Insight

Why State Officers Are Restricted In Accepting Gifts

The law restricts Kenyan state and public officers from accepting gifts of a certain value and composition that can compromise their work. It however gives leeway for them to accept as long as they follow the laid down regulations and the process is done in a transparent manner. RoGGKenya explains the conditions.

On September 25 this year, Chief Justice David Maraga declined a gift offered by Kakamega Senator Cleophas Malala. The three goats were offered when he was the guest of honour during the opening of the new Kakamega law courts.

“I want to present to you a symbolic gift of three goats that is going to motivate you to achieve your legacy,” Malala said. He added that the three goats symbolize the three arms of government and their unity.

In declining the gift, Maraga said the Judicial Service Commission code of conduct does not allow him to receive a gift worth more than Sh20, 000. He therefore handed the goats to Kakamega Law Courts Users’ Committee chairman Sylvester Mambiri.

Justice Maraga also cited a court case that  Malala is facing, indicating that the gift could be in a bid to sway the case in his favor.

When can state officers accept gifts?

Article 76 (1) of the constitution states that “a gift or donation to a state officer on a public or official occasion is a gift or donation to the republic and shall be delivered to the State unless exempted under an Act of Parliament.”

Speaking to RoGGKenya, Dismas Mokua, a governance expert asserted that the fact that Chief Justice Maraga declined a gift from a politician is laudable and commendable.

“It is consistent with Article 10 and chapter six of the Kenyan Constitution which sets standards and expectations. It is however common knowledge that public servants of rank receive both monetary and non-monetary gifts to influence their decisions and policy making variables”, Makua asserted.

Section 14 of the Leadership and Integrity Act explains how to go about gifts or benefits in kind. While it outlaws receiving of gifts in public, it gives leeway under regulations on how a public or state officer could accept a gift.

The Leadership and Integrity Act further explains that “a state officer shall not accept or solicit gifts, hospitality or other benefits from a person who has an interest that may be achieved by carrying out or not carrying out of the state officer’s duties, carries on regulated activities that the state officer’s organization has a role, or has a contractual or legal relationship with the state officer’s organization.”

Prohibited products

The act further states that “state officers are also barred from accepting gifts of jewelry or other gifts comprising of precious metal or stones ivory or any other animal part protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and gifts with the intention of compromising the integrity, objectivity or impartiality of the State officer.”

It says that a state officer who receives a gift or donation must declare the gift or donation to the Ethics and Anti-corruption Commission (EACC) and the public entity which the state officer represents. Every public entity shall keep a register of gifts received by a state officer serving in the public entity and gifts given by the public entity to other sate officers.

Governance expert Mokua added that the spirit and intention of the Kenyan Constitution is that the public and state officers must not receive gifts. It doesn’t matter whether they receive the gifts in  public or private. And if they do the gifts have to be  declared or  surrendered to designated officers at their institutions for charity.

“It is also public knowledge that such gifts catalyze and breathe life to corruption. Most public servants of rank have a high appetite for such gifts”, he added.

Section five of the Leadership and Integrity Act regulations explains the prohibition of gifts or other benefits to state officers and public officers. The regulations explain non-monetary gifts to include gratuity, hospitality, free passages, services or favors.

“A State officer or a public officer may receive a non-monetary gift in his or her official capacity if the value of that gift does not exceed Ksh20, 000, but a state or public officer shall not receive such a gift if in the opinion of that officer the gift is given with the intention of compromising his or her integrity, objectivity, impartiality or create potential conflict of interest”, the regulations explain.

Declaration of received gifts

The regulations add that a State officer or a public officer who receives a gift with a value exceeding Ksh20,000 must report it within 48 hours. He also has to, surrender it to his employer.

The donors has to offer the gift the recipients of the nonmonetary gift in person with witnesses.

Javas Bigambo, a lawyer and political analyst, thinks that the love for gifts  is inherently human. “But public service brings with it its ethics and values, to which few in that realm abide by,” he said.

“The fact that public servant or state officers have rarely declare that they have received gifts is not credible, he added.

A state officer or a public officer who receives a gift is mandated to declare the gift received to the public entity which the public officer represents irrespective of the monetary value of the gift.

A public entity is an organisation or body providing services to the public on behalf of the government or another public entity. The public service and its employees are examples of public entities.

Every public entity is expected to keep and maintain registers of gifts received by state officers or public officers and gifts given by the public entity to state officers or public officers.

How to dispose of the gifts

The law allows public entities to have internal policies of how to dispose the gifts. It expects that the public entity will store any gift received and maintain it in good condition until it is donated or utilized.

“A gift that is surrendered to a public entity shall be deemed to be a public property and shall be received and disposed of in accordance with the provisions of the Public Procurement and Asset Disposal Act, 2005 ”, said Bigambo.

The law further allows the public entity to utilize the gift, but mandates them to register the use in a manner as any item procured by the public entity.

Bigambo further noted that the capacity to declare, and decline on the basis of existing guidelines is great and rare altogether.

“The boldness of Justice Maraga to acknowledge but politely decline the gifts offered by Malala speaks to the consciousness of the man and his values. Hopefully, not his fears for indictment, with regard to the office he holds, as well illustrates his commitment to lead by example and precept”, Bigambo said.

At the close of every financial year every public entity is expected to file a report to the EACC specifying all gifts received, any gifts the entity intends to dispose of and any gifts it has disposed of.

Where a public entity has not received, disposed of or intends to dispose of, any gift, it also needs to make the report. These reports should be submitted to the EACC within 30 days after the close of the financial year.

Record of gifts

The law expects the EACC to review the report. If it ascertains that the State officer or the public officer has breached the law, it is expected to inform the public entity and order disciplinary measures to be taken against that officer.

The Judicial Service Act Code of Conduct and Ethics is authoritative on gifts to judicial officers when speaking on integrity, propriety, accountability and prohibition against corrupt practices, and conflict of interest.

The code says that “a judge shall not knowingly permit a member of the judicial staff or other person within the judge’s influence including any member of the Judge’s family, direction or authority, to ask for, or accept, any gift, loan, hospitality, advantage, privilege or favor in relation to anything done or to be done or omitted to be done in connection with his or her duties or functions.”

However, “a judge may receive a token gift, award, honoraria, allowance or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived to influence the judge in the performance of judicial duties or otherwise make them lose partiality in their work.”

What journalists should do

  1. Read and familiarise yourself with the main laws dealing with gifts for state and public officers: Chapter six of the Constitution, the Leadership and Integrity Act and the Leadership and Integrity Act Regulations.
  1. Find out with the EACC, whether public institutions indeed register gifts for their review. This is normally done at the end of every financial year.
  1. Inquire about how the EACC has dealt with any lack of compliance on gifts by public institutions.
  1. Find out whether a public or state officer has ever been penalised for breaking the law on gifts.
  1. Find out if public institutions follow the registers of gifts templates as enshrined in the Leadership and Integrity Act Regulations.
  1. Inquire if there are any internal policies of public institutions on how to deal with gifts.
  1. Find out how State and public institutions have used gifts and whether they recorded them according to the law.

 

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