MPs seek ‘legal option’ after 7-month Auditor-General absence

Attorney-General Kihara Kariuki has up to the close of business Tuesday to present a legal option out of the constitutional crisis created by the seven-month delay in the recruitment of substantive Auditor-General.

Three joint House committees had previously rejected Mr Kihara’s legal advice to extend timelines set for submission of audit reports saying the State Law Office was setting up Parliament to breach the Constitution.

“We have given him up to Tuesday to present to us a clear road map on how we will navigate this serious constitutional breach,” an MP, who did not wish to be named for commenting on a matter that was discussed in camera told the Business Daily.

Article 226(3) of the Constitution provides that the Auditor-General shall audit the accounts of all government and state organs.

“Within six months after the end of each financial year, the Auditor-General shall audit and report, in respect of that financial year, on the accounts of the national and county governments,” states Article 229(4) of the Constitution.

Mr Edward Ouko, the first person to occupy the office under the 2010 Constitution, retired last August at the lapse of the eight-year non-renewable term.

The process for his replacement started immediately but the panel opted to re-advertise the position saying none of the 17 candidates shortlisted after the first interviews met the criteria for the job. This prompted activist Okiya Omtatah to challenge the decision in court, saying some of the considerations imposed by the panel were outside the eligibility threshold set in law.

Last week, a judgment delivered by Justice Stephen Radido asked President Uhuru Kenyatta to either extend the mandate of the selection panel or constitute a fresh one as current one “lacks legal competence and validity”.

The failure to fill the vacancy has resulted in a breach of the constitutional timelines for submitting audited financial statements by public entities to Parliament.

The Constitution does not provide for an acting deputy Auditor-General and as such, there is no one other than the Auditor-General who is permitted to sign off the reports for tabling in Parliament.

Mr Kihara last Thursday backed the Treasury’s request for Parliament to grant an extension of time limit based on section 90 of the Public Finance Management Act, 2012.

The said section stipulates that “any House of Parliament, may by resolution, extend the time limit, other than a time limit set in the Constitution, for submitting a statement or other document required to be submitted by this Act”.

The Public Investment Committee, Public Accounts Committee and Special Funds Accounts Committee argued that its hands are tied and cannot extend the time limits for submission of the audited reports without amendment the Constitution given the express timelines.

The committees are also wary of such an action as it would open floodgates and set a precedence for the constitutional deadlines to be flouted in future.

In his submissions to the three watchdog teams at a closed-door session, Mr Kihara said: “The failure to abide by the constitutional time limits has not been deliberate but has in fact been occasioned by other sacrosanct constitutional processes, such as appointment procedures and court proceedings.”

He argued that public good would be better served if Parliament reserved the opportunity to consider, interrogate and comment on the audited accounts reports rather than not at all.