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"content": "the stakeholders for their submissions and comments that greatly enriched our consideration of the Bill. Finally, I want to express, as the Chairperson of the Committee on Justice, Legal Affairs and Human Rights, my sincere gratitude and appreciation to hon. Senators of the Committee and the members of the Secretariat who made useful contributions towards the preparation and production of the proposed amendments, which I will briefly run the House through. On behalf of the Committee of Justice, Legal Affairs and Human Rights, and pursuant to Standing Order No.148, of the Senate Standing Orders, the Committee, proposes the following amendments to the Bill. As I stated, we received over 13 submissions from various stakeholders. Upon consideration, the Committee made several proposals to amend the provisions of the Bill. The first proposal is in regards to the provisions of Clause 3 that speaks to the objects of the Bill. The Committee proposes that Clause 3 be amended by rephrasing the Bill. Instead of reading ‘enhance integrity of public office and public confidence in the delivery of public service’, the Committee proposes that sub-Clause 3(c) be amended to read as follows- “Enhance public confidence in the integrity of public office and delivery of public justice”. The reason behind this proposition is because of the content of the stakeholders' report on the office as well as the officer. In this case, there are personal conflicts of interest, which are limited to the individual, and those that can come out by the office that a public officer holds. Secondly, the Committee proposes an amendment to Clause 13 of the Bill. As a Committee, we are proposing that we become very specific to the private interest of the officer. In this case, we are borrowing it from the stakeholders' submission. Besides the office, we should ensure that the Bill speaks to private interest of the officer. Therefore, Clause 13 is proposed to read that- “A public officer shall not, directly or indirectly use or allow any person under the officer's authority to use any information that is obtained in the course of performing official duties and is not available to the public to improperly further or seek to further the private personal interest of the officer.” This recommendation will ensure that we deal with a person who has authority in the entity or authority that is authorized to check on the conflict of interest arising by virtue of the office. The Committee further proposes an amendment to Clause 15 on the requirement on the person of the public officer to disclose when such a person has accepted to perform certain functions. I would like to read for the benefit of the Members- “A public officer shall not allow himself to be influenced in the exercise of an official power or performance of a duty or function by plans for or any offer outside employment.”"
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"type": "speech",
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"content": "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."
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"content": "The specific sub-clause which we are proposing an amendment on is a requirement of the public officer to disclose, in writing, to the reporting authority any offer outside of employment. The Committee proposed to amend the requirement to disclose an offer and instead to disclose acceptance because it does not become an impediment to your judgment before you accept an offer. As such, making reference to an “offer” will be misleading because as long as you have not accepted any offer, it does not in any way impede on your judgment, character and personality. However, the moment you accept, it becomes a conflict on the part of the public officer. Further, the Committee proposes an amendment to Clause 19 on a requirement of the public officers on contracts with public entities, which are prohibited to an officer holding a public office. The Committee proposes that a public officer being referred to as a beneficiary is over legislation. We have proposed that Clause 19 be amended by deleting- “The reference to a public officer being denied to be a beneficiary of.” Therefore, the Clause will only read that- “A public officer should not at any given time, as long as he or she is holding a public office, be a party to any contract that will directly affect the performance of their role as a public officer holding that particular office.” We have equally proposed an amendment to Clause 27 of the Bill, which refers to a former public officer. In this case, if you have been holding a public office, and you have quit, you are required not to do certain things. In this case, provisions of Clause 27 prohibits a public officer from holding a certain office or from performing certain roles of that office. Clause 27 prohibits a former public officer from engaging with that office for two years after exiting the office. In this case, there is a specific reference to the State. The prohibition from dealing with the State is too wide. It covers almost every other aspect of public office that an individual can deal with. The Committee therefore proposes that instead of referring to a State, we refer to an authorized entity. In this case, it is the reporting entity, which has been described in Clause 2, to mean certain State entities or organs with authority to deal with service delivery to the public. The Committee further refers to Clause 29 where there is a specific reference to a prohibition of a public officer from representing an entity that he or she previously worked for two years. There are qualifications to that Clause. It says you can only be allowed to immediately upon termination of your engagement with the public office, after two years, if and when you have sought for exemption and met certain qualifications. You can only do so if and when you have sought for exemption and you have met certain qualifications, one of which includes the fact that you can explain that you are not directly involved in decision-making in the previous entity that you were working for. Secondly, you had no access to important policy information in the reporting entity that was your former employer. Lastly, you are expected to show that you did not possess, or rather you do possess expertise, such that your expertise is required to be utilised in the performance of certain decisions in the entity that is seeking to support"
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"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
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"content": "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."
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"content": "you. In this case, if you want to be exempted, you are required, under the provisions of Section 29, to make an application in writing so that the commission or the entity can exempt you in writing. This particular section has also given a protection to that application, so that the entity does not stay forever to respond, and it has given, under the provisions of 29(ii), that the request must be responded to within 30 days. So, a decision as to whether or not you can be allowed to represent must be made available to you within 30 days. The Committee has taken cognisance of the fact that these preconditions do not and should not apply to persons, who in their professional capacity, could be engaged courtesy of the provisions of the Constitution that entitles an entity or an individual to provide - to get services from such individuals. Therefore, the Committee has proposed an introduction of sub-clause 3, which says that the provisions of Sections 27 and 28 shall not apply to a former public officer representing another person in any proceedings before a court of law or tribunal established by law, including a witness. Why did the Committee seek to propose such an introduction of a subclause? Three reasons. One, we would, in most cases, be required to have expert witnesses who, by virtue of their previous office, know the information that an entity is seeking to establish. That is one of the reasons why the Committee sought to introduce this additional Clause, so that we do not lose on investigations by virtue of the fact that since you were a former employee, the law bars you from participating in an investigation that requires your expertise as a witness. Secondly, of course, is the protection of representation of clients in courts of law or tribunals where a professional, in this case, like a lawyer, who by virtue of the constitutional edict, a client is entitled to pick a person of his choice. That is why as a Committee, we have proposed to introduce that particular sub-clause. Mr. Deputy Speaker, Sir, under Clause 29, the Committee has confirmed that the time limitation provided to the commission or the authorised entity to respond to an inquiry as to exemption should be 30 days. Why? It is because we live in Kenya. An entity that would, for whatever reason, be malicious in authorising a representation can take forever the way we talk about investigations taking ages to conclude when an individual has, for example, been suspended. That is coming in the subsequent proposals we have made as a Committee. However, the Committee felt that it is important to make sure that within a period of 30 days, if one has sought to be exempted, that exemption should be done in writing. Mr. Deputy Speaker, Sir, the next Clause that the Committee dealt with is the provision under Clause 34 of this Bill. Clause 34 of the Bill talks about access to declaration. This being a conflict of interest Bill, the law is proposing that as public officers, we are expected to make certain declarations at certain intervals to the public and for purposes of making sure that we are protected as public officers. For this reason, Clause 34 provides that you are required to avail the declarations upon application to either the Commission or to a reporting entity. In this case, the Committee has proposed that Clause 34 of the Bill be amended to ensure that the rights of individuals in terms of the constitutional provision on the rights"
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"content": "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."
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"content": "of privacy and where we are seeking to comply with certain court orders are monitored so that entities do not abuse this particular provision. We have, therefore, proposed that we can only be under an obligation to disclose such information where the Act under Sub- Clause 2 had referred to due process. Due process is very wide. The Committee asked what is due process and how we protect private individuals and confidential information from being abused. This is because an entity can decide to say we have conducted investigations internally and have made recommendations, probably as a committee or as a team in charge of the investigation, to force or compel production of certain confidential information. The Committee has proposed that in order to protect the public, and in order to protect officers who have been subjected to either a disciplinary process or an investigation process, due process cannot and should not be left as wide as it were. We have sought to say this due process can only be due process, which is subjected to the right to privacy as provided for under the Constitution and pursuant to a court order or the Access to Information Act. That way, we will be protecting privacy, we will be protecting the compliance by institutions with the law, and we will, by extension, ensure that there is no abuse of the right that is provided for by this particular law to ask for and compel individuals to avail information. Mr. Deputy Speaker, Sir, I notice my time is running up. Clause 41 is another Clause that the Committee has also sought - suspension from office. Clause 41 says that subject to the Constitution and any written law, a public officer may be suspended from office with full pay pending the investigation and determination of allegations made against that officer where such suspension is considered necessary. The provision that grants the Commission an entitlement or an entity, an entitlement to suspend someone is open to a lot of abuse, especially in terms of the timelines within which you can be asked to be away from office pending investigations. As I earlier alluded, institutions can take more than three months, some more than even one year. We are aware of certain investigations that have been conducted over the last five years, where in any inquiry you get an excuse that we are still conducting investigations. The Committee, therefore, proposes that Clause 41(2) which requires or mandates an entity to release an individual on suspicion for a period of 90 days, proposes that that should only be the maximum time, and we say that if, therefore, these investigations cannot be timely, such an individual cannot be out there for more than 90 days, even if the investigations are not concluded. We have therefore proposed that if the Commission or a reporting entity fails to conclude the investigation within 90 days, the investigation shall be deemed to have been concluded at the expiry of the 90 days and the officer shall resume his or her office. The reason we are proposing this is to ensure that investigative entities, whether it is the Directorate of Criminal Investigation (DCI), the Ethics and Ant-Corruption Commission (EACC), or a reporting entity, do their investigations within certain timelines, and also it gets against the witch-hunt. This is one of those propositions where if you leave it open- ended, there will be a lot of abuse of this particular Clause because what will happen is"
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"content": "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."
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"content": "that institutions will never bring to closure investigations, and if it is just a mere allegation, this is something that is where the law has given you specific timelines, you will be compelled by that law to make sure that you conclude, and if there is no case, definitely allow the person back to office. If there is a case, then charge the individual because the moment that person is charged, then there is a requirement in law that you are then under suspension because you have been charged before a competent court of law, and you are on half salary for a certain period. In fact, the Anti-Corruption and Economic Crimes Act, Section 62, I believe, provides that such a person, once charged, is on half pay and the case should and ought to be concluded within a period of 24 months. That has a been a subject of litigation and it informed this Committee to limit the timeline within which the investigation is to be conducted. If that does not happen it is deemed to be concluded and the person is entitled to report back to office. Lastly, the provisions of Clause 42, entail the recommendations of the Commission. In this case, we are making reference to the Ethics and Anti-Corruption Commission (EACC). The Committee proposes that since this Act will not only be implemented by EACC, there are certain other reporting entities we should also include under the provisions of that Clause, besides the Commission. We have other reporting entities or authorities who can make sure they propose and receive reports for purposes of implementation. Mr. Deputy Speaker, Sir, yesterday I listened to the Senate Majority Leader when he was moving this Bill. This is one of the reasons I would like to urge members to push for the passage of this Bill. It will not only help in fighting corruption, which is cancer that has been cutting across. Members of this Committee are proposing and asking that this House to support and make sure this Bill is passed. I am aware that in 2019, the first publication of this Bill was done, but it has never come before the floor of the House. Now that the National Assembly has passed it and we have received it in this House, I urge the honorable Members to read the report together with the comments we have received from the stakeholders, and support the Bill so that we pass it."
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