High Court suspends Ruto task force for audit of public debt

The High Court has issued a conservatory order suspending the Gazette notice establishing the Presidential Taskforce on the Forensic Audit of Public Debt.

The order was issued by Justice Lawrence Mugambi following a suit by Nakuru doctor Gikenyi Magare and activist Eliud Matindi against the task force and its members, the auditor general, and the Treasury Cabinet Secretary.

"An interim order is hereby issued prohibiting the respondents either by themselves, anyone else acting on their behest, instructions, directions or any other person whosoever, from discharging any functions pursuant to the Executive Order no. 4 and the Gazette notice, establishing the Presidential Taskforce on Forensic Audit of Public Debt," the court stated in a ruling on Monday.

On July 5, President William Ruto appointed an independent task force to carry out a comprehensive forensic audit of public debt and issue a report in three months, amid pressure from the public to rid the country of the systemic corruption that had plagued service provision by the government.

His announcement, via Gazette notice number 8261 issued on July 7, 2024, also came as the youth staged nationwide protests calling for this resignation, following their successful opposition to the Finance Bill of 2024, which Ruto withdrew.

Speaking from the State House in Nairobi, the head of state noted that public debt continues to be a major point of engagement and conversation in Kenya.

The petitioners argue, however, that the task force usurps the independent mandate of the office of the auditor general and is therefore unconstitutional, null, and void.

Gikenyi notes that the constitution established the auditor general's office whose mandate includes auditing public debt within six months at the end of each financial year.

He adds that forming the task force amounts to duplicating roles and is a waste of scarce public resources because it will essentially perform the role of existing public offices.

"The office of Public Debt Management, headed by a director general at the Treasury and funded by public money, should provide details of public debt to the office of the auditor general for forensic audit by taking cognisance of Article 201 of the constitution on the need to have a prudent utilisation of scarce public financial resources."

The petitioners further argue that constitutional violations will continue against principles of good governance and public money will be lost without the probability of recovery.

To convince the court to suspend the task force pending the hearing of the petition to determine its legal and constitutional status, Gikenyi said that if it is declared unconstitutional later, its proceedings and resultant findings and recommendations, together with any actions taken by Treasury and others in the implementation of the report, shall have no force of the law.

He said that unlike the works of the auditor general which are made public, no person other than the president knows what will happen to reports from that task force.

The petitioners also challenged the constitutionality of the team's formation.

"The manner in which the president acted in establishing the task force, including the composition and terms of reference, violated the responsibilities of leadership under Article 73 of the constitution. the president's actions were outside the authority assigned to a state officer," the petition states.

"The petitioners endeavour, through these proceedings, to subject the president to the disciplining effect of the constitution and steer him back to the constitutional paddock."

Ruto was dealt a blow on Saturday when Law Society of Kenya (LSK) President Faith Odhiambo declined her appointment to the task force.

In a statement released, the lawyer's lobby noted that auditing public debt is a role designated by the constitution to the office of Auditor General Nancy Gathungu.

Odhiambo was to serve alongside chair Nancy Onyango, deputy Luis G. Franceschi, and members Philip Kaikai, Shammah Kiteme, and Vincent Kimosop.