Our Legislative Work in Kenya on Conflicts of Interest in the Public Sector
International Standards and Best Practices.
Conflicts of interest in public office is an issue relevant to public officials all around the world. In times of emergency public spending and procurement, with reduced oversight from public bodies and the media, the risk that conflicts may go unnoticed is acute.
Many countries have in place legislation to set conflicts of interest standards in public office. In recent years, some countries have strengthened standards by introducing new legislation to respond to increasing international scrutiny. Kenya has followed suit by proposing a new Conflicts of Interest Bill. ISLP-UK recently received assistance from Mayer Brown International LLP to provide specialist advice for the benefit of Transparency International Kenya, to assist the civil society organisation benchmark the proposed Bill against international best standards and practices. This project revealed a number of key learnings for all stakeholders about managing conflicts of interest that are relevant to public and private sector organisations and governments alike.
Conflicts of interest standards also have implications for private sector companies, particularly those that engage with public officials, such as in the context of public procurement projects, or other projects that are contingent on government licences. Whether through international conventions, domestic legislation and/or public media attention, the ethical conduct of public officials is under more scrutiny than ever. Canadian Prime Minister Justin Trudeau’s alleged “flagrant attempts to influence” his attorney general and minister of justice in connection with an investigation into SNC-Lavalin is one such example. “… inadequately managed conflicts of interest on the part of public officials have the potential to weaken citizens’ trust in public institutions.” Organisation for Economic Cooperation and Development Conflict of Interest (OECD) Guidelines 2003.
1. Conflicts of interests standards derive from international standards and guidelines.
The UN Convention Against Corruption (UNCAC) represents a set of international standards subscribed to by its 140 signatories around combatting corruption, including in connection with conflicts of interest. The Organisation for Economic Cooperation and Development (OECD) has also published standards pertaining, inter alia, to conflicts of interest for its 36 member countries, such as the OECD Conflict of Interest Guidelines 2003, the OECD Recommendation of the Council on Public Integrity 2017, and the OECD Guidelines on Anti-Corruption and Integrity in State-Owned Enterprises 2019. These OECD standards provide a good benchmark for international best practice above and beyond the principles set out in the UNCAC.
These international guidelines set out a framework for national governments to develop and adopt systems that promote transparency and prevent conflicts of interest in public office, including through: ensuring clarity in the legal framework and the state’s expectations for anti-corruption and integrity; setting high standards of conduct for public officials; and providing associated training and guidance for public officials.
2. A number of countries adopt a hybrid of rules-based and principles-based approaches.
There is no one-size-fits-all approach to developing a system for identifying and managing conflicts of interest in public office. Some countries primarily adopt a principles-based approach based on codes of conduct (or equivalent), while others adopt a rules-based approach; a number of countries (e.g. Australia, Canada, the UK and the US) prefer something of a hybrid approach. In these instances, the key principles set out in the international standards set by, inter alia, UNCAC and the OECD are maintained through a combination of legislation, codes of conduct, and monitoring and review by independent committees.
3. Best practice: a conflicts of interest framework must be reinforced through education, resourcing and review.
Any national legislation addressing conflicts of interest should build a system and framework that ensures integrity in public office and builds and maintains public trust. Key elements of best practice are likely to include:
Education, training and guidance: Education of public officials about their ethical responsibilities in discharging their public duties is key. Associated guidance and/or a Code of Conduct addressing conflicts of interest can both educate public officials about such responsibilities and improve transparency to the public.
Top level commitment: A public commitment to integrity and to identifying and managing conflicts of interest from the highest levels of government may help to boost public confidence in a government’s approach to managing conflicts of interest.
Resourcing and enforcement: Any public body charged with monitoring compliance with and enforcing conflicts of interest requirements must have adequate resources to discharge its duties; otherwise the whole conflicts of interest framework may break down, eroding public trust.
Ongoing monitoring and review: A conflicts of interest framework should be subject to ongoing monitoring and review to ensure it effectively identifies and manages conflicts of interest. This could include external oversight such as independent assurance or external audit of the conflicts of interest framework from appropriate experts.
As highlighted in the OECD’s 2003 conflicts of interest guidelines, conflicts of interest standards must at their core build and maintain the public’s trust in public officials and public institutions. A country’s approach towards developing its own conflicts of interests system and implementing international standards will inevitably be informed by domestic considerations, but the global message is clear: there is an expectation that public officials abide by certain conflicts of interest standards, and national governments should have systems in place (including legislation) to hold its public officials to account.
James Whitaker, Partner, James Ford, Associate, and Thomas Ajose, Associate Mayer Brown International LLP