Constitution of Kenya explained
- Written by Steve Nguru
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Controller of Budget under the New Constitution
Open. Accountable. Responsible
The Office of the Controller of Budget COB, is an independent Constitutional office.
The COB will examine all public budgets with a view to controlling allocation of all Public Funds, at both the National and County levels.
The office of the COB is headed by the Controller of Budget, and is expected to either establish its own Countywide bureaucracy and/or cooperate with the Provincial Administration.
The New Constitution has separated the office of the Controller of Budget COB, from that of the Auditor-General (previously known as the Controller and Auditor-General) granting it complete independence. To that effect, the COB must establish its own Countywide bureaucracy and/or cooperate with the Provincial Administration by relying on its already established and experienced human and infrastructure capacities.
The office of the Controller of Budget is a Constitutional Office. Chapter Twelve - Public Finance, Part 7 - Financial Officers and Institutions, Article 228:
228. (1) There shall be a Controller of Budget .......
As the name suggests, the Controller of Budget will be the final authority on whether money should be withdrawn from a Public Fund or not; notably, to examine and approve or deny the amounts, the timing and the legality of any withdrawal:
(4) The Controller of Budget shall oversee the implementation of the budgets of the national and county governments by authorising withdrawals from public funds .......
Two months after the General Elections in May 2013, the office of the COB was already involved in ping-pong blame games and witch-hunting by county Governors who complained that COB's budget preparation and reporting requirements were interfering with their independence. On its part, COB was steadfast in demanding that the county governments immediately implement lawful internal checks and balances in accordance with the Public Finance Management Act of 2012, over County Funds i.e. both devolved and internally generated incomes. The office of the COB and that of the Transition Authority would do well therefore, to join forces and stand up to political intimidation from a section of Governors and Senators and which reached a crescendo in August 2013, calling for hasty devolution of functions and the funds destined for the Counties.
Meanwhile, the Treasury too, was not spared either and found itself at the end of accusations by a section of Governors of (unfairly) demanding that county governments also implement its Integrated Financial Management Information System, IFMIS (Daily Nation, May 2013). These standoffs between key stakeholders, threatened, if not addressed, the smooth operations of County Finance.
The COB must maintain its focus and be be guided only by the law:
(5) The Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorised by law.
This is important so as to insulate the Office of the COB from witch-hunting by the political class at the Counties. Having said that, the Office of the COB would do well to ensure that it not only advises all concerned about budgets and the attendant processes, but that it is seen to facilitate (and not to hinder), the legislative framework necessary to operationalise financial devolution as soon as possible. Otherwise, it risks being dragged into the political competitions likely to flare up between the National Government and the political players in the Counties. For example, in the (unfortunate) event that the Cabinet Secretary has chosen to delay or stop the transfer of devolved public funds to a public entity, the COB is expected to report justly and fairly to Parliament on the decision of the said Secretary:
225. (7) Parliament may not approve or renew a decision to stop the transfer of funds unless— (a) the Controller of Budget has presented a report on the matter to Parliament; .......
This is a good provision to ensure there are checks and balances by an independent office, on any decision of Parliament to deny public funds to a public entity or government, and by extension, a region or community. The Public Funds referred to Clauses (4), (5) earlier, are the Equalization Fund, the Consolidated Fund and the Revenue Fund, discussed in more detail under the link on Public Finance.
The Controller of Budget has been entrusted by the people of Kenya to ensure that no person(s) or authority will be able to help themselves to the public's money outside of the law. In order to effectively carry out that mandate, the Controller of Budget must, as suggested by Clause 228.(4) above, continuously monitor the accounting and internal controls of all State and County Organs that are entitled to public funds. "These provisions will bring financial management at county level under the control of a constitutional office, which may help improve performance of these important units of government. To be effective, however, it will be necessary for the COB to build capacity and infrastructure in the 47 counties and establish offices at county headquarters. This will include developing a system similar to the integrated financial management information system (IFMIS) currently being implemented for the national government." (Kirira N, 2011).
The Controller's mandate will be guided and facilitated by legislation. Article 225, excerpts:
225. (2) Parliament shall enact legislation to ensure both expenditure control and transparency in all governments and establish mechanisms to ensure their implementation.
"The COB seems to combine constitutional and operational functions, because, besides being in charge of releasing funds, it will also monitor and report on execution. This will be a new experience for public sector managers who will need to adjust. It could also provide grounds for potential conflicts between Treasury and the Controller of Budget. Thus the role and functions of the Treasury will have to be detailed in an Act of Parliament that is yet to be prepared." (Kirira N, 2011).
In practice, the Office of the COB will, in the early years of Kenya's implementation of the New Constitution, rely to a considerable degree, on the reports and advise of the Transition Authority whose role is to midwife the transition process.
Obviously, it would not be prudent for the COB to authorise a withdrawal (or a budget for that matter), if the County in question does not have the capacity to carry out a given function. However, the political class at the Counties were reading from a different script. Not long after County Governors were sworn in following the March 2013 General Elections, there were loud murmurings from among them with claims that the Authority was frustrating approval of transfer of devolved Funds (by the COB) because it (the Authority) was withholding transfer of functions. The TA, on its part, was of the considered opinion that lack of capacity among many of the newly-established County Governments was what informed its decision.
Under the new system of devolved governments, the Senate will be entitled to the regular reports of the Office of the COB, because public finance has a direct bearing on Counties:
(6) Every four months, the Controller shall submit to each House of Parliament a report on the implementation of the budgets of the national and county governments.
Agnes Nangila Odhiambo, Controller of Budget
The first holder of the office of the Controller of Budget was vetted by the Budget Committee of the 10th National Assembly. The Controller will serve only one term of a maximum of eight years to allow for new blood and impetus in this important office, and perhaps to ensure that a "weak" or incompetent holder of the office does not continue indefinitely:
(3) The Controller shall, ....... hold office for a term of eight years and shall not be eligible for re-appointment.
The Controller's term will end in 2019.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Kirira Njeru (2011). "Public Finance under Kenya's new Constitution". Constitutional Working Paper Series No. 5. Society for International Development, SID.
3. "Treasury to keep tight grip on counties' cash spending". Daily Nation Business. Retrieved May 23, 2013.
4. Public Finance Management Act of 2012. National Council for Law Reporting. The Attorney General.
5. Website of the Controller of Budget. Accessed August 2013.
6. Website of the Transitional Authority. Accessed September 2013.
- Written by Steve Nguru
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Auditor-General under the New Constitution
Open. Accountable. Responsible
The office of the Auditor-General is an independent office having express authority to probe the use of all Public Funds - especially within the three arms of national government, its agencies, and those within the Counties (County Funds).
The Auditor-General's role goes beyond reporting on the accounts of public entities and organs; the Office will also be expected to opine on how well or otherwise the Funds were used.
The office is led by an Auditor-General.
As an independent office, the office of the Auditor-General is watchdog office for the people of Kenya, to protect how (their) Public Funds are used. Previously, this office was combined together with that of the Controller of Budget under the office of the Controller and Auditor-General.
The office of the Auditor-General is a constitutional Office:
229. (1) There shall be an Auditor-General ....... (Chapter Twelve - Public Finance, Part 6 - Control of Public Money)
The specialised mandate of the Auditor-General is to report on the finances of both the National and County Governments, and those of State Organs. Excerpts from Article 226 of Chapter Twelve - Public Finance, Part 6 - Control of Public Money and Part 7 - Financial Officers and Institutions, respectively:
226. (3) ....... the accounts of all governments and State organs shall be audited by the Auditor-General.
In other words, the Auditor-General is entrusted by the people to examine the accounts of every public body that is exercising power on behalf of the people of Kenya. Excerpts from Chapter One - Sovereignty of the People and Supremacy of this Constitution, Article 1:
1. (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution–– (a) Parliament and the legislative assemblies in the county governments;(b) the national executive and the executive structures in the county governments; and (c) the Judiciary and independent tribunals.
While discussing the constitutional provisions of Commissions and Independent Offices, we outlined the importance of the Office of the Auditor-General in the newly restructured Kenyan State under the Constitution of Kenya 2010. It was noted that the Auditor-General is expected:
"........ to assure Kenyans that public resources are safeguarded from misuse and above all employed efficiently and effectively for the benefit of all Kenyans" (Edward R O Ouko, 2012).
The office must therefore audit the accounts of any public body that is a recipient of public money within the arms of national and county governments. Part 7 - Financial Officers and Institutions:
229. (4) ......., the Auditor-General shall audit and report ....... on— (a) the accounts of the national and county governments; (b) the accounts of all funds and authorities of the national and county governments;
Including the Courts:
(4) ......., the Auditor-General shall audit and report ....... on— (c) the accounts of all courts;
As well as the accounts of Constitutional Commissions and Independent Offices:
(d) the accounts of every commission and independent office established by this Constitution;
Of all legislative Houses:
(e) the accounts of the National Assembly, the Senate and the county assemblies;
Even political parties are not exempted as they are beneficiaries of public funds:
(f) the accounts of political parties funded from public funds;
The Auditor-General also keeps an eye on the management of the country's public debt amounts, obligations, etc.:
(g) the public debt; and .......
In short, the Office of the Auditor-General does not require permission from anyone in order to audit accounts of any public body:
(h) the accounts of any other entity that legislation requires the Auditor-General to audit.
(5) The Auditor-General may audit and report on the accounts of any entity that is funded from public funds.
Public interest issues such as public debt, financial dealings, and accounts of the secretive National Security Organs, must be open to closer scrutiny by the Auditor-General, as they fall under Clause (4), and should be well spelled out in legislation.
The Auditor-General's reports will not just be about crunching the numbers on how public money has been used; they must contain a statement of interpretation and opinion too:
229. (6) An audit report shall confirm whether or not public money has been applied lawfully and in an effective way.
To ensure checks and balances in the exercise of public power, the accounts of the Auditor-General will themselves be audited by an accountant in private practice:
226. (4) The accounts of the office of the Auditor-General shall be audited and reported on by a professionally qualified accountant appointed by the National Assembly.
Curiously though, the Constitution grants Parliament and County Assemblies the authority to debate and "take appropriate action" on the audit reports of their own accounts:
229. (7) Audit reports shall be submitted to Parliament or the relevant county assembly.
(8) Within three months after receiving an audit report, Parliament or the county assembly shall debate and consider the report and take appropriate action.
229. (1) There shall be an Auditor-General who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President. (Chapter Twelve - Public Finance, Part 7 - Financial Officer and Institutions).
The first holder of this office under the New Constitution was shortlisted by a specially constituted panel, and vetted by the Finance Committee of the National Assembly.
The Auditor-General serves for a limited period. This is intended to bring fresh vigour and ideas to the office, as well as prevent a situation where a compromised holder of the office who is the favourite of the President and/or Parliament, gets reappointed at the expiry of their term:
229. (3) The Auditor-General holds office ....... for a term of eight years and shall not be eligible for re-appointment.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Edward R O Ouko, (2012). Retrieved April 2012 from http://www.kenao.go.ke/ Kenya National Audit Office. Ouko is the first holder of the Office of the Auditor-General under the Constitution of Kenya, 2010.