Introduction: Agnes Wanjiru’s Case
On the 20th December 2023, the Ethics and Anti-corruption Commission (EACC) in Kenya, welcomed with jubilation the judgment of the Nyeri Employment and Labour Relations Court that declared the double employment of Agnes Wanjiru unlawful.[1] The judgment by Justice Onesmus Makau brought to an end a year-long battle pitting Agnes Wanjiru against the EACC. On the 2nd of August 2022, Wanjiru – a public servant, petitioned the Employment and Labour Relations Court to stop the Kirinyaga County Assembly and Clerk of the County Assembly from withholding her emoluments as directed by the EACC. While serving as an external Board member at the Kirinyaga County Assembly, she was also employed by the Jomo Kenyatta University of Agriculture and Technology as a senior lecturer. In addition to seeking the release of her salary, Wanjiru further sought to bar the EACC from meddling with her second job at the County Assembly. Wanjiru’s case is one of the many unethical cases involving public servants that have drawn the attention of the EACC, a public body mandated to fight corruption and unethical conduct; another case is that of Jennifer Gitiri, who serves as the acting Secretary and CEO of the Council of Legal Education and is alleged to hold 8 eight public jobs.[2] In pursuit of the Court’s decision, EACC embarked on retrieving all salaries, allowances and benefits earned by Wanjiru while she served as a board member at Kirinyaga County.[3]
Constitutional and Legal Requirements
While contesting Wanjiru’s case, EACC contended that Wanjiru’s appointment at the Kirinyaga County amounted to double employment, which is an affront to Article 77(1) of the Constitution[4] and Section 26 of the Leadership and Integrity Act.[5] The Constitution of Kenya, under Article 77 (1), as read with Section 26 of the Leadership and Integrity Act, prohibits a full-time state officer from engaging in other gainful employment. Gainful employment is defined as work pursued for money or other forms of compensation that are not in line with the duties of a state officer or impair their judgment while performing their official duties.[6] In tandem with the Constitution and Leadership and Integrity Act, Section 8 of the Public Officers Ethics Act proscribes public officers from taking up other employment or holding other public office.[7] Thus, the EACC further contended that it is inconsequential for Wanjiru to claim that she was retained at the County Assembly Public Board on a part-time basis since, under Section 45 1 (a) and (b) of the Anti-Corruption and Economic Crimes Act,[8] she committed an offence by unlawfully acquiring benefits. Wanjiru’s defence was that she was a public servant and not a state officer as per Article 77(1) of the Constitution and Section 26 of the Leadership and Integrity Act. Nonetheless, the Court held that by dint of Section 52 of the Leadership and Integrity Act, which extends the application of Article 77 of the Constitution to public servants, she was prohibited from engaging in other forms of gainful employment.
Justification for Restrictions on Double Employment
Conflict of interest has always been a major/significant reason behind the prohibition of public servants’ engagement in gainful employment. The Government of Kenya, like other governments, is concerned with devising strategies to prevent conflict of interests in the public service because such strategies are crucial to enhancing public integrity and public confidence. Conflict of interest has the tendency to cloud one’s judgment, prompting one to favour a particular interest over the other. In a situation where a public officer is faced with choosing between a personal interest and official duties, it is more likely that the personal interest would prevail. Thus, under Section 12 of the Public Officers Ethics Act, a public officer should refrain from being in a situation where their personal interests would compete with their official duties. The Court agreed with the EACC by observing that Wanjiru was a full-time employee of the Jomo Kenyatta University of Agriculture and Technology, required to be at work every day of the week. Her engagement at the university would not enable her to perform her duties at the County Assembly, which was miles away, without adversely affecting her duties at the university. Aside from conflict of interest, it is unethical for public officers to be entangled in double employment, considering Kenya’s high unemployment rate. In a report documented by the World Bank, despite growth in Kenya’s economy, Kenya records the highest unemployment rate in East Africa.[9]
Conclusion
In light of President Ruto’s efforts to address the level of unemployment in Kenya, which is at risk of being dampened by double employment in the public service, the EACC should continue to prevent public officers from unethically holding multiple public positions. It is unethical for one person to hold more than one job in the public service to the detriment of many Kenyans wallowing in joblessness. Similarly, a public officer is obligated to provide services to the public, and any other interests that would adversely affect the performance of their duties must be avoided.
[1] Dr. Agnes Wanjiru Njeru Gatama vs the Ethics and Anti-Corruption Commission & 2 others, Cause No. 3 of 2002.
[2] Ndungu Chiuri, “Jennifer Gitiri: Story of Kenyan Lady Accused of Holding 8 CEO Jobs” The Kenya Times (December 6, 2023) https://thekenyatimes.com/latest-kenya-times-news/jennifer-gitiri-story-of-kenyan-lady-accused-of-holding-8-ceo-jobs/, accessed 20 January 2024.
[3] Richard Kamau, “Court Ruling Allows EACC to Recover Salaries from Public Officers Holding Multiple Positions” Nairobi Wire (January 5, 2024) https://nairobiwire.com/2024/01/court-ruling-allows-eacc-to-recover-salaries-from-public-officers-holding-multiple-positions.html, accessed on 20 January 2024).
[4] The Constitution of Kenya, 2010.
[5] The Leadership and Integrity Act, No. 19 of 2012 Laws of Kenya.
[6] Ibid, Section 26 (2).
[7] Public Officers Ethics Act No. 4 of 2003 (Revised Edition, 2012) Laws of Kenya.
[8] Anti-Corruption and Economic Crimes Act No.3 of 2003 (Revised Edition, 2016) Laws of Kenya.
[9] “Kenya has the Highest Unemployment Rate in East Africa, Report Shows”, The Kenya Times, (September 12, 2022) https://thekenyatimes.com/business/economy/kenya-has-the-highest-unemployment-rate-in-east-africa-report-shows/, accessed 20 January 2024.
