Court restores Auditor-General's powers to audit the military

Auditor General Edward Ouko

Auditor General Edward Ouko got back powers to monitor security expenditure after the High Court declared several changes made to the Public Audit Act unconstitutional.

Justice Chacha Mwita restored the independence and autonomy of the office of the Auditor General, gave him the powers to audit military and police expenditure and granted him the freedom to choose his staff without interference from the Executive.

In his ruling yesterday, Justice Mwita said it was wrong to clip powers of the Auditor General and declared nine sections in the Public Audit Act (2015) unconstitutional. He wants them struck off from the Act.

The sections declared unconstitutional are 4(2), 8, 12, 17(1), 18, 27, 40, 42 and 70.

“I find that the Executive exceeded its powers and mandate in the process of enacting the Public Audit Act and in the process, violated the Constitution. I therefore declare the sections unconstitutional, null and void and should be expunged from the Act,” ruled Mwita.

In passing the Act, the government had sought to shield the military and other security organs from the Auditor General’s scrutiny.

The expunged section provided that in auditing national security organs, the Auditor General must first hold meetings with security officials to agree on areas to audit.

Statutory head

It also stopped him from disclosing security personnel involved in any misappropriation of funds.

Justice Mwita also reaffirmed that the Auditor General is a constitutional office, and that the head cannot be subject to Executive appointment.

“Section 4(2) of the Act is unconstitutional to the extent that it says the Auditor General is a statutory head and that his staff may be delegated from other government institutions,” said Mwita.

He also declared the creation of the Audit Advisory Board as unconstitutional, saying this will allow senior government officials who are supposed to be subjects for auditing to sit in the board and influence the process.

The administrative functions set out in the Act, Mwita ruled, would interfere with the independence of the office and that the auditor has the power to appoint his own staff without involvement of the Public Service Commission (PSC).

The petition was filed by Transparency International (TI) through lawyer Apollo Mboya.