Coalition for Reforms and Democracy (CORD) Members Machakos Senator Johnstone Muthama,Siaya Senator James Orengo, Bungoma Senator Moses Wetang’ula who is talking to the press and Kimilili Member of Parliament Chris Wamalwa outside Milimani law courts on Friday January 8,2016.
BY SAMALFAN.
Coalition for Reforms and Democracy (CORD) has moved to court to challenge the changes made to the Public Audit Act that effectively clips the auditor general’s powers in carrying out his mandate.
The Opposition was represented several lawyers including CORD co-principal Kalonzo Musyoka who is in German, Siaya Senator James Orengo, Paul Mwangi and Antony Oluoch and Bungoma Senator Moses Wetang’ula.
The new law would restrict the powers of the Auditor General, the office in charge of oversight of spending of public funds.
The new restrictions would come from a law entitled the Public Audit Bill, which has gained criticism for containing sections that are restrictive of scrutinizing how the national government is spending public funds.
Within the Bill are restrictions on oversight for the hiring of staff and for national security matters. Members of the Opposition have claimed the Bill is an attempt by the Jubilee administration attempting to kill independent offices within Kenya.
They appeared before vacation Judge,Justice James Wakiaga who certified the application urgent and directed them to serve the Attorney General with the petition and be back on January 13 for the Hearing of the suit.
“I do certify the matter urgent because it is of National Interest and directs that the applicants serve the Attorney General and come back for hearing in seven days,” said Wakiaga.
The judge added that it is important to hear the respondents before giving further directions.
They are contesting the creation of the Office of the Deputy Auditor, placing the recruitment of staff at the Office of the Auditor General under the Public Service Commission and requiring permission of the leadership of security agencies under national and county policy before auditing.
The move comes even as the county assemblies’ leadership censured the Government over the law, saying it seeks to mutilate the Constitution and reverse the gains made in ensuring transparency and accountability in the use of public funds.
Wetang’ula claims that the Act undermines the office of the Auditor General. “The office of the Auditor General needs to be handled with care,” he said. They claim that the President Uhuru Kenyatta has failed to assent to the public Audit Act 2015.
Oluoch said the impugned Act is unconstitutional and the court should not allow it to be in force at any instance.
He added that the operations of the office of the Auditor General stands to be undermined and compromised in the case that under the Act the Auditor General Cannot recruit or appoint his own staff.
According to him, the Public Service Commission will have some measure of control over the establishment of the Auditor General’s Office contrary to the law.
“The Cabinet Secretary and the executive may interfere with the operations of the Auditor General’s office,” said Oluoch in court documents.
The wanted the matter to be heard urgently. They claim that the Executive cannot make rules on how it shall be Audited claiming that a Man cannot be a Judge in his own case.
The Coalition claims that the public’s right to access official reports of the Auditor General can only be curtailed in accordance with the constitution.
They add that the Bill did not disclose a specific intention to limit the right of access to information or the nature and extent of the limitation.
On the contrary they claim the bill disregards clause 70 which limits the right from the Memorandum of Objects and reasons.
The petitioner questions whether the provisions of the Public Audit Act are in breach of law especially the provisions relating to the independence of that office.
They seek to know whether the President has powers to make recommendations in his memorandum rejecting a Bill sent to him for assent.
The Coalition also wants to know whether such recommendation or proposals to overturn the provisions of a bill are within his powers in making reservations.
“We want to know whether the president has powers to make legislation and if so whether he shares legislative powers with the National Assembly or the senate,” said Oluoch.
CORD wants to understand whether the actions of the president are in breach of the constitution and the doctrine of separation of powers.
The matter will be heard on January 13 for inter parties and further directions.
