Controller of Budget should resign forthwith for betraying her mandate

The Constitution creates a particular class of institutions called Constitutional Commissions and Independent Offices. They are responsible for performing specific tasks the Executive arm of government had abused in the previous constitution and thus couldn’t be trusted with.

These tasks include land adjudication, financial audits, human rights protection, election administration, budget allocation and approval, police and judicial appointments, and human resource management. The 14 bodies are outlined in Article 248 and include the Judicial Service Commission, EACC, Human Rights Commission, Auditor General, and Office of the Controller of Budget (COB).

Under Article 228 of the Constitution, the COB oversees the execution of the budgets of the national and county governments. Therefore, the COB must first determine the legality of any withdrawal of funds before authorising it. In general, they encourage prudent financial management in the public sector. As well as monitoring the use of public funds, the COB reports to Parliament on how the funds were used.

Margaret Nyakang’o, the COB, told MPs she was under duress to approve irregular public payments totalling Sh15 billion days before the last year’s general election. Additionally, she claims former Treasury Cabinet Secretary Ukur Yatani asked her to facilitate approvals for infrastructure worth Sh8 billion and Sh2 billion on August 4, 2022. She said she was “forced” to approve Sh9.2 billion, which the National Treasury approved under Article 223.

She claimed Mr Yatani had forced her to approve Sh6 billion to cater for Helios Investment leaving Telkom Kenya. He threatened her with a personal call from President Uhuru Kenyatta if she failed.

Her office approved Sh2.8 billion for the Lamu-Ijara-Garissa road improvement in July 2022. Following the approval of Sh4.8 billion budget for Nairobi Eastern By-Pass and Sh1.85 billion budget for Makupa Causeway, the National Treasury invoked Article 223 to approve the additional budget.

If the Appropriation Act does not provide sufficient funds for expenditure or a new need arises for expenditure for a purpose for which the the Act has not provided an adequate amount, Article 223 allows the government to spend money that has yet to be appropriated. Another requirement is that the funds be drawn from the Contingencies Fund. However, Mr Yatani allegedly accessed the Annuity Fund, not the Contingencies Fund, to fund the Sh9.2 billion project. This is a blatant violation of the law.

Her public testimony indicates that she failed to perform the one duty she was mandated by law concerning oversight over budgets and spending. Due to her admission, the public’s confidence in the institution has been undermined, and the purpose of controlling the budget bastardised. Per Article 248 of the Constitution, constitutional commissions and independent offices, such as the one she heads, are designed to protect the people’s sovereignty, ensure adherence to democratic values and principles, and promote constitutionalism.

Under our constitutional order, she is protected because she heads an independent office. Therefore, besides being paid out of the consolidated fund and having the security of tenure, she is usually removed from office by a tribunal similar to the Justice Aggrey Muchelule-led tribunal that recommended the removal of IEBC Commissioner Irene Masit. This ensures those heading commissions and independent offices can stand up to the executive.

Nyakong’o’s admission should trigger urgent criminal investigations on all alleged to have used their positions to break the law. Meanwhile, Nyakong’o should immediately resign because she bowed to pressure leading to the misappropriation of our money.

First published in The Standard on 10st March 2023. Kindly reproduced here with permission from The Standard.

Demas Kiprono is a human rights lawyer and a Campaign Manager at Amnesty International Kenya. He writes in his personal capacity. Email: [email protected]