CONFLICT ZONE
A Kenyan case, where a senator who is a lawyer represented someone accused of fleecing the state, reveals why conflict of interest laws are so vital
For SA members of parliament wanting information on moonlighting, the special code of ethical conduct is the place to start. That’s where I looked this week to see whether a lawyer who becomes an MP can continue practising.
Just ensure there aren’t any conflicts of interest, the code seems to say; declare this as “remunerated employment outside parliament” and get permission from your political party to go ahead with it.
There’s a secondary source too: a list of frequently asked questions about the code.
This includes a query from a doctor who was still in practice after becoming an MP. Should this income be disclosed as “remunerated employment outside parliament”? Yes, says the guide. Disclose it — and obtain the permission of your party whip.
The reason I checked the SA rules was that a related question has arisen in Kenya’s high court — though the question there was whether a lawyer, who is also a public official, could represent a particular client.
Kenya’s director of public prosecutions (DPP), who is on a major anticorruption drive, wanted an order declaring that a senator, Bob Orengo, be prevented from appearing in a specific case. Orengo, an elected senate member and the leader of the minority in that house, also happens to be a lawyer.
Whatever you think about his politics, Orengo’s decision to take the case of Daniel Manduku, the former MD of the Kenya Ports Authority who is under investigation for corruption, has to be questionable at the least.
The DPP argued that though Orengo may be entitled to practise law, this should “not conflict with the public interest”.
In addition, the right to choose a counsel of one’s own choice was not absolute, and where the interest of a client conflicted with the public interest, the public interest must prevail.
Orengo replied that he was not barred from practising law and did not represent Manduku as a “state officer”.
The presiding judge, Eric Ogola, agreed that Orengo was not a fulltime state officer and was thus allowed to engage in gainful employment — but only if this was still compatible with his duties and functions as a senator.
In the Kenya ports case, however, there were clear indications that it was indeed incompatible for him to act in the case, because of the inherent conflict of interest.
The judge said that while Manduku was entitled to an advocate of his choice, there were 10,000 other advocates. And in any case, the public interest in the matter outweighed the interests of an individual. He had “no right to demand to be represented in court by a counsel who has oversight over [Manduku’s] public role”.
Ogola then gave an example that illustrated the impropriety of the senator acting for this particular accused: Orengo had arrived at the magistrate’s court, driven in his official government vehicle, registered to the national assembly.
He then emerged from the official car, stepped into court and appeared on behalf of someone accused of corruption involving the state. What would the public perception be, asked the judge, when Manduku, charged with economic crimes and corruption, has a senator as his counsel, who is driven to court in his official car, bought for him by the public, and who then, in court, makes submissions “with the authority of a senator”?
“It does not require any taxing of the mind to find a glaring perception of conflict of interest.”
The judge said the taxpaying public would be confused “and wonder where the world is going: why has the accused been charged when he is to be represented by a state officer who arrives in court using state resources?”
It was hardly surprising, then, that the judge found Orengo’s involvement in the case unconstitutional.
As for SA, despite our reputation for corruption in and out of parliament, no such issue has yet arisen. If it were to happen, this Kenyan case would be one to cite.
Where the interest of a client conflicted with the public interest, the public interest must prevail