Point in Time
Act No: No. 4 of 2003
Act Title: PUBLIC OFFICER ETHICS
[ Date of commencement: 2nd May, 2003. ]
[ Date of assent: 30th April, 2003. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Public Officer Ethics Act, 2003.

PART II – SPECIFIC CODES OF CONDUCT AND ETHICS
5.
Establishment of specific Codes
(1)

Each Commission shall establish a specific Code of Conduct and Ethics for the public officers for which it is the responsible Commission.

(2)

The specific Code established by a Commission shall include all the requirements in the general Code of Conduct and Ethics under Part III and may—

(a)

include requirements beyond what is required under the general Code of Conduct and Ethics under Part III; and

(b)

set out how any requirements of the specific or general Code may be satisfied.

(3)

No requirement shall be included in a specific Code that would infringe any independence of a public officer provided for by the Constitution or an Act and any requirement of the specific Code or in the general Code of Conduct and Ethics under Part III is of no effect that it would do so.

(4)

Until a Commission has established a specific Code under this section, the general Code of Conduct and Ethics under Part III shall apply as though it were the specific Code established by the Commission.

6.
Publication of specific Codes
(1)

Each Commission shall publish the specific Code of Conduct and Ethics established by it in the Gazette within ninety days after the Commencement of this Act.

(2)

In relation to a Commission that is prescribed by regulation under section 3(10) as a responsible Commission, this section shall apply as though the reference in subsection (1) to the commencement of this Act were a reference to the commencement of the regulation.

PART III – GENERAL CODE OF CONDUCT AND ETHICS
7.
Part sets out general Code
(1)

This Part sets out a general Code of Conduct and Ethics for public officers.

8.
Performance of duties, general

A public officer shall, to the best of his ability, carry out his duties and ensure that the services that he provides are provided efficiently and honestly.

9.
Professionalism

A public officer shall—

(a)

carry out his duties in a way that maintains public confidence in the integrity of his office;

(b)

treat the public and his fellow public officers with courtesy and respect;

(c)

to the extent appropriate to his office, seek to improve the standards of performance and level of professionalism in his organisation;

(d)

if a member of a professional body, observe the ethical and professional requirements of that body;

(e)

observe official working hours and not be absent without proper authorisation or reasonable cause;

(f)

maintain an appropriate standard of dress and personal hygiene; and

(g)

discharge any professional responsibilities in a professional manner.

10.
Rule of law
(1)

A public officer shall carry out his duties in accordance with the law.

(2)

In carrying out his duties, a public officer shall not violate the rights and freedoms of any person under Part V of the Constitution.

11.
No improper enrichment
(1)

A public officer shall not use his office to improperly enrich himself or others.

(2)

Without limiting the generality of subsection (1), a public officer shall not—

(a)

except as allowed under subsection (3) or (4), accept or request gifts or favours from a person who—

(i) has an interest that may be affected by the carrying out, or not carrying out, of the public officer’s duties;
(ii) carries on regulated activities with respect to which the public officer’s organisation has a role; or
(iii) has a contractual or similar relationship with the public officer’s organisation;
(b)

improperly use his office to acquire land or other property for himself or another person, whether or not the land or property is paid for; or

(c)

for the personal benefit of himself or another, use or allow the use of information that is acquired in connection with the public officer’s duties and that is not public.

(3)

A public officer may accept a gift given to him in his official capacity but, unless the gift is a non-monetary gift that does not exceed the value prescribed by regulation, such a gift shall be deemed to be a gift to the public officer’s organisation.

(4)

Subsection (2)(a) does not prevent a public officer from accepting a gift from a relative or friend on a special occasion recognised by custom.

(5)

Subsection (2)(c) does not apply to the use of information for educational or literacy purposes, research purposes or other similar purposes.

12.
Conflict of interest
(1)

A public officer shall use his best efforts to avoid being in a position in which his personal interests conflict with his official duties.

(2)

Without limiting the generality of subsection (1), a public officer shall not hold shares or have any other interest in a corporation, partnership of other body, directly or through another person, if holding those shares or having that interest would result in the public officer’s personal interests conflicting with his official duties.

(3)

A public officer whose personal interests conflict with his official duties shall—

(a)

declare the personal interests to his superior or other appropriate body and comply with any directions to avoid the conflict; and

(b)

refrain from participating in any deliberations with respect to the matter.

(4)

Notwithstanding any directions to the contrary under subsection (3)(a), a public officer shall not award a contract, or influence the award of a contract, to—

(a)

himself;

(b)

a spouse or relative;

(c)

a business associate; or

(d)

a corporation, partnership or other body in which the officer has an interest.

(5)

The regulations may govern when the personal interests of a public officer conflict with his official duties for the purposes of this section.

(6)

In this section, “personal interest” includes the interest of a spouse, relative or business associate.

13.
Collections and harambees
(1)

A public officer shall not—

(a)

use his office or place of work as a venue for soliciting or collecting harambees; or

(b)

either as a collector or promoter of a public collection, obtain money or other property from a person by using his official position in any way to exert pressure.

(2)

In this section, “collection”, “collector” and “promoter” have the same meanings as in section 2 of the Public Collections Act (Cap. 106).

14.
Acting for foreigners
(1)

No public officer shall, in a manner that may be detrimental to the security interests of Kenya, be an agent for, or further the interests of, a foreign government, organisation or individual.

(2)

For the purposes of this section—

(a)

an individual is foreign if the individual is not a citizen of Kenya;

(b)

an organisation is foreign if it is established outside Kenya or if it is owned or controlled by foreign governments, organisations or individuals.

15.
Care of property
(1)

A public officer shall take all reasonable steps to ensure that property that is entrusted to his care is adequately protected and not misused or misappropriated.

(2)

A person who contravenes subsection (1) shall be personally liable for losses resulting from the contravention.

16.
Political neutrality
(1)

A public officer shall not, in or in connection with the performance of his duties as such—

(a)

act as an agent for, or so as to further the interest of, a political party; or

(b)

indicate support for or opposition to any political party or candidate in an election.

(2)

A public officer shall not engage in political activity that may compromise or be seen to compromise the political neutrality of his office.

(3)

This section does not apply to a member of the National Assembly or a councillor of a local authority.

17.
Nepotism, etc

A public officer shall not practice nepotism or favouritism.

18.
Giving of advice

A public officer who has a duty to give advice shall give honest and impartial advice without fear or favour.

19.
Misleading the public, etc

A public officer shall not knowingly give false or misleading information to members of the public or to any other public officer.

20.
Conduct of private affairs
(1)

A public officer shall conduct his private affairs in a way that maintains public confidence in the integrity of his office.

(2)

A public officer shall not evade taxes.

(3)

A public officer shall not neglect his financial obligations or neglect to settle them.

21.
Sexual harassment
(1)

A public officer shall not sexually harass a member of the public or a fellow public officer.

(2)

In subsection (1), “sexually harass” includes doing any of the following, if the person doing it knows or ought to know that it is unwelcome—

(a)

making a request or exerting pressure for sexual activity or favours;

(b)

making intentional or careless physical contact that is sexual in nature; and

(c)

making gestures, noises, jokes or comments, including innuendoes, regarding another person’s sexuality.

22.
Selection, etc. of public officers

A public officer shall practice and promote the principle that public officers should be—

(a)

selected on the basis of integrity, competence and suitability; or

(b)

elected in fair elections.

23.
Submitting of declarations, etc.

A public officer shall submit any declaration or clarification required under Part IV to be submitted or made by him.

24.
Acting through others
(1)

A public officer contravenes the Code of Conduct and Ethics if—

(a)

he causes anything to be done through another person that would, if the public officer did it, be a contravention of the Code of Conduct and Ethics; or

(b)

he allows or directs a person under his supervision or control to do anything that is a contravention of the Code of Conduct and Ethics.

(2)

Subsection (1)(b) does not apply with respect to anything done without the public officer’s knowledge or consent if the public officer took reasonable steps to prevent it.

25.
Reporting improper orders

If a public officer considers that anything required of him is a contravention of the Code of Conduct and Ethics or is otherwise improper or unethical, he shall report the matter to an appropriate authority.

PART IV – DECLARATIONS OF INCOME, ASSETS AND LIABILITIES
28.
Clarifications
(1)

A person who has submitted a declaration to a Commission shall provide, without undue delay, any clarification requested by the Commission if the request is in writing and is made within six months after the declaration was submitted to the Commission.

(2)

Without limiting what a request for clarification may include, such a request may include—

(a)

a request that any information that may have been omitted be provided; or

(b)

a request that any discrepancy or inconsistency, including a discrepancy or inconsistency arising because of information other than information included on the declaration, be explained or corrected.

29.
Information to be correct

A person submitting a declaration or providing a clarification shall ensure that the declaration or clarification is correct, to the best of his knowledge.

32.
Offences

A person who fails to submit a declaration or clarification as required under this Part or who submits, in such a declaration or clarification, information that he knows, or ought to know, is false or misleading, is guilty of an offence and is liable, on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

33.
Administrative procedures
(1)

Each Commission shall establish procedures for the administration of this Part with respect to the public officers for which it is the responsible Commission.

(2)

The administrative procedures shall be established and published in the Gazette within ninety days after the commencement of this Act.

(3)

In relation to a Commission that is prescribed by regulation under section 3(10) to be a responsible Commission, subsection (2) shall apply as though the reference in that subsection to the commencement of this Act were a reference to the commencement of the regulation.

(4)

Nothing in section 27 requires a public officer to submit a declaration before publication, under this section, of the relevant administrative procedures by the responsible Commission.

34.
Amendment of Schedule
(1)

Subject to subsection (2), the Minister may, by notice in the Gazette, amend the Schedule to this Act.

(2)

The Minister may not amend the Schedule to this Act unless a draft of the amendment has been laid before, and has been approved by resolution of, the National Assembly.

PART V – ENFORCEMENT OF CODE OF CONDUCT AND ETHICS
35.
Investigations
(1)

The responsible Commission for a public officer may investigate to determine whether the public officer has contravened the Code of Conduct and Ethics.

(2)

An investigation may be made on the Commission’s own initiative or pursuant to a complaint by any person.

(3)

The Commission may refer a matter to another appropriate body for investigation and that body shall investigate the matter within a reasonable time and submit a report to the Commission on its findings.

(4)

An investigation may be conducted even if the subject of the investigation has ceased to be a public officer.

37.
Publication of actions
(1)

A Commission shall ensure that any action it takes under section 36(1) is made public in the manner prescribed.

(2)

In making its action public the Commission shall ensure that at least the following is made public—

(a)

a description of the public officer’s contravention of the Code of Conduct and Ethics including the circumstances of the contravention and the degree of the public officer’s culpability;

(b)

a summary of the evidence upon which the finding that there was a contravention was based; and

(c)

a description of the disciplinary action the Commission took against the public officer or, if the Commission referred the matter to another body or person, the disciplinary action the Commission considered appropriate and the disciplinary action taken by that other body or person.

38.
Referral for possible civil or criminal proceedings

If, as a result of an investigation under this Part, the Commission is of the view that civil or criminal proceedings ought to be considered, the Commission shall refer the matter to the Attorney-General or other appropriate authority.

39.
Exceptions

This Part (section 35 excepted) does not apply with respect to offices for which the Constitution provides a procedure for removal for misbehaviour.

PART VI – GENERAL
40.
Obstruction or hindering persons under Act

A person who, without lawful excuse, obstructs or hinders a person acting under this Act is guilty of an offence and is liable, on conviction, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding five years or to both.

42.
Regulations

The Minister may make regulations for the better carrying out of the provisions of this Act.

SCHEDULE

[Section 26.]

DECLARATION OF INCOME, ASSETS AND LIABILITIES

1.

Name of public officer

(Surname)

(First name)

(Other names)

.

.................................

..................................

..................................

2.

Birth information:

(a)

Date of birth ..................................................................

(b)

Place of birth ...............................................................

3.

Marital status .......................................................................................

4.

Address:

(a)

Postal address ..........................................................

(b)

Physical address ...........................................................

5.

Employment information:

(a)

Designation .........................................................................

(b)

Name of employer .................................................................

(c)

Nature of employment (permanent, temporary, contract, etc.) ........................................................................

6.

Names of spouse or spouses:

(Surname)

(First name)

(Other names)

.

.................................

..................................

..................................

7.

Names of dependent children under the age of 18 years:

(Surname)

(First name)

(Other names)

.

.................................

..................................

..................................

8.

Financial statement for .......................................................................................

(A separate statement is required for the officer and each spouse and dependent child under the age of 18 years. Additional sheets should be added as required.)

(a)

Statement date ........................................................

(b)

Income, including emoluments, for periods from .................................. to .....................................................

(Including, but not limited to, salary and emoluments and income from investments. The period is from the previous statement date to the current statement date. For an initial declaration, the period is the year ending on the statement date.)

Description

Approximate amount

.

.

.

.

(c)

Assets (as of the statement date)

(Including, but not limited to, land, buildings, vehicles, investments and financial obligations owed to the person for whom the statement is made.)

Description (include location of asset where applicable)

Approximate value

.

.

.

.

.

(d)

Liabilities (as of the statement date)

Description

Approximate amount

.

.

.

9.

Other information that may be useful or relevant:

I solemnly declare that the information I have given in this declaration is, to the best of my knowledge, true and complete.

Signature of officer: ...........................................................................

Date:..................................................................................................

WITNESS:

Signature: ................................................................................

Name: .....................................................................................

Address: .................................................................................