By Philip Gichana
The recent decision by MPs to represent Nairobi Governor Mike Sonko in his corruption-related cases brings to the fore questions of conflict of interest and the accountability mechanisms in our devolution design.
A client is entitled to be represented by an advocate of his choice.
However, with MPs representing public officials who will, definitely, appear before them over matters similar or related to the substance of the court cases, there is a real or perceived conflict of interest.
In the public sector, conflict of interest arises when an official has private-capacity interests that could improperly influence their duties and responsibilities.
It can have legal and ethical dimensions — legal in that certain statutes or common law principles have been violated, while a range of other behaviours may be regarded as unethical, albeit not unlawful.
The Constitution, particularly Article 75, has elaborate provisions for governance in public affairs relating to public finance, integrity, exercise of power, oversight and separation of powers, among others.
Several pieces of legislation, including the Leadership and Integrity Act, have also been adopted with specific provisions to ensure, inter alia, transparency and accountability, public participation and consultation, integrity for public officials, structures and institutions to support implementation of decisions.
But the system is still devoid of good governance and proper structures and institutions to enhance the national values and principles espoused in the Constitution.
And the reason would point to the individuals serving in the various capacities.
Identifying and resolving conflict of interest situations is crucial to good governance and maintaining trust in public institutions.
However, experience shows that this can be difficult to achieve and, clearly, the legislators failed to appreciate their oversight role by virtue of being in Parliament.
Let’s examine the intersection of those two interests: being an advocate and a legislator.
Does the representation create an incentive for the legislators to act in a way that may not be in the best interests of Parliament when exercising its oversight role?
The answer is a resounding ‘yes’, since they have demonstrated a bias towards the governor’s interests at the expense of the public when demanding for accountability.
And there is a reasonable risk that by dint of their representation, the lawyer-senators have undermined public trust and confidence in the Senate to discharge its county oversight function.
Advocates have a duty and responsibility to the society. Lawyers are afforded a number of privileges as part of a bargain with the society, in which they promise conscientiously to serve the public interest.
Sadly, to this end, they have the public who largely perceive them as self-interest seekers.
Chief Justice Madan was of the opinion that lawyers have a duty to assume the role of leaders in order to manage the affairs of the nation, mainly because of their legal education and the strictness of ethics.
The challenge before the legal profession is to resolve the basic paradoxes, which it faces. It will need to reorganise itself to regain the public trust.
Public interest should always reign supreme in any decision lawyers take.
This is not to belittle the right to representation, but to accept that there could be others better suited to represent culprits in court without suffering pangs of conflict of interest.
Other professions and anyone engaging the government should first clear their conscience so that no one perceives their engagement questionable by virtue of office.