ALL LEGISLATIVE ASSEMBLIES IN KENYA SHOULD ENACT THE FOLLOWING ETHICAL CODE OF CONDUCT FOR THEIR MEMBERS
(Can be done as an Act of parliament)
By David Olusi
1. There must be a provision that makes it a criminal offence for a member of Parliament to ask for, receive, obtain, agree or attempt to receive or obtain any property or benefit of any kind for themselves or any other person, in order to influence that member’s conduct in the House or any committees.
2. Member of Parliament receiving bribes (1) Any person who, being a member of the Legislative Assembly, asks for, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person upon any understanding that the person’s vote, opinion, judgment, or action, in the Legislative Assembly, or in any committee thereof, shall be influenced thereby, or shall be given in any particular manner or in favour of any particular side of any question or matter, is guilty of a crime, and is liable to imprisonment for 12 years, and is disqualified from sitting or voting as a member of the Legislative Assembly for 12 years.
3. Similarly, it should be an offence for any person to bribe or attempt to bribe a member. Bribery of member of Parliament. (1) Any person who bribes in order to influence a member of the Legislative Assembly in the member’s vote, opinion, judgment, or action, upon any question or matter arising in the Legislative Assembly or in any committee thereof or in order to induce the member to absent himself or herself from the Assembly or from any such committee, gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for, such member, or to, upon, or for, any other person; or attempts, directly or indirectly, by fraud, or by threats or intimidation of any kind, to influence a member of the Legislative Assembly in the member’s vote, opinion, judgment, or action, upon any such question or matter, or to induce the member to so absent himself or herself; is guilty of a crime, and is liable to imprisonment for 12 years. The crime of bribery is punishable by 12 years imprisonment and disqualification for 12 years.
4. The crime of attempted bribery is punishable by 7 years imprisonment.
5. The merits of the matter to which the bribe relates, or the intention of the member when accepting the bribe, is irrelevant. Therefore, a member who accepts a bribe in relation to any matter may be convicted of the offence whether or not the member actually intended to act in the manner agreed, or if the matter could be construed to be in the public interest.
5. The House Parliament must hold various forms of conduct by members which may cause a conflict of interest, or a perception of a conflict of interest, to be contempts. These include:
a) corruption in the execution of a member’s duty, such as: accepting a bribe to influence a member’s conduct in the House; accepting remuneration to advocate a cause in the House (“acting as a paid advocate”); or accepting money to disclose the confidential business of the House;
b) advocating in the House matters in which they have previously been involved professionally; or
c) accepting professional services connected with the business of the House. That is, members may not accept professional fees or undertake service on a matter before the House, whether or not the member is actually promoting the matter in the House. The above matters could also be held to be a contempt of the Legislative Assembly.
6. The Kenyan Parliament’s Act should also provide that the Legislative Assembly may punish contempts committed by a member or other person. The offering of a bribe to, or attempting to bribe, a member is one example of such a contempt.
The contempt of bribery is wider than a criminal offence of bribery. Therefore, whilst a member who accepts a bribe to do something which does not necessarily affect their conduct in the House (such as to lobby a Cabinet Secretaries is not guilty of an offence under the Criminal Code, they may nonetheless be guilty of a contempt of Parliament.
#David Olusi is an expert in “Systematic Ethics”