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A more balanced take on the Saga vs OO and clique looking for anything to further an Agenda...



Conflict of interest in Lucy-Diop saga

Story by SYLVIA WAIRIMU KANG'ARA
Publication Date: 5/5/2005
The conflict between outgoing World Bank country director Makhtar Diop and First Lady Lucy Kibaki over the right to quiet enjoyment of private space presents a web of issues and many interesting lessons.

What complicates the mix of issues in this saga, however, is not the private disagreement over reasonableness and unreasonableness in the use and enjoyment of private space.

It is the fact that the parties are public figures and we, therefore, have some stake in how they conduct their private matters.

One question I cannot get out of my mind is how a high-ranking World Bank official wound up as a tenant of the same people he was supposed to supervise, keep on their toes, reform and even direct.

All this time, we have been crusading about corruption and the rule of law, thinking that Mr Diop is on one side of the table and President Kibaki and his government on the other. It now turns out that the World Bank knows its client pretty well!

On the party itself, the private aspect of this confrontation is amazingly basic. Whether you are in Muthaiga or Korogocho, rights go hand-in-hand with obligations.

A landlord has a right to rent payments and an obligation not to interfere with the tenant. A tenant, on the other hand, has a right to enjoy rented premises provided such enjoyment does not amount to such unreasonable use that it substantially interferes with someone else enjoyment of his or her property.

Freedom to enjoy, in other words, requires collaboration, or everyone is a loser.

Who is to enforce these rights and obligations? That depends first on who can best assess such situations to determine that a landlord is "unduly interfering" or a tenant is committing "substantial interference" through "unreasonable use".

If one man's noise is another's music, self-help is bound to be messy and uncertain as to outcome.

Moreover, and for good reason, we are inclined to think that tenants are always vulnerable and need protection from the landlord class. It is, however, difficult to tell whether this is the case in the Diop-Kibaki saga.

Notice that I am ascribing landlord status to Mrs Kibaki even though Mr Diop apparently obtained "clearance" to erect a sound system at his party from State House!

It is the public implication of this confrontation that should give us pause, however. That this was probably just an innocent private arrangement does not satisfy our expectation that those who can affect the lives of many by the mere stroke of a pen should make early conflict of interest assessment at every stage of their private and public engagements.

Again, this is an amazingly basic rule that could do wonders for professionalism if followed. Conflict of interest assessment should prevent one from entering into relationships, even perfectly legal relationships, that could affect one's professional judgment at the moment or in future.

The point of focus in conflict of interest assessment must always be the client, the shareholder, the intended beneficiary of services provided.

Any arrangement that could potentially bring own-beneficiary interest into conflict should be scrutinised.

Now we must wonder: How does this power-play and fall-out affect the Kenya-donor relations? Will the flow of crucial resources continue? Have crucial relations fallen apart and can someone mend them? What other cosy affairs are politicians conducting with donors, or donors conducting with politicians, that could potentially hurt us?

For all those Kenyans who live under the tyranny of noise-polluted environments from sunrise to sunrise, First Lady Lucy's elaborate display of frustration is nothing short of a return to civilisation!

I think the law is on her side on this one even though custom and tradition are not. Amazing it is that law rather than custom should support the keeper of children's bedtime and neighbourhood tranquility.

I think the World Bank would have a hard time disagreeing with Mama Lucy here – given their mission statement.

Now that Muthaiga knows a little about life in Korogocho, Mama Lucy should shift her gaze to children and families suffering from noise pollution in various parts of Nairobi. We should all support that effort. The World Bank should support it too.

Meanwhile, here is an ethical question. If for some reason Mama Lucy is emotionally unstable, how should the news media treat her condition?

How should the media cover such situations about people who, by all accounts, need compassion as bona fide members of society?

Do the media have established policies for covering heroes like Mr Kenneth Matiba, who suffered a stroke while serving this country?

Imagine if your spouse showed up at Nation Centre in that condition, how would you want her treated?

I still have a high regard for Lucy. Women go through so much, yet they have brought us up with care and diligence.

We must turn the corner to become a conversing nation rather than a condemning nation. It will be sad to see Mrs Kibaki continue down this painful road alone.

Where are her children? Where are her doctors, her husband? The mind is such a fragile thing, isn't it?


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Ms Kang'ara who holds a doctorate in law from Harvard Law School, is an Independent Legal Scholar in Seattle, United States.