There are certain offices that attract a lot of attention from governments. Offices that check on the spending of taxpayer money tend to be among the most difficult, and controversial, positions. These include the office of the controller of budget, as it is called in Kenya, office of the auditor general (AuG), and commissioners of the anti-corruption authority. These offices together with those that are involved with the actual collection and use of taxpayer money must be protected. The protection given to these offices is intended to allow the office holder to do their job without fear or favour. The tenure of the AuG, as an independent authority, is highly protected. The AuG can be dismissed only for gross misconduct or serious violation of the Constitution, and whether he has done so is a matter for an independent tribunal to decide (Art. 251). But for this protection the current AuG might have been dismissed by now.
Before the 2010 Constitution the office of the Controller and Auditor General (CAG) was a single post. However, this meant that the person with control over spending was the same as the one who checked that the spending had been done correctly. The 2010 Constitution created two separate positions: the Controller of Budget and the Office of the Auditor (OAG) General. When the offices were combined, the CAG would be under great pressure and often would delay reports sometimes for several years due to intense political pressure under previous regimes. This was true in most other countries where the two positions were held by one official.
Between 2010 and 2014 the Kenyan government under the new constitution struggled with this shift. By April 2014, a letter was sent by the PS Treasury to the Ethics and Anti-Corruption Commission based on allegations of corruption at the OAG. Almost 3 years later, the DPP was reported to have cleared the Auditor General Dr Edward Ouko and instead recommended the prosecution of deputy auditor Stephen Kinuthia over fraud and corruption. This process has put incredible pressure on the office of the AuG and yet within days an NGO, the International Policy Group headed by Martin Nkaari, has renewed the request for Dr Ouko’s removal, and parliament is now requesting people to supply information they have on the AuG.
Over the past three years despite intense scrutiny from the office of the DPP, the AuG has continued to work under his mandate but has received other challenges. Under the old constitution, reports were submitted to the Minister of Finance, and within 7 days tabled in Parliament. This gave the government an opportunity to meddle with the reports. Now Article 229 says that reports must go direct to Parliament (or the relevant county assembly). And Article 229(8) tries to ensure that audit reports are acted upon by giving Parliament a deadline of three months to “consider the report and take appropriate action.” In 2015 State House required the AuG to breach his constitutionally mandated power to be the check and balance of government fiscal spending by submitting his reports to the ministries before they were submitted to parliament. This request was not only in breach of the Constitution but also a breach of the Public Finance Management Act and can be construed as an obstruction to the work of a state officer. The controller of state house was never censured for this attempt to breach the laws of the country.
The AuG office is an independent institution to check government spending on behalf of the people of Kenya, including looking into the accounts of the Treasury. To breach this separation of powers and give Treasury oversight over the audit defeats the entire purpose of checks and balances. An interesting recent example of the AuG’s work was raising concerns over the building of a mall by the Lake Basin Authority.
Current allegations against the AuG include: firstly, allegedly failing to submit yearly reports to the House and the President. Secondly, hiring senior staff without the advice of the Audit Advisory Board. Thirdly, wasting public funds through irregular procurements, key among them the single sourcing of an audit vault software at an allegedly inflated cost of Sh100 million. The AuG is alleged to have colluded with his executive committee and Deputy Auditor General Stephen Kinuthia to irregularly approve procurement of this software. Finally, the petitioner claims the Auditor General never submitted a report from his office as required by Article 254(1) of the Constitution. These allegations, without any evidence having been unearthed in the investigations by the DPP (and the hurried way in which it is being taken through the National Assembly, at a time when MPs can find time for little else than their campaigns for a new term), are signs of their haste to get rid of him. At this critical time, allegations of this type can hardly help the economy. A clean financial bill of health of a country not only ensures the stability of a state’s economy but encourages both domestic and foreign investment as well as enhancing the country’s global standing in multiple contexts. Kenya declared itself a middle income country in 2015 and a clean financial bill of health is crucial to maintaining this trajectory.
One cannot help but wonder whether firstly, the anger against the AG is because of disappointment with his recent report on the implementation of the constitution, especially on devolution, commissioned by the National Assembly’s Finance Committee. It is less critical than they had expected and provides less support for the repeal of provisions of the Constitution they do not approve of. At present the Finance Committee is sitting on the report. Secondly, as we come to the run up to elections, it is possible that those contesting for political seats are looking to empty out as many appointed seats as possible in order to make the way for the granting of political favours after their own successful election. since the AuG does currently have security of tenure he would remain in place into the next parliament unless he is found incompetent.
Instead of fighting against the implications of the 2010 Constitution, the government should firstly, learn how to work with the AuG’s office and not against it. Secondly, the maintenance of the checks and balance should always be protected. Thirdly, and more specifically in this context, the audit of the AG’s procurement practices should be dealt with using the rule of law and not be sensationalized. Fourthly, since the DPP has stated that the deputy AuG is potentially culpable, this matter must proceed against him. But let the AuG do his difficult and complex task in this election year when money is more likely than ever to disappear mysteriously from the Treasury.
By DR ATTIYA WARIS