Public Audit Act 34of 2015 - as Plain Text by MWakili

SPECIAL ISSUE Kenya Gazette Supplement No.

208 (Acts No.

34) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2015 NAIROBI, 24th December, 2015 CONTENT Act PAGE The Public Audit Act, 2015 2071 ATIO'N'At CO'UNOIL FOR LAW REPORTING RECEIVED I4, JAN P.O, etlx 1k:14 NAIROBI, KENYA TEL: -"z1.231 FAX: 2712694 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 2071 THE PUBLIC AUDIT ACT No.

34 of 2015 Date of Assent: 18th December, 2015 Date of Commencement: 7th January, 2016 ARRANGEMENT OF SECTIONS Section PART IPRELIMINARY 1 Short title.

2Interpretation.

3Guiding values and principles.

PART IIESTABLISHMENT OF THE OFFICE OF THE AUDITOR-GENERAL 4Establishment of the Office of the Auditor-General.

5Qualification for appointment as Auditor-General.

6Common Seal.

7Functions and powers of the Auditor-General.

8Administrative powers of the office of the Auditor- General.

9General powers of the Auditor-General.

10Independence of the Auditor- General.

11Vacancy in office.

12Acting Auditor-General 13Oath of office 14Development and approval of organisational structure.

15Recruitment of the Senior Deputy Auditor-General.

16 Responsibilities of the Senior Deputy Auditor- General.

17Recruitment of other Staff.

18Secondment of officers.

19Delegation of powers.

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34 Public Audit 2015 20Budget estimates and plans of the office of the Auditor-General.

21Power to obtain information from others.

22Power to examine bank accounts 23Outsourcing audit services.

24Professional assistance and consultancy.

PART III ESTABLISHMENT OF THE AUDIT ADVISORY BOARD 25Establishment and composition of the Audit Advisory Board 26Meetings and procedures of the Audit Advisory Board 27Functions of the Audit Advisory Board 28Allowances and expenses of the Audit Advisory Board members PART IVAUDIT PROCESS AND TYPES OF AUDIT 29 Guiding principles, practices and standards of auditing.

30Scope of audit.

31 Certification audit process steps.

32 Audit reports to be submitted to Parliament and the relevant county assembly.

33Use of work of internal auditor.

34Periodic Audits.

35Annual financial audits.

36Performance Audit.

37Forensic Audit.

38Procurement audits.

39Audit reports to be submitted to Parliament and the relevant county assembly.

40Auditing of national security organs.

PART VACCOUNTS OF THE OFFICE OF THE AUDITOR-GENERAL 41Sources of funds of the office of the Auditor-General.

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34 42Auditor-General not to question Government policy objective.

43Accounts of the office of the Auditor-General.

44Audit of accounts.

45Reporting by the appointed auditor.

46Debating and considering report of the appointed auditor.

PART VIREPORTING BY THE AUDITOR- GENERAL 47Time limits for submission of accounts.

48Accounts for audit.

49Special reports in the course of annual audit of the accounts of State Organs.

50Final audit reports on a State Organ or public entity including national or county governments accounts.

51Other reporting by Auditor-General.

52Use of media in publicizing of reports.

53Implementation of reports by an accounting officer.

54Withholding of funds by Parliament or county assembly.

PART VIITHE CODE OF CONDUCT AND ETHICS 55Determination of Code of conduct and Ethics.

56Observance of Code of Conduct and Ethics 57Administrative action.

58Disclosure of fraud and corruption.

59Disclosure of interest.

60Confidential reporting of unlawful acts.

PART VIII OtieENCES AND SANCTIONS 61 Offences by officers of the office of the Auditor- General.

62Other Offences.

63General penalty.

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34 Public Audit 2015 64Power to report to police, etc.

65Surcharge.

66Ineligibility to hold public office.

67Disallowable expenditure.

PART IXGENERAL PROVISIONS 68Power to make Regulations.

69Legal opinion and advice by the Attorney-General.

70Supremacy of this Act.

71Protection from personal liability.

72Public right of access to official audits reports.

PART XREPEAL, SAVINGS AND TRANSITION PROVISIONS 73Repeal of No.12 of 2003.

SCHEDULE 2075 2015 Public Audit No.

34 AN ACT of Parliament to provide for the functions and powers of the Office of the Auditor-General in accordance with the Constitution, and for connected purposes ENACTED by Parliament of Kenya, as follows PART IPRELIMINARY 1.

This Act may be cited as the Public Audit Act, Short title.

2015.

2.

In this Act, unless the context otherwise requires Interpretation.

"Accounting Officer" means (a) an Accounting Officer of the Office of the Auditor-General referred to under section 16 (1)(b); (b) an Accounting Officer as defined under section 2 No.

18 of 2012.

of the Public Finance Management Act, 2012; "Audit Committee" means an audit committee No.

18 of 2012.

established under sections 73(5) and 155(5) of the Public Finance Management Act, 2012; "Auditor-General" means the Auditor-General No.

8 of 2011.

appointed in accordance with Article 229 of the Constitution and section 11 of this Act; "Appropriation" has the meaning assigned to it under No.

18 of 2012.

section 2 of the Public Finance Management Act, 2012; "county government entity" has the meaning assigned No.

18 of 2012.

to it under section 2 of the Public Finance Management Act, 2012; "effectiveness" means prudent, efficient, economic, transparent and accountable use of public funds to ensure government achieves value for money and that such funds are applied for intended purpose; "financial year" has the meaning assigned to it under Article 260 of the Constitution; 2076 Public Audit 2015 No.

34 "lawful" includes compliance with a state organ's internal regulations, internal policies, programmes and the prescribed measures for securing efficient and transparent fiscal management; "office" means the Office of the Auditor-General established under section 4 of this Act; "public officer" has the meaning assigned to it in Article 260 of the Constitution; "public funds" means (a) all money that comes into possession of, or is distributed by, a State organ including the national or county governments and intergovernmental entities and money raised by a private body under statutory authority; (b) money held by State organ or public entities in trust for third parties and any money that can generate liability for the government; "public debt" has the meaning assigned to it under Article 214 of the Constitution; "public entity" includes any department or agency of No.

18 of 2012.

the government and any authority, body or other entity declared to be a government entity under the Public Finance Management Act; "Receiver of Revenue" has the meaning assigned to it No.

18 of 2012.

under section 2 of the Public Finance Management Act, 2012; "State Organ" has the meaning assigned to it under Article 260 of the Constitution; and "Wasteful Expenditure" has the meaning assigned to it No.

18 of 2012.

under section 2 of the Public Finance Management Act, 2012.

3.

(1) In discharging its functions under this Act, the Guiding values and Office of the Auditor -General and any person to whom principles.

this Act applies, shall be guided by the values, principles and requirements of the Constitution, including 2077 2015 Public Audit No.

34 (a) the national values and principles provided for under Article 10 of the Constitution; (b) the equality and freedom from discrimination provided for under Article 27 of the Constitution; (c) the responsibilities of leadership provided for under Article 73 of the Constitution; (d) the principles governing the conduct of State officers provided for under Article 75 of the Constitution; (e) the principles of public finance under Article 201 of the Constitution; and (f) the values and principles of Public Service as provided for under Article 232 of the Constitution.

(2) In addition to the values and principles in subsection (1), the Auditor-General shall promote efficiency, accountability, effectiveness and transparency on use of public resources.

PART IIESTABLISHMENT OF THE OFFICE OF THE AUDITOR-GENERAL 4.

(1) There is established an office to be known as the Establishment of the Office of the Office of the Auditor-General which shall be a body Auditor-General.

corporate in accordance with Article 253 of the Constitution and shall be capable of (a) suing and being sued; (b) acquiring, safeguarding, holding, charging and disposing of moveable and immoveable property; and (c) doing or performing all such other duties or acts for the proper discharge of its functions under this Act, which may be lawfully done by a body corporate.

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34 Public Audit 2015 (2) The office shall comprise the Auditor-General as its statutory head and all other staff appointed by the Auditor-General as may be delegated in accordance with Article 234 of the Constitution.

(3) The Office of the Auditor-General shall ensure reasonable access to its services in all parts of the Republic.

(4) The headquarters of office of the Auditor-General shall be in the capital city but the office may establish branches at any place in Kenya.

5.

(1) A person shall be qualified for appointment as Qualification for appointment as the the Auditor-General if such person:- Auditor-General (a) is a citizen of Kenya; (b) holds the respective qualifications for the office specified in Article 229 (2) of the Constitution; (c) holds a degree in finance, accounting or economics from a university recognized in Kenya and demonstrates a verifiable and logical progression in the attainment of his or her educational qualifications; (d) meets the requirements of Chapter Six of the Constitution; and (e) is a practicing member of good standing of a professional body of accountants recognised by law.

6.

(1) The Common seal of the Office shall be kept in Common Seal.

the custody of the Auditor-General or in the custody of such other person as the Auditor-General may direct.

(2) The Common Seal of the Office when affixed to a document and duly authenticated shall be judicially and officially noticed, and unless and until the contrary is provided any necessary order or authorization by the Office under this section shall be presumed to have been duly given provided that express authority of the Auditor- General is procured.

7.

(1) In addition to the functions and responsibilities Functions and powers of the of the Auditor-General as set out in Article 229 of the Auditor-General.

Constitution, the Auditor-General shall- 2079 2015 Public Audit No.

34 (a) give assurance on the effectiveness of internal controls, risk management and overall governance at national and county government; (b) undertake audit activities in state organs and public entities to confirm whether or not public money has been applied lawfully and in an effective way; (c) satisfy himself or herself that all public money has been used and applied to the purposes intended and that the expenditure conforms to the authority for such expenditure; (d) confirm that- (i) all reasonable precautions have been taken to safeguard the collection of revenue and the acquisition, receipt, issuance and proper use of assets and liabilities; and (ii) collection of revenue and acquisition, receipt, issuance and proper use of assets and liabilities conforms to the authority; (e) issue an audit report in accordance with Article 229 of the Constitution; (f) provide any other reports as may be required under Article 254 of the Constitution; and (g) perform any other function as may be prescribed by any other written legislation.

(2) Without prejudice to the generality of subsection (1), the Auditor-General may undertake any audits required under the Constitution, this Act or any other relevant law.

8.

In addition to the powers and functions conferred Administrative powers of the office under the Constitution, this Act and other relevant laws, of the Auditor- and pursuant to Articles 252 (1) (c) and 232 of the General.

Constitution, the Auditor-General shall 2080 No.

34 Public Audit 2015 (a) develop an organisational structure and staffing establishment for the Office of the Auditor- General subject to Article 234(5) of the Constitution; (b) subject to Article 234(5) of the Constitution, recruit and promote qualified and competent staff to perform the Office's functions; (c) subject to Article 234(5) of the Constitution,exercise disciplinary control over staff; (d) subject to Article 234(5) of the Constitution, develop human resource of the office; (e) subject to Article 230 (4)(b) and 234 of the Constitution, determine the remuneration and benefits of each member of staff; (f) in addition to what is provided for under any other relevant law, develop and maintain a code of conduct and ethics for the office, specific to auditing, guided by the International code of practice, and code of International by the Ethics issued Organization of Supreme Audit Institutions and in consultation with the Public Service Commission and the National Treasury; 9.

(1) Without prejudice to the powers given under the General powers of Constitution and this Act and for the purposes of carrying the Auditor-General.

out his or her duties effectively, the Auditor-General, or an officer authorized for the purpose of this Act, shall have powers (a) to conduct investigations on his or her own initiative, or on the basis of a complaint made by a third party; (b) to obtain professional assistance, consultancy or advice from such persons or organizations whether within or outside public service as he/she considers appropriate; 2081 2015 Public Audit No.

34 (c) of conciliation, mediation and negotiation; (d) to issue summons to a witness for the purposes of his or her investigation; (e) of unrestricted access to- (i) all books, records, returns, reports, electronic or otherwise and other documents of entities listed under Article 229 (4) of the Constitution; (ii) any property or premises used or held by State Organs or public entities covered by Article 229 (4) of the Constitution and subject to audit under this Act.

Provided that such access is reasonably necessary, in the opinion of the Auditor-General, in carrying out his or her functions; (f) to request any public officer that is subject to this Act to provide explanations, information and assistance in person and in writing; (g) to locate any of his or her staff or an agent, for a time period to be determined by the Auditor- General, at the premises of any State Organ or public entity that is the subject of an audit or examination or review and that entity shall provide access to staff or agent and adequate office space, furniture and telephone access at the expenses of that State Organ or public entity; (h) to identify the origin of a transaction or officer who directed or approved it, where he or she has determined inaction, omissions, misuse or abuse of public resources by a public officer; and (i) to perform any function and exercise any powers prescribed by any other legislation, in addition to the functions and powers conferred by the Constitution.

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34 Public Audit 2015 (2) In addition to the powers under the Constitution, and subsection (1), the Auditor-General may without payment of a fee (a) require a search to be made of any records in a public office; (b) require copies to be made of, or extracts to be taken from, any records in a public office; (c) seize or access or obtain official electronic messages to the extent that it is necessary for purposes of undertaking an investigation or forensic audit in entities listed under Article 229 (4) of the Constitution ; and (d) solicit assistance of other National and County governments agencies in the exercise of his/her responsibilities under the Constitution, this Act or any other written law.

10.

(1) The Auditor-General shall not be subject to Independence of the direction or control by any person or authority in carrying Auditor- General.

out his or her functions under the Constitution or under this Act.

(2) Without prejudice to the generality of subsection (1), the Auditor-General and his or her staff shall perform their functions impartially, without fear, favour or prejudice and shall exercise their powers independently subject to the provisions of the Article 249 (2) of the Constitution, the provision of this Act and any other written law.

11.

(1) The office of the Auditor-General shall Vacancy in office.

become vacant, if the Auditor-General (a) dies; (b)by a notice in writing addressed to the President, resigns from office; or (c) is removed from office under any of the circumstances specified in Article 251 or Chapter Six of the Constitution.

2083 2015 Public Audit No.

34 (2) Where a vacancy occurs under subsection (1), the President shall within seven days, by notice in the Gazette, in at least two newspapers of national circulation and in at least two national radio and television stations, declare vacancies in the office of the Auditor-General and invite applications.

(3) An application under subsection (2) shall be forwarded to the Public Service Commission within fourteen days of the notice and may be made by any: (a) qualified person; (b) person, organisation or group of persons proposing the nomination of any qualified person.

(4) The names of all applicants under subsection (2) shall be published in the Gazette.

(5) The President shall, within fourteen days of the expiry of the period prescribed under subsection (3), constitute a selection panel comprising a chairperson and one representative from (a) the Ministry for the time being responsible for matters relating to finance; (b) the Office of the Attorney General; (c) the Ministry for the time being responsible for matters relating to the public service; (d) the Institute of Certified Public Accountants of Kenya; (e) the Association of Professional Societies of East Africa; and (f) the Law Society of Kenya, for the purpose of considering the applicants and selecting at least three persons qualified for appointment as Auditor General: Provided that for the purpose of selection and shortlisting of the said three persons, the selection panel shall hold its proceedings in public and submit to Parliament a report of the interview proceedings, which should include inter alia the scores of each candidate interviewed by individual members of the interviewing panel together with the criteria used in selecting the names forwarded.

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34 Public Audit 2015 (6) The selection panel shall within seven days of the selection of candidates under subsection (5), forward the names of the selected candidates to the President for nomination.

(7) The President shall, within seven days of the receipt of the names of the selected candidates under subsection (6), nominate one candidate for appointment as the Auditor-General and forward the name to the National Assembly.

(8) The National Assembly shall consider the nomination and may approve or reject the nomination.

(9) Where the National Assembly: (a) approves the nominee, the Speaker shall, within three days of the approval, forward the name of the approved nominee to the President for appointment; (b) rejects the nomination, the speaker shall, within three days of the rejection, communicate the decision to the President, who shall submit a fresh nominee from amongst the candidates forwarded by the selection panel under subsection (6).

(10) If the National Assembly rejects all or any subsequent nominee submitted by the President for approval under subsection (9), the provisions of subsections (1) to (7) shall, with the necessary modifications, apply.

(11) The President shall, within seven days of the receipt of the approved nominee from the National Assembly, by notice in the Gazette, appoint the Auditor- General approved by the National Assembly.

(12) For the avoidance of doubt, the Public Service Commission shall only provide secretariat services for the selection panel convened under subsection (5).

2085 2015 Public Audit No.

34 (13) Despite the foregoing provisions of this section, the President may, by notice in the Gazette, extend the period specified in respect of any matter under this section by a period not exceeding twenty-one days.

12.

(1) Where- (a) the office of the Auditor-General becomes vacant; (b) the Auditor-General has been suspended in accordance with the Constitution; (c) the appointment of a person as Auditor- General is pending; or (d) the Auditor-General is for any reason unable to perform the function of his or her office, then until a person is appointed to and has assumed the functions of that office in accordance with section 11, or until the Auditor-General has resumed the performance of those functions, the Public Service Commission shall recommend the most senior officer in the office of the Auditor-General to the President to designate such a person as the acting Auditor-General.

(2) A person designated under subsection (1) shall meet the minimum qualifications for appointment to the office of the Auditor-General and shall serve for a period not exceeding ninety days.

(3) When acting in terms of subsection (1), the acting Auditor-General shall have all the powers of the Auditor- General.

13.

The Auditor General shall, before assuming Oath of Office.

office, make and subscribe to the oath or affirmation set out in the Schedule before the Chief Justice.

14.

The Office of the Auditor General shall develop Development and approval of an organizational structure for consideration and approval organisational by the Audit Advisory Board.

structure.

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34 Public Audit 2015 15.

(1) There shall be a Senior Deputy Auditor- Recruitment of the Senior Deputy General who shall be competively recruited by the Auditor-General.

Advisory Board and appointed by the Auditor General.

(2) A person shall be qualified for appointment as the Senior Deputy Auditor- General, if that person meets all the qualifications for appointment as outlined in section 5 of this Act.

16.

(1) The Senior Deputy Auditor-General shall Responsibilities of the Senior Deputy- deputize the Auditor General and Auditor General.

(a) be the head of administration and management of the office of the Auditor-General; (b) be the accounting officer of the Office of the Auditor-General; and (c) perform such duties and exercise such other powers as the Auditor- General may delegate to him or her or perform other duties as spelt out by the office of the Auditor-General.

(2) In performance of his or her responsibilities under subsection (1) (a), the Senior Deputy Auditor General shall report to the Auditor-General.

17.

(1) The office of the Auditor General may recruit Recruitment of other such other staff as may be necessary for proper discharge Staff.

of his or her functions under the Constitution, this Act and any other written law, upon such terms and conditions as he/ she may determine in consultation with the Salaries and Remuneration Commission and subject to Articles 230 and 234(5) of the Constitution.

(2) The remuneration of such staff should reflect prevailing remuneration of staff performing similar duties in the audit profession in other public and private institutions.

(3) The staff of the Office of the Auditor-General shall be competitively recruited in accordance to the organisation structure developed by the office of the Auditor-General.

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34 (4) The recruitment and appointment of staff shall take cognisance of regional, ethnic and gender balance including equal opportunities to persons with disabilities and marginalized groups and shall comply with the value and principles of public service as contemplated in Article 232 of the Constitution.

18.

(1) A State Organ or public entity may upon such Secondment of request by the Auditor-General, second to the office such officers.

number of public officers as may be necessary for proper performance of the functions of the Office.

(2)A public officer seconded to the office shall, during the period of secondment, be deemed to be an officer of the office and be subject to the policies and regulations of the office of the Auditor-General.

(3) The Auditor-General may, upon the request of a State Organ or public entity second his or her staff who shall, for the period of such secondment, be under the direction and control of the concerned State Organ or public entity and such an officer shall not audit that State Organ or public entity within a period of twenty-four months after the expiry of the secondment.

19.

(1) The Auditor-General may, subject to such Delegation of conditions as he or she may impose in writing, delegate any powers.

power and assign any duty conferred on him or her in terms of this Act or any other written law to a subordinate officer.

(2) A delegation or instruction in terms of subsection (1) shall not absolve the Auditor-General of the responsibility concerning the exercise of his or her power or the performance of the duty.

(3) The Auditor-General may confirm, vary or revoke any decision taken by a member of staff in consequence of a delegation or instruction under this section.

20.

(1) The accounting officer shall prepare annually Budget estimates and plans of the budget estimates of revenue and expenditure and work office of the plans for the next financial year for consideration.

Auditor-General.

(2) The budget estimates of revenue and expenditure referred to under sub-section (1) shall be submitted to the Cabinet Secretary responsible for finance not later than the 2088 No.

34 Public Audit 2015 30th March each year for review and submission to the National Assembly in accordance with Article 221 of the Constitution, and the National Assembly shall, pursuant to Article 249 (3) of the Constitution, allocate adequate funds to the office of the Auditor General.

(3) The budget estimates submitted under sub-section (2) shall include the following (a) estimates of revenue and recurrent expenditure for the coming fiscal year; (b) estimates for the development expenditure for the coming fiscal year; and (c) any other matter considered relevant by the Auditor-General in the consideration of the budget and plans of the Office.

21.

(1) For the purposes of exercising or performing Power to obtain information from his or her functions, duties or powers under the others.

Constitution or this Act, and subject to the law relating to data protection, the Auditor-General shall require a public body or any person employed by the public body (a) to produce any official document in the body's or person's custody, care or control; and (b) to provide the Auditor-General with information or an explanation about any official information, system or asset.

(2) The Auditor-General may obtain such official information as he or she considers necessary to fulfil his or her functions, duties and powers from a person who is not a member, employee or office holder of the public body, within fourteen days and in doing so, the Auditor-General may (a) advise the person in writing of the nature of the information and why it is needed; (b) state that the information is required under this Act; (c) ask for further information where necessary; 2089 2015 Public Audit No.

34 (d) summon the person, if necessary; or (e) reimburse the person for any reasonable costs incurred in travelling where such person is summoned to appear, as may be determined by the Office.

(3) Where the information required is not official, then the Auditor General will have to apply to the courts to obtain such information.

(4) In cases where the Auditor-General suspects fraud or corruption, he or she may invite the relevant organs for their appropriate action.

22.

(1) The Auditor-General may in the course of Power to examine exercising his or her functions, duties or powers, track a bank accounts.

transaction into the account of any person in any bank through an order of the courts, if the Auditor-General has reason to believe that the money belonging to a public body has been fraudulently or wrongfully paid into such person's account.

(2) When required under this section, the bank shall produce any documents or provide requested information relating to the account in the bank's custody or control.

(3) In exercising the authority under this section, the Auditor-General shall ensure that any information obtained is not used for any other purpose other than that legally intended and the Auditor-General shall keep in safe custody all the documents and information so obtained.

(4) The Auditor-General may make copies of any documents so produced.

23.

(1) For purposes of carrying out his or her Outsourcing audit functions under this Act, the Auditor-General may services.

outsource audit services from duly registered audit firms whose partners and staff are not employees of the Office of the Auditor-General and the public service to assist in an examination and audit of accounts.

(2) Only a person registered and practising as an accountant under the Accountants Act, 2008, shall be No.

15 of 2008.

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34 Public Audit 2015 qualified for the purpose of provision of a financial audit opinion under this section.

(3) An auditor appointed under this section shall comply with any lawful directions given by the Auditor- General and shall report to the Auditor-General.

(4) For purposes of his or her appointment, an auditor appointed under this section exercises delegated powers of the Auditor-General relating to examinations and audit.

(5) An auditor appointed under this section shall not certify the results of the examination and audit and shall not submit any report required under this Act other than the report under subsection (2).

(6) During the period of performing the work outsourced, the staff of the outsourced firm shall conform to the provisions of this Act and Code of Ethics developed under this Act.

(7)An officer who previously worked for an organ that is being audited by the Auditor-General shall not audit that organ until after thirty-six months from the time he or she ceased working for that organ.

(8) Outsourcing of any audit services under this section shall not absolve the Auditor-General of any responsibility concerning the exercise of his or her powers under this Act.

24.

(1) The Auditor-General may, in the performance Professional assistance and of his or her duties and functions under this Act, engage consultancy.

the services of or work in consultation with professional or technical experts or consultants, whether in the public service or not, to enhance the performance of the Auditor- General.

(2) The engagement of service under sub-section (1) shall be for purposes of ensuring effectiveness in the application of public funds.

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34 PART HIESTABLISHMENT OF THE AUDIT ADVISORY BOARD 25.

(1) There is established an unincorporated board to Establishment and composition of the be known as the Audit Advisory Board which shall Audit Advisory comprise of Board.

(a) the Auditor-General or a person nominated by him or her; (b) the Attorney-General of Kenya or a person nominated by him or her; (c) a nominee of the Institute of Certified Public Accountants of Kenya; (d) a nominee of the Association of Professional Societies of East Africa; (e) a nominee of the Law Society of Kenya; (f) the Chairperson of the Public Service Commission or his or her nominee: Provided that the nominee under paragraph (d) shall not be a member of a professional body provided for under subsection 1(c) and (e).

(2) A person shall be qualified to be nominated under subsection (1) (c) to (e) above if such person (a) has a degree from a university recognised in Kenya; (b) has a minimum of fifteen years' experience in matters relating to public finance, auditing, accounts, law, governance or public management ; and (c) meets the requirements of Chapter Six of the Constitution (3) The Auditor-General may co-opt two other members with the necessary expertise.

(4) The members of the Audit Advisory Board shall elect a chairperson from among themselves, who shall not be the Auditor General.

(5) The nomination and appointment of members under this section shall take cognisance of regional, ethnic, and gender balance and people with disabilities and marginalised groups.

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34 Public Audit 2015 (6) The Auditor-General shall, within fourteen days of receipt of names of qualified persons pursuant to subsection (1), by notice in the Gazette, appoint members of the Board.

(7) The members of the Audit Advisory Board shall hold office for a term not exceeding three years from the date of appointment and may be eligible for reappointment for a further one term of three years.

26.

(1) The Audit Advisory Board shall meet at least Meetings and procedure of the four times in every financial year and not more than twelve Audit Advisory times in every financial year and not more than four Board.

months shall elapse between one meeting and the next meeting.

(2) The quorum at the meeting of the Audit Advisory Board is five members of the Board or a greater number determined by the Audit Advisory Board in respect of an important matter.

(3) The Senior Deputy Auditor-General of the office of the Auditor-General shall be the Secretary of the Audit Advisory Board.

(4) The Chairperson shall convene and preside at meetings of the Board.

(5) The proceedings of the Audit Advisory Board shall not be invalidated by reason of a vacancy among the members.

27.

(1) Subject to section 10, the principal function of Functions of the Audit Advisory the Audit Advisory Board shall be to advise the Auditor- Board.

General on the exercise of his or her powers and the performance of his or her functions under the Constitution and this Act.

(2)Subject to the generality of subsection (1) the Board shall, in addition to any other function that may be conferred by this Act or any other law, advise the Auditor- General on 2093 2015 Public Audit No.

34 (a) the recruitment of senior managers into the Office of the Auditor-General; (b) the development and review of organizational development issues; (c) the budget estimates and plans of the office of the Auditor-General; (d) the remuneration and other terms of appointment of the staff of the Office of the Auditor-General in consultation with the Salaries and Remuneration Commission; and (e) any other matter that the Auditor-General may refer to the Board from time to time.

28.The members of the Audit Advisory Board shall be Allowances and expenses of the paid such allowances and expenses as are provided by the Audit Advisory Salaries and Remuneration Commission from monies Board members.

appropriated to the Office of the Auditor General.

PART IVAUDIT PROCESS AND TYPES OF AUDIT 29.

Subject to the Constitution and any written law, the Guiding principles, practices and Office of the Auditor-General shall apply the applicable standards of international standards, principles and practices in their auditing.

audits.

30.

Subject to the provisions of Articles 201 and 232 Scope of Audit.

of the Constitution, the Auditor-General shall determine the scope and extent of the examination or inspection of accounts and any other documents or information related to public expenditures or any audits under this Act, which he considers necessary in carrying out his or her responsibilities and functions specified under this Act.

31.

(1) The certification audit process steps shall be as Certification audit follows process steps.

(a) within three months after Parliament or the County Assembly has debated and considered the final report of the Auditor General and made recommendations, a State Organ or a public entity 2094 No.

34 Public Audit 2015 that had been audited shall, as a preliminary step, submit a report on how it has addressed the recommendations and findings of the previous year's audit.

(b) at the beginning of the audit examination of the financial statements of a State Organ or public entity, an inception meeting shall be held to deliberate on the scope of the financial audit, between the Auditor-General and the accounting officer and the financial statements to be audited should have been signed by the accounting officer and the substantive head of that entity, if different from the accounting officer and the Chairperson of the governing body, where applicable; (c) at the conclusion of the audit examination of the financial statements of each State Organ, an exit meeting shall be held at which the Auditor-General shall submit a draft management letter which shall include findings and recommendations to the accounting officer and comments of the accounting officer on the Auditor-General's findings and recommendations and the Auditor-General shall provide a copy of the report to the substantive head of that entity, if different from the accounting officer and, the Chairperson of the governing body, where applicable.

(2) For all other audits or investigation, the Auditor General shall inform the State organ or public entity to be audited or investigated in writing before commencement of the audit or investigation.

(3) The Auditor-General shall include in his or her report under this section (a) recommendations on how a State Organ or public entity may improve the application of funds in a lawful and in an effective way; and (b) how responsive the State organ or public entity has been to past audit findings and recommendations.

2095 2015 Public Audit No.

34 (4) The accounting officer shall within fourteen days from the date of receipt of the draft management letter, submit a response to the Auditor-General including remedial actions that have been undertaken to address any qualifications in the draft management letter.

(5)If within fourteen days the Auditor General will not have received a response, the Auditor-General shall proceed with the finalisation of the final management letter.

Where an audit report has been tabled, the Speaker (6) of the National Assembly shall invite the Auditor-General to present the report before the National Assembly.

32.

(1) All reports of an audit shall be submitted to Audit reports to be submitted to Parliament or the relevant county assembly.

Parliament and the relevant county (2) Within seven days of receiving the report, assembly Parliament shall publicize it on its official website and other public spaces.

(3) Within fourteen days after submitting the report to Parliament or the relevant county assembly, the Auditor General shall publicize the report on the official website and other public spaces.

33.

(1) The final report by an internal auditor which Use of work of has been deliberated on and adopted by an audit committee internal auditor.

of a State Organ or public entity, may be copied to the Auditor-General.

(2) The Auditor-General shall have unhindered access to all internal audit reports of a State Organ or any public entity, under subsection (1) above, which is subject to audit by the Auditor-General as provided for under Article 229 (4) of the Constitution.

34.The Auditor-General may, upon request or at his or Periodic Audits.

her own initiative conduct periodic audits which shall be proactive, preventive, and deterrent to fraud and corrupt practices, systemic and shall be determined with a view to evaluating the effectiveness of risk management, control and governance processes in State Organs and public entities.

2096 Public Audit 2015 No.

34 35.

The Auditor-General shall conduct audits of Annual financial financial statements under Article 229 of the Constitution audits.

for State Organs and public entities and report annually to Parliament and relevant county assembly.

36.

(1) The Auditor-General shall conduct Performance Audit.

performance audit to examine the economy, efficiency and effectiveness with which public money has been expended pursuant to Article 229 of the Constitution.

(2) The Auditor-General may undertake a comprehensive performance audit within six months after the completion of any National or County project to evaluate, whether the citizen has gotten value for money in the project and submit the report to Parliament or County Assembly for tabling and debate.

37.

The Auditor-General may, upon request by Forensic Audit.

Parliament, conduct forensic audits to establish fraud, corruption or other financial improprieties.

38.

The Auditor-General may examine the public Procurement audits.

procurement and asset disposal process of a state organ or a public entity with a view to confirm as to whether procurements were done lawfully and in an effective way.

39.

(1) All reports of an audit shall be submitted to Audit reports to be submitted to Parliament or the relevant county assembly.

Parliament and the relevant county (2) Within seven days of receiving the report, assembly.

Parliament or the relevant county assembly shall publicise it on their official website and other public spaces.

(3)Within fourteen days after the expiry of seven days upon submitting the report to Parliament or the relevant county assembly, the Auditor-General shall publicise the report on their official website and other public spaces.

40.

(1) In auditing national security organs, the Auditing of national Auditor General and his or her representatives shall hold an security organs inception meeting at the highest level, pursuant to section 31(1) (b), to agree on areas which may touch on national security and determine the appropriate audit approach that shall ensure confidentiality of information.

2097 2015 Public Audit No.

34 (2)The audit reports on national security organs may be redacted to shield identities of persons as well as assets and liabilities as the case may be.

(3)All staff of the Auditor-General carrying out audit under this section shall be vetted by the authorised government vetting agency.

PART VACCOUNTS OF THE OFFICE OF THE AUDITOR-GENERAL 41.

(1) The funds of the Office of the Auditor-General Sources of funds of the Office of the shall consist of Auditor-General.

(a) monies appropriated by Parliament for the purposes of the Office of the Auditor-General; (b) such monies or assets as may accrue to the office of the Auditor-General in the course of the exercise of the Auditor-General's powers or the performance of his functions under this Act; (c) audit fees charged at the rates prescribed by the Auditor-General; (d) investment income subject to annual approval by Parliament; and (e) all monies from any other source provided or donated or lent to the office of the Auditor- General and such monies shall be disclosed to Parliament.

(2)The receipts, earnings or accruals of the office of the Auditor-General shall not be paid into the Consolidated Fund but shall be retained for purposes of this Act in accordance with Article 206 (1) of the Constitution.

(3) The Auditor-General may open and maintain such No.

18 of 2012.

bank accounts in accordance with section 28 of the Public Finance Management Act, 2012, as are necessary for the exercise of the functions of the office of the Auditor- 2098 No.

34 Public Audit 2015 General and shall pay into them all monies received from the Government, or from any other source, for the purposes of this Act.

42.

Nothwistanding the provisions of this Act, in an Auditor General not to question examination under this Act, the Auditor-General shall not Government policy question the merits of a policy objective of the national objectives.

government or county government or any other public entity.

43.

(1) For each financial years the Accounting Officer Accounts of the Office of the of the office of the Auditor-General shall prepare and Auditor General.

submit upon approval by the Auditor-General, for audit the financial statements of the office of the Auditor-General to an external auditor appointed by the National Assembly in accordance with Article 226 (4) of the Constitution.

(2) The financial statement shall include the following (a) a statement of financial performance; (b) a statement of financial position; (c) a statement of changes in net assets; (d) a statement of accounting policies and notes to the financial statements;and (e) a statement of performance of the Office of the Auditor-General including statements on processes and systems audit against predetermined objectives.

(3) Without prejudice to subsection (2), the Accounting Officer shall prepare the financial statements in a form that complies with the relevant accounting standards prescribed and published by the Public Sector Accounting Standards Board in accordance with the Public Finance Management Act, 2012.

44.

(1) The accounting officer of the office of the Audit of accounts.

Auditor-General shall submit accounts of the office to the appointed auditor under section 41, within three months "7- 2099 2015 Public Audit No.

34 after the end of the financial year to which the accounts relate.

(2)The appointed auditor shall examine and audit the submitted accounts of the office of the Auditor General within six months after the end of the financial year in accordance with the provisions of Part IV of this Act, express an opinion and certify the result of that examination and audit.

(3)The appointed auditor shall examine whether or not public money has been applied lawfully and in an effective way.

45.

(1) The appointed auditor shall prepare a report on Reporting by the the examination and audit and submit the report to each appointed auditor.

relevant Clerk of Parliament, with a copy to the Cabinet Secretary responsible for finance and the Auditor-General.

(2) Subject to Article 35 of the Constitution, Parliament shall publicise it on their official website and other public spaces.

(3)Within fourteen days after the expiry of seven days upon submitting the report to Parliament, the Auditor- General shall publicise the report on their official website and other public spaces.

(4) Without limiting what may be included in the report (a) the report shall indicate whether- (i) the information and explanations that were required to perform the examination and audit were received; (ii) proper books of accounts have been kept and the accounts are in agreement therewith;and (iii) the accounts present a true and fair view of the financial position of the office of the Auditor-General; 2100 No.

34 Public Audit 2015 (b) the report shall identify cases in which (i) money has been spent in a way that was not lawful, economical, efficient and effective; and (ii) the rules and procedures followed or the records kept were inadequate to safeguard assets, liabilities and the collection of revenue.

46.Within three months after receiving an audit report Debating and considering report of for the accounts of the Office of the Auditor-General, the appointed auditor.

National Assembly shall debate and consider the Annual Report of the office of the Auditor-General, comprising the financial statements and the activities of the office and take appropriate action.

PART VIREPORTING BY AUDITOR-GENERAL 47.

(1) The financial statements required under the Time limit for submission of Constitution, the Public Finance Management Act, 2012 accounts.

and any other legislation, shall be submitted to the Auditor- No.

18 of 2012.

General within three months after the end of the fiscal year to which the accounts relate.

(2) The financial statements shall be in the form and content as prescribed by the Public Sector Accounting Standards Board.

48.

Within six months after the end of each financial Accounts for audit.

year, the Auditor-General shall audit and report, in respect of that financial year, on the accounts specified in Article 229 of the Constitution.

(2) Without prejudice to the provisions of subsection (1), the Auditor-General may audit and report on the accounts of any entity that is funded from public funds.

2101 2015 Public Audit No.

34 49.

(1) If, in the course of an examination and audit, a Special reports in the course of annual matter comes to the attention of the Auditor-General that audit of the accounts he or she feels should be brought to the attention of the of State organs.

Parliament or the relevant county assembly, the Auditor- General shall submit a special report to Parliament or the relevant county assembly in accordance with the protocols developed in the Regulations.

(2) Within seven days of receipt, Parliament or the relevant county assembly, shall publicize that report on their official website and any other public notice and shall publish a notice in the gazette to inform the public of the availability of the report.

(3) Within fourteen days following the expiry of the seven days referred to under subsection (2), the office of the Auditor-General shall publicize that report on its official website and any other public notice.

(4) Within sixty days following the expiry of the seven days referred to under subsection (2), Parliament or relevant county assembly shall discuss and review the report.

50.

(1) The final audit report of the Auditor-General Final audit reports on a State Organ or shall be submitted to Parliament or the relevant county public entity assembly, with copies to the Cabinet Secretary responsible including national or county governments for finance and the relevant County Executive Committee accounts.

member for finance, as the case may be, and the accounting office of the entity that is subject of the audit.

(2) Within three months of receiving an audit report referred to under subsection (1), Parliament or the relevant county assembly shall debate and consider the report and take appropriate action.

51.

(1) Within thirty days following the expiry of the Other reporting by seven days of publication period, Parliament or the relevant the Auditor-General.

county assembly shall discuss and review other reports submitted to them.

(2) Within fourteen (14) days following the expiry of the seven days publication period, the office of the Auditor-General shall publicize the report on its official website and any other public notice.

2102 No.

34 Public Audit 2015 52.

Where Auditor-General makes use of national or Use of media in publicizing of local media to publicise the reports under this Act, he or reports.

she shall take into consideration the following factors (a) the general nature of the report or document; (b) how and where it has been published and how it may be accessed and read by members of the public; (c) the need to widely circulate a summarized version of the report; (d) accessibility of the document at public libraries or offices of State Organs and public entities; and (e) any other forum that the Auditor-General may consider appropriate.

53.

(1) The relevant accounting officer of a state organ Implementation of reports by an or public entity shall within three months after Parliament accounting officer.

has considered and made recommendations on the audit report (a) take the relevant steps to implement the recommendations of parliament on the report of the Auditor-General; or (b) give explanations in writing to the Parliament on why the report has not been acted upon.

(2) Failure to comply with the provisions of subsection (1), the accounting officer shall be in contempt of Parliament or County Assembly and upon determination by Parliament or relevant County Assembly, Parliament or relevant County Assembly may recommend administrative sanctions such as removal as the Accounting Officer, reduction in rank among others.

54.

Where there is a serious material breach or Withholding of funds by Parliament persistent material breaches of the provisions of this Act, or county assembly.

the Auditor-General may in his audit report to Parliament No.

18 of 2012.

or the relevant county assembly pursuant to the Public 2103 2015 Public Audit No.

34 Finance Management Act, 2012, recommend the withholding of funds to any State Organ or public entity.

PART VIITHE CODE OF CONDUCT AND ETHICS 55.

The Auditor General in discharging his or her Observing the code functions and responsibilities shall determine the code of of conduct.

conduct and ethics for all public officers in the Office if the Auditor General, which shall be in line with those prescribed by the Constitution, this Act and the Public No.

3 of 2003.

Officer Ethics Act, 2003.

56.

It shall be the obligation of every officer of the Observance of Code of Conduct and Office of the Auditor-General to observe the Code of Ethics.

Conduct and Ethics developed by the Auditor-General under section 55.

57.

Any staff of the Office of the Auditor-General or Administrative an auditor outsourced by the Office who may be proven to action.

have been compromised, bribed or corrupted in any way in consideration for suppressing a fraud or corrupt practice by the Auditee client shall be liable to administrative action under this Act or by the relevant professional body over and above any criminal proceedings which may be preferred against him or her in accordance with this Act or any other written law.

58.

(1) All staff of the Office of the Auditor-General Disclosure of fraud are duty bound to disclose any fraud or corruption that and corruption.

comes to their attention immediately and disciplinary action shall be taken against any officer who knowingly covers up any acts of fraud or corruption.

(2) Despite the provisions of subsection (1), an officer of the Office of the Auditor-General shall not divulge any information which relates to the business secret of the Auditee which comes to his or her knowledge in the course of duty unless is for official purposes as provided for under this Act or any other written law.

59.

(1) An officer of the Office of the Auditor- Disclosure of General who has an interest in a matter under consideration interest.

by the auditee client shall disclose in writing, the nature of 2104 No.

34 Public Audit 2015 that interest and shall not participate in any auditing exercise relating to that client.

(2) An officer who fails to disclose an interest in a matter in accordance with subsection (1) shall be subject to administrative action under the provisions of this Act or Regulations made thereunder.

60.

(1) The Auditor-General shall put in place a Confidential reporting of mechanism for confidential reporting about the officers of unlawful acts.

the Office of the Auditor-General relating to unlawful acts or orders relating to violation of laws in relation to public funds, gross wastage, mismanagement and abuse of authority.

(2) Any person reporting a corrupt practice or misconduct by an audit officer with knowledge or good faith or belief that the allegation or information is true, shall be treated with utmost confidentiality.

(3) Allegations and concerns reported anonymously shall be reviewed and considered as appropriate and some of the factors to be considered by the Auditor-General shall include the seriousness of the allegation, its credibility, and the extent to which the allegation can be confirmed or corroborated by attributable sources.

(4) Subject to the Witness Protection Act, 2006 the Act 16 of 2006.

Auditor-General shall not disclose the identity of a person under this section.

unless (a) such person agrees to be identified; (b) identification is necessary to allow appropriate law enforcement official to investigate or respond effectively to the disclosure; (c) is required by law where a false accusation has been maliciously made; or (d) the person accused is entitled to the information as a matter of legal right and in such an eventuality the Auditor-General, shall inform the person prior to revealing his or her identity.

2105 2015 Public Audit No.

34 PART VIIIOFFENCES AND SANCTIONS 61.

(1) Any officer of the Office of the Auditor- Offences by officers of the office of the General commits an offence if that officer Auditor-General.

(a) engages in a corrupt act; (b) knowingly and willfully conceals information on audit fmdings for whatever reason, including in order to obtain a financial benefit for the officer or an accomplice or another person; (c) knowingly and willfully fails to disclose audit information on fraud or corrupt practice by the audited entity; (d) fails to disclose any conflict of interest in any matter under consideration in the course of discharging any functions under this Act; or (e) knowingly and wilfully discloses ,publishes or publicizes the Auditor General's audit report or its contents to third parties including the media before the report is finalized and formally submitted to Parliament or County Assembly and copied to the audited entity and other authorized offices; (2) Any officer of the Office of the Auditor-General who commits an offence under subsection (1) shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding five years, or to both.

62.

(1) A person shall not Other Offences.

(a) without reasonable cause or lawful excuse, obstruct or hinder, assault or threaten a member of staff of the Office of the Auditor-General or professional acting under this Act; (b) without justification, fail to provide information required under this Act; 2106 No.

34 Public Audit 2015 (c) without justification, fail to provide information within reasonable time that is required under this Act; (d) submit false or misleading information; (e) misrepresent to or knowingly mislead a member of staff of the Office of the Auditor-General or professional acting under this Act; or (f) interfere with or exert undue influence on any staff of the Office of the Auditor-General or on any person authorized by the Auditor-General to perform functions under this Act.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both.

63.

Except as otherwise provided for under this Act, a General penalty.

person who is found guilty of an offence under this Act for which no other punishment is given, is liable on conviction to a fine not exceeding two million shillings or to a term of imprisonment not exceeding one year or, to both.

64.

(1) Where the Auditor-General establishes that Powers to report to any person, supplier or company has been involved in police, etc.

fraud or corrupt practice, the Auditor-General shall report to the police, Ethics and Anti-Corruption Commission or the Public Procurement Oversight Authority for their action.

(2) Where the matter is referred to the Public Procurement Oversight Authority, the Auditor-General may make recommendation for debarment from future public procurement and asset disposal proceedings of a state organ or public entity with a copy to the relevant accounting officer.

65.

If it is established by the Auditor-General that Surcharge.

there has been any deficiency in respect of any money or assets subject to its audit, the Auditor-General may recommend to Parliament or county assemblies that the 2107 2015 Public Audit No.

34 person in default or responsible should be surcharged with the amount of the deficiency or loss.

66.

A person who is convicted of an offence under this Ineligibility to hold Act shall not be eligible to hold public office or work with public office.

an entity owned in whole or part by the State for a period of ten years following the conviction.

67.

Where the Auditor-General becomes aware of Disallowable expenditure.

(a) any payment made without due authority; or (b) any deficiency or loss occasioned by negligence or misconduct; or (c) any sum which ought to have been, but was not brought to account, he or she shall, in the case of expenditure, call in question the sum concerned and make a report on the sum to Parliament and the relevant county assembly.

PART IXGENERAL PROVISIONS 68.

The Cabinet Secretary responsible for matters Power to make relating to finance may make Regulations not inconsistent Regulations.

with this Act respecting any matter that is necessary or convenient to be prescribed under this Act or for the carrying out or giving effect to this Act.

69.

The Auditor-General may make a written request Legal opinions and advice by the to the Attorney-General seeking a legal opinion or advice Attorney-General.

on matters of law or fact, as the case may be.

70.

This Act shall prevail in case of any inconsistency Supremacy of this between this Act and any other legislation relating to the Act.

functions and powers of the Auditor-General.

71.

The Auditor-General and his or her staff, or a Protection from person acting on the directions of the Auditor-General shall personal liability.

not be personally liable for any act or omission done or omitted in good faith in carrying out any duty, or exercising any power or function of the Auditor-General under this Act or the Constitution.

2108 No.

34 Public Audit 2015 72.

The Public shall have right of access to official Public right of access to official reports of the Auditor-General in line with Article 35 of audits reports.

the Constitution for transparency and accountability, except where such access may unduly jeopardize state security.

PART XREPEAL, SAVINGS AND TRANSITION PROVISIONS 73.

(1) The Public Audit Act, 2003, is repealed.

Repeal of No.12 of 2003.

(2) Despite subsection (1) (a) any proceedings taken against or by the Kenya National Audit Office or pending against that office or any other person immediately before the commencement of this Act may be continued by or against the Kenya National Audit Office as if instituted under this Act: Provided that criminal proceedings shall be regarded as pending if the person concerned had pleaded to the charge in question.

(b) any administrative investigation or inquiry instituted in terms of the repealed Act which was pending before the commencement of this Act shall be continued or disposed of as if instituted under this Act; (c) all disciplinary proceedings which immediately before the commencement of this Act were pending shall be continued or concluded as if instituted under this Act; (d) all appeal processes, which immediately before the commencement of this Act were pending, shall proceed as if instituted under this Act; (e) the persons employed by the Kenya National Audit Office shall be transferred to the Office of the Auditor-General established under this Act; (f) a contract subsisting between the Kenya National Audit Office and another person before the commencement of this Act shall continue to exist 2109 2015 Public Audit No.

34 as if it was a contract entered into between the Office of the Auditor General and that other person; and (g) the Kenya National Audit Commission established by the repealed Act shall cease to exist within thirty days from the day of commencement of this Act; (3) Any references to the words "Controller and Auditor-General" under any written law shall be construed to refer to the words "Auditor-General".

2110 No.

34 Public Audit 2015 SCHEDULE (s.13) OATH/AFFIRMATION OF THE HOLDER OF OFFICE OF THE AUDITOR-GENERAL I having been appointed (the Auditor-General) under the Public Audit Act, 2015, do solemnly (swear/declare and affirm) that I will at all times obey, respect and uphold the Constitution of Kenya and all other laws of the Republic; that I will faithfully and fully, impartially and to the best of my ability, discharge the trust and perform the functions and exercise the powers devolving upon me by virtue of this appointment without fear, favour, bias, affection, ill-will or prejudice.

(SO HELP ME GOD).

Sworn/Declared by the said Before me this.

Day of Chief Justice.