Head of State angered by lawyer lawmakers

Friday, December 13th, 2019 00:00 | By
Deputy President William Ruto and ANC leader Musalia Mudavadi at Nyayo stadium, at a past even. Photo/PD/KENNA CLAUDE

Legislators, who are lawyers and are representing people accused of stealing public money in court, may soon be barred from doing so, if a proposal by President Uhuru Kenyatta is approved by Parliament.

The President termed the practice of senators and Members of Parliament engaging in private business as conflict of interest. 

This could also affect the leaders of teacher unions with the Head of State saying; “... a teacher in the Public Service cannot have one foot in the classroom and the other in Parliament”.

Kenya National Union of Teachers (Knut) secretary general Wilson Sossion is a Raila Odinga-led Orange Democratic Movement (ODM) Nominated MP while the Kenya Union of Post Primary Education Teachers (Kuppet) chairman Ambako Milemba is the Emuhaya legislator.

Uhuru said it is unacceptable that lawmakers, who are mandated by the Constitution to oversight National and County governments, act as defence lawyers for State officers charged with the looting of public funds.

Make choice

“One cannot serve as a legislator at the national or county level while at the same time practising law, whether or not for gain,” said Uhuru in a speech whose refrain was “returning the river to its course”.

The Head of State, who spoke during the 56th Jamhuri Day celebrations at Nyayo Stadium, said if the lawyer-legislators find law practice more lucrative they should resign from their parliamentary seats.

In a hard-hitting speech, the President also asked public officers engaging in private jobs to make the choice between serving Kenyans or their own interests.

“In the same way, judges and magistrates cease completely any legal practice while in office, similarly doctors, engineers, accountants and other professionals who take up State or public office, should give up private practice and devote their full time, energies and focus on public duties; and without the perception that they are using State or public office as a mere platform to advance other interests,” he said.

President Uhuru directed Attorney-General Paul Kihara to speed up the drafting of a law on conflict of interest and submit to Parliament for approval.

Uhuru appeared to be alluding to Senate Majority Leader Kipchumba Murkomen and Minority Whip Mutula Kilonzo, who appeared in court this week to defend Nairobi Governor Mike Sonko, who is accused of stealing Sh357 million from City Hall.

Murkomen was present when the President called out the lawyer-MPs and appeared to have been caught off guard by the statement.

The Elgeyo Marakwet Senator is the Leader of Government business in the House, for an administration that has declared war on corruption.

Senators, according to Article 96 of the Constitution, represent the counties, and serve to protect the interests of the counties and also exercise oversight over national revenue allocated to the devolved units.

Therefore, Uhuru said having a senator, who is mandated an oversight role in government representing graft suspects, amounts to conflict of interests even as he warned that State and public officers are not above law.

Control career

“Is it fair and right for legislators who have control over funds and exercise oversight over the Judiciary to appear in courts as counsel? Is it fair on the judicial officer hearing the case or the other parties that, one party in the case is represented by persons who can literally change the law applicable to the dispute, control the career progression of the judge or magistrate or are able to speak with the voice of an entire arm of Government?” he asked.

“The position is simple; you either serve the public in the role you signed up for or you serve the republic as a private practitioner; it is a profound conflict of interest to do both,” he added.

This is not the first time senators and MPs are appearing before court to represent clients in their private capacity.

Siaya Senator James Orengo and Senate Minority Leader has been a constant figure in court defending State officers accused of looting public funds.

The seasoned lawyer defended Busia Governor Sospeter Ojaamong in a case which he has been charged with abuse of office, conspiracy to commit an economic crime and engaging in a project without proper planning.

Orengo has also been in court defending former Nairobi Governor Evans Kidero in a case in which he is accused of conspiring to commit fraud, leading to the loss of Sh213,327,300 from the Nairobi City County Government coffers between January 16, 2014 and January 25, 2016.

In December 2018, the Director of Public Prosecutions Noordin Haji sought to bar Orengo and his Nyamira counterpart Okong’o Omogeni from defending Deputy Chief Justice Philomena Mwilu, in a case he claimed was a clear conflict of interest.

The two senators had questioned the appointment of senior British lawyer Khawar Qureshi as a prosecutor during a Senate Committee sitting.

Mutula Jr also appeared in court as part of Mwilu’s defence counsel alongside Makueni MP Daniel Maanzo, Millie Odhiambo (Suba), Peter Kaluma (Homa Bay) and Anthony Oluoch (Mathare).

Reacting to the President’s remarks, National Assembly Speaker Justin Muturi said the idea was captured in sections of the Constitution but it has not been adhered to.

“What he has said is not anything new; it’s there in the Chapter Six of the Constitution. This is a welcome development. We are happy that the conflict of interest law is going to come to Parliament,” he said.

Gainful employment

Article 77 of the Constitution states that, “a full-time state officer shall not participate in any other gainful employment”.

The Building Bridges Initiative (BBI) report in its recommendation on the fight against graft, proposed that to engage in business outside government and outside their regular working hours, State officers and senior public officers should obtain prior approval from their reporting officers. 

“This approval shall need to document that the work or business is not prohibited by separate legislation and does not constitute a conflict of interest or an obstacle to orderly performance of regular tasks and does not impinge upon the reputation of the Public Service,” it says.

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