BY SAM ALFAN.
Human rights activist has moved to court seeking to quash the appointment Margaret Nyakang’o as the Controller of Budget.
Okiyah Omtatah claims that Nyakang’o does not have the minimum qualifications set by the Constitution and that the body which recruited her was incompetent under the Constitution for the task.
Under certificate of urgency, Omtatah seeks the appointment be suspended pending hearing and determination of the case.
“Thee matter is extremely urgent since in a move that smacks of collusion between the National Assembly, the Presidency, and the Chief Justice, Ms. Margaret Nyang’ate Nyakang’o was approved for appointment, appointed, and sworn into office in the span of a few hours”, added Omtatah
“Pending the inter-partes hearing and determination of this Application and the Petition herein the Court be pleased to grant an order suspending the appointment of Ms. Margaret Nyang’ate Nyakang’o as the Controller of Budget”, urged Omtatah.
He wants the court to issue a temporary order of prohibition prohibiting Ms. Margaret Nyang’ate Nyakang’o from accessing the office of the Controller of Budget and from executing the mandate of the Controller of Budget.
The new controller of budget Dr. Margaret Nyakango was sworn in yesterday by chief justice David Maraga at the Supreme Court.
Maraga said the Office plays an important role in ensuring the prudent and planned use of public funds..
He argue that Section 4(2) of the Controller of Budget Act,2016 pursuant to which Ms. Margaret Nyang’ate Nyakang’o was appointed to office was and is wholly inapplicable as it applies only to cases where the previous occupant of the office has resigned in writing to the President, has been removed for violating the Constitution or is dead which was not the case at the material time.
Omtatatah further add the the Act does not provide for commencement of appointment of new office holders when the term of office ends due to operation of the law.
“Nyakang’o does not meet the mandatory minimum constitutional qualifications set under Article 228(2) as read together with Articles 250(3) and 73(2)(a) of the Constitution, for appointment to the position of Controller of Budget. Further and in particular”, claim Omtatah.
He claim that the new appointed controller of budget does not have extensive knowledge in public finance, acquired through extensive training in public finance and practical experience in public finance management and does not have extensive training in public finance, which include training in all aspects of public finance (taxation, expenditure and budget, and deficit financing and debt management).
He aver that Nyakamg’o does not have extensive application or experience in public finance which include applied experience in public finance management (taxation and tax administration, expenditure and budgeting, deficit financing and debt management).
“She does not have at least ten (10) years’ experience in auditing public finance management acquired through continuous working in auditing public finance management of a whole-of-government, including possessing the minimum professional qualifications requirements set out for the position of Auditor General under the National Audit Act”, adds Omtatah.
He claim that it is not demonstrated from Ms. Nyakang’o’s profile, which is posted online at www.linkedin.com/in/cpa-dr-margaret-nyakang-o-b4aaa417, is publicly available, and was accessed by the petitioner on 6th December 2019, that she has “extensive knowledge of public finance or at least ten years experience in auditing public finance management.
The fact that she has worked for 10 years at the Kenya National Bureau of Statistics as Director Finance & Administration, from November 2008 – October 2018, does not make the mark of “at least ten years experience in auditing public finance management.” She is still disqualified under the doctrine of close enough is not good enough in constitutional thresholds.
Nyakang’o’s is not extensively trained and experienced in public finance as required by the Constitution, but only has training in finance and ten (10) years’ experience in financial management of private sector/businesses as Director of Finance at the Kenya National Bureau of Statistics, a quasi-public entity dealing with statistics compilation.
Omtatah further argue that the training of accounts and finance management is not the same as training public finance. Such a person would only be employed in accounts department of any ministry and departmental agency of government. What the Constitution requires is a qualification of extensive knowledge in public finance, which is the study of the role of government in the economy; or the study of government taxation, expenditure and deficit financing on resource allocation, distribution of income and macroeconomic stability for the welfare of the economy and households.
” This is a branch of economics that assesses the government revenue and government expenditure of the public authorities and the adjustment of one or other to achieve desirable effects and avoid undesirable effects. Public finance management, whose audit for at least ten (10) is a requirement means the set of laws, rules, systems and processes used by sovereign nations (and sub-national governments) to mobilize revenue, allocate public funds, undertake public spending, account for funds and audit results”, Omtatah claim
He claim that when Nyakang’o’s qualifications are held against Articles 228(1) and 250(2) it is clearly demonstrated that she does not meet the minimum mandatory constitutional eligibility requirements set under article 228(2) as read together with articles 73(2)(a) and 250(3).
“That is because she did not meet the minimum requirements for appointment, any other qualifications she presented besides that which is specifically set by the Constitution as elaborated and defined above, and any actions arising from the exercise of delegated power in relation to the process by any authority/State officer/State organ to; nominate, approve, and appoint such a person without the minimum qualification requirements set out in Articles 228(2), 73(2)(a) and 250(3) as Controller of Budget, is inconsistent with the Constitution, and as such null and void to the extent of inconsistency and, therefore, invalid and of no effect”, adds Motatah.
The recruitment process was faulty and fatally defective because the committee convened by the Public Service Commission under Section 4(5) and (6) of the Controller of Budget Act No. 26 of 2016, for recruiting the Controller of Budget was insufficient for the purpose because, among others:
He argue that despite the Controller of Budget in an independent office, it must be filled through a process that is not controlled by the Government the committee is composed entirely of the following government officials:
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