Illegality is a continuous mischief which subsists from the time of occurrence to discovery and this question of illegality was determined by High Court in quashing audit reports by the Auditor General implicating Ruth Achimo Etibot, the Soroti University Secretary for procurement irregularities and abuse of office.
The decision in Achimo Ruth Etibot versus Auditor General Miscellaneous Cause No.4 of 2021 by Justice Wilson Masalu Musene, arises from an application in which Achimo asked the court to quash Special Audit Reports by the Auditor General on Two Financial Statements for Soroti University on grounds that they were of no legal effect or consequence.
Court in arriving to its ruling held that the process leading to the Auditor General authoring of the report of special investigation or Audit was unlawfully/illegally triggered by a request of Mr. Francis Xavier Lubanga, chairman university council who had no authority to initiate the same.
This is due to the fact that, Mr. Lubanga had no mandate or authority from the University Council to request for any audit report on behalf of Soroti University Council or in his individual capacity. The Audit Act provides for who may direct the Auditor general to audit accounts of anybody or organization and these are the President acting in accordance with the advice of Cabinet, Parliament or the Minister. What this means is that not just anyone can direct an audit of a public institution.
The Auditor General’s reports were further quashed by court, because they were issued for the benefit of Mr. Fransis Xavier Lubanga Chairperson Sororti University Council and Directorate of Criminal Investigation instead of the same being issued for the benefit of Parliament as required under Section 19 (3) of the National Audit Act 2008. The audit reports where instead used to prosecute the Applicant, even when the same had not been subjected to parliamentary debate and appropriate criminal action if any recommended by Parliament as required under section 20 (d) of the National Audit Act.
Court further ruled that during the investigations or audit leading to the first two impugned reports, the Auditor General did not inform the applicant that she was under investigation on any allegation. The Auditor General neither accorded the Applicant an opportunity to defend herself against any of the allegations brought against her nor served copies of the said reports on her. The Auditor General only invited the Applicant to answer queries raised in the internal audit report which is a requirement in normal audit process.
The Court also addressed the issue of statutory immunity accorded to the Auditor General and stated that its only guaranteed on the basis of the privileges accorded to all parliamentary reports which are made and served to Parliament, unlike in the present case, none of the three impugned reports was ever served upon Parliament for consideration. Court held that its only audit reports authored by the Auditor General that are and for the benefit of parliamentary work that accord him privileges and immunity.
Significance of the court ruling.
This ruling has significantly contributed on jurisprudence of this country in a sense that, the Constitution and the Audit Act do not protect the Auditor General against being sued by bestowing upon him absolute immunity but such immunity is only applicable to the Auditor General if the audit is carried out under the request of Parliament, line Minister or the under the directive of the President as enshrined in the constitution which wasn’t the case.
The Auditor General’s report should never be a basis for prosecution and removal from office of public servants before such reports have been submitted to Parliament for debate and appropriate action has been taken as per Articles 163(5), 164(1) and (2) and 90(3) and (4) of the Constitution.
The ruling has been challenged by the Auditor General and is currently in the Court of Appeal. We await to see the interpretation of the learned justices of the Court of Appeal on this dicey issue.
Flavia N. Wejuli