Court finds Ruto's debt audit panel appointment unconstitutional

The High Court in Nairobi has declared that the task force appointed by President William Ruto to conduct a forensic audit of Kenya’s public debt is unconstitutional.

Justice Lawrence Mugambi, in his judgment, said that the team, which was to be led by Nancy Anyango, was to do the same job cut out for the Auditor-General.

According to the Judge, the President had no power to create a body that had an overlapping role with that of an independent constitutional office.

He declared Executive Order number four of 2024 unconstitutional and invalid. He dismissed the Attorney General’s argument that the president was acting within his powers, as the team was allegedly to help the executive in policy formulation and coordination.

In the case, Nakuru-based surgeon Gikeri Magare and Kenyan-based in the United Kingdom Eliud Matindi argued that auditing public debt is a constitutionally mandated function of the Auditor General, not a task force appointed by the Executive or any other individual.

In June last 2024, Dr Ruto appointed the Presidential Taskforce on Forensic Audit of Public Debt through Executive Order No. 4.

The task force was part of austerity measures following the President's withdrawal of the contentious Finance Bill 2024. Its purpose was to audit public debt within 90 days and report back to the President.

However, the petitioners told the court that the President's actions usurped the mandate of the independent office of the Auditor-General.

They argued that this made the task force unconstitutional and that any further action would undermine public confidence and lead to potential abuse of political power.

"The office of the Auditor-General is independent. Duplicating roles is a waste of scarce public resources since the task force will essentially be performing the roles of existing public offices, contrary to the constitution," the petitioners said.

President Ruto assigned the task force to carry out a comprehensive forensic audit of the country's public debt and report within three months.

The task force would be chaired by Nancy Anyango and deputised by Prof Luis Franceschi.

Law Society of Kenya (LSK) said it would not participate in the task force, arguing the move is unconstitutional as the mandate rests solely with the Auditor-General.

In a statement, the society said creation of the 90-day task force to conduct a forensic audit of public debt, as outlined in a recent gazette notice, usurps the powers of the Auditor-General under Article 229 of the Constitution.

The article requires the Auditor-General to audit the public debt within six months after the end of each financial year, the LSK noted, citing a recent High Court ruling that affirmed the Auditor-General's role in public audit matters.

“Taking cognisance of the provisions of Article 229 of the Constitution and the interpretation of the said provisions by the court, it is our considered view that the establishment of the taskforce is unconstitutional," the LSK said in the statement.

President William Ruto earlier on Friday unveiled a raft of austerity measures following his rejection of the Finance Bill, 2024, as he formed a taskforce to undertake a forensic audit of the country's public debt, which stood at Sh10.39 trillion by the end of March this year according to official statistics.

The Institute of Public Accountants of Kenya chairman Philip Kaikai, former Law Society of Kenya president Faith Odhiambo, Institute of Engineers of Kenya president Shammah Kileme and Vincent Kimosop were tapped to serve as members. Dr Abraham Ruto and Dr Aaron Thegeya were to serve as joint secretaries. The mandate of the Presidential Taskforce on Forensic Audit of Public Debt includes verifying the current stock of public and publicly guaranteed debt.

It had also been tasked to reconcile the loan servicing or repayments with the attendant terms of the facility based on the relevant context and the terms of the loans; assess whether the country obtained value for money in terms of the loan, cost of the projects financed, the return on investment and equity.