Let National Treasury and Auditor General conduct forensic audit of public debt

The Presidential taskforce on forensic audit of the public debt brings to the fore pertinent concerns that Kenyans have been raising. How much debt do we truly owe as a country? How much debt was inherited by the current regime, why do we keep borrowing and what really happened to the Eurobond?

The mystery behind the debt question in our country remains rife and it is important to finally lay bare the status of debt to allow Kenyans to comprehend what lies ahead for this country.

Chapter 15 of the Constitution of Kenya enumerates elaborate objects for which independent offices are established, which include securing observance of democratic values and principles and promotion of constitutionalism. The office of the Auditor General is one of the two independent offices, and its functions as enumerated under Article 229 include annual auditing and reporting on the public debt.

Section 7 of the Public Audit Act CAP 412B is the source of the functions and powers of the Office of the Auditor General.

The functions include: Giving assurances on the effectiveness of internal controls, risk management and overall governance; undertaking audit activities in state organs and public entities to confirm application of public money is effective; and providing any reports to the President and Parliament as required under Article 254 of the Constitution.

To facilitate and enable the performance of these salient functions, section 9 of the Public Audit Act empowers the Auditor General to, among other things, obtain professional assistance, consultancy or advice from such persons or organisations as he/she considers appropriate.

Public Audit Act

The exercise of this power is not in any way exempt from the constitutional independence of the Auditor General, and the same cannot be exercised by any authority other than the Auditor General.

Further, the Public Audit Act contemplates several types of audits that may be conducted by the Auditor General. These include Periodic Audits under section 34 which are intended to evaluate the effectiveness of risk management, control and governance processes in State Organs and public entities; Performance Audits under section 36 which examine the economy, efficiency and effectiveness with which public money has been expended to evaluate, whether the citizen has gotten value for money and Forensic Audits under section 37 to establish fraud, corruption or other financial improprieties.

In the Annual Public Debt Management Report for Financial Year 2022/2023 published by the National Treasury in September 2023, the National Treasury confirmed that The Office of the Auditor General carries out performance, financial and procurement audits on all public debt and borrowing in accordance with the law.

In addition, the OAG issues audit reports for externally financed projects. There is no indication that the OAG has failed and/or neglected to fulfil its constitutional and statutory mandate.

Law Society of Kenya

It is noteworthy that the Law Society of Kenya is a key stakeholder in the operations of the Auditor General in the performance of its duties. This role is contemplated by section 4 of the Law Society of Kenya Act CAP 18 which lays out the roles of the Society to include assisting the government in matters relating to law, upholding the Constitution and advancing the rule of law, and protecting and assisting members of the public in Kenya in matters relating to or ancillary or incidental to the law.

The role is further contemplated by section 25 of the Public Audit Act which stipulates that the membership of the Audit Advisory Board must include a nominee of the Law Society of Kenya, and section 9 which enables the Auditor General to obtain professional assistance from organisations that the Auditor General considers appropriate.

Accordingly, nothing stops the Auditor General from forming a taskforce with membership from different professional groups to assist in carrying out a forensic audit on the public debt and ensuring that there is public participation to ensure transparency and accountability.

It is my recommendation that the National Treasury’s Office on Public Debt Management liaise with the Office of the Auditor General to conduct the forensic audit and present a report thereof to the President within the confines of the Law. We are prepared to offer strategic, professional, and legal support and advice to these relevant statutory authorities as they carry out this very necessary exercise.

This is a constitutional moment for the Auditor General to also offer solutions for tabling a forensic audit of the Public debt and this should start by making public the comprehensive audit of Kenya’s public debt carried out in 2021. There is also the Parliamentary Committee on Public Debt and Privatization that can also carry out this task. However, the underlying concern for legitimacy is that the people of Kenya are demanding inclusion in the determination of their future and public participation and transparency will be key.

The writer of this article is the President of the Law Society of Kenya @faithodhiambo8