In the last couple of months, the courts have made numerous rulings some that have rubbed the Executive the wrong way. Some of these decisions are critical in regaining long lost trust in the Judiciary as an independent arm of government. But many, especially the politically tainted ones, exhibit the courts’ extreme naivety of the true dynamics of law and real-politic.
To their credit, the courts have on many occasions exhibited brilliance when “legislating” by defining the true meaning of the Constitution or determining whether laws passed by Parliament are unconstitutional. The most recent of such occasions arose in last weeks’ decision declaring some parts of the Public Audit Act unconstitutional.
For those not in the know, the Office of the Auditor General is one of two independent offices created by the Constitution. By its nature, the office is critical to the management of public funds and the mode in which it exercises its powers is generally contested in most jurisdictions. It is then no wonder that some people felt that the Act passed by Parliament in 2016 went against the spirit of the Constitution. My good friend Apollo Mboya pursued the case for a declaration that a number of clauses were unconstitutional and last week Justice Chacha Mwita gave his well-considered judgement. While one may argue with the Judges’ findings on some of the contested issues, the judgement is generally well thought through and fairly balanced in approach.
The Judge is very strong in ensuring an independent office while ensuring that aspects of the law that improved the Auditor Generals’ effectiveness were not declared unconstitutional. However, on the question of the audit of the security sector the Judge created a potential crisis and this matter will require parliamentary attention before the law is applied in the form that the Judgement contemplates.
In the judgment, the Judge opened the entire security sector to an unrestricted audit and mandated full disclosure of the audit results. That I believe is a fundamental flaw in an otherwise good judgement. For the avoidance of doubt, I strongly believe that the security sectors must be subject to audit. The sector uses public money and must be protected from abuse; the cover of national security is not sufficient to absolutely insulate the sector from accountability. That is not what the Act had even proposed. What it sought to provide were the protocols to be applied in the process of audit of this sensitive sector. In the process of security sector audits, two questions always require consideration. Who undertakes the audit and how is information procured from the audit to be managed and/or publicized?
In all jurisdictions where a public audit process occurs, different protocols are applied to ensure that in the audit of the security sector, information critical to national security does not fall on the wrong hands, including foreign agents with nefarious objectives. That is why all those who carry out such audits require serious security vetting. The Court’s view that by vetting the auditors the government was determining who would audit it was ill informed. The officers to be vetted would all be employees of the Auditor General. I have no doubt that this is an issue the government will not compromise; no government worth its name would allow access to sensitive security information to just anybody, audit or no audit.
The other critical issue is the question of publication. If all information is to be published openly, that may, for example, involve the publication of the extent and manner in which government spends funds on undercover networks to identify terror group operatives. How were parties engaged procured? It may involve disclosing the sensitive military equipment we spent our budgets on. Or that we spent nothing! What of operations we jointly fund with other international players, many clandestinely? Such disclosure would injure our national interests irredeemably. There must therefore be a delicate balance between transparency, accountability and national security. The Court has done its work. Parliament must move with haste to review these aspects of the law, recognising the Court’s concerns for accountability, but protecting critical national security considerations.
-The writer is an Advocate of the High Court of Kenya