The role of two senators in the trial of Nairobi Governor Mike Sonko has sparked fierce public debate over possible conflict of interest. Yet this is not the first time this is happening. The practice of senators representing governors is increasingly becoming common. It is not illegal. However, it is fraught with moral perils, which is the reason it should consume our minds.
Precisely, Senators Kipchumba Murkomen, who is the Majority Leader, and Mutula Kilonzo Jr (Makueni) together with Dan Maanzo (Makueni MP) have taken brief for the disgraced governor, doing so as distinguished lawyers and officers of the court. Siaya Senator James Orengo has acted for Busia Governor Sospeter Ojaamong in a corruption case. Mr Orengo and Nyamira Senator Okong’o Omogeni have represented Deputy Chief Justice Philomena Mwilu in another corruption case.
These cases test legal and ethical principles. In law, nothing precludes a senator, an MP or any other political leader, who is lawyer, from representing a client. Lawyers are free to represent anyone so long as they uphold the principle of confidentiality.
A cardinal principle, also, is that of neutral partisan, which stipulates that lawyers can represent any client without making judgment or caring about the outcome of the case.
However, there are legal and non-legal issues that frame the way we look at things or make decisions. Not everything has to be grounded or explained in legal terms. There are moral and ethical issues that define leadership and relationships in society.
The matter at hand is this. The role of the Senate is to oversee operations of counties. Senators play oversight role over governors. They investigate and interrogate operations and financial expenditures of counties. Conversely, when they represent governors in court, they obtain information not available elsewhere.
For this reason, it becomes difficult for a senator who represents a governor charged in court over theft of county resources to turn around and make dispassionate decision on the same fellow when summoned to the Senate to answer to corruption cases. It is a straight case of conflict of interest.
Yet, the framers of the Constitution never anticipated that. Since this has become a practical reality, it must be addressed.
National Assembly and Senate Speakers should cause amendments to the Standing Orders to guide on this. Ideally, a senator who has represented a governor on corruption charges should recuse himself or herself when a matter about the fellow is brought to the House. Parliament needs to amend Standing Orders to guide MPs who are lawyers on their participation in court matters.