The Public Service Commission Procedure for Administration of Part IV of the Act

Legal Notice 53 of 2016

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Legal Notice 53 of 2016
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Public Officer Ethics Act
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LAWS OF KENYA

PUBLIC OFFICER ETHICS ACT

THE PUBLIC SERVICE COMMISSION PROCEDURE FOR ADMINISTRATION OF PART IV OF THE ACT

LEGAL NOTICE 53 OF 2016

  • Published in Kenya Gazette Vol. CXVIII—No. 38 on 15 April 2016
  • Commenced on 15 April 2016
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

Part I – PRELIMINARY

1. Citation

These Procedures may be cited as the Public Service Commission Procedures for Administering Part IV of the Act.

2. Interpretation

In these Procedures, unless the context otherwise requires—“authorised officer” means a person to whom the Commission has delegated its powers and functions in accordance with section 4(1) of the Act;"declaration form” means the form set out in the Schedule to the Act in accordance with section 26(2) of the Act;"final declaration” means a declaration made in accordance with section 27(5) of the Act;"initial declaration” means a declaration made in accordance with section 27(3) of the Act;“two-year declaration” means a declaration made in accordance with section 26(1) of the Act; and“Secretary” means the person appointed as the chief executive of the Commission in accordance with Article 233(5) of the Constitution.

3. Application

These Procedures shall apply to the administration of Part IV of the Act with respect to the public officers for whom the Commission is the responsible Commission.

4. Commission's Administration Officer

(1)The Secretary shall be the responsible officer of the Commission for the purpose of the application of these Procedures.
(2)The Secretary may designate in writing officers from among the staff of the Commission to assist the Secretary for the purpose of the application of these Procedures.

5. Delegated powers and functions

Where the Commission has delegated its powers and functions under section 4 of the Act to another person, the provisions of paragraph 4 of these Procedures shall apply to that other person.

Part II – PROCEDURE IN RELATION TO DECLARATIONS

6. Declaration forms

(1)The Commission or each authorised officer shall issue each public officer who is under its or his or her authority, as the case may be, with a declaration form if that public officer is required to file a declaration in accordance with the Act.
(2)Where a public officer is required to make a two-year declaration, the Commission or the authorised officer, as the case may be, shall provide that public officer with a declaration form on or before the 1st November of the year in which the two-year declaration is to be made.
(3)Where a public officer is required to make an initial declaration or a final declaration, the Commission or the authorised officer, as the case may be, shall issue that public officer with the declaration form at least thirty days before that officer is to make the declaration.
(4)The Commission may publish the declaration form in a format that may permit the declaration form—
(a)to be rendered in digital format on a website; or
(b)to be downloaded from a website and printed out in paper format.

7. Completion, return and confidentiality of declarations

(1)A public officer who is in job group "M" or below, or its equivalent, shall complete and return his or her declaration to the authorised officer to whom that public officer is responsible and that authorised officer shall retain that declaration in safe custody.
(2)A public officer who is in job group "N" or above, or its equivalent, shall complete and return his or her declaration to the Secretary so that the declaration is received by the Secretary within thirty days from the date on which the declaration should have been submitted in accordance with the Act.
(3)The Commission or an authorised officer shall not disclose, access, acquire or publish the information in the declaration except as may be provided in the Act and these Procedures.

8. Register of declarations

(1)This paragraph shall apply to all public officers regardless of rank or grade.
(2)The Commission or an authorised officer shall maintain a register containing details of each public officer who is required to make a declaration in accordance with the Act including—
(a)the name of the public officer;
(b)the public officer's staff personal number;
(c)the date a declaration form was delivered to the public officer;
(d)the date the completed declaration was delivered by the public officer to the Commission or to the authorised officer, as the case may be;
(e)the signature of the person authorised to receive the declaration on behalf of the Commission or the authorised officer;
(f)any remarks relating to the declarations;
(g)the date an authorised officer delivered the declarations to the Commission;
(h)the name of the ministry, department, state corporation or public body to which the relevant public officers making the declarations belong; and
(i)the number of declarations received from the authorised officer.
(3)The Commission or the authorised officer may maintain separate registers in respect of initial, two-year and final declarations.

9. Returns to the Commission

(1)This paragraph applies to all public officers regardless of rank or grade.
(2)An authorised officer shall submit to the Commission, by the 31st January following the submission of two-year declarations, the following information in relation to the two-year declarations by public officers under his or jurisdiction or authority—
(a)the total number of public officers on the payroll;
(b)the total number of public officers who are unpaid or who are working on a part time basis or who are working on a temporary basis as on the 31st October of the year of declaration;
(c)a certified copy of the register maintained in accordance with paragraph 8;
(d)the total number of public officers who have submitted declarations within the prescribed time;
(e)the total number of public officers who have failed to submit declarations within the prescribed time;
(f)any action taken by the authorised officer or report made to the Attorney-General or Director of Public Prosecutions in relation to the public officers in job group "G" and below, or its equivalent, who have failed to comply with the Act; and
(g)any relevant remarks relating to the returns.
(3)In the case of initial and final declarations, an authorised officer shall submit to the Commission the information required in subparagraph (2) in respect of—
(a)the six month period between January and June on the 31stJuly; and
(b)the sixth month period between July and December, on the 31st January of the following year.

Part III – PROCEDURE IN RELATION TO CLARIFICATIONS

10. Requests for clarifications

(1)Where the Commission wishes to make a request for a clarification in accordance with section 28(1) of the Act in relation to a declaration made by a public officer in job group "H" and above, or its equivalent, the Commission shall make that request in writing to that public officer.
(2)Where an authorised officer wishes to make a request for a clarification in accordance with section 28(1) of the Act in relation to the declaration made by a public officer under that authorised officer's authority in job group "G" and below, or its equivalent, that authorised officer shall make the request in writing to that public officer.

11. Nature of clarifications

(1)A request for a clarification shall be made by the Commission or an authorised officer only after an analysis of the declaration has been made.
(2)In the case of a public officer in job group "H" and above, or its equivalent, and in the case of a public officer in job group "G" and below, or its equivalent, the Commission or an authorised officer, as the case may be, shall analyse the declaration to ascertain if—
(a)the declaration by the public officer is false or incomplete;
(b)the assets of the public officer who submitted the declaration are disproportionate to his or her known income; or
(c)the income, assets or liabilities of the public officer who submitted the declaration raise concerns of impropriety or conflict of interest or any other breach of the Code of Conduct and Ethics.
(3)Where, after an analysis by the Commission or an authorised officer, it is ascertained that—
(a)a declaration by a public officer is false or incomplete;
(b)the assets of the public officer who submitted the declaration are disproportionate to his or her known income; or
(c)the income, assets or liabilities of the public officer who submitted the declaration raise concerns of impropriety or conflict of interest or any other breach of the Code of Conduct and Ethics, that public officer shall be requested in writing by the Commission or the authorised officer, as the case may be, to make a clarification in accordance with section 28(1) of the Act.
(4)Where, after a clarification by a public servant, the Commission or an authorised officer, still finds that—
(a)the declaration by a public officer is false or incomplete;
(b)the assets of the public officer who submitted the declaration are disproportionate to his or her known income; or
(c)the income, assets or liabilities of the public officer who submitted the declaration raise concerns of impropriety or conflict of interest or any other breach of the Code of Conduct and Ethics, the Commission or the authorised officer may take such action as the Commission or the authorised officer considers appropriate including notifying the Attorney-General, the Director of Public Prosecutions or any other competent authority.

12. Action and reporting of failure to comply generally

The Secretary shall inform the Commission of any public officer in job group "H" and above, or its equivalent, who does not comply with the provisions of the Act, and the Commission shall—
(a)require the authorised officer to take appropriate action against that public officer in relation to any administrative disciplinary action; or
(b)notify the Attorney-General, the Director of Public Prosecutions or any other competent authority in relation to civil or criminal action against that public officer.

Part IV – PROCEDURE FOR THE DISCLOSURE, ACCESS, ACQUISITION OR PUBLICATION OF INFORMATION

13. Disclosure and publication of information in a declaration

(1)A person who wishes to gain access or to publish information in relation to a declaration under the Act by a public officer shall—
(a)apply in writing to the Commission or authorised officer;
(b)demonstrate to the Commission or authorised officer that he or she has a legitimate interest in the information; and
(c)demonstrate to the Commission or authorised officer that the access to or publication of that information shall be in furtherance of the objectives of the Act.
(2)Where a written application is in relation to a declaration made by a public officer in job group "H" and above, or its equivalent, the application shall be made to the Commission.
(3)Where a written application is in relation to a declaration made by a public officer in job group "G" and below, or its equivalent, the application shall be made to the relevant authorised officer.
(4)Subparagraph (1) shall not apply to the staff authorised by the Commission or by the authorised officer to have access to the information for the purposes of these Procedures.
(5)Where a person has made an application to the Commission or an authorised officer in accordance with this paragraph—
(a)the Commission or the authorised officer, as the case may be, shall inform the concerned public officer of the application;
(b)the Commission or the authorised officer, as the case may be, shall give the public officer a reasonable opportunity to make a representation in relation to the application; and
(c)the Commission or the authorised officer, as the case may be, shall take into consideration the representation by the public officer while determining the application.
(6)The Commission or an authorised officer shall determine an application made in accordance with this paragraph within a reasonable time.
(7)The Commission or the authorised officer shall maintain a register of applications and decisions made under this paragraph setting out—
(a)the name of each applicant;
(b)the date each application was received;
(c)the name and staff personal number of the public officer who was the subject of the application;
(d)the ministry, department, state corporation or public body to which the public officer belongs;
(e)a brief description of the information applied for; and
(f)a brief description of the decision made in relation to the application.

14. Access to information in a declaration

The Commission or a relevant authorised officer shall not give access to the information in a declaration to—
(a)the public officer who made the declaration unless the public officer can verify his or her identity; or
(b)a representative of the public officer who made the declaration unless that representative—
(i)can provide proof of his or her authority to act as a representative of the public officer; and
(ii)can provide proof that shall verify the identity of the public officer.

15. Decisions to be final

Except as provided under the Act and these Procedures, the decisions of the Commission or an authorised officer in relation to a declaration by a public officer shall be final.

Part V – MISCELLANEOUS

16. Cessation of retention of information

(1)Where the period for retaining information obtained in accordance with Part IV of the Act has lapsed, the Commission shall determine what action shall be taken in relation to that information.
(2)The Secretary or an authorised officer may make a written proposal to the Commission in relation to the action to be taken by the Commission in accordance with subparagraph (1).

17. Digitalisation of records

The Secretary or the relevant authorised officer shall render the declaration records in digital formats for ease of retrieval, reference and storage.

18. Commission may act in any event

Despite a delegation by the Commission for the purposes of these Procedures, the Commission may—
(a)exercise the delegated power or perform the delegated function; or
(b)on its own motion, revise a decision of the Secretary or of a relevant authorised officer made for the purposes of these Procedures.

19. Audit and investigation

The Commission may audit or investigate the manner in which an authorised officer has discharged his or her duties under these Procedures.

20. Matters not covered by these Procedures

The Commission may issue written instructions in relation to any matter that has not been provided for in these Procedures in relation to the application of Part IV of the Act.

21. Right of the Secretary or authorised officer to be heard

The Commission shall, at the request of the Secretary or an authorised officer, hear him or her, or his or her representative in relation to any matter the Secretary or the authorised officer has referred to the Commission during the application of these Procedures.

22. Revocation of L.N. No. 76 of 2009

The Public Service Commission Procedures for the Administration of Part IV of the Act of 2009 (L.N. 76/2009) are revoked
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History of this document

31 December 2022 this version
15 April 2016
Commenced
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