Task forces appointed by county governments to audit pending bills without the approval of the Auditor-General are unconstitutional, the High Court has ruled.
In a precedent-setting decision, Justice Anthony Mrima ruled that the appointment of task forces to carry out audits is an outright usurpation of the constitutional and legislative duty and powers of the auditor-general, the county’s internal audit office as well as the audit committee.
Several governors, including James Orengo (Siaya) and George Natembeya (Trans Nzoia) last year appointed task forces to carry out audits in their respective counties and came up with far-reaching recommendations. Both task forces were chaired by former auditor-general Edward Ouko.
Justice Mrima, however, ruled that, where a governor wishes to have the audit undertaken by another qualified auditor other than the auditor-general, the request should be made to the Auditor-general to either outsource the service under Section 23 of the Public Audit Act or to seek professional assistance and consultancy under Section 24 of the same Act.
The judge stated that, as per the Constitution and the law, external audits of a state organ or public entity are to be carried out principally by the auditor-general.
“As it stands, the governor (Mr Natembeya) created an entity unknown in the Constitution and the law and mandated it to discharge duties which the Constitution and the law bestowed upon the auditor-general and the county government,” Justice Mrima said.
He added that audit reports are forwarded to Parliament or county assemblies for debate and adoption. However, the task force report carried out in Trans Nzoia cannot be legally adopted and debated by the county assembly, same as the resolutions be made on it.
“Further, any recommendations and sanctions, if any, as contemplated in law cannot be implemented for want of legality. One, therefore, wonders how the report will be of any benefit to the county government,” the judge said.
The court was ruling on a case filed by Mr Kevin Otieno Andago, who questioned the constitutionality of the task force, which found that Sh1 billion in pending bills are ineligible.
Mr Otieno argued that the task force, which was gazetted in October last year, is unconstitutional as it encroaches on the mandate of the auditor-general.
He further questioned whether the Sh20 million allegedly spent by the task force was lawful.
The judge agreed, noting that Article 226(3) of the Constitution states that accounts of all governments and State organs shall be audited by the auditor-general.
The court said periodic audits are provided for under section 34 of the Public Audit Act, and may be undertaken by the Auditor-general at his or her own initiative of upon request by an entity. The judge said the auditor-general may outsource audit services by engaging the services of professional or technical experts, whether in the public service or not, to enhance its performance.
He said the establishment of the task force contravened Articles 174(a) and (i), 226(3) and 229 of the constitution, the Public Audit Act, the Public Finance Management Act, and Public Finance Management (County Regulations) by usurping the powers of the auditor-general and those of the internal audit office or audit committee of the county government.
The judge said the report has since been presented, and the prudent thing to do is to regularise it by suspending the decision determining it illegal to allow the county to forward it to the auditor-general within 14 days from the date of the judgment for consideration and who will have the option of rejecting it.
“In considering the report, the auditor-general shall be at liberty to call for any documents of information or carry out inspection as the law provides, to enable her to make the decision,” the judge said.