By: David Yusuf Kabia, Public Education Officer, ACC
Conflict of Interest
In the arguable absence of an ascertained definition of ‘conflict of interest’, both local and international legislations and theories have attempted proffering situations, explanations and codifications on the subject-matter. While the topic already provides an insight on the definition, it is necessary to know how the subject has been defined by laws enacted and theories established. It is also necessary to understand that the subject ‘conflict of interest’ is broad but in this article has been resized to public officials serving in the public space where provision of opportunities and resources are made for and in the sole interest of the public. On this note, “The Organization for Economic Cooperation and Development (OECD) in 2003 developed its first benchmarking tool for reviewing member states’ public conflict of interest regimes”. In its report, “Managing Conflict of Interest in the Public Service” published in 2003, the OECD defined conflict of interest as “a conflict between the public duty and private interest of public officials, in which public officials have private-capacity interests which could improperly influence the performance of their official duties and responsibilities.” It could be seen from the OECD’s definition that conflict of interest becomes a problem where a public official cannot decide between his personal interest and that of the State where his/her loyalty should lie. A closer look into the aforementioned definition of the OECD clearly picked out three significant things to wit: (1) public officials, (2) with private-capacity interests and (3) that could improperly influence the performance of their official duties and responsibilities. In tandem with the Interpretation Section (1) of the Anti-Corruption Act 2008 (as amended in 2019) hereinafter called the Act, a Public Officer is “an officer or member of a public body including a person holding or acting in an office in any of the three branches of government, whether appointed or elected, permanent or temporary, or paid or unpaid.” It goes to show that those working in public capacities where State resources are held for and the benefit of the public must carry out those functions or responsibilities apportioned to them outside whatever private interest that they may have which may tend to conflict with that of the public for whose purpose those resources and opportunities exist. In Section 45 of the Act, conflict of interest is defined by showing situations which could make a public officer be found wanting for conflict of interest. In subsection (1), it requires public officials who found themselves in such conflicts to forthwith declare to that public body they belong to the nature of their personal interest which may conflict with that of the public. “Where a public body in which a public officer is a member, director, employee or is otherwise engaged proposes to deal with any company, partnership or other undertaking in which that public officer has a direct or indirect private or personal interest, that public officer shall forthwith disclose, in writing to that public body, the nature of such interest.”In subsection (2), it precludes public officers from voting in any decisions where either their relatives or associates may have interests in. In containing graft, conflict of interest is a major loophole for corruption which if not codified against would only make public resources and opportunities the suit of office for public officials. This need to deal with the subject-matter through State parties’ effort is clearly codified in Article 7 and 8 of the United Nations Convention Against Corruption (UNCAC).
Sierra Leone and the conundrum of the corruption of conflict of interest
The cost Sierra Leone has paid for what Authors like Sahr Kpundeh and Bankole Thompson has referred to as ‘governmental corruption’ still lingers on in the annals of our country’s political history. In 1993, in his book titled “Politics and Corruption in Africa: A case study of Sierra Leone”, Kpundeh noted how Sierra Leone has “endured a pattern of corruption remarkable in its depth and extent”. Governmental corruption which Bankole Thompson also referred to as a deadly curse to Sierra Leone in his book titled “Governmental Corruption in Africa: Sierra Leone as a Case Study” records conflict of interest as one of the swiftest ways corruption has ripped public officials of the integrity needed to protecting public resources and opportunities for the benefit of the public. Thompson also noted that governmental corruption cannot have a fitted definition due to what he referred to as “its inexhaustiveness of its categories” which he confirmed from a document jointly prepared by the United Nations Economic Commission for Africa and the African Association for Public Administration and Management, defining “unethical behavior” at the governmental level as encompassing: “bribery, corruption, abuse of office, patronage, nepotism, conflict of interest, influence peddling, using of official position for personal pleasure, favors to relatives and friends, divided loyalty, slowness, late-coming, partiality, partisanship, absenteeism, insubordination, misuse of government property, leaking or misusing government information and “engaging in any unsanctioned activity”. Our country’s political history clearly noted the extent to which public officials served their personal interests against that of the State and its people. This accounted for most part of the grievances that culminated in the decade long civil war as recorded by the Truth and Reconciliation Commission (TRC). That unethical behavior of trying to serve two masters was the centre of judgement in the Canadian case of Moll v Fisher(1979), 23 OR (2d) 609 at para 6, 96 DLR (3d) 506 (H Ct J (Div Ct) where the High Court noted that “All conflict of interest rules are] based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters. It recognizes the fact that the judgment of even the most well-meaning men and women may be impaired where their personal financial interests are affected. Public office is a trust conferred by public authority for public purpose”. Sierra Leone still battles with the problem of public officials putting their interest above that of the State and the public, a reason which accounted for the massive corruption that the country has suffered so far. The courts however have made efforts in ensuring discipline is applied against the corruption of conflict of interest by fairly hearing the prosecution of corruption matters and the putting up of Commissions of Inquiry into the misuse and mismanagement of State resources.
The many Commissions of Inquiry Sierra Leone has had remains an evidence that the corruption of conflict interest has been the door through which public resources and opportunities are siphoned into personal coffers. To this end, governmental corruption has been defined as “behavior of public officials which deviates from accepted norms in order to serve private ends” (Huntington, 1990). This behavior is manifested sometimes in line with Section 32 (Bid Rigging) where a public officer may choose to either refrain from doing something or do something in order to benefit oneself or a relative or Section 29 (using influence for contacts) where a public servant may accept an advantage from anyone in return for the award of contracts. This competing loyalties issue that affect the decision making of public officers was also addressed in the Canadian High Court case of Democracy Watch v Campbell, 2009 FCA 79 at paras 40-51,  2 FCR 139 where the court held that ” The common element in the various definitions of conflict of interest is … the presence of competing loyalties … the idea of conflict of interest is intimately bound to the problem of divided loyalties or conflicting obligations … Any conflict of interest impairs public confidence in government decision-making. Beyond that, the rule against conflicts of interest is a rule against the possibility that a public office holder may prefer his or her private interests to the public interest”
Therefore, in containing the corruption of conflict of interest, Bernardo Giorgio Mattarella in his write, “The Conflicts of Interests of Public Officers: Rules, Checks and Penalties” in Auby, Breen & Perroud, eds, (2014) at 30” proffered three recommendations as solutions to the problem of the corruption of conflict of interest.
Firstly, Mattarella called for the complete removal of the individual from public office. It is his opinion that the corruption of conflict of interest can be contained when the individual with the divided loyalty is removed from public service to serve his personal interest not with public resources.
Secondly, Mattarella believes the public officer should recluse him/herself from making any decision or taking part in any voting where his interest or that of his/her relatives is involved. While his first recommendation is not codified in the Act, his second recommendation is in subsection (2) of Section 45.
Finally, Mattarella believes that the public officer must disclose his/her personal interest where it exists. This is in tandem with subsection (1) of Section 45 of the Act.
Public officers in Sierra Leone must understand that the call to serve the nation and the people is an honour bestowed upon them that must be taken seriously. Their personal interest must not have a place in the administration of the very resources and opportunities that are meant to better the lives of the ordinary man. Should Sierra Leone live to prosper above the pains of corruption, a public officer must not be seen serving two masters-the public and his/her personal interest.