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High Court reasserts independence of Auditor General from the Executive

The judgement was rendered Friday at the Milimani Law Courts/CFM

NAIROBI, Kenya, Feb 17 – The High Court on Friday re-asserted the independence of the Auditor General’s office in a judgment delivered by Justice Chacha Mwita.

The court found several provisions of the Public Audit Act inconsistent with the Constitution such as the creation of an ‘Audit Advisory Board’ to oversee the functions of the Auditor General.

Such a Board, the court found, would fly in the face of the independence guaranteed to the Auditor General by the Constitution.

“Consider the composition of members of the Audit Advisory Board, such as the Attorney General and Chairperson of the Public Service Commission. These are two heads of public bodies that are to be audited by the Auditor General, yet they are required to advise him on how to perform his work. This leaves section 27 plainly unconstitutional.”

“Parliament enacted a legislation that to a large extent altered the constitutional requirement; as the holder of an independent office, he is subject only to the Constitution and the law and is not subject to the direction or control of any person or authority.”

The Court also found that the creation of a statutory Acting Auditor General in the event a vacancy arises would be unconstitutional given the law already stipulates how independent office holders should be appointed.

“Section 12 of the Act is unconstitutional for creating the position of Acting Auditor General, a  position not contemplated by the Constitution. Section 12 provides that where the office of the Auditor General becomes vacant for whatever reason, or where his appointment is pending, the Public Service Commission will recommend the most senior officer in the office of the Auditor General to the President for designation as Acting Auditor General for 90 days. The person designated would exercise full powers of the Auditor General.”

The judgment  also found it unconstitutional for the National Security Organs which are the military, police and intelligence services, to dictate to the Auditor General how to scrutinize their accounts.

Section  40 of the Act proscribed that the organs vet their auditors and hold a pre-audit meeting to determine its scope.

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Section 42, also invalidated, provided that the Auditor General had no business questioning the merits of a policy objective of the national or county governments or any other state organ.

The Court however found that: “The Auditor General cannot confirm the viability of the policy objectives funded by the people of Kenya when section 42 suggests that he should not question policy objectives.”

The current Auditor General Edward Ouko earned the wrath of President Uhuru Kenyatta when he launched an investigation into  Kenya’s first Eurobond offering with several attempts made since to remove him from office.


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