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"id": 885676,
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"content": "In addition, it would be important to note that the PIC may also examine this matter if it was an audit issue or query arising from the examination of audited reports and accounts of the KAA or a special audit. The second aspect of this matter regards the contention that, the policy aspects of the inquiry fall within the mandate of the Departmental Committee on Transport, Public Works and Housing. In view of the provisions of Standing Order 216(5) as enumerated earlier, the Departmental Committee on Transport, Public Works and Housing is at liberty to proceed and inquire into the policy aspects of the commercial arrangement between KAA and KQ. Hon. Members, may I, at this juncture, inform the House that the Auditor-General has since submitted to me a report titled “Special Audit Report on the Proposed Privately Initiated Proposal (PIIP) Between Kenya Airports Authority (KAA) and Kenya Airways (KQ)”. The particular report was received in my office on 14th March, 2019, and I will be asking the Leader of the Majority Party to lay that Report on the Table of the House later during this sitting in keeping with the requirements of sections 39 and 49 of the Public Audit Act, 2015. Having perused the Report, it is evident that this matter is still at infancy. However, the Auditor-General has raised several operational and policy audit issues as well as two financial audit issues. Upon tabling of the Report, the PIC will be at liberty to resume its inquiry on the matter, but the Committee must confine itself to the financial and expenditure aspects of the reservations of the Auditor-General as well as omissions and or commissions on the part of the Kenya Airports Authority. As for the Departmental Committee on Transport, Public Works and Housing, the Committee is also at liberty to proceed with its inquiry. The Departmental Committee must confine itself to matters of policy, human resource, compliance with due process of law and generally addressing any issues of concern to the people as contemplated under Article 95 of the Constitution. Hon. Members, the third matter requiring my determination is whether the Auditor- General can audit the merits of policy issues of Government. Those who were in the 11th Parliament may recall that, this matter was a subject of heated debate during consideration of the Public Audit Bill, 2014 in both Houses, which is today the Public Audit Act (No.34 of 2015). Indeed, when passing the Bill, Parliament did include section 42, which provided that, and I quote:- s.42. “Notwithstanding the provisions of this Act, in an examination under this Act, the Auditor-General shall not question the merits of a policy objective of the National Government or county government or any other public entity.” The foregoing was the prevailing position in law until 16th February, 2018, when the High Court did make a pronouncement in so far as the application of that section was concerned. Hon. Members, in Petition No.388 of 2016 (Transparency International Kenya vs The Attorney-General and Two others) the learned Judge, Hon. E. Chacha Mwita, in his judgment held that, a statute could not impose conditions on the performance of the Auditor-General's functions where the Constitution did not impose them. Section 42 of the Public Audit Act, 2015 was, therefore, declared a violation of Article 10 of the Constitution which provides for national values and principles of governance which include integrity, transparency and accountability and also Article 201 of the Constitution which provides for financial openness. This decision has implication on the business of the House and its Committees, in so far as the scope of requests for special audit is concerned."
}