“President xxx has suspended the country’s chief auditor pending investigations. The auditor said a suspension letter addressed to the board of the state audit service noted that she and her office would be subjected to investigations.
The letter noted that the attorney general had been instructed to set up a tribunal to investigate the auditor’s “professional performance or lack thereof”.
The suspension has been criticised online and by civil society. The auditor [has] been at the helm of the audit service for a decade and reports have been hard-hitting against the current and previous administrations.”
Which country is involved here?
Kenyans would know if it was here, and it could be quite a large number of countries.
This one is Sierra Leone. Some of you may have heard the performance of that country’s Information minister in response to questioning on the BBC, as he said there were allegations of unprofessionalism and breaches of three named Acts of Parliament without giving — as [BBC presenter] Bola Mosuro repeatedly pointed out — the slightest indication of what exactly the Auditor General was alleged to have done.
It was a bit like someone saying, “She breached the Penal Code” without saying if the person accused had allegedly killed someone, robbed someone, raped someone, or done something likely to cause a breach of the peace. If there was good reason for being vague the Minister could at least have explained.
WHY IS THIS OF INTEREST TO US?
Kenyans will not find this question hard to answer. The situation reminds one that auditors general are often the heroes of accountability. There have been various attempts here to remove the auditors general often believed to be linked to audit reports on specific issues (such as the Eurobond).
How is the office supposed to work, and does it work?
It is a common model in countries linked to the UK in the past. The functions are fairly clear: after a financial year is over the Office of the Auditor General reviews the financial accounts of government institutions.
The principal questions the review asks are whether there is an adequate record of how the money was actually spent, and whether that expenditure was lawful – basically whether it had been approved by the lawful procedures.
On the whole, the OAG is not concerned with the wisdom of expenditure just its legality. Wisdom is a political matter.
There are three key assumptions underlying the whole set-up. One is that bringing out into the open how public money is spent is itself important in ensuring that it is legally spent. The value of transparency (a word used five time in the Constitution along with several uses of “transparent”) echoes the same idea.
The Americans like to speak of “Sunshine laws.”
The second aspect is the key link to Parliament. The OAG reports are to be submitted to Parliament or the relevant county assembly. This ties in directly to the Constitution’s statements that the National Assembly “exercises oversight over national revenue and its expenditure” and the Senate “exercises oversight over national revenue allocated to the county governments”, while a county assembly “may exercise oversight over the county executive committee and any other county executive organs.”
This is a hugely important part of the role of these lawmaking institutions – one that is perhaps not adequately understood by the public or even all the legislators themselves. It assumes that the legislators carry out this task with commitment and integrity.
The third principle is independence.
Rather like the judges, and the Judiciary as an institution, it is important that the Auditor General is protected from interference and intimidation by those whose conduct he or she is looking into when considering accounts.
The Auditor General is less independent than a judge in the sense that he or she is first proposed by the President. Then the appointment must be approved by Parliament, and is finally formally made by the President.
In the case of judges, the President has no choice (though we have seen that he does not share this interpretation). And Parliament has any say only over the appointment of the Chief Justice and Deputy.
The Constitution says that the Auditor General is “not subject to direction or control by any person or authority”.
A few years ago a court held that a provision in the Public Audit Act that gave an Advisory Board the responsibility to “advise the Auditor-General on the exercise of his or her powers and the performance of his or her functions” was unconstitutional. The Board included the Attorney General and the Chair of the Public Service Commission – people whose responsibilities are audited by the Auditor General.
The reports are many. In 2018-19, the office produced a financial report on the National Government (740 pages) 82 on county governments (Executive and Assembly), 204 on parastatals. These were financial audits. The OAG sometimes produces performance reports that are concerned not with legality but with effectiveness of expenditure.
The effectiveness of a public audit system depends on a number of factors. First is the effectiveness of the auditing institution itself. Then there is the availability of its reports to the public and the media – so that citizens can understand what is going on. And the punctuality of its reports – so we are not being told about things that happened years ago. Then there is the competence and commitment of the institution – like Parliament – that receives and considers the reports. This includes the speed with which Parliament deals with the reports, and how far it is prepared to approve reports critical of the executive.
Reports are first considered by the Public Accounts Committee, which holds meetings with representatives of the departments involved and makes recommendations. The reports go to the full House of Parliament.
CHALLENGES FOR THE SYSTEM
Auditor General reports are often greeted with much media fanfare. The public are often disappointed – it may seem that the Auditor General has revealed some major scandal and that a lot of money has gone missing, and they assume that someone has “eaten” it. Yet nothing may happen.
The National Assembly may recommend that the Director of Public Prosecutions or the Ethics and Anti-corruption Commission take action. But the Auditor General’s report is very likely not to be detailed enough to provide evidence for a prosecution in a criminal court. And since the DPP cannot be directed by anyone, like the Auditor General, Parliament cannot direct him to prosecute. The OAG occasionally produces a forensic audit – prepared with detail that can be used in a court case. But the regular reports cannot be like that.
The ThirdWay Alliance proposal to change the Constitution making it compulsory for the DPP to use the OAG reports to prosecute people was defective for this reason.
There have sometimes been concerns that the Committee or the full House has been influenced by loyalty to the Executive or by bribery, not to accept some aspects of an Audit report.
The PAC has recently emphasised that the Constitution says: “If the holder of a public office…, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss.”
It has sometimes recommended that this be enforced. The Public Service Commission does use this as a penalty sometimes. But again, Parliament cannot compel the PSC to do so in a particular case. And some countries have abandoned the surcharge. In the UK, it was stopped because as a penalty, it did not take into account whether the public servant could really pay, or whether he or she was really to blame.
There are, however, other consequences of reports. Foreign donors and agencies that deal with the government on financial matters read them as well, and their willingness to give grants and loans will be affected by what they learn about how government manages money.
The possible impacts of their work is always likely to make them targets of public sector resentment and attack – as in Sierra Leone.
