By TEE NGUGI

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How do you act as an attorney for persons over whom you have oversight responsibilities? One day you are grilling them over misappropriation of public funds. The next day you are defending them in court over accusations of theft of the same funds.

If this is not an obvious case of conflict of interest, then Kenya's Senate and National Assembly should redefine the concept to fit our increasingly strange country where we normalise the abnormal, sanitise criminal behaviour, lay hands on and bless tribal demagogues, elect thieves, and repackage poisonous foods for public consumption.

It would be inconceivable for MPs in, say, Europe, to act as attorneys for public figures whom they oversight. Not just because of the blatant conflict of interest, but more fundamentally, because it would offend both ethical and moral sensibility.

But what makes this issue even more perplexing and vexing is that such conduct is unequivocally outlawed by the 2010 Constitution.

Chapter Six of the supreme law directs state officers to avoid a conflict between personal interest and execution of public duties. The same chapter binds state and public officers to conduct themselves in ways which bring honour to their offices and which promote public confidence in the same. In addition, the section in Chapter Two on principles of governance binds public and state officers to act in ways that promote the principles of good governance.

Finally, the Constitution directs that public and state officers should act in ways that are consistent with its objects and purposes.

It should be a matter of common sense that the Constitution cannot have a provision which expressly bars senators or MPs who are lawyers from defending persons over whom they exercise oversight.

An unstated provision in the Constitution is that those who manage public affairs will be reasonable and apply common sense. No society can function without that basic assumption.

This debate reopens another more fundamental discussion: Is the Senate, as constituted, useful and cost effective? Since 2013, the Senate has shown itself to be an unnecessary burden on the Kenyan taxpayer.

The Constitution gave Senate a limited role: to protect the interests of the counties and to impeach the President should the need arise. Aware of its superfluous existence, the Senate has tried many times to usurp power from the National Assembly to no avail.

As a result of this failure, it finds itself in the ridiculous situation of looking for work to do. It debates issues that are really the domain of the National Assembly, going through the motions of a serious and useful constitutional body. But even its real work of oversighting counties has been a spectacular failure.

The most damning demonstration of this failure is the case of Nairobi County which has been unravelling right under the nose of the Senate. But it is not just Nairobi or Kiambu that are choking under financial and administrative chaos.

Almost all the counties — with the possible exception of Makueni — are riddled with corruption and maladministration. In all likelihood, more governors will be charged with thievery and abuse of office.

Having had little success in usurping power from MPs, and their oversight role a mess, senators could have made themselves useful by initiating a re-imagination of the structures of government, including the Senate, to make them more cost effective.

Or they could have led a national audit of the Constitution. Or they could have led a national conversation on the national values proposed in the Constitution with a view to bringing them alive in the operations of government and private enterprise.

Instead, senators and their Speaker use the unlimited time in their hands and money in their wallets politicking in churches and at funerals. The lawyers among them use their time defending those over whom they have oversight, thus potentially getting a share of the looted millions.

Is it not possible for a powerful committee of Parliament to oversight counties and, if needs be, impeach the President? Alternatively, is it not possible for Senate to be comprised of retired and respectable men and women who would only draw sitting allowances, and who would convene on a need-to-basis?

As we look at rationalising state parastatals and commissions, we should also look at whether or not the functions of Senate can be more effectively carried out by other bodies.

The National Assembly too has also exhibited uncountable instances of unethical behaviour since 2013. But its constitutional mandate and necessity are not controversial. What the House lacks is a better quality — morally and intellectually — of members.

Tee Ngugi is a Nairobi-based political commentator