The shocking “confession” by the Controller of Budget that she had been “coerced” into approving some expenditure amounting to a staggering Sh15 billion throws light on the disconnect between aspirations of the 2010 Constitution and the actual governance practices since its promulgation.
The authors of the Constitution had recognised that to tame the appetite of the Executive and reduce opportunities for abuse of power, a reorganisation of the governance architecture was necessary.
Consequently, the Constitution created independent institutions to check the exercise of untrammelled power by the Executive. Several critical offices were given security of tenure to enable them exercise their constitutional powers purely for the benefit of the people.
In the pre-2010 years, the “imperial presidency” could hire and fire all key offices including judges, the Auditor General and any office that had capacity to challenge the exercise of executive authority by the President. To tame this power, one of the offices granted constitutional protection was the office of the Controller of Budget.
This office was to be the ultimate determinant of the legality of any spending by public authorities. The Constitution required that the approval of the Controller of Budget was required before any public expenditure. The Controller needed to satisfy herself that such expenditure was within the law before approval.
The creation of this office was a recognition that in previous years, the only office that checked public expenditure was the office of the Auditor General.
Unfortunately, this office was the equivalent of a mortician, only exercising powers after the fact, hence doing little to stop misuse of funds. With a powerful Controller of Budget office approving expenditure, the assumption was that the days of illegal spending were over. How misled we were!
Having been in government during the tenure of the first Controller of Budget, and having watched operations of the current one, I can only surmise that the rain has hammered us. The current Controller of Budget sees herself as custodian of the interests of the national Executive.
Having worked for years with county governments, I am aware that it takes eons for this office to approve even the most mundane expenditure by counties.
It is no wonder that by the end of every financial year, many counties have not spent a significant portion of their expenditure since they have pending approvals by this office. Despite this reality, the Controller of Budget has been seeking powers to conduct audits of expenditure by county governments to establish whether they are spending in the mode that she approved.
One would assume good faith and objectivity on her part if she exercised the same level of diligence regarding national government spending. But the reality is different. As was evidenced by her confession, the national government only need text quoting “higher ups” for the Controller to forget her constitutional responsibility and approve expenditure. Cry this beloved country.
While it is easy to crucify the Controller and pretend that she is an outlier, truth be told, there are hardly any “independent offices” that are independent.
Whether it be the EACC, the DPP or the myriad offices granted constitutional independence, the truth is that most dance in accordance with the tune played by the Executive. The constitutional aspirations that such offices would protect the sovereignty of the people and act as a bulwark against the abuse of power and promote respect for the rule of law is empty rhetoric. What then are we to do?
We must start with a recognition that the exercise of authority is not just about constitutional text. It is also about culture and norms that elevate respect for the law, whatever the cost. We are not there yet.
But related to this, it is about real human beings who stand up to do what is right notwithstanding the cost. Kenya appears to have a deficit of such public officers.
How great it would have been in creating new Kenyan ethos if the Controller of Budget had stuck to her guns and been persecuted for her faithfulness to the letter and spirit of the Constitution instead of whining after the fact. Oh for true servants of the people!
-The writer is an advocate of the High Court of Kenya