Auditor General Edward Ouko in court seeking protection against Uhuru and MPs
By Kamau Muthoni
| March 9th 2017
Auditor General Edward Ouko has sued President Uhuru Kenyatta and Parliament in a bid to block his ouster from office.
In his application filed under a certificate of urgency by lawyer Otiende Omolo, Mr Ouko wants the decision by the Speaker and Clerk to commit a petition for his removal before Parliament cancelled.
He submitted that President Kenyatta should not be allowed to sign a recommendation by the National Assembly to have a tribunal investigate him, thereby forcing him to step aside.
Ouko told the court that the legislators rushed the hearing process. He termed it malicious.
"Given the malicious nature, the unprecedented fast-tracking and unfair manner that the process was undertaken, the applicant (Ouko) is apprehensive that the process will irreparably violate his fundamental rights and freedoms guaranteed under the Constitution," said Mr Omolo.
Ouko in court papers filed yesterday claimed he was not given a chance to interrogate his accuser as the law provides. He added that he was not even allowed to know him as Parliament's Standing Orders provide.
As Ouko fights to remain in office, his junior, an ICT officer, also filed a case seeking to block Director of Public Prosecutions Keriako Tobiko from pressing charges against him on the same issue.
The officer, Justus Ong'era, in his case filed before the High Court, said he was being unfairly targeted since the audit vault tender was above board and had a green-light from his boss, Ouko.
Mr Ongera, who filed his case through Kerandi Manduku & Company Advocates, argued that the Auditor General had written to Oracle Systems Ltd seeking to know whether the firm had local partners, as the tender had required, and he got an affirmative answer.
The answer from Oracle was that the only partner it had with reference to Kenya was OSI Slovenia and the implementing partner of the audit vault was Osi Kenya Ltd, which is a subsidiary of the Slovenia firm.
By this time, he said, Mr Tobiko was already considering prosecution. Ong'era argued that if the Ethics and Anti-Corruption Commission had taken a step to confirm with Oracle, it would have concluded that there was no case against him.
"This aspect was not covered by the second respondent and if a statement was obtained from Oracle Systems Ltd confirming the above, then the EACC recommendation and the DPP's decision in respect to the proposed charges would have been different," Ong'era said.
Back to Ouko's case, he argued there was nothing serious filed against him by his accuser, lawyer Emmanuel Mwagambo Mwagonah, to warrant the National Assembly to admit the petition on gross misconduct.
"They (National Assembly Finance Committee members) failed to observe the applicant's right to cross-examine his accuser. By admitting the petition and proceeding to consider it, the National Assembly gravely violated the Constitution," said Omolo.
He added: "The instant petition to remove the applicant was just glib and roving and most fundamentally it did not allege serious violations of the Constitution or gross misconduct on the part of the applicant."
According to him, the petition broke the Standing Orders, adding that it ought to have been dismissed immediately.
He submitted that a close scrutiny of the papers filed before the Clerk of the assembly revealed that there was not an iota of evidence to implicate the Auditor General for any wrongdoing.
Ouko added that the chairperson of the Finance Committee erred by ruling that the decision on whether or not there was evidence should be left to the tribunal. He said the process starts with the Clerk and ends with the committee, which should decide if the petition has weight or not.
"The petition did not demonstrate in what manner the alleged violations occurred. The sufficiency and adequacy must be considered by the Clerk, then the Speaker who forwards it to the advisory committee wherein it is forwarded to the departmental committee," he said.
"The committee abdicated its duty when the chairperson held that it was not their duty but the duty of the tribunal to examine the threshold," he added.
The Auditor is also seeking to block Speaker of the National Assembly Justin Muturi from allowing the petition to be debated in the House.
He also wants the court to order Mr Muturi not to forward any recommendation emanating from the issue to the President.
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