Both Dr Magare Gikenyi and Eliud Matindi argued that the work of auditing public debt is a constitutionally mandated function only tasked to the Auditor General and not any task force appointed by the Executive or any other person.
President William Ruto has hit a hurdle after the High Court temporarily suspended the establishment of a Presidential taskforce which will carry out a forensic audit of the country’s public debt.
The conservatory orders were issued by Justice Lawrence Mugambi pending the determination of a case filed by a Nakuru-based doctor.
Both Dr Magare Gikenyi and Eliud Matindi argued that the work of auditing public debt is a constitutionally mandated function only tasked to the Auditor General and not any task force appointed by the Executive or any other person.
“Pending the hearing and determination of this Application, a conservatory order be and is hereby issued suspending the Executive Order No. 4 and/or Gazette Notice No. 8261 Vol CXXVI-No 97 dated 5th July 2024 published for the establishing the PRESIDENTIAL TASK FORCE ON FORENSIC AUDIT OF PUBLIC DEBT.
The Milimani Law Courts in Nairobi. /FILE
“Pending the hearing and determination of this application, an interim order be and is hereby issued prohibiting the Respondents, either by themselves, anyone else acting at their behest, instructions directions or any other person whosoever, from discharging any function pursuant to duty pursuant to EXECUTIVE ORDER NO. 4 and/or GAZETTE NOTICE NO. 8261 Vol. CXXVI- No. 97 5th July 2024 establishing the PRESIDENTIAL TASK FORCE ON FORENSIC AUDIT OF PUBLIC DEBT,” a court document seen by Viral Tea read in part.
Dr Gikenyi had filed the petition, according to court documents obtained by Viral Tea, arguing that President Ruto’s move to create the taskforce in the first place usurped the mandate of the independent office of the auditor general and is therefore unconstitutional ab initio.
In the petition, Dr. Gikenyi stated, “Article 229 of the Constitution of Kenya 2010 establishes the office of the Auditor-General, whose mandate inter alia includes auditing public debt. Article 229(4) specifically requires the Auditor-General to audit the public debt within six months after the end of each financial year.
“Additionally, Article 226 provides that the accounts of all governments and state organs must be audited by the Auditor-General.”
He also argued that the office of the auditor-general is an independent office pursuant to the Constitution and that duplicating roles is a waste of scarce public resources since the task force will essentially be performing roles of existing public offices.
Furthermore, the court gave an ultimatum to the respondents in the case (the Attorney General’s office and others) to file their responses within seven days from the date of the service. Justice Mugambi further stated that further directions on the matter would be issued on July 23, 2024.
The directive means that President Ruto’s directive to establish the eight-member task force is frozen until the case is heard and determined.
Dr Gikenyi’s argument is the same as one of the Law Society of Kenya (LSK) when it explained why it declined the appointment of its President, Faith Odhiambo, to the task force.
Among those named in the committee included Nancy Onyango who was appointed as the chairperson, Luis Franceschi as the vice chairperson and Odhiambo as one of the members.
Prominent names in the lineup included CPA Philip Kakai of the Institute of Certified Public Accountants of Kenya, Shammah Kiteme of the Institution of Engineers of Kenya, and Vincent Kimosop.
Abraham Rugo and Aaron Thegeya were to serve as the joint secretaries of the task force.
“This audit will provide the people of Kenya with clarity on the extent and nature of the debt, how public resources were expended and will recommend proposals for managing our public debt in a manner that is sustainable and with intergenerational equity,” President Ruto affirmed during a press conference earlier on Friday, July 5.
