Friday, May 20, 2016

Bob Collymore is right

Safaricom, the multi-billion-shillings-in-profit company, has been the victim of a crime. Bob Collymore, Safaricom's CEO, states that a draft report prepared for Safaricom's consideration was illegally leaked to the public. He is correct.

First, let us begin with Article 260 of the Constitution which defines "person" as including a corporation, of which Safaricom is one. Then we come to come to Article 31 which guarantees every person's right to privacy, especially sub-Article (d) which protects the privacy of a person's communications from being infringed.

The leaked report has energised the National Assembly, through its Finance, Planning and Trade Committee, to enquire into alleged graft at Safaricom, and has summoned the CEO, Mr Collymore, to appear before the Committee and offer an explanation. This brings us to Parliament's power under Article 125 to summon any person (including Safaricom's CEO) to appear before it for the purpose of giving evidence or providing information. This power can be exercised by either House of Parliament or any parliamentary committee, such as the Finance, Planning and Trade Committee of the National Assembly, and shall be exercised as if the committee were the High Court of Kenya.

The leaked report, according to Safaricom, is in draft form. Many of the outstanding issues raised in the draft report could be resolved once all the persons adversely mentioned in the report respond to the allegations against them to the satisfaction of the makers of the draft report. In this regard, the National Assembly jumped the gun; the draft report had not yet definitively accused Safaricom or its officials of graft. It had only documented allegations that needed clarification.

On the other hand, there is no provision that the National Assembly had to wait; common sense tells us that it should have waited for the final report to be published by Safaricom, before it summoned Safaricom's CEO. I hope that the members of the parliamentary committee understand that even though they have the High Court's powers when it comes to compelling the attendance of persons before it, Parliament could not act against the details of the report, even if they were true, other than by preparing a report of its own and directing the relevant agencies of the national Executive to take the necessary action. Parliament is restricted to obtaining information and preparing a report. It is not empowered to fire Safaricom's officials or levying fines against the company for graft or other crimes.

I believe that many parliamentarians remain unsure of their proper role when it comes to behemoths such as Safaricom, a publicly-traded company that is interwoven in our day-to-day lives in very intimate ways. They seem not to appreciate that Safaricom has a Board of Directors, a code of conduct and a corporate governance structure that should address internal company matters, such as whether company officers are engaged in acts of breach of trust, that is, breaches of their fiduciary duties to the company, its employees or its shareholders. And where the company commits any crimes, for example, where company officers, in the name of the company, pay bribes to public officials in order to win tenders, it is not Parliament that will act, but the National Police Service and the Director of Public Prosecutions with support from the Capital Markets Authority and, perhaps, the Competition Authority and the Communications Authority.

As of now, however, Safaricom is the victim of an unconstitutional act, the divulging of corporate secrets protected by Safaricom's right to privacy under Article 31. Bob Collymore is right to claim that this invasion of Safaricom's privacy is illegal, regardless of the fact that Safaricom is not a natural person.

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