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{
"id": 1484043,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1484043/?format=api",
"text_counter": 136,
"type": "speech",
"speaker_name": "Mr. Eric Gumbo",
"speaker_title": "",
"speaker": null,
"content": "response to that objection. One, the Constitution of Kenya at Article 77 is the primary law that then speaks to restrictions on activities of state officers. In particular, Article 77(1) reads- “A full-time state officer shall not participate in any other gainful employment”. Mr. Speaker, Sir, that Article introduces one critical variable, “gainful employment”. Gainful employment has been defined within our laws. Specifically Section 26 of the Leadership and Integrity Act has defined what would amount to gainful employment. If I may, Section 26.1 reads- “Subject to subsection (2), a State Officer who is serving on a full-time basis shall not participate in any other gainful employment”. It then proceeds at (2) to say- “In this section, ‘gainful employment’ means work that a person can pursue and perform for money or other form of compensation or remuneration, which is inherently incompatible with the responsibilities of the state office or which results in the impairment of a judgment of a state officer in the execution of the functions of a state office or results in a conflict of interest in terms of Section 16”. Our response; there has been no assertion that the learned Senior Counsel, James Orengo, by representing a party before this House, has participated in gainful employment. In any case, what evidence has been tendered before this honourable House to speak to that fact? Mr. Speaker, Sir, that is a question that has also received judicial interpretation. If I may, in the Election Petition No.3/2013 filed in the High Court in Busia, a similar application was made, objecting to the participation of the Hon. James Orengo, SC, in the proceedings in that matter. The judge handling that case interpreted both Article 77 as read with Section 26 of the Leadership and Integrity Act and had this to say, at Paragraph 28- “It had been argued that by representing a party in an election petition, the hon. Senator would be compromising the political neutrality of his office. I would not agree. Section 23 of this Act is a provision on political neutrality expected of appointed state officers. Hon. Orengo holds an elective position. Elected Members of the Senate are politicians. The provisions of Section 23 do not apply to them. So, even if it was to be assumed that by representing the third respondent, Hon. Orengo, SC, is pursuing a political agenda, that would not be inimical to his office as a member of the Senate.” Mr. Speaker, Sir, I, therefore, submit that unless there is material that will be tabled before this House that by appearing for a party before this House, then the Hon. Mr. James Orengo, SC, would have engaged in gainful employment, that objection does not stand any merit. Secondly, the second test that has been applied by courts is the test around conflict of interest. Our courts have also had occasion to interpret what amounts to conflict of interest. In a case determined by a five-judge bench, a case reported in our laws, that is, EKLR 2018, the case of Philomena Mbete Mwilu versus the Director of Public Prosecutions (DPP) and two others; the Bench, in determining and dismissing a similar The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
}