The controversial recruitment of a new Auditor-General will have to start afresh after the Employment and Labour Relations Court held that the selection panel that re-advertised the vacancy was illegally in office.
Justice Stephen Radido on Thursday held that the term of the selection panel ended when it concluded the process by declaring that it had not found a suitable candidate to recommend to the President for appointment. Therefore, he said, panel “lacked legal competence and validity to consider any applications for the re-advertised vacancy”.
According to the judge, section 11 (13) of the Public Audit Act suggests that the lifespan of the panel lapses when a report is submitted to the President, either recommending three persons for appointment or recommending a fresh process.
The ruling means that President Uhuru Kenyatta will have to constitute a new panel for to start the process afresh. It also means that the applications the panel had received following the re-advertisement will not be considered, and the applicants will have to apply afresh.
The court has also ordered the Attorney-General to submit to Parliament a report of the cancelled interview proceedings stating the criteria used and the scores for the candidates who had been shortlisted.
“ … section 11(5) of the Public Audit Act imposes an obligation on the Selection Panel to submit to Parliament a report of the interview proceedings, including the scores of each candidate, without any qualification,” the judge said.
But activist Okiyah Omtatah, who had filed the case challenging the panel’s decision to terminate the initial process said he will appeal the ruling, especially the direction that the AG submits the report to Parliament.
“The Selection Panel is required to provide to Parliament the criteria used in selecting the names forwarded. This means that the it cannot provide the required report to Parliament unless and until it has forwarded the names of the selected candidates to the President for nomination,” said Mr Omtatah.
He added: “Without names from the President, there’s nothing that Parliament can do to progress the matter. This means we may not be any nearer to having an orderly and lawful conclusion of the recruitment exercise”.
Katiba Institute had been enjoined in the matter as an interested party while the petitioner had listed the AG, the Selection Panel and the National Executive as respondents.
The Thursday ruling had been expected on February 26 but was put off after Chief Justice David Maraga called for the file. This prompted protests from the petitioner and Katiba Institute who saw it as an attempt to interfere with the independence of the judge. Justice Radido said the CJ called for the file on February 21 and it was forwarded to his office on February 24.
“The court has since established from correspondence in the file that the Deputy Registrar received back the file on February 25, 2020 but it was only on February 27, 2020 that the file was placed on the court’s desk.
The ruling was then set for March 6, but was again put off when Mr Omtatah filed an application for declaration of a mistrial alleging interference by the Chief Justice. The activist also wanted Justice Radido to recuse himself from any new trial that would ensue if a mistrial was declared.
After conducting interviews, the panel announced that though the candidates interviewed had the academic and technical qualifications required, they lacked tactfulness, diplomacy, and independence.
In the petition, Mr Omtatah had termed the tactfulness, diplomacy and independence requirements “extraneous and subjective.” The court, however, held that they were found both in the text and spirit of Articles 10(2)(c), 73(1)(a) (ii), (iv), 73(2)(a) to (e) and 232(1)(c) of the Constitution, and sections 7 and 10 of the Public Audit Act.
The court also rejected Mr Omtatah’s argument that there was no public participation in the cancelled process.
“Save for the failure to demonstrate that the interviews were conducted in the open, and for which the respondents did not tender any explanation, the court finds that the recruitment process was substantially in compliance with the tenets of public participation,” the court held.
The Auditor-General position has been vacant since August 2019 when the former holder, Edward Ouko, left. This has resulted in a pile-up of unsigned reports at the Kenya National Audit Office because it is only the office holder that can sign them. Moreover, the existing law does not allow for an acting Auditor-General.
The OAG audits some 1,200 public entities consisting of government ministries, departments, agencies and the semi-autonomous government agencies. Some of the public entities listed at the Nairobi Stock Exchange have been stuck with their financial reports as they wait to have them approved. The listed state corporations cannot pay dividends to their shareholders.
KenGen, in an advert two weeks ago, for instance, informed shareholders that dividends will not be paid until after their financial statements are audited.
“The Board of Directors shall make a recommendation regarding any final dividend for the year ended June 30, 2019, once the audit of the financial statements for the said period is completed following the appointment of the Auditor-General,” CEO Rebecca Miano said.
Central Bank, on its part, has not been able to submit to Parliament its certified financial statements for the financial year 2018/2019.
For the taxpayers, failure to fill the position means they cannot tell how and where their taxes were spent, making it difficult to hold the government to account.