The Ethics and Anti-Corruption Commission (EACC) is warning of a new wave of corruption should the National Assembly pass Conflict of Interest Bill as proposed by the Senate.
- •EACC says the Senate has mutilated the Bill sponsored by the Cabinet to give public officers leeway to trade with public entities in which they work, award or influence tenders to themselves and/or family members without sanctions.
- •The Senate has also amended it to delete all provisions on conflict of interest contained in the anti-corruption and Economics Crimes Act and the Leadership and Integrity Act.
- •In effect, this decriminalises conflict of interest as a form of corruption, and extinguishes the jurisdictional mandate of EACC to institute any investigations on conflict of interest, despite the practice anchoring over 80 per cent of corruption cases in the country.
Other highlights of the amendments include removal of provision allowing unrestricted access to wealth declarations by law enforcement agencies to detect unexplained wealth, and deletion of nearly all the compliance and enforcement measures, including various proposed offences.
EACC argues that the effect of the amendment is that management of conflict of interest in public institutions will be without any enforcement mechanism, with compliance depending on the public officer’s choice or good will.
Narok Senator Ledama Olekina, who moved the amendments and deletions before the Senate, defended the changes saying EACC is making a big deal because its budget has been cut. “They wanted more responsibilities so that they can demand more money from the consolidated fund; you cannot repeal existing laws that fight corruption for you to introduce a new bill that burdens Wanjiku,” Ledama said.
“Indeed, it is a big deal. When you see the amendments you introduced to the Bill, you must appreciate that you killed it off completely. You allowed politicians and powerful people like yourself to win tenders using the office one occupies,” prominent lawyer Ahmednasir Abdulahi said, “What you did was terrible and is a huge setback in the fight against corruption,” he added.
“This is worse than voting YES for the Finance Bill 2024 by the way. This is corruption,” Mohamed Wehliye, a central banker and prominent commentator, said.
How Senate Changed the Bill
The Conflict-of-Interest Bill is aimed at strengthening the fight against corruption and protection of public resources through effective management of conflict of interest at both national and county levels. The initial Draft contained progressive provisions on mechanisms for addressing the legal bottlenecks currently impeding an effective fight against corruption.
The Bill was tabled in the National Assembly on 3rd April 2023 by the Leader of Majority, Hon. Kimani Ichung’wah. On 29th November 2023, the National Assembly approved it with significant amendments to the initial draft submitted by Cabinet. Because the Bill touches on public officers in county governments, it was sent to the Senate for consideration.
In December 2023, the Bill was tabled in the Senate by the Leader of Majority the Hon. Sen. Aaron Cheruiyot. After the first reading on 14th February 2024, it was sent to the Justice, Legal Affairs and Human Rights Committee which made several proposals in a report tabled before Senate on 28th March 2024. A Committee of the Whole House debated the Bill on 15th May 2024.
On 16th May 2024, the Senate voted to pass it with major amendments and deletion of key progressive provisions, negating the very essence of the proposed law. In adopting the deletions and amendments moved by Senator Ledama Olekina, the Senate, in effect, weakened it, potentially rendering it an ineffective legal framework that, if enacted as proposed, would adversely affect anti-corruption efforts in the country and negate the gains made so far.
“Due to the magnitude of deletions and amendments by the Senate, the current version of the Bill…no longer represents the progressive initial bill which could have significantly addressed current obstacles to effectiveness in the fight against corruption at the national and county levels,” the anti-corruption agency said on Sunday.
What Comes Next
The Senate has remitted the Conflict-of-Interest Bill back to the National Assembly, which may either concur with or reject the proposed changes. If it rejects them, the Bill will be referred to a mediation committee consisting of an equal number of members from both Houses.
The committee will then develop a version of the Bill that both Houses will then have vote on. If the mediation committee fails to agree on a version of the Bill within thirty days, or if an agreed version is rejected by either House, the Bill is defeated.
EACC says it has written to the National Assembly, advising that unless the changes effected to the Bill by the Senate are reversed, the ensuing legislation will not only exacerbate embezzlement of public funds by state officials without sanctions but will also open a floodgate of new corruption scandals in the country while shielding perpetrators from accountability.
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