Executive should stop sideshows and address Auditor's sticky issues

Auditor General Nancy Gathungu before the Senate's CPAC committee. March 4th,2025 [Elvis Ogina, Standard] In very rare occasions do this column address the same subject matter consecutively or even more than once. However, in the face of the ongoing attacks on the persons of the Auditor General (AG) and the Controller of Budget (CoB) by top officials in the Executive and Legislature, certain issues demand to be made clear to the powers that be. For clarity, the AG and the CoB are Independent Constitutional Officers established by Articles 229 and 228 respectively under Part 7 of Chapter 12 of the Constitution on Financial Officers and Institutions. The other two institutions under this part are the Salaries and Remuneration Commission and the Central Bank of Kenya. This alone must remove any doubt as to whom the two offices were designed to serve and their pecking order under our constitutional safeguards. Further, the two offices are exclusively defined in Chapter 15 as part of the 12 Constitutional and Independences Offices. Under the architecture of our Constitution, the commissions and independent offices were designed to either decentralise or act as safeguards against potential excesses of the Executive. Article 254(3) demands that each report that may be required of any of the commissions or independent offices by the President or Parliament must be both published and publicized. Further, the AG is part of the offices with constitutional powers to summon any witness in the investigations of a matter before her under Article 252(3). By deed of their nature and mandate, the AG and CoB exist in the twin form of the natural person who holds that office and as a body corporate at the same time in fulfilment of Article 253(a). Given this background, three questions emerge from the ongoing attacks on the Auditor by senior members of the Executive and Legislature. One, what is the origin and purpose of a public auditor in the conduct and management of public affairs? Two, what value does a public audit add in the governance and management of public resources? And three, what are the salient issues the AG is raising from her audit reports that has irked the powers that be? Social Contract Theory In response to the first question, the origins of public audit can be traced to the need for accountability under social contracts between government (kings) and the people. In the traditional forms of governments, kings were presumed to be mortals who raised to ranks of a deity or divine being. Thus, they were considered to be above others in terms of morals and values who could protect the rights of the people without partiality. In exchange, the people then conferred the kings with absolute power to govern them and manage the collective resources of the community. However, this form of governance existed with the understanding that if the kings misused or abused their powers, the people reserved the right to replace or overthrow them. With the evolution of human civility, the exercise of these powers changed. Besides, there exists an inherent danger of conflict of interest where the kings could perpetuate their own selfish interest instead of public good. Under democratic forms of government, the people elected representatives (legislature) to oversight those they elected into the executive arm of government. It is out of this arrangement that the Public Auditor is established and given professional independence to undertake an independent review of the accounts prepared by members of the executive. In a constitutional order like ours, the executive arm is the one with the mandate to collect taxes and manage other public resources on behalf of and for the benefit of public good. In return, they are obligated to render an account back to the people on how they used and managed taxes and other public resources entrusted to them. It is for this reason that they prepare financial reports back to the people. The AG thus undertakes an independent review of these reports on behalf of the people to confirm if they represent a true and fair view of what the Executive says in their reports. In undertaking this exercise, the Auditor is guided purely by the evidence availed to her by the managers in the entities that they audit. From the foregoing, the comments of President William Ruto this week terming the Auditor's opinion on Social Health Authority (SHA) system as noise, falls flat. It is not for the President or any other member of his Cabinet to purport to explain their version of truth. In practice, the Auditor's opinion cannot be retracted nor re-explained in any other version, other than in the form in which it was issued. It is an advisory to the main shareholders (in our case the citizens) as to what the Executive, that is headed by the President did with our taxes, fees and levies. The onus is now squarely with the people to take the appropriate action in respect to the opinion rendered by the Auditor. In essence, this leads us to the role of the Legislature in the proceedings of public audits. The Cabinet Secretary for Environment and Forestry, Aden Duale seemed to question why the AG publicized the audit report before it was considered and approved by the Public Accounts Committee (PAC) of the National Assembly on his X-handle. By that post, he appeared to petition the National Assembly to reprimand the AG for this, citing his years of experience as Majority Leader in the National Assembly and a Member of PAC. CS Duale's comments of this procedure are not only null and void ab initio, but also directly offends Article 254(3) referenced above. For avoidance of doubt, the role of legislators at both the national and county levels on matters audit is strictly and purely delegated responsibility by the voters. It is not, and must never be construed to be another layer to review the Auditor's opinion. In their oversight role, they act strictly for and on behalf of the electorate. If there is failure or laxity on the part of the Legislature, the electorate reserves an absolute right to engage or act directly on the Auditor report and advisory. Axis of Evil This brings us to the final question and the elephant in the room. The SHA system conduit of plunder takes a now familiar trajectory similar to the e-Citizen system and other mega scandals of the Kenya Kwanza administration. Analyzed with a microscopic eye, the story line is similar to the audit queries for the Hustler Fund, the edible oil scam, the evolving affordable housing scam, the abandoned airport and power transmission lines deals, and the shadowy scheme for the subsidized fertilizer programme. They all have a nefarious axis of evil that appears to be operating from a central pivotal point. It is evidentially clear that the line agencies are simply pawns in a complex evil game beyond their control. Thus, instead of addressing the substantive accountability questions raised by the Auditor, guns for hire have been unleashed to attack or deform even the constitutional architecture of the AG. The proposed Bill that purports to establish an Advisory Board, if not chaired by the AG herself or if it attempts to reduce her powers, is a nullity under the above cited constitutional provisions. To alter the structure or powers of any of the constitutional or independent offices rests purely with the people through a national referendum. In any case, the practice of audit historically and world over is vested on the natural person who serves as the Auditor and not the corporate entity.

Executive should stop sideshows and address Auditor's sticky issues

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