EACC Unveils New Rules on Wealth Declarations and Conflict of Interest

The Ethics and Anti-Corruption Commission (EACC) has unveiled new administrative mechanisms governing conflict of interest, recusal and the declaration of income, assets and liabilities by public officers.

According to a Gazette Notice dated Tuesday, August 18, the rules provide new procedures for public officers to declare conflicts of interest and submit wealth declarations, while also setting out mechanisms for accessing, storing and managing the information.

The new rules require public officers to declare conflicts of interest before or during discussions, decisions, debates or votes where they become aware of a real, apparent or potential conflict.

EACC stated that a conflict can be declared either before a transaction begins or after the officer becomes aware of the conflict while the transaction is ongoing.

"A conflict of interest may be declared prior to a discussion, decision, debate or vote where the officer is aware of any real, apparent or potential conflict before the discussion, decision, debate or vote is set to take place; and in the course of a discussion, decision, debate or vote where the officer immediately becomes aware of any real, apparent or potential conflict during the discussion, decision, debate or vote," the notice read in part.

According to EACC, once a conflict has been declared, the affected public officer will be required to withdraw from the relevant transaction, with the recusal recorded in the minutes.

The rules provide that recusal may involve physically leaving a meeting or refraining from contributing to discussions or debates concerning an agenda where the officer has a conflict.

"A recusal by a public officer as required under section 30 of the Act may entail not physically attending, or physically removing oneself from the discussion, decision, debate or vote, or refraining from contributing to a discussion or debate on an agenda where the public officer has a conflict of interest," the notice added.

EACC noted that reporting authorities will also have a specific timeframe within which they must submit information about recusals to the EACC.

The authority responsible for the public officer will be required to transmit the declaration of recusal to the Commission within 60 days after the recusal took place, with details of the officer, the conflict declared and how the officer recused themselves.

Meanwhile, on wealth declarations, the new rules require public officers to disclose their income, assets and liabilities, including those of their spouses and dependent children below the age of 18.

The requirements cover declarations made when an officer assumes office, biennial declarations and final declarations when an officer leaves public service.

EACC further provided specific timelines for each category of declaration, requiring an initial declaration within 30 days of appointment, a biennial declaration on or before December 31 every other year and a final declaration within 30 days of ceasing to be a public officer.

The rules also require officers to disclose assets and liabilities held outside Kenya and jointly held property, with the officer's attributable share indicated.

"Any income, assets and liabilities that a public officer may have outside Kenya, should be declared," the notice further read.

The obligation to declare wealth will apply broadly to state and public officers, including those who are on leave, undergoing disciplinary action, on secondment or undertaking overseas assignments, unless an exemption has been granted by the Attorney General and published in the Gazette.

The rules further provide for officers with separated spouses and those whose spouses are also public officers. 

Officers who are required to make declarations to more than one responsible Commission must submit a separate declaration to each applicable Commission.

Elected state and public officers will also be required to make a final declaration when their terms expire, even if they intend to seek re-election.

The EACC has further established administrative measures that may be taken against public officers who fail to submit their declarations within the required period.

These measures may include notices to comply, warnings, stoppage of salary pending compliance and disciplinary proceedings, in addition to possible prosecution.

The new mechanisms also establish procedures for members of the public seeking access to information contained in wealth declarations. 

Responsible Commissions will be required to notify the officer concerned and give them an opportunity to make representations before making a decision.

A responsible Commission must determine an application for access within 30 days, while access granted to an applicant will be limited to the information requested rather than the entire declaration.

The rules also provide public officers with a right to access their own declarations, with responsible Commissions required to provide a certified copy within 14 days of receiving the application.

Law enforcement agencies seeking access to a public officer's declaration will similarly be required to make a written request stating the reason for access.

EACC has also provided for the automation of wealth declaration processes, allowing responsible Commissions to use online systems for submission, acknowledgement, analysis and management of declarations.

Such systems may identify incomplete information, detect discrepancies and flag potential conflict-of-interest concerns.

The mechanisms further provide that electronically submitted declarations will remain valid without a physical signature or acknowledgement stamp where they are submitted through an approved automated system.