“The best way to deal with conflict of interest is to avoid it completely” – Hon. Justice Lawrence Gidudu
By Duncan Ondimu, OGW
Chapter Eight, Part 1, of the Constitution of Kenya, 2010 provides for the establishment of Parliament. The role of the National Assembly is provided for under Article 95 of the Constitution. Among them is that the House shall exercise oversight over national revenue and its expenditure, and over State organs.
The Senate’s role is provided for under Article 96 of the Constitution. Its overriding objective is to ensure the interests of counties and their government is protected. The Senate exercises oversight over national revenue allocated to the County Government. Further, it participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.
In order to ensure that Parliament plays its active role, it may establish committees As per Article 124(1) of the Constitution. Article 125 of the Constitution donates to Parliament the power to call for evidence in order to ensure that there is smooth execution of Parliament’s mandate.
It is without doubt that Parliament plays an important role in providing oversight. Therefore, members of the House must be capable of providing proper oversight; to play this critical role, it is of absolute importance that they display a high level of independence so as not to be conflicted in carrying out their duties.
Articles 93 and 260 of the Constitution of Kenya, read together, confer a Senator and a Member of Parliament the position of “State officer” for the purposes of both the Constitution of Kenya 2010 and the Leadership and Integrity Act 2012.
Chapter Six of the Constitution of Kenya contains the guiding principles on leadership, and display a clear concern to combat the dangers that flow from conflicts of interest in public affairs. The duty to avoid conflict between personal interests and public duties enshrined in Article 75(1) of the Constitution of Kenya 2010 is phrased in clear and mandatory language.
Leadership and Integrity Act, 2012
By virtue of Section 6(2) of the Leadership and Integrity Act, 2012, the provisions of Chapter Six of the Constitution of Kenya 2010 are incorporated into the general code described in Section 6(1) of the Leadership and Integrity Act 2012.
The scheme provided for by the Leadership and Integrity Act 2012 is focused on rooting out and addressing the dangers inherent in conflicts of interest in public affairs and, as an aid to doing so, places emphasis on the proactive declaration of actual or potential conflicts of interest on the part of State officers.
The Leadership and Integrity Act 2012 foresaw the possibility of State officers using information to which they are privy, as a result of his official duties, for the benefit of his personal or private interests of any kind. Although certain exceptions were carved out, including the broad category of “other purposes not prohibited by law”, it is by no means clear that the activities of Members of Parliament and Senate, in representing a client in court against a party over which he or she has oversight and powers of compulsion, would fall within these carved out exceptions.
Scope of conflict
The Organisation for Economic Co-operation and Development (OECD), in Managing Conflict of Interest in the Public Service: OECD Guidelines and Country Experiences (2003), defined “conflict of interest” as “conflict between the public duty and private interest of public officials, in which public officials have private-capacity interests which could improperly influence the performance of their official duties and responsibilities”.
In ‘Democracy Watch vs Campbell  2 FCR 139’, the Canadian Federal Court of Appeal held;
“The common element in the various definitions of conflict of interest is…the presence of competing loyalties…the idea of conflict of interest is intimately bound to the problem of divided loyalties or conflicting obligations…Any conflict of interest impairs public confidence in government decision-making. Beyond that, the rule against conflicts of interest is a rule against the possibility that a public office holder may prefer his or her private interests to the public interest”.
In the case of ‘Uganda vs Patricia Ojangole’ Criminal Case No. 1 of 2014 (High Court – Uganda), Hon. Justice Lawrence Gidudu defined – quoting Black’s Law Dictionary, 8th edition – conflict as “a real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties.”
An example is a real or seeming incompatibility between the interests of two of a lawyer’s clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent.
It is both the actual and the perception that counts when tracing conflict of interest in a transaction. It is what a reasonable person would conclude while viewing the transaction from a distance that counts. It is related to rule against bias. The old adage that justice must not only be done must be seen to be done applies to conflict of interest.
Conflict of interest has also has also been generally defined as any situation in which an individual or corporation is in a position to exploit a professional or official capacity in some way for their personal or corporate benefit.
Conflict of interest is founded on the existence of a fiduciary relationship between lawyer and client. She/he must not put personal interests before duty, and must not profit from that position as a fiduciary unless the principal consents. Fiduciaries must conduct themselves at a level higher than that trodden by the crowd and the distinguishing or overriding duty of a fiduciary is the obligation of individual loyalty [see ‘Bristol and West May Building Society vs May & Merrimans (a firm) and others’ (1996) 2 All E R 801].
Not only must the fiduciary avoid, without informed consent, placing himself in a position of conflict, between duty and personal interest, but must also eschew conflicting engagements. The reason is that, by reason of multiple engagements, the fiduciary may be unable to discharge adequately the one without conflicting with his obligation in the other. It is not to the point that the fiduciary himself may not stand to profit from the transaction he brings about the parties. The prohibition is not against the making of profit but of the avoidance of conflict [see Commonwealth Bank of Australia vs Smith (1991) 102 ALR at 477 reported in Bristol and West (supra) at p.815].
Section IV of the Code of Conduct for Members of Parliament in the United Kingdom provides for “general principles of conduct”, otherwise known as the seven general principles of public life.
Members of the upper house, the House of Lords, are subject to similar duties to disclose relevant (financial and non-financial) interests when debating. The House of Lords’ Code of Conduct requires (at Paragraph 7) that, “In the conduct of their parliamentary duties, members of the House shall base their actions on consideration of the public interest, and shall resolve any conflict between their personal interest and the public interest at once, and in favour of the public interest.” Members are not debarred from participating in debates in regard to which they have relevant interests, provided that “such interests are declared fully” (Paragraph 15).
Canada’s Conflict of Interest Act provides for the substantive legislative provisions regarding conflicts of interest as regards holders of public office.
In Canada, members of the Senate are also subject to the ‘Conflict of Interest Code for Senators’, which provides for a number of general and specific duties bearing a broad similarity to those required by the relevant applicable law in Kenya.
It is public interest that prevails over private interest in the event of a conflict of interest, and private affairs must be regulated or rearranged accordingly.
The Canadian legislature apparently foresaw the potential for a conflict to arise upon a Senator becoming privy to information through his official role that had the potential to benefit his own or another’s private interests.
Thus a Senator is required to exercise judgement in terms of understanding whether he “reasonably ought to know” that information “may” be used to further his own or another’s private interests.
Section 12 of the Conflicts of Interest Code for Senators sets out a procedure for a Senator sitting on a committee deliberating on a matter touching on his private affairs to make a declaration of a conflict of interest.
The Canadian regime is clearly designed to prevent a Senator whose participation on a committee with the ability to receive privileged information and to make decisions on matters touching on his private interests gives rise to a conflict of interest from continuing to participate in the committee. Withdrawal is required.
Right to legal representation vis-à-vis conflict of Interest
While Article 50(2)(g) of the Constitution provides for the right to legal representation, this right, in my view is not absolute if the choice of Advocate will lead to issues of conflict of interests arising. Hon Lady Justice G.W. Ngenye-Macharia, in the case of ‘Maina Njenga v Republic’ (2017) eKLR, when faced with the question of an accused person’s right to choose Counsel of his choice being limited where Counsel of choice has not met the Constitutional threshold, Lady Justice Ngenye held, “An accused is… free to exercise this right, by choosing counsel who rightly has audience before the court and is ready and capable of facilitating the smooth running of the court business.”
Overall, there exist clear and present dangers as a result of conflicts of interest in public affairs. Public confidence in the various Committees of the Parliament of Kenya is unlikely to be maintained by the presence of members who have a vested interest in using their oversight and powers of compulsion against various Government agencies for the benefit of their private clients who stand accused of corruption and are the subject of investigation by state authorities and prosecution. The private affairs of those members must be regulated.
Writer is Principal Prosecution Counsel at the ODPP