President Uhuru Kenyatta may have to appoint a new selection panel to recruit the Auditor General after the court declared the current team invalid.
Judge Stephen Radido on Thursday ruled that the current selection panel appointed through Gazette Notice 8896 lacked the legal competence and validity to consider any applications for the re-advertised Auditor General’s post.
The judge further ordered the Attorney General to submit forthwith to Parliament a report of the interview proceedings, including the scores of each candidate.
The position of the Auditor General became vacant after Edward Ouko’s term expired in August 2019. His replacement has delayed, stalling the complex audit process that has in the past exposed wanton plunder in government.
The selection panel could not nominate three people for appointment by the President, saying none qualified.
Consequently, the government decided to re-advertise the vacancy.
Activist Okiya Omtatah filed a suit to protest the move by the selection panel not to forward three names to the head of state.
Omtatah said the panel reported that candidates met technical requirements, including academic qualifications, but scored poorly in tests for independence, diplomacy and tact, which were key considerations.
In his view, in a scenario where persons meet eligibility thresholds set by the law, the selection panel does not have the power to decline to select three candidates from those it interviewed and forward their names to the head of state.
He doubted the panel’s decision to cancel the recruitment, terming it unlawful and ultra vires (beyond one’s legal power), since neither the President nor the panel has any inherent powers beyond what is stated in law.
“The decision to re-advertise the vacancy in the position of Auditor General is unconstitutional and, therefore, invalid, null and void.”
Under the law, when a vacancy occurs in the office of Auditor General, Section 11 of the Public Audit Act contemplates a time-bound process with the President declaring the vacancy within seven days. Applications have to be made to the Public Service Commission within 14 days.
A selection panel is then constituted by the President.
The panel is required to consider the applicants and select names of the three applicants who qualify for the appointment and forward to the head of state.
The President is expected to within seven days forward the nominee to the National Assembly, which can either approve or reject.
In the event the National Assembly rejects the nominee, the process is expected to start afresh because the law contemplates fresh gazetting of vacancy of the Auditor General and fresh constitution of selection panel among other things.
But in the present case, the President did not constitute a fresh selection panel.
The chief government legal adviser had argued that the legal mandate and life of the selection panel only comes to an end when a person has been validly appointed to the office of the Auditor General.
Judge Radido rejected the contention by the state that the selection panel remains validly constituted until a person is appointed to the office of Auditor General.