Public Officer Ethics Act

Section 1. Short title Section This Act may be cited as the Public Officer Ethics Act.

Section 2. Interpretation Section the Government or any department, service or undertaking of the Government;

Section 3. Determination of responsible Commission Section 3(1) This section determines what body is the responsible Commission for a public officer for the purposes of this Act. Section 3(2)(a) members of the National Assembly including, for greater certainty, the President, the Speaker and the Attorney-General; Section 3(2)(b) members of the Electoral Commission and the Public Service Commission; Section 3(2)(c) the Auditor-General; and Section 3(2)(d) Directors and Assistant Directors of the Kenya Anti-Corruption Commission. Section 3(3) The Public Service Commission is the responsible Commission for the public officers in respect of which it exercises disciplinary control and for the public officers described in paragraphs (d) and (e) of section 107(4) of the Constitution and for public officers who are officers, employees or members of state corporations that are public bodies. Section 3(4) The Judicial Service Commission is the responsible Commission for judges, magistrates and the public officers in respect of which it exercises disciplinary control. Section 3(5) The Parliamentary Service Commission is the responsible Commission for the public officers in respect of which it...

Section 4. Certain delegations by Public Service Commission Section 4(1) Subject to subsection (2), the Public Service Commission may, by notice in the Gazette delegate to another person or body any of its powers and functions under Part IV or Part V with respect to classes of public officers specified by the Public Service Commission and that person or body shall be deemed to be the responsible Commission with respect to such delegated powers and functions. Section 4(2) The Public Service Commission may delegate powers and functions only with respect to public officers in a job group below job group "M" or its equivalent. [Act No. 7 of 2007 , Sch.]

Section 5. Establishment of specific Codes Section 5(1) Each Commission shall establish a specific Code of Conduct and Ethics for the public officers for which it is the responsible Commission. Section 5(2)(a) include requirements beyond what is required under the general Code of Conduct and Ethics under Part III; and Section 5(2)(b) set out how any requirements of the specific or general Code may be satisfied. Section 5(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 to the extent that it would do so. Section 5(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.

Section 6. Publication of specific Codes Section 6(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. Section 6(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.

Section 7. Part sets out general Code Section This Part sets out a general Code of Conduct and Ethics for public officers.

Section 8. Performance of duties, general Section 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.

Section 9. Professionalism Section carry out his duties in a way that maintains public confidence in the integrity of his office;

Section 10. Rule of law Section 10(1) A public officer shall carry out his duties in accordance with the law. Section 10(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.

Section 11. No improper enrichment Section 11(1) A public officer shall not use his office to improperly enrich himself or others. Section 11(2)(a) has an interest that may be affected by the carrying out, or not carrying out, of the public officer’s duties; Section 11(2)(a)(i) has an interest that may be affected by the carrying out, or not carrying out, of the public officer’s duties; Section 11(2)(a)(ii) carries on regulated activities with respect to which the public officer’s organisation has a role; or Section 11(2)(a)(iii) has a contractual or similar relationship with the public officer’s organisation; Section 11(2)(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 Section 11(2)(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. Section 11(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 t...

Section 12. Conflict of interest Section 12(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. Section 12(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. Section 12(3)(a) declare the personal interests to his superior or other appropriate body and comply with any directions to avoid the conflict; and Section 12(3)(b) refrain from participating in any deliberations with respect to the matter. Section 12(4)(a) himself; Section 12(4)(b) a spouse or relative; Section 12(4)(c) a business associate; or Section 12(4)(d) a corporation, partnership or other body in which the officer has an interest. Section 12(5) The regulations may govern when the personal interests of a public officer conflict with his official duties for the purposes of this section. Section 12(6) In this section, "personal interest" include...

Section 13. Collections and harambees Section 13(1)(a) use his office or place of work as a venue for soliciting or collecting harambees; or Section 13(1)(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. Section 13(2) In this section, "collection", "collector" and "promoter" have the same meanings as in section 2 of the Public Collections Act (Cap. 106).

Section 14. Acting for foreigners Section 14(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. Section 14(2)(a) an individual is foreign if the individual is not a citizen of Kenya; Section 14(2)(b) an organisation is foreign if it is established outside Kenya or if it is owned or controlled by foreign governments, organisations or individuals.

Section 15. Care of property Section 15(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. Section 15(2) A person who contravenes subsection (1) shall be personally liable for losses resulting from the contravention.

Section 16. Political neutrality Section 16(1)(a) act as an agent for, or so as to further the interest of, a political party; or Section 16(1)(b) indicate support for or opposition to any political party or candidate in an election. Section 16(2) A public officer shall not engage in political activity that may compromise or be seen to compromise the political neutrality of his office. Section 16(3) This section does not apply to a member of the National Assembly or a councillor of a local authority.

Section 17. Nepotism, etc. Section A public officer shall not practice nepotism or favouritism.

Section 18. Giving of advice Section A public officer who has a duty to give advice shall give honest and impartial advice without fear or favour.

Section 19. Misleading the public,etc. Section A public officer shall not knowingly give false or misleading information to members of the public or to any other public officer.

Section 20. Conduct of private affairs Section 20(1) A public officer shall conduct his private affairs in a way that maintains public confidence in the integrity of his office. Section 20(2) A public officer shall not evade taxes. Section 20(3) A public officer shall not neglect his financial obligations or neglect to settle them.

Section 21. Sexual harassment Section 21(1) A public officer shall not sexually harass a member of the public or a fellow public officer. Section 21(2)(a) making a request or exerting pressure for sexual activity or favours; Section 21(2)(b) making intentional or careless physical contact that is sexual in nature; and Section 21(2)(c) making gestures, noises, jokes or comments, including innuendoes, regarding another person’s sexuality.

Section 22. Selection, etc. of public officers Section selected on the basis of integrity, competence and suitability; or

Section 23. Submitting of declarations,etc. Section A public officer shall submit any declaration or clarification required under Part IV to be submitted or made by him.

Section 24. Acting through others Section 24(1)(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 Section 24(1)(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. Section 24(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.

Section 25. Reporting improper orders Section 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.

Section 26. Declaration required Section 26(1) Every public officer shall, once every two years prescribed by section 27 , submit to the responsible Commission for the public officer a declaration of the income, assets and liabilities of himself, his spouse or spouses and his dependent children under the age of eighteen years. Section 26(2) The declaration shall be in the form set out in the Schedule and shall include the information required by the form. [Act No. 7 of 2007 , Sch.]

Section 27. When declarations must be made Section 27(1) The declaration shall be submitted in the December of every second year. Section 27(2) The statement date of a declaration under subsection (1) shall be the first day of November of the year in which the declaration is required. Section 27(3) Within thirty days after becoming a public officer, the public officer shall submit an initial declaration. Section 27(4) The statement date of an initial declaration under subsection (3) shall be the date the public officer became a public officer. Section 27(5) Within thirty days after ceasing to be a public officer, the former public officer shall submit a final declaration. Section 27(6) The statement date of a final declaration under subsection (5) shall be the date the public officer ceased to be a public officer. Section 27(7)(a) the public officer shall submit an initial declaration within sixty days after the administrative procedures are published; and Section 27(7)(b) the statement date of an initial declaration under paragraph (a) shall be the date the administrative procedures are published.

Section 28. Clarifications Section 28(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. Section 28(2)(a) a request that any information that may have been omitted be provided; or Section 28(2)(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.

Section 29. Information to be correct Section A person submitting a declaration or providing a clarification shall ensure that the declaration or clarification is correct, to the best of his knowledge.

Section 30. Access to declarations Section 30(1) The contents of a declaration or clarification under this Act shall be accessible to any person upon application to the responsible Commission in the prescribed manner if the applicant shows to the satisfaction of the responsible Commission that he or she has a legitimate interest and good cause in furtherance of the objectives of this Act, in such declaration or clarification: Provided that prior to the responsible Commission making an affirmative decision under this section, it shall grant the opportunity to the affected party to make representations on the matter. Section 30(2) No information obtained pursuant to subsection (1) shall be published or in any way made public except with prior written authority of the responsible Commission. Section 30(3)(a) publishes or in any way makes public any information obtained under the foregoing sections without prior permission of the responsible Commission; Section 30(3)(b) such information was disclosed to himself or to some other person; or Section 30(3)(b)(i) such information was disclosed to himself or to some other person; or Section 30(3)(b)(ii) such information was obtained in contr...

Section 31. Retention of information Section A Commission shall keep information collected under this Part concerning a person for at least five years after the person ceased to be a public officer. [Act No. 7 of 2007 , Sch.]

Section 32. Offences Section 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.

Section 33. Administrative procedures Section 33(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. Section 33(2) The administrative procedures shall be established and published in the Gazette within ninety days after the commencement of this Act. Section 33(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. Section 33(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.

Section 34. Amendment of Schedule Section 34(1) Subject to subsection (2), the Cabinet Secretary may, by notice in the Gazette , amend the Schedule to this Act. Section 34(2) The Cabinet Secretary 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.

Section 35. Investigations Section 35(1) The responsible Commission for a public officer may investigate to determine whether the public officer has contravened the Code of Conduct and Ethics. Section 35(2) An investigation may be made on the Commission’s own initiative or pursuant to a complaint by any person. Section 35(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. Section 35(4) An investigation may be conducted even if the subject of the investigation has ceased to be a public officer.

Section 36. Disciplinary action Section 36(1)(a) take the appropriate disciplinary action; or Section 36(1)(b) if the responsible Commission does not have the power to take the appropriate disciplinary action, refer the matter to a body or person who does have that power. Section 36(2)(a) within thirty days after the completion of the investigation; or Section 36(2)(b) if another body investigated the matter under section 35 (3), within thirty days after the responsible Commission receives the report of that body. Section 36(3) The responsible Commission shall inform the public officer concerned of any action it takes or intends to take under subsection (1) either before it takes the action or within thirty days after it does so. Section 36(4) Subsection (3) does not affect any legal requirement to inform a public officer earlier than is required under that subsection. Section 36(5) The regulations made under section 42 may govern what disciplinary action is appropriate for the purposes of subsection (1). [Act No. 7 of 2007 , Sch.]

Section 37. Publication of actions Section 37(1) A Commission shall ensure that any action it takes under section 36 (1) is made public in the manner prescribed. Section 37(2)(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; Section 37(2)(b) a summary of the evidence upon which the finding that there was a contravention was based; and Section 37(2)(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.

Section 38. Referral for possible civil or criminal proceedings Section 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.

Section 39. Exceptions Section This Part ( section 35 excepted) does not apply with respect to offices for which the Constitution provides a procedure for removal for misbehaviour.

Section 40. Obstruction or hindering persons under Act Section 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.

Section 41. Divulging information acquired under Act Section A person who, without lawful excuse, divulges information acquired in the course of 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. Provided that the provision of this section as to divulging of information without lawful excuse shall only apply to exempt information provided for in section 6 . [Act No. 31 of 2016 , Sch.]

Section 42. Regulations Section The Cabinet Secretary may make regulations for the better carrying out of the provisions of this Act.