President William Ruto was on Monday dealt a blow after the High Court temporarily suspended an independent task force he appointed last week to audit the public debt.
Justice Lawrence Mugambi blocked the task force from embarking on the job following a petition by Nakuru-based surgeon Dr Magare Gikenyi and Mr Eliud Matindi, who argued that the President assumed powers outside the Constitution.
In a gazette notice on July 5, Dr Ruto appointed the task force to carry out a comprehensive forensic audit of the country’s public debt and present its report in three months.
The move comes a few day after Law Society of Kenya (LSK) president Faith Odhiambo, who had been named as a member of the team, rejected the appointment saying the team picked will be usurping the role of the auditor-general.
When he named the task force, Dr Ruto stated that the audit will give clarity on the nature of the country’s debt, how public resources were spent and the team should come up with a proposal for managing Kenya’s resources in a sustainable manner that does not burden future generations.
Dr Gikenyi and Mr Matindi, however, argued that the task force will be usurping the mandate of the Auditor-General and was, therefore, unconstitutional.
“Pending the hearing and determination of this application, an interim order be and is hereby issued prohibiting the respondents, either by themselves, anyone else acting at their behest, instructions, directions or any other person whosoever, from discharging any function pursuant to Executive Order No. 4 and Gazette Notice No. 8261 Vol CXXVI – No. 97 5th July 2024 establishing the presidential task force on forensic audit of the public debt,” the judge said.
President Ruto appointed the task force last week to be chaired by Nancy Onyango and deputised by Prof Luis Franceschi to among other duties, assess whether the country obtained value for money with regard to terms of loans, cost of the projects financed, the return on investment and equity.
Other members of the taskforce were Ms Odhiambo, Mr Philip Kaikai, the president of the Institute of Certified Public Accountants (ICPAK), Mr Shammah Kiteme, the president Institute of Engineers of Kenya (IEK) and Mr Vincent Kimosop.
The two petitioners said the office of the auditor-general is an independent office and duplicating roles by appointing a taskforce to carry out the work is a waste of scarce public resources since the team will be essentially performing roles of existing public offices.
“If this honourable court does not stop the illegal actions and omissions done by the President and or the respondents then constitutional violations will continue against principles of good governance and public money will be lost with no probability of recovering the same,” Dr Gikenyi said.
Dr Gikenyi and Mr Matindi pointed out that Article 229(4) specifically requires the auditor-general to audit the public debt within six months after the end of each financial year.
They further said Article 226 provides that the accounts of all governments and state organs must be audited by the auditor-general.
“Further the work of auditing public debt is a constitutionally mandated function of the auditor-general and not any task force appointed by the Executive or any other person,” Dr Gikenyi said.
The duo further stated that the High Court had previously ruled in a case against Trans Nzoia governor George Natembeya that a task force he had formed to audit the county’s debt was illegal as the governor could request the auditor-general to conduct the forensic audit.
Dr Gikenyi further pointed out that the Office on Public Debt Management, headed by a director-general at the Treasury and which is funded by public money, should provide details of public debt to the auditor-general for forensic audit by taking cognisance of Article 201 of the Constitution on the need to have prudent utilisation of scarce public resources.
President Ruto had pointed out that Kenya’s public debt had grown rapidly to over Sh10 trillion, a fivefold increase from Sh2 trillion a decade ago.
He stated that the debt burden relative to the economy had increased from 40 to 70 per cent of the Gross Domestic Product (GDP), above a prudential limit of 60 per cent of GDP.
The President added that as a result of the increased debt stock, debt service has become the single largest expenditure item with interest payments alone exceeding the development expenditure of the national government.
But the duo said it goes without saying that the Constitution only provides for one person to hold the office of the auditor-general at any one time.
They added that the appointment of the 11 persons, to act as the forensic auditors of the public debt is without any constitutional authority and a violation of the Constitution Dr Gikenyi further stated that team was hand-picked by the President yet they have not demonstrated, through fair competition and merit that they meet the qualifications for appointment as auditor-generals.
“The President of the Republic does not have constitutional authority to recruit staff for the office of the auditor-general, let alone hand-pick persons to serve in or act as staff of the auditor-general. The appointment of the eleven persons to carry out a function exclusively reserved to the Office of the Auditor-General and its staff, is a violation of Article 252(1)(c) of the Constitution,” Dr Gikenyi said.
The petition added that the Executive order does not make any provisions for remuneration or benefits of the 11-member committee.
They said the omission provides reasonable grounds to believe the persons serving on the taskforce are there to fulfil the private interests of unknown persons and not to serve the people of Kenya.
