a legislator at the national or county level while at the same time practice law where there is gain or not,” the President said, noting that the Constitution demands that State and public officers serve no other master.

Mombasa Catholic Archbishop Martin Kivuva concurred with the President, saying there is need for the draft Bill by EACC to be fast-tracked into law.

“How can the senators or MPs call the accused persons to account? You have paid me to represent you as a lawyer and expect me to sit in a committee where you are expected to account?” he said, adding that the legislators should stick to their oversight mandate in a bid to help fight corruption.

But Senior Counsel Pheroze Nowrojee said there is no law barring MPs who are also lawyers from representing litigants in court. “It is wrong for one to bar an MP or senator from representing a client in court because the Constitution is very clear on the rights of an accused person. Where is the conflict of interest if he says that he wants Mr X to represent him in court?” he said.

Article 50 (g) of the Constitution states that every accused person has a right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.

Mr Nowrojee said when in Parliament, the senator wears the hat of a person to oversee how public funds are spent and when in court, he wears that of a lawyer fighting for the rights of his client.

“We all have boundaries when wearing different hats. For example, the President is the Commander-in-Chief of the Armed Forces but he cannot order soldiers to fire and so are the MPs who practice as lawyers when it comes to grilling those who appear before them in Parliament,” he said.

Lawyer Charles Kanjama was quoted in a section of the media arguing that issues of conflict of interest could be a factor of our culture rather than issues of law. 

“We need to interrogate deeper the issues of public servants doing business with the government because we have statutory and constitutional provisions prohibiting conflict of interest. The challenge could be our culture, not the law,” he said.  

State tenders

It will be interesting to see how this law will be implemented, given that high-ranking government officials are active in private enterprises, and are known to use their position to bag most of the government tenders. 

Uhuru’s directive was triggered by Senate Leader of Majority Kipchumba Murkomen, his Makueni counterpart Mutula Kilonzo Jr and Makueni MP Daniel Maanzo’s decision to represent Nairobi Governor Mike Sonko, who is facing graft charges over the alleged loss of Sh357 million belonging to the county government. It has become a common occurrence for Senators who are also lawyers to run to court in defense of public or State officers even as they are mandated to protect the taxpayers’ money from being misappropriated.

In January this year, a five-judge-bench dismissed efforts by the Director of Public Prosecutions to bar Senators James Orengo and Okong’o Omogeni from representing Deputy Chief Justice Philomena Mwilu in a court case on the grounds that they are members of the Senate Justice, Legal Affairs and Human Rights Committee.

The DPP argued that the interest of justice, fair administration of justice and interest of general public require that the two legislators be barred from appearing for the DCJ.

He argued that the two had obtained crucial information when he appeared before the committee to answer questions on why his office had hired the services of QC Khawar Qureshi.

In their defence, the court was told that indeed, the two sat in the committee but there was no evidence that they asked questions regarding the foreign counsel.

But High Court judges Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita dismissed the DPP’s application for lack of evidence on conflict of interest.

Conflict of interest

“In our view, 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. In this case, the facts placed before us do not in any way satisfy us that the conduct of the two Senior Counsel would amount to a conflict of interest in so far as this petition or related matters are concerned,” reads part of the ruling delivered on January 17 this year.

Mid last year, a section of Kenyans protested on social media platforms when Orengo represented Governor Sospeter Ojamong in a Sh8 million corruption case.  

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