The National Assembly will defend the legislative processes relating to amendments made by the House to the Public Finance Management (PFM) Act in 2014, before a Bench of three High Court Judges empanelled earlier this week by the Chief Justice.
The Bench to be presided over by Justice Francis Gikonyo and also comprises Lady Justice Roseline Aburili, and Justice Moses Ado Otieno.
The query on amendments to the PFM Act, is among the contentions raised by Busia Senator Okiya Omtatah in a Petition currently before the High Court, where he is challenging the legality of Government borrowing between Financial Years 2014/2015 and 2024/2025.
Sen. Omtatah, alongside the eight other petitioners, has sued the National Assembly alongside 22 other respondents including former President H.E. Uhuru Kenyatta, the Attorney General, the Cabinet Secretary for Treasury and National Planning, the International Monetary Fund (IMF), the Office of the Controller of Budget and the Central Bank of Kenya among others.
In an affidavit before the Court, the National Assembly has asked the Judges to strike out the Petition on account that it was premature as the Petitioners had not exhausted all other Constitutionally stipulated legal redress mechanisms, before moving to Court.
The said mechanisms as stipulated by the Constitution and the Public Audit Act include the powers bestowed upon the office of the Auditor General to conduct investigations related to Public Accounts in the event of any complaint by a third Party.
The National Assembly argues that the Petitioners had not lodged their complaints with the Auditor General prior to filing the current Petition in Court.
The House also noted that the Constitution under Article 119 of the Constitution also gives any citizen the right to Petition Parliament to request for investigation or audit of Public Funds; an avenue the Petitioners had yet to take.
“Therefore, the Petitioner’s attempt to bypass those mechanisms strips the Court of Jurisdiction to decide on the issues raised in the Petition,” argues the National Assembly.
In its affidavit, the National Assembly argues that the House had previously through the constitutionally stipulated processes, made recommendations related to the forensic audit of public accounts.
Among these, the National Assembly argues, was a comprehensive Report tabled in the House on November 30, 2023, by the Public Accounts Committee (PAC) with regard to the review of the Auditor General’s Report on the Financial Statements for the National Government Ministries, Departments and Agencies (MDAs) for the Financial Year 2020/2021.
Among the recommendations of the said Report was a directive to the Auditor General to undertake a forensic audit of the public debt portfolio and to submit its findings to Parliament.
It was upon this recommendation that the Office of the Auditor General initiated the said audit.
“Consequently, the very subject matter of the Petition on legality of Kenya’s debt portfolio is currently under review by the Constitutionally mandated bodies; that is Parliament and the Auditor General,” noted the National Assembly.
The National Assembly further argues that entertaining the Petition would deny the Court the benefit of the “Constitutional dispute resolution framework and render the matter as non-justiciable.”
The Three Judge bench will give directions on the hearing dates for the Petition.
