A petition to hold former President Uhuru Kenyatta and senior officials in his government accountable for Sh4. 6 trillion loans borrowed during his tenure will be determined by a three-judge bench.
This is after High Court Justice Bahati Mwamuye forwarded the file to Chief Justice Martha Koome for assignment of judges to determine the petition.
Justice Mwamuye found that the issues raised by the petitioners led by Busia senator Okiya Omtatah are substantial questions of law concerning alleged breach of fundamental rights and the Constitution.
“Having considered the matter, I am satisfied the petition raises substantial issues of law. Consequently, I certify the same and forward the petition to the Chief Justice for empanelment of a bench to hear this matter,” said Justice Mwamuye on Thursday in a brief ruling.
While calling upon the CJ to empanel the bench, Mr Mwamuye found that the issues raised regarding public debt were complex and novel. The judge observed that there was a related case filed in 2023 pending determination before a three-judge bench.
The case revolves around accountability for the country’s rising public debt, with the petitioners alleging theft of funds borrowed by the government through sovereign bond holding, treaties, contracts, and financing agreements with other states, international financial institutions, and international corporations.
They claim that the public debt escalated during the Jubilee regime, 2013-2022. It is their case that under President Kenyatta's administration, the public debt stock rose dramatically from approximately Sh2.37 trillion (accumulated over 50 years since Independence) by June 30, 2014, to Sh8.57 trillion in eight years.
Mr Omtatah and eight other petitioners want the former President and other senior government officials to be charged under Article 226(5) of the Constitution, for debts incurred between the 2014/2015 and 2021/2022 financial years.
They further state that another Sh2.2 trillion borrowed during President William Ruto’s administration constitutes odious debt. They want former National Treasury Cabinet Secretary Prof Njuguna Ndung’u, Controller of Budget Margaret Nyakang’o, and Auditor General Nancy Gathungu held liable for the loans.
But Attorney-General Dorcas Oduor wants the petition struck out arguing that the case would interfere with the ongoing probe on the public debt by the Auditor General. Ms Oduor says there was an ongoing audit of public debt from 1963 to last year.
In her court filings, the AG says that by directing the government to respond to the petition would compel Auditor General Gathungu to submit herself to the court, a move that she believes would be prejudicial to the ongoing audit exercise.
“The Auditor General prior to the filing of the instant Petition got seized of and is presently engaged in active audit of public debt from independence (1963) to date,” Ms Oduor says through deputy chief State Counsel Samwel Kaumba. She reveals that the Auditor General started probing the debts on September 16, 2024.
Mr Kaumba adds that the petition was filed despite the legal mandate of the Auditor General to audit and report on the public debt.
The government argues that the ongoing audit, which is meant to ascertain the current public debt stock and the acquisition process from conceptualization to utilization, is likely to be greatly undermined by the court case.
“It is the obtaining position of the law that where the Constitution has reposed specific functions in an institution or organs of state, the court must give those organs sufficient leeway to discharge their mandate. The audit offers the best opportunity to determine whether public money arising from borrowings were applied lawfully and in an effective way,” says Treasury Principal Secretary Dr Chris Kiptoo.
The case also relates to the constitutionality and legality of Kenya’s public debt borrowing and the public debt portfolio.
The Central Bank of Kenya (CBK) says are “issues that directly impact the country’s economic stability and the progressive realization of socio-economic rights guaranteed under the Constitution for both present and future generations”.
“The outcome of the Petition will, in all likelihood, have a direct impact on the Kenyan public, particularly in respect of public finance management and constitutional accountability; and as such, the weight, sensitivity, and public interest surrounding the Petition call for collective judicial thought to establish enduring jurisprudence on the delicate constitutional questions at stake,” says the CBK advocates.
