Judge lifts the lid on how security billions are used

Auditor-General Edward Ouko. FILE PHOTO | NATION MEDIA GROUP

What you need to know:

  • In his far-reaching ruling, Justice Mwita said that the sections were against the spirit of the Constitution.
  • Suba South MP Mbadi said the ruling would enhance accountability by national security organs.
  • Justice Mwita ruled that the office of Auditor-General is independent and should not be interfered with by any legislative process

The military, National Intelligence Service and police will now have to reveal how they spend the billions of shillings allocated to them every financial year after a judge on Friday declared the law barring their scrutiny unconstitutional.

The ruling will come as a major victory for the proponents of transparency in government spending.

The decision by Justice Chacha Mwita vindicated Opposition MPs and pro-transparency groups that had protested against the provisions inserted in the Public Audit Act when it was revamped by the National Assembly in 2015.

Now, the Auditor-General can use his constitutional mandate to audit and report on the money allocated to the National Intelligence Service (NIS), the Kenya Defence Forces and the Kenya Police Service after Justice Mwita declared sections of the Public Audit Act unconstitutional.

EXPENDITURE
Sections 4(2), 8, 12, 17(1), 18, 27, 40, 42 and 70 touch on the independence of the Office of the Auditor-General but also put restrictions on checking the accounts of security agencies.

In his far-reaching ruling, Justice Mwita said that the sections were against the spirit of the Constitution, which empowers the Auditor-General to audit the expenditure of public offices and to run his office independent of interference from the Executive.

These sections, which were passed in 2015, were at the centre of controversy in Parliament as Opposition MPs tried in vain to have them dropped.

They had succeeded at first but when the proposed law was vetoed by President Uhuru Kenyatta and the sections prescribed, the Opposition could not muster the two-thirds of members required to overturn his suggestions.

National Assembly Minority Leader John Mbadi, who was among the MPs who opposed the offensive sections at the time, on Friday welcomed the decision of the High Court.

“It vindicates our position,” he said when contacted by the Saturday Nation.

“The bigger picture is that it indicts Jubilee and the tyranny of numbers. That a lot of laws that Jubilee passes using their tyranny of numbers are not good for the country. We are just not able to challenge all of them.”

CORRUPTION
He said the ruling would enhance accountability by national security organs.

“This thing of hiding behind national security expenditures has been misused in a way that just helps in profiting people.

"People have been making money out of it through corrupt deals, pretending to be protecting security information,” the MP who is also the chairman of ODM, the biggest party in the Opposition Nasa coalition said.

Mr Makali Mulu, the MP for Kitui Central, said that since security agencies were funded by taxpayers’ money, much should be done to ensure there is accountability.

“The first principle is that auditing is a must,” he said.

“The next level is that those who audit must be vetted if it is a matter of the security agencies feeling that those who audit might leak some secrets to the public.”

ACCOUNTING
Although the accounts of the police, NIS and military are audited, the reports often fail to disclose some issues on the basis that they are privileged.

In his latest report on the Interior Ministry, the Auditor-General, Mr Edward Ouko, reported that he was unable to establish whether the Sh2.3 billion lost when a new police helicopter crashed was recoverable because the tender and contract documents for its purchase were classified.

The military often explains its failure to account for the money it gets as a single vote from the Defence ministry on the basis that no separate books of accounts are kept. 

No separate financial statements for the KDF are prepared and submitted to the Auditor-General as required by the KDF Act.

The Public Audit Act required the Auditor-General to first hold a meeting with top officers of a security agency before the start of the audit.

INDEPENDENCE

The law then gave the agencies the powers to decide which information was to be reported to the public and to MPs.

The Act also required that the staff of the Auditor-General looking into the accounts be vetted “by the authorised government vetting agency” and that auditor reports “may be redacted to shield identities of persons as well as assets and liabilities.”

Justice Mwita invalidated section 12 of the Act, which provides for an acting Auditor-General in case of any vacancy due to suspension, inability to perform functions or pending appointment of a substantive one.

The Act empowered Public Service Commission to recommend the most senior officer in the office of the Auditor-General to the President to designate such a person as acting Auditor-General.

Justice Mwita ruled that the office of Auditor-General is independent and should not be interfered with by any legislative process that would ground its mandate, which is to ensure accountability of public resources. 

He also declared as unconstitutional Section 42 of the Act, which barred the Auditor-General from questioning the merits of a policy objective of the national or county government or any other public entity.

PARLIAMENT
The judge also quashed section 27 of the Act, which established the Audit Advisory Board that was to advise the Auditor-General on the exercise of his or her powers and the performance of his or her functions.

The board was established to guide the Auditor-General on the recruitment of senior managers, review of organisational development issues, preparation of budget estimates, remuneration and other terms of appointment, which was to be carried out in consultation with the salaries commission.

In his ruling, Justice Mwita said that the Office of the Auditor-General was an independent organ created in the Constitution and Parliament cannot interfere with its powers and functions.

He quashed sections 4(2) and 8, which had empowered the Public Service Commission to supervise the Auditor-General and delegate to him or her power to develop a human resources structure, including staff recruitment, promotion, disciplinary matters, remuneration and benefits in consultation with the National Treasury.

“These sections were to curtail powers rather than enhancing the authority of the Auditor-General,” he ruled.

However, he declined to declare as unconstitutional several other sections of the Act as had been requested by the petitioner, Transparency International.

He also declined to find that Parliament and President Uhuru Kenyatta had violated the Constitution in the run-up to creation of the Act.

He said both had acted within their powers.

Additional reporting by John Ngirachu