On August 3, Kenya’s National Assembly amended and approved the Controller of Budget Bill (COB).

It is worth noting that the Controller of Budget was created by the 2010 Constitution and began operations in 2011. I have seen no explanation of why it has taken the National Assembly five years to pass this legislation. Given the importance of the office, it is surprising that parliament did not treat this with greater urgency.

The actual debate over the legislation on August 3 was also wanting. While I do not have the final version of the Bill as tabled nor the final version as amended, we can make some observations based on the version available in the Hansard.

Lack of consistency

The first observation is that there is a lack of consistency in how parliament reasons about the law and its alteration. In debating a possible amendment to give the Controller of Budget powers of “enforcing budgetary ceilings,” leader of the majority Aden Duale argues that this would be adding extra roles beyond what the Constitution envisioned for the office, something he characterises as “unlawful.”

He goes on to state that the role of deciding ceilings, at least for counties, belongs to the Commission on Revenue Allocation (CRA), and this is not a “role that you can just give to the Controller of Budget.”

Of course, there is nothing in the Constitution that gives the CRA the role of setting county “ceilings.” And while I do not have a strong view on the amendment (it is not clear what is intended by “enforcing”), the mandate of the COB is to ensure that no funds are withdrawn from public funds unless “authorised by law.”

Defy parliament

If the “budgetary ceilings” in question are those set by parliament, as per the amendment, then it is already within the mandate of the COB to prevent withdrawals that defy parliamentary legislation (as such withdrawals are illegal). How does enhancing this power exceed the constitutional mandate of COB, if allowing CRA to set ceilings does not exceed the constitutional mandate of CRA?

Honourable Duale and Honourable Mulu agree, furthermore, that it is parliament that enforces ceilings through the Appropriations Act. But of course, parliament has no enforcement powers. The question is what happens when the executive defies parliament? It may not be appropriate to expand the Controller’s “enforcement” powers beyond denying withdrawals of funds, but how to ensure that budget ceilings are enforced is surely a worthwhile topic.

For example, the COB has routinely pointed out that some county assembly members are paying themselves more than authorised by the Salaries and Remuneration Commission. Yet there appears to be no way to take action against them.

Another area of inconsistency is around the clauses related to how the COB recruits staff. Parliamentarians argued that the COB should not have to consult with the Public Service Commission (PSC) on recruitment of staff, as this would interfere with its independence as per the Constitution.

Interference

Yet this is the very same parliament that recently passed the Public Audit Act with amendments ensuring that the Auditor could only recruit staff subject to “delegation” by PSC, clauses seemingly designed to interfere with the OAG’s independence. What explains the disparate treatment of COB and OAG in this matter?

The original Bill, and some of the proposed amendments to it, seem to be aimed at reducing the scope of COB reports and lengthening the period between tabling in parliament and publication. An amendment in parliament maintained that the reports should not include information “on recent economic developments and outlook, including revenue, grants and loan forecasts and receipts.”

It is hard to imagine a good reason why the Controller should be restricted from commenting on revenue, grants or loans, but this amendment was subjected to relatively little debate.

The Public Finance Management Act envisions quarterly implementation reports from the National Treasury published and publicised upon tabling in the Assembly. The COB Bill would have COB reports published two weeks after tabling.

Why does parliament need two weeks to review these documents before they are released to the public, especially if this is not required for executive implementation reports?

A final concern: The members of the National Assembly appear to be a bit confused about the role of the COB vis-à-vis the Auditor General. They suggest (and here Honourable Duale is surely in the right to oppose) that the COB should be able to recommend criminal prosecution when her reports show “money has been stolen.”

The COB is not generally in a position to verify whether money was stolen or not. The office is concerned with whether funds are spent as per budget. Only a proper audit can verify that money was not properly accounted for, and even then, it is often insufficient to prove that it was stolen.

Jason Lakin is Kenya country director for the International Budget Partnership. E-mail: [email protected]