Why there can be no acting Auditor General

The race to succeed Dr Edward Ouko has started after President Uhuru Kenyatta declared a vacancy in the office of the Auditor General.

A successor will picked from one of the toughest and transparent nomination exercise.

The declaration of the vacancy announced Friday calls for Kenyan citizens who have at least ten years’ experience in auditing or public finance, and who are holders of a degree in finance, accounting or economics to apply for the position.

After declaration of vacancy, what next?

According to the Public Audit Act, 2015, the President has 14 days to constitute a selection panel made up of seven individuals.

The 14 days begin after the vacancy has been declared and applications have been received, the deadline of which is September 9.

The selection panel shall comprise of a chairperson and one representative from the Ministry of Finance, the Office of the Attorney General, Public Service Ministry, the Institute of Certified Public Accountants of Kenya, the Association of Professional Societies of East Africa, and the Law Society of Kenya.

How is a suitable candidate picked?

The selection panel should pick at least three qualified individuals for appointment as Auditor General.

“The selection panel shall hold its proceedings in public and submit to Parliament a report of the interview proceedings, which should include inter alia the scores of each candidate interviewed by individual members of the interviewing panel together with the criteria used in selecting the names forwarded,” the Act explains.

Within seven days of the selection of candidates, the three names will be forwarded to the President who will nominate one of them and forward the name to the National Assembly for vetting.

The National Assembly shall consider the nomination and may approve or reject it. If the nominee is approved, “the Speaker shall, within three days of the approval, forward the name of the approved nominee to the President for appointment.”

But if the nominee is rejected, “the Speaker shall, within three days of the rejection, communicate the decision to the President, who shall submit a fresh nominee from amongst the candidates forwarded by the selection panel.”

Can there be an acting Auditor General?

If the National Assembly rejects all or any of the subsequent nominees submitted by the President for approval, the President will once again constitute a fresh selection panel.

Although the Public Audit Act, 2015 states that “until a substantive Auditor General is in office, the Public Service Commission shall recommend the most senior officer in the office of the Auditor-General to the President to designate such a person as the acting Auditor-General,” the High Court found this provision to be inconsistent with the Constitution in a case filed by Transparency International versus the Attorney General and two others in Petition No 388 of 2016.

“In my respectful view, there cannot be an acting Auditor General because the Constitution only recognises Auditor General appointed in accordance with Article 229(1). Any attempt to create a substantive position of acting Auditor General by statute, appoint a person otherwise than as contemplated by the Constitution and allow him/her to exercise constitutional functions and powers of the Auditor General, amounts to an unconstitutional office and unconstitutional exercise of functions and powers of the constitutional independent office,” judge Chacha Mwita ruled.

According to Article 229 of the Constitution, the Auditor General is mandated to audit and report on the accounts of any entity that is funded from public funds. The Auditor General should also confirm whether or not public money has been applied lawfully and in an effective way.