New law to gag auditor on military spending

Kenya; In another move bound to raise eyebrows over the right to access information, the Government has quietly developed a Bill prohibiting the Auditor General from making public findings of the spending of the military, intelligence and police service.

Budgets of national security organs will only be disclosed to the President and special or joint committee of Parliament “under a closed session.”

The Public Audit Bill (2014) was published on December 8, just 10 days before the National Assembly controversially passed the contentious security laws. Although the new Bill is scheduled for debate when Parliament returns from recess next month, The Standard on Sunday has established that only a select few senior government officials and the Cabinet are up to speed with the latest developments.

Attorney General Githu Muigai confirmed that the Bill is lined up for debate immediately Parliament returns from recess.

“That one (Public Audit Bill) and the one on procurement are some of the Bills that will be discussed early in the new term by Parliament. They are on the fast track of parliamentary business,” Prof Muigai said.

The chief government legal advisor, however, declined to delve into the merits or specific aspects of the proposed law saying he is not qualified to respond to technical aspects of the Bill.

Section 40 of the new Bill prohibits the Auditor General from making public “particular information in a public report if it would prejudice the security, defence or international relations of the Government of the Republic of Kenya.”

Massive wastage

The new provision represents a major departure from the present, where the Auditor General’s reports are publicly subjected to scrutiny by Parliament through standing House committees.

Instructively, information on security and defence, which the Auditor General was compelled to redact, triggered alarm bells on massive wastage in the Department of Defence (DoD).

Revelations of procurement anomalies have been a source of poisoned relations between the DoD and the National Audit Office.

The Bill comes against a backdrop of audit queries in the current Auditor General’s report which raises serious procurement questions about the acquisition of several armoured personnel vehicles for more than Sh8 billion and the transfer of Sh800 million from the Ministry of Defence to National Intelligence Service months before the last General Election.


The proposed law also bars the Auditor General from disclosing information that “would unfairly prejudice the commercial interests of anybody or any other reason that would form the basis for a claim by a foreign state or person on the National Government or county government in a judicial proceeding.”

The Bill comes at a time the country is grappling with allegations of irregular imports of sugar, wildlife poaching, cattle rustling and drug trafficking with senior officials accused of complicity. More significantly, the UN, in recent reports, has raised serious questions on the ‘economic’ activities of the African Mission in Somalia (Amisom) troops in the Port of Kismayu.

National Assembly Minority Leader Jakoyo Midiwo says MPs are not aware of the Bill. When The Standard on Sunday read to him parts of the Bill, Mr Midiwo described the Pubic Audit Bill as “state declaration of theft public resources.”

“We are not going to allow Parliament to be used as a tool to obstruct accountability. The law is worse than the Security Laws Act and amounts to open declaration of state theft of taxpayers’ money,” the Gem MP said.

The Bill, we established, has only been seen by a few state officials in the presidency, National Assembly Speaker Justin Muturi, Attorney General, Solicitor General Njee Muturi and National Assembly Majority Leader Adan Duale, among others.

Public scrutiny

In a memorandum of objects and reasons annexed to the Bill, Mr Duale says clauses 29-40, where the audit of the security organs is laid out, merely provides for audit process and types of audit. However, the memorandum does not give reasons.

The Bill gives the AG powers to expunge parts of the Auditor General’s report.

It compels the Auditor General to withhold information if “the Attorney General has issued a certificate to the Auditor General stating that in the opinion of the Attorney General, disclosure of the information would be contrary to the public interest for any of the reason in subjection two (2).” Asked why security matters should not be open to public scrutiny, Muigai pointed out that non-disclosure of security budgets is a universal practice and not unique to Kenya.

“It is a concern raised by the Ministry of Defence. You wouldn’t want what you are spending on national security and defence to be known by potential enemies. The best qualified people to explain further are the department of defence,” the AG explained.

The Government has not conclusively disposed of audit queries on the award of tenders of the multi-billion shillings Standard Gauge Railway and the Lamu Port South Sudan-Ethiopia Transport (Lapsset) project.