The June Contract and the Missing AIE

The Chief Registrar is the accounting officer for the Judiciary. Under Article 226 the accounting officer is accountable to Parliament for the funds and is personally answerable for their proper use, must keep proper records, and must report to the Auditor-General.

Public expenditure is lawful only as authorised by an Appropriation Act and, in practice, only after an authority to incur expenditure has been issued and funds are available on the vote. Signing a KES 78 million contract and permitting work to start with KES 12 million remaining and no AIE is an unauthorised commitment. The exposure is both personal and institutional: surcharge and recovery proceedings, disciplinary action against the accounting officer, adverse audit findings, and referral to the EACC.

Immediate steps: suspend further payments; report in writing to the Treasury and the Auditor-General; secure the record (commitment register, correspondence, evaluation file); and determine whether any goods or services have actually been received. A retrospective AIE obtained after the event does not cure the illegality, though it may regularise the accounting treatment where value has been received. The decision to commence was the accounting officer's, and no instruction from a supplier or a judge relieves him of it.

Three defects compound each other.

First, the mobilisation payment. Advance payments are capped by the procurement law and Treasury regulations and are normally conditional on an advance payment guarantee. A 40 per cent advance without a guarantee, and made outside an AIE, is non-compliant and exposes the Judiciary to loss if the supplier fails.

Second, the method. Restricted or direct tendering requires statutory grounds and approvals. Urgency created by the entity's own late planning is not a lawful ground; the need for the system was foreseeable and the procurement should have been planned in the previous year.

Third, the conflict. The administrator whose brother controls the supplier sat on the evaluation committee and failed to declare the relationship. That breaches the Code of Conduct and the procurement statute. The evaluation is tainted and the contract is liable to be annulled on review by the Public Procurement Administrative Review Board. The firm may be debarred, the administrator disciplined, and the matter referred for investigation. The accounting officer's signature does not sanitise the process; he must satisfy himself that procurement law was followed before committing funds, and he should have suspended the administrator the moment the relationship surfaced.

No. Article 173 establishes the Judiciary Fund, administered by the Chief Registrar, into which monies are paid as national legislation provides. Its object is to give the Judiciary a predictable, ring-fenced source of funding consistent with its independence. But the Fund operates only as the enabling legislation provides; until the implementing provisions are in force, judicial funds are appropriated and released through the Consolidated Fund.

All money received by a state organ must be paid into the designated public fund, and expenditure must follow appropriation. Retaining court fees in a commercial account and spending them to cover a shortfall is a financial impropriety, even where the motive is to keep courts running. The constitutional principle of financial autonomy does not create a power to self-authorise expenditure.

Lawful responses: pay the fees into the designated account forthwith; regularise the shortfall through a supplementary allocation and Treasury engagement; disclose fully to the Treasury and the Auditor-General; and press for the Fund's operationalisation so that the autonomy Article 173 contemplates becomes real rather than asserted. The Commission's role is to recommend on conditions of service and the administration of the Judiciary; it cannot ratify unlawful expenditure after the fact.