A recent ruling by the High Court has sparked heated debate in Kenya, offering a reprieve for governors, Principal Secretaries (PSs), and other accounting officers while raising concerns over accountability in the use of public funds. The ruling, delivered by Justice Jairus Ngaah, prohibits Parliament and county assemblies from considering audit reports more than three months after receiving them from the Auditor General. This judgment effectively limits legislative oversight and may allow officials accused of financial misconduct to evade scrutiny.
The Court’s Ruling
Justice Ngaah based his decision on Article 229(4) and (8) of the Kenyan Constitution, which mandates strict timelines for the audit and review process. These provisions require the Auditor General to submit audit reports within six months after the end of each financial year and obligate Parliament and county assemblies to debate and act on these reports within three months of receipt.
“A declaration is hereby issued that the constitutional timelines… are mandatory and must be complied with,” Justice Ngaah ruled.
The judgment effectively locks out legislative bodies from revisiting audits that fall outside these timeframes. This has significant implications for the scrutiny of past financial reports, some of which have exposed massive losses due to mismanagement and corruption.
Accountability at Risk
While the judgment enforces constitutional timelines, it inadvertently creates a loophole that may hinder accountability. Legislators often grapple with backlogs of audit reports, with some dating as far back as the 1990s for the national government and 2017 for county governments.
For instance, the National Assembly has been reviewing a report revealing a potential loss of KSh 1.5 billion in shady Covid-19 procurement deals by the Kenya Medical Supplies Authority (KEMSA). Similarly, the Senate has been scrutinizing reports exposing the misuse of billions in counties, including the contentious Sh6 billion Telcom Kenya purchase scandal.
With the court’s decision, these investigations are now in jeopardy. Already, Senate County Public Accounts and Investment Committee (CPAIC) proceedings have stalled. Last week, Kisii Governor Simba Arati invoked the ruling to avoid questioning over past audits, forcing the committee to adjourn its session.
Lawmakers Push Back
Homa Bay Senator Moses Kajwang’, who chairs the CPAIC, expressed frustration with the ruling, accusing governors of exploiting the decision to avoid accountability.
“We are moving to court to review the judgment. We want the court to allow us to complete the consideration of the reports before the committee,” he said. Kajwang’ also pointed out that county allocations from the national government depend on audited accounts approved by Parliament, a process now at risk of further delays.
Implications for Governance
The ruling comes at a time when questions about the use of public resources are increasingly pressing. Former and current governors, PSs, and other officials have faced accusations of mismanaging billions of shillings. Without effective oversight, concerns abound that these individuals might escape accountability.
Critics argue that the High Court’s decision undermines legislative oversight, a crucial pillar of good governance. While constitutional timelines should be respected, the backlog of audits often stems from systemic inefficiencies, including limited resources and the sheer volume of reports.
Moving Forward
To address these challenges, legislators must balance adherence to constitutional provisions with the need for accountability. The judiciary and Parliament could explore collaborative solutions, such as extending timelines for addressing backlogs without compromising the integrity of the oversight process.
For now, the judgment highlights the complexities of governance in Kenya, where legal provisions, institutional capacity, and political interests intersect. As Parliament seeks to challenge the ruling, the outcome will set a critical precedent for the future of accountability in public finance management.
