The Auditor-General now has a free hand to audit billions of shillings annually allocated to the military and other national security organs.
This is after the High Court declared Section 40 of Public Audit Act no 34 of 2015 and others within the Act as inconsistent with constitutional provisions.
Justice Chacha Mwita declared the entire section unconstitutional, which required the auditor-general “to hold an inception meeting at the highest level to agree on areas on national security and determine the appropriate audit approach to ensure confidentiality of information."
The section further states that auditors “shall be vetted by authorised government vetting agency” and that “auditor reports on national security organ may be redacted to shield identities of persons as well as assets and liabilities”
It means now that the auditor is free to scrutinise spending by the National Intelligence Service (NIS), the Kenya Defence Force (KDF) and the National Police Service.
Justice Chacha ruled that the section, together with eight others, interfered with the independence of the constitutionally established Office of the Auditor-General.
The section includes 4(2), 8, 12, 17(1), 18, 27, 40, 42 and 70, which he observed would crippled the powers and functions of the auditor general and against national values and principles set out in the Constitution.
“In conclusion these sections were to curtail powers rather than enhancing the authority of the auditor-general,” he ruled.
In his ruling declaring some sections and parts of others unconstitutional, Justice Mwita observed that the Auditor-General's office was created in the 2010 Constitution and Parliament cannot purport to amend it to make it it’s creature, as stated in Section 4(2) of the Act.
The section stated that the office of the Auditor-General and his staff were to be appointed by the Public Service Commission which is constitutionally empowered to establish and abolish offices in the public service.
However, the judge declined to declare unconstitutional several other sections of the Act and the procedure used by the Parliament and President Uhuru Kenyatta to create it.
Transparency International (TI), through lawyer Apollo Mboya, filed the case against the Attorney-General seeking the sections and others declared unconstitutional for clipping auditor-general's powers to audit public spending.
The Auditor-General, represented by lawyer Milcah Ondek and Africa Centre for Open Governance (Africog) Julie Soweto were listed as first and second interested parties.