Restriction of Gainful Employment for State and Public Officers

The Ethics and Anti-Corruption Commission (EACC) has proposed amendments to the law to ensure State and Public officers do not engage in other gainful employment. The Commission says there is a lacuna in the law as it does not draw a clear distinction between a State and a public officer. Speaking at the start of a five-day workshop in Machakos on Tuesday, Deputy Chief Executive Michael Mubea, said the participants will come up with a draft which will be forwarded to parliament for deliberation.

The Commission together with other stakeholders has taken up the responsibility to develop guidelines on restriction of gainful employment for state and public officers under Section 26 of the Leadership and Integrity Act, 2012. This follows the president’s order that all those who hold public positions should not be allowed to be players in the industry they regulate.  In particular, the president cited the arena of road traffic regulations and ordered the Attorney General to prepare a bill that would address the conflict of interest for public office holders.

Justice Hedwig Ongudi, the presiding Judge of the Anti-Corruption and Economic Crimes Division of the High Court, made a presentation titled ‘Emerging Jurisprudence on the Employment Act’. Justice Ongudi pointed out that a full-time State officer shall not participate in any other gainful employment as stipulated in Article 77 of the Constitution. Article 77(1) of the Constitution of Kenya 2010 provides that a “full time state officer shall not participate in any other gainful employment.” This provision is amplified by Section 26 of the Leadership and Integrity Act, 2012 which states:

• Subject to subsection (2) a state officer who is serving on a full time basis shall not participate in any other gainful employment
• 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 the judgment of the state office or results in a conflict of interest in terms of section 16.

“This is about ethics. What ethics do we have as public and state officers or even as individuals? Your conscience should tell you that what you are doing is wrong, said Justice Ongundi.”

The Constitution is however silent on the distinction between officers serving full-time State and those serving part-time. Justice Ongudi noted that the law should be amended to eradicate avenues for moonlighting and help prevent wastage of resources.