Breakthrough as Auditor General allowed to audit NIS, KDF expenditures
The Auditor-General is now free to audit billions of shillings annually allocated to the National Intelligence Service (NIS), Kenya Defence Force (KDF) and National Police Services.
This is after the High Court declared section 40 of Public Audit Act number 34 of 2015 on the auditing of national security organs and dozens of others within the act, as inconsistent with the provisions of the constitution.
Justice Chacha Mwita declared as unconstitutional the entire section which required the Auditor-General to hold an inception meeting at the highest level to agree on areas on national security and determine the appropriate audit approach to ensure confidentiality of information.
The section further states that auditors “shall be vetted by authorized government vetting agency” and that “auditor reports on national security organ may be redacted to shield identities of persons as well as assets and liabilities”.
Justice Chacha ruled that the section together with eight others interfered with the independence of the constitutionally established office of the Auditor General.
The sections include 4(2), 8, 12, 17(1), 18, 27, 40, 42 and 70, which he observed would crippled the powers and functions of the auditor general and are against national values and principles set out in the constitution.
“In conclusion, these sections were to curtail powers rather than enhancing the authority of the auditor general,” he ruled.
Justice Mwita noted that the Auditor General office was created in the constitution 2010 and parliament cannot purport to amend the constitution to make it it’s creature, as stated in section 4(2) of the act.
The section stated that the office of the Auditor-General and his staff were to be appointed by the Public Service Commission which is constitutionally empowered to establish and abolish offices in the public service.
However, the Judge declined to declare unconstitutional several other sections of the act and the procedure used by the parliament and President Uhuru Kenyatta to create the act.
Transparency International (TI) through lawyer Apollo Mboya filed the case against Attorney General seeking the sections and others declared unconstitutional for clipping the powers of the Auditor-General to audit public spending.
The Auditor General represented by lawyer Milcah Ondek and Africa Center of Open Governance (Africog) Julie Soweto were listed as first and second interested parties.