The first Auditor General in Kenya under the 2010 Constitution has been a man under siege. One month ago, he was in the crosshairs of governors over audit reports that exposed bizarre expenditure items in counties. He has previously been ostracised by the President for zealotry in the Eurobond inquiry.
In Parliament he has been the subject of controversial removal from office proceedings arising from a frivolous petition that was thankfully scuttled by the Judiciary.
In criticism, the Auditor is not unique. All over the world supreme audit institutions bear the wrath of those they audit. An auditor who pleases everybody may be considered toothless or complicit.
In the face of such storms, the constitutional question that has not been properly addressed in Kenya is “who watches the watchman”.
The Constitution gives the Auditor General various safeguards and immunities and makes him accountable to the people through Parliament and county assemblies. Traditionally such accountability has been in the form of submitting audit reports to the legislatures.
In the Kenyan context, the Auditor General is different from other constitutional commissions that have several commissioners and a Chairman who is first among equals.
The Auditor General runs the show solo, with the “guidance” of an Audit Advisory Board which comprises of entities that are either clients or service providers of the Auditor, a situation that presents a potential conflict of interest.
On appointment of the Auditor General, the Constitution prescribes the procedure and gives the President power to nominate and National Assembly the power to approve the nominees. In a bicameral system, the Senate is left out of a significant decision that affects its constitutional mandate.
When it comes to appointment of an auditor to audit the accounts of the office of the Auditor General, the responsibility is once again given to the National Assembly to the exclusion of the Senate.
Finally, on matters to do with budget, the Auditor has always suffered arbitrary budget cuts that have impaired his ability to recruit, motivate and develop staff. In the last financial year, the office requested Sh8 billion, but was only allocated Sh5 billion.
To address these challenges, there is need for an oversight mechanism that is managed by Parliament in a manner that respects bicameralism and eliminates undue influence and conflict of interest.
The existing Public Accounts Committees of both houses are clients of the Auditor General and cannot be relied on to oversight the office. This calls for the establishment of a Joint Parliamentary Committee comprising members of both houses that would oversight the Auditor General.
The first distinct function of the joint committee would be to review the annual budgetary estimates of the Auditor General and recommend their approval to Parliament. Currently the budget is considered by the Finance Committee of the National Assembly and may not take into consideration additional resources required to carry out audit in the 47 counties.
Second, the joint committee would approve nominees to the Audit Advisory Board. This requires amendments to the Public Audit Act, which is well within the purview of Parliament.
The amendments would attempt to clip the influence of clients and service providers in the Advisory Board, as well as the influence of professional bodies that have grown a bad tendency previously seen in trade unions where some nominees have found a way of sitting on boards for life.
Third, the joint committee would be mandated to vet presidential nominees to the position of Auditor General and make recommendations to the relevant house.
Fourth, the joint committee would be responsible for approving the appointment of auditors to scrutinise financial statements of the Auditor General and to consider these reports once laid in the house.
The Public Accounts Committees of both houses would continue with their scrutiny of national and county government audit reports, with the exception of the report on the office of the Auditor General.
This approach has been tested in other jurisdictions, particularly in the United Kingdom where Parliament has established the Public Accounts Commission. These changes do not require a referendum, except slight amendments to the Public Audit Act and Standing Orders of both houses.
Senator Kajwang’ is Chairman – Senate County Public Accounts and Investments Committee.