The Central Bank of Kenya (CBK) has supported an application by Busia Senator Okiya Omtatah seeking the appointment of an expanded bench of judges to hear a petition concerning the country’s public debt.
In its response, CBK stated that both the petition and the application raise substantial legal questions warranting consideration by an uneven number of judges.
The banks' regulator argued that the constitutional and legal issues involved have not been conclusively settled by Kenyan courts, not even the Supreme Court.
“The petition exposes a state of uncertainty in the law and raises complex constitutional questions that are not free from difficulty and admit of more than one interpretation,” CBK said through its lawyer Kamau Karori.
Mr Omtatah has sued former President Uhuru Kenyatta and senior members of his administration, arguing that they should be held accountable for Sh4.6 trillion in loans acquired during his tenure.
The petition and eight other co-petitioners are seeking to have these individuals surcharged under Article 226(5) of the Constitution for debts incurred between the 2014/2015 and 2021/2022 financial years.
The petitioners also claim that an additional Sh2.2 trillion borrowed under President William Ruto’s administration constitutes odious debt. They want former Treasury Cabinet Secretary Prof Njuguna Ndung’u, Controller of Budget Margaret Nyakang’o and Auditor-General Nancy Gathungu held personally liable.
Former Treasury Cabinet Secretary Njuguna Ndung'u.
Photo credit: File I Nation Media Group
CBK emphasised the importance of appointing a bench, saying it is necessary to meet the general public expectation of impartial, considered and “unimpeachable jurisprudence on matters of high constitutional and public finance significance”.
“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,” Mr Karori said.
Lawyer Karori argued that the outcome of the petition could significantly affect the public, especially in relation to public finance management and constitutional accountability.
“In view of the substantial questions of law arising in this Petition, this Petition qualifies to be heard and determined by a bench of uneven number of judges as contemplated under Article 165(4) of the Constitution,” he said.
Parliament, however, noted that a similar case, Petition No E248 of 2023, had already been filed and is scheduled for hearing before a three-judge bench later this month.
In an affidavit, Ms Sandra Nganyi argued that the cases should be consolidated to avoid conflicting rulings and conserve judicial time.
“It is in the interests of justice that this petition and Petition No. E248 of 2023 are heard together,” she said.
On her part, Attorney General Dorcas Oduor asked the court to strike out the petition, arguing that it interferes with an ongoing audit of the public debt by the auditor-general’s office. AG Oduor said the audit covers the entire period from independence in 1963 to the present.
“The Auditor General, prior to the filing of this petition, had already commenced a comprehensive audit of public debt from 1963 to date,” Ms Odour said through her Deputy Chief State Counsel Samwel Kaumba.
In April, High Court Judge Bahati Mwamuye certified the case as urgent and directed the parties to first submit arguments on whether the matter should be heard by a larger bench. A ruling on the bench application is expected on June 23.
Treasury Principal Secretary Chris Kiptoo also opposed the petition, stating that an audit is already underway to determine the status of public debt and how the funds were utilised from conceptualisation to implementation.
“I am advised by the State Counsel on record, which advice I verily believe to be sound, that 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,” Dr Kiptoo said.
Treasury Principal Secretary Chris Kiptoo.
Photo credit: Dennis Onsongo | Nation Media Group
He added that the ongoing audit presents the best opportunity to assess whether borrowed public funds were used lawfully and effectively.
Co-petitioner Bernard Muchiri argued that since 1963, the Office of the Auditor-General has consumed significant public resources conducting annual audits but has failed to hold any individuals accountable for misuse of public funds.
He and the other petitioners claim that during President Kenyatta’s administration, the public debt ballooned from approximately Sh2.37 trillion (accumulated over 50 years) by June 30, 2014, to Sh8.57 trillion by 2022.
