The Auditor General can now question expenditure by the military, the High Court ruled on Friday.
Justice Chacha Mwita declared some sections of the Public Audit Act that barred the Auditor General from scrutinising military accounts as unconstitutional.
In a decision that automatically gave the Auditor General the green light to audit billions of shillings annually allocated to the military and other national security organs, the court held that the sections interfere with the independence of the constitutionally established office of the Auditor General.
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Mwita declared Section 40 of the Public Audit Act No 34 of 2015 and others within the Act as inconsistent with constitutional provisions.
However, the judge
said some sections of the same Act were procedurally created and declined to strike them out.
Mwita was of the view Section 40 of the Public Audit Act which required the Auditor General “to hold an inception meeting at the highest level to agree on areas on national security and determine the appropriate audit approach to ensure confidentiality of information is unconstitutional.
The section required the auditor to be vetted by authorised government vetting agency and his report on national security organ shield identities of individuals.
He said sections
4(2), 8, 12, 17(1), 18, 27, 40, 42 and 70, crippled the powers and functions of the Auditor General and are against national values and principles set out in the Constitution.
“In conclusion, these sections were to curtail powers rather than enhancing the authority of the auditor-general,” Justice Mwita said.
The judge further held that the Auditor-General’s office was created in the 2010 Constitution and Parliament cannot purport to amend it to make it it’s creature, as stated in Section 4(2) of the Act.
The section stated that the office of the Auditor-General and his staff were to be appointed by the Public Service Commission which is constitutionally empowered to establish and abolish offices in the public service.
The suit was filed by Transparency International (TI), through lawyer Apollo Mboya.
The NGO had protested that the sections were clipping Auditor General's powers to audit public spending by the National Intelligence Service (NIS), the Kenya Defence Force (KDF) and the National Police Service.