Parliament has allowed State officers to tender for government jobs in a move that keeps open the largest window of corruption that drafters of the integrity law had tried to close.
MPs struck the blow in favour of corruption through a last minute amendment to the Leadership and Integrity Bill on Friday last week.
Ainamoi MP Benjamin Lang’at introduced the change to provide that public officers only sit out of government tenders in departments where they hold positions, meaning public officers can now fight for tenders with ordinary Kenyans and private business so long as they do not work in the procuring entity.
The amendment removes the biggest bulwark against rampant corruption and nepotism in the award of government tenders that costs the tax-payer billions of shillings every year.
“A State officer or public officer shall not participate in a tender for supply of goods or services to a public entity in which he or she is serving or otherwise similarly associated, but the holding of shares by a State or Public officer in a company listed or quoted on a securities exchange shall not be construed as indirect tendering unless the State officer has a controlling interest,” Mr Langat’s amendment read.
Although this means public officers cannot directly secure or push for lucrative government tenders where they work, it opens a window for the officers to work with their counterparts in other ministries, departments or state agencies to secure the tenders in return for similar favours in their own ministries.
The provision also appears to fly in the face of Article 77 of the Constitution which bars state officers from participating in other gainful employment.
“The biggest cause of corruption is because senior people in government do business with the State. You have to decide, do you want to be a State Officer, or do you want to continue with your profession,” CIOC chairman Abdikadir Mohammed said.
Mr Lang’at’s amendment effectively overturned an earlier version of the Bill that barred all State or public officers from doing business with government.
President Kibaki was expected to sign the Bill into law on Monday, the deadline set by the Constitution.
Had the strict COIC provision held, civil servants and elected leaders would not have been allowed to participate in tenders to supply goods or services to a public entity.
Companies in which State officers hold substantial or controlling interests would also have been barred from tendering to supply goods and services to the government.
It would have meant that public officers would not directly secure or lobby for lucrative government tenders through companies in which they hold major stakes, including those listed at the securities exchange.
The provision was meant to eliminate influence peddling and horse trading in tendering to provide government with works, services and goods.
Some members, however, opposed the amendments to Clause 17 insisting that State Officers have a right to do business with the government.
Deputy Prime Minister Musalia Mudavadi, assistant minister Joseph Nkaissery, MPs Nicholas Gumbo and Adan Duale said it was unfair to block State officers from “even supplying a jerrican of milk” that does not require a tender.
They argued that the clause would force businessmen to resign from private companies that they had dedicated years to build once they were elected or appointed to State offices.
“It takes years to establish a functional company and it will be unfair to force MPs to close their businesses for a temporary job of five years,” Mr Gumbo said.
Most MPs, however, blamed corruption on competition by senior government officials to do business with the State agencies.
“I am a lawyer, but when in Parliament, you have to do the job of Parliament. Why do you want to be a lawyer and an MP at the same time? For the period that you are a State officer, forget your business,” Mr Mohammed said.
Justice and Legal Affairs chairman Njoroge Baiya, who moved the amendment at the Committee Stage, said the provision was in the original Bill that the Cabinet was accused of watering down.
“Why would you want to be a judge and participate in a tender?” Baiya asked.
MPs William Ruto, Boni Khalwale, Millie Odhiambo and Martha Karua said the clause would eliminate insider trading in public tendering and stem conflict of interest.
“Many people in this country have become rich because of insider trading through public tendering system. They use their children, spouses and proxies to give themselves an advantage in the tendering process,” argued Ms Karua.
Constitution Implementation Commission member Kamotho Waiganjo, however, said what MPs carried in the amendments was in line with the commission’s proposals.
“What we are opposed to as a commission is where a public servant does business in an area where it would attract conflict of interest or impairs his or her judgment,” he said.
He said the amendment was in line with the definition of gainful employment, arguing that public servants could not be stopped from investing absolutely.
“We can not legislate to bar civil servants from say holding shares in Kenya Airways, which is a government entity. If it is investment or business you are not actually involved in or have an influence over, then it is alright,” Mr Waiganjo said.
Water minister Charity Ngilu, Tourism assistant minister Cecily Mbarire, former Tourism permanent secretary Rebecca Nabutola and former Kenya Tourism Board members Ongong’a Achieng and Duncan Muriuki are some of the personalities who have recently been mentioned in cases involving conflict of interest in award of government contracts.
Mrs Ngilu’s son-in-law, Billy Indeche, and Ms Mbarire’s husband, Dennis Apaa, are accused of conspiring to defraud the Irrigation Ministry of Sh26.4 million on diverse dates between January 2009 and September 2010.
Jointly charged with them are, Samuel Aluoch Otieno, Robert Mati, Joseph Mucuku, Mwagambo Mwang’ombe, Lawrence Simitu and Isaiah Amwanzo Benjamin.
They have denied the charge before senior principal magistrate Lucy Nyambura and are out on bond.
Their prosecution was recommended by the anti-corruption commission and approved by the Director of Public Prosecutions who also instructed the anti-graft agency to further investigate Mrs Ngilu over related graft allegations.
An anti-corruption court in Nairobi is soon expected to deliver a ruling where former Tourism PS Rebecca Nabutola and former Kenya Tourist Board managing director Ongong’a Achieng’ are facing charges of irregular payment of Sh8.9 million to a tour firm.
They have denied the charges in the case involving alleged illegal payments of money for a tour to Maasai Mara by President Kibaki and top government officials in 2008.