Proposed Conflict of Interest Bill contradicts Employment Act, doctors say

KMPDU Sec General Dr Davji Atellah and Public Service International Global Health and Social Services Officer, Baba Aye with other members shout solidairity chants after addressing the media on the state of healthcare. [Boniface Okendo, Standard]

Medics have weighed in on the Conflict of Interest Bill currently in Parliament and set to undergo its second reading, claiming it will be detrimental to the careers of many patients as well.

While maintaining the proposed bill goes against the Employment Act, the medics said what one does in their private lives has never and should never be a concern on any employer in the current day.

The Kenya Medical Pharmacists and Dentist Union Sec Gen Dr Davji Atellah said the government should review doctor’s remuneration as per the work they do before ascending to the bill.

“Doctors are meagerly paid, and they work in public hospitals because of their human nature but the salary is very little. Most hospitals cannot hire consultants and most hospitals have no supplies and equipment. If that is sorted the bill would be an advantage to public health care,” Atellah said.

Attellah argued for the bill's intentions to be fully achieved, the government needs to invest more in the public health sector.

“Doctors don’t rob public hospitals of their time of work, so one should not be stopped from offering their services to another hospital when off duty. But if the government wants to domesticate consultants and doctors, they should be ready to pay them,” he said.

Attellah’s sentiments come even as the National Assembly has lined up a host of proposals seeking to repeal the Public Officer Ethics Act of 2003 that if enacted will be a game changer in the fight against corruption and improve efficiency in public service

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The raft of radical proposals is contained in the Conflict of interest Bill 2023, which is likely to cause conflict or get resistance in the run-up to its passage, in the event it garners majority support on the floor.

The bill says a public officer is in a conflict of interest if the officer: exercises an officer's power, duty, or function to further his private interests or the private interests of another person or his family, relative, or associate.

Clause 23 (3) of the bill forbids a public officer from engaging in any other gainful employment without permission from the reporting authority and the graft agency – EACC.

“A public officer shall not engage in any other gainful employment which is inherently incompatible with the official duties of the officer, results in a conflict of interest or the public officer is mandated to regulate,” it reads.

According to the bill, a public officer is a person who renders government services, whether appointed or elected, full-time or part-time, permanent or temporary and includes a state officer, employee, consultant, or volunteer. This definition also includes medical professionals.

Conflict of interest is in a situation where the private interests of the public officer can reasonably be perceived to impair or influence the public officer’s ability to act objectively in the performance of an official duty; or has private interests that could conflict with the duties of the public officer in future.

The bill continues to say a public officer shall disclose in writing to the reporting authority any offer of outside employment that could place the officer in a situation of conflict of interest within seven days of receiving the offer.

“Offer of outside employment means formal proposal made to a public officer to work for or privately do business with”

According to Health CS Susan Nakhumicha, it is in recognition of the need for improved accountability in service delivery that the government is taking various reform measures.

“Recently, the cabinet approved the conflict of interest bill 2023, which has been forwarded to the national assembly, for further processing. It is envisaged that if enacted, into the law, the legislation will help to curb the challenge of conflict of interest such as procurement and financial management relating to health projects in the counties and at the national level”

She further added that the government, through the office of the Prime Cabinet Secretary is undertaking robust reforms in the performance contracting framework which is aimed at addressing the accountability deficit witnessed in the performance of public duty.

But Atellah said implementation of the bill will not improve service delivery in the public sector if the hospitals are operating in deplorable conditions as they are.

“Most hospitals in the counties have no doctors, medicine and equipment. Doctors in public hospitals are struggling to offer services due to lack of supplies. To improve services, governors should be deliberate in investing in health care,” he said.

His sentiments were echoed by Peterson Wachira chairman of the Kenya Union of Clinical Officers who said medics operate their clinics during their free time to offer services lacking in the public sector.

“If the public hospital doesn’t have a certain equipment or medication, the healthcare worker can provide in their private capacity as they see the gap,” he said.

Wachira said most medics work in private facilities, due to a shortage of human resources.

“We still fall short of the WHO doctor/nurse to patient ratio. That means those available should be able to avoid services in different settings. Even those working in private facilities, if they are off duty, can offer their services elsewhere to cover the shortage,” said Wachira.

According to him, the bill will affect patients more as they will end up lacking care because the specialists needed are stuck in a public hospital that lacks the necessary equipment yet they could render their services too in a private hospital after their hours in a public facility.

“What is ailing quality of services in our public hospitals is lack of human resource, equipment and supply,” he said.

The bill notes that a public officer is required to take reasonable steps to avoid any real, apparent, or potential conflict of interest in connection with the official duty as a public officer.

“When you say someone should be able to declare potential conflict in the future, how do you know there will be a conflict in the future?” posed Wachira.

About compliance measures likely to generate heat if the law is enacted is that every public officer shall submit to the commission a declaration of income, assets, and liabilities of himself, his spouse or spouses, and his dependent children under the age of eighteen years.

A public officer shall in a periodical or final declaration provide information on any material change in, or changes affecting any of the categories of income, assets, or liabilities in the schedule of mandatory declarations that have occurred within the two years of the declaration.

On complaints and conduct of investigations, the bill proposes that a person who alleges that a public officer has contravened any provision of the act may lodge a complaint with the reporting authority or the commission (EACC) and the report shall be recorded in a register of complaints.

In a scenario of whistle-blowing, the bill says in clause 55 that no criminal or civil proceedings shall lie against the commission or any person acting on behalf of the commission, for anything done, reported, or said in good faith in the exercise of any power, or the performance of any function of the commission under the act.