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LSK Boss Faith Adhiambo Rejects Presidential Taskforce on Public Debt Forensic Audit, Cites Constitutional Overreach.

The Law Society of Kenya (LSK) has formally expressed its opposition to the formation of a Presidential Taskforce on Forensic Audit of Public Debt, describing it as an unconstitutional move that undermines the statutory duties of the Auditor-General. In a detailed press statement issued on July 5, 2024, the LSK emphasized the legal and constitutional provisions that clearly assign the responsibility of auditing public debt to the office of the Auditor-General.

Table of Contents

Background.


On June 30, 2024, the government published Gazette Notice No. 8261, which announced the creation of a Presidential Taskforce on Forensic Audit of Public Debt. This taskforce was mandated to audit the public debt and report back to the President within 90 days. However, the LSK has raised significant concerns regarding this move, asserting that it contravenes the Constitution of Kenya 2010.

Legal Framework.


The LSK’s opposition is grounded in the provisions of Article 229 of the Constitution of Kenya 2010, which explicitly assigns the duty of auditing public debt to the Auditor-General. Article 229(4) mandates the Auditor-General to audit the public debt within six months after the end of each financial year. The scope of this audit includes the accounts of national and county governments, public debt, and various other state organs and public entities.

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Lecent Court Decision.


The LSK’s position is further bolstered by a recent High Court decision in the case of Ondago v Natenbeya & 15 others [2023] KEHC 22268 (19 September 2023). In this judgment, the High Court nullified a taskforce created to audit county government debts, underscoring the role of the Auditor-General in public audit matters. The court affirmed that the Governor could request the Auditor-General to conduct a forensic audit, thereby reinforcing the constitutional mandate of the Auditor-General.

LSK’s Standpoint.


The LSK argues that the establishment of the Presidential Taskforce on Forensic Audit of Public Debt is unconstitutional, as it usurps the powers vested in the Auditor-General by the Constitution. The LSK’s Council has resolved that neither its president nor any of its members will participate in the taskforce. Instead, the LSK has called on the President to respect the constitutional framework and allow the Auditor-General to perform her duties.

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Florence W. Muturi, the Secretary/CEO of the LSK, stated, “The mandate to audit public debt rests with the office of the Auditor-General. The LSK, under its statutory mandate, advises the President to refrain from usurping the Constitutional powers of the Auditor-General through Executive Orders and allow the Auditor-General to perform her constitutional duties.”

Recommendations.


In its press statement, the LSK also highlighted the role of the Office on Public Debt Management, which is headed by a Director-General at the Treasury and funded by public money. The LSK recommends that this office should provide details of public debt to the Auditor-General for forensic audit. This approach, according to the LSK, would ensure the efficient use of public resources and avoid unnecessary duplication of efforts.

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Conclusion


The LSK’s stance is a significant reminder of the importance of adhering to constitutional provisions and respecting the mandates of established public offices. The call for the President to allow the Auditor-General to carry out her duties without interference underscores the need for checks and balances in governance. As the debate over the taskforce continues, the LSK’s position serves as a crucial voice in upholding the rule of law and ensuring the proper administration of justice in Kenya.

The press statement from the LSK is likely to spark further discussions on the constitutional roles of various public offices and the need to avoid overlapping mandates that could lead to inefficiencies and wastage of public resources. The resolution by the LSK not to participate in the taskforce is a clear indication of its commitment to its statutory and constitutional obligations.

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