Governors, Principal Secretaries and accounting officers in the government may get away with damning accountability questions following a radical court judgement that clips MPs’ and MCAs' powers.
In the judgment by High Court Judge, Justice Jairus Ngaah, the court barred Parliament and County Assemblies from considering any audit reports three months after receiving them from the Auditor General.
“A declaration is hereby issued that the constitutional timelines spelt out in Article 229(4) and (8) of the Constitution and sections 48 and 50 of the Public Audit Act, 2015 are mandatory and must be complied with,” the judge declared.
The constitutional provisions state that within six months after the end of each financial year, the Auditor-General shall audit and report – to Parliament – on accounts of national and county government agencies.
“Within three months after receiving an audit report, Parliament or the county assembly shall debate and consider the report and take appropriate action,” it adds.
The judgement, essentially, locks out the National Assembly, the Senate and County Assemblies from scrutinizing the audit reports for the two governments outside the set times.
In essence, it provides a window for the accounting officers – especially governors who are defined as the county executive officers – and Principal Secretaries who are the accounting officers in their respective ministries – to escape accountability.
Currently, Parliament is considering reports, some produced as early as the 1990s and 2017 for national and county government entities.
As late as last week, the national assembly was considering an audit report for the Kenya Medical Supplies Authority that exposed a possible loss of Sh1.5 billion in shady deals in the procurement of Covid 19 items.
The MPs are also considering the report over the Sh6 billion Telcom Kenya purchase scandal. In the counties, senators are considering various reports, some dating back to 2017, that reveal massive plunder.
Former and current governors have been on the spot over the plunder and misuse of public resources running into billions of shillings.
Already, the judgement has stalled the activities of the Senate County Public Accounts Committee, which scrutinizes audits for county executives and Assemblies.
Last week, the dreaded panel chaired by Homa Bay Senator Moses Kajwang’ was forced to adjourn its proceedings after Kisii Governor Simba Arati, who had appeared before it for questioning over previous years’ audit reports, produced the court order.
However, Kajwang’ while accusing the governors of using the court order to shield themselves from accountability, revealed that parliament is seeking a review of the order.
"This is a good ruling going forward but it is very dangerous for the money already expended,” Kajwang’ said when confronted with the court order.
The vocal chairman said allocation to the county equitable share is still dependent on audited accounts as approved by Parliament which currently is behind schedule.
“To this end, the judgement is good because it will ensure that counties get up-to-date allocation,” he said But he said the judgement of the court refused to take into account some challenges of auditing the funds.
“We are moving to court to review the judgement. We want the court to allow us to complete the consideration of the reports before the committee,” he said.
The committee faulted the judgement saying Justice Ngaah should have offered a transition for parliament to complete the reports before its committee.
"In such judgements, the courts usually take notice of the situation and provide a mechanism for handling such matters. The judge should have allowed us to complete the consideration of existing reports,” Busia Senator Okiya Omtatah said.
Besides the Executive and Assembly reports for the 47 devolved units, the Senate also considers various funds, hospitals and investments by the counties.
The National Assembly, on the other hand, deals with all audits for Ministries, departments, agencies, referral hospitals and learning institutions among others.
MPs say it’s practically impossible for Parliament to consider all the reports within three months directed by the Court.
Nairobi Senator Edwin Sifuna said that Parliament cannot accept being limited by the courts while performing its duties.
“The Senate works hard to ensure that County Governments get more funds to ensure that they can run effectively, the least we expect from the Governors is to ensure proper utilisation of funds, there should be no problem when it comes to auditing,” Sifuna said.
The radical judgement delivered on October 1, 2024, follows a petition by the Nairobi Executive (the Republic) against the Nairobi County Assembly and the Auditor General.
In this case, the petitioner is challenging the implementation of the recommendation of the Nairobi Assembly report on its scrutiny of the Auditor General’s report for the Nairobi City County Alcoholic Drinks Control and Licensing Board.
According to the Executive, the Auditor General delayed the audit for the financial year 2019-20 by over nine months.
“It is only on 28 September 2022 that the Auditor General submitted her report to the County Assembly,” the court papers read.
The Assembly, on the other hand, they argued, did not debate the report within three months but delayed it until June 2022, thus violating Article 229 (8) of the Constitution.
“The Assembly Speaker is said to have tabled the Select Committee Report on the Auditor General’s Report for the Financial Year 2019-20, for the Nairobi City County Alcoholic Drinks Control and Licensing Board, on 22 June 2023,” it says.
“The Applicants are aggrieved by the Select Committee Report for violating the 9-month timeline in Article 229 (4) and (8) of the Constitution and for violating Articles 47 and 50 thereof by denying the Applicants a fair hearing before making a decision that was prejudicial to them,” it says.
The judge dismissed arguments and defence and argument by the Nairobi Assembly and Auditor General.
“Accordingly, I am persuaded that the applicants’ application is merited,” the judge said.
The judge added, “On the contrary, by flagrantly breaching the Constitution and the Public Audit Act, the respondents assumed jurisdiction which they did not have.”
