The National Cohesion and Integration Commission is under scrutiny after an audit report revealed that its commissioners have been drawing salaries and benefits illegally.
The report by Auditor General Nancy Gathungu for the year ending June 30, 2024, also highlights other serious breaches of law and financial mismanagement.
It exposes a pattern of irregularities that raise questions about the legitimacy of the commission’s leadership and its adherence to legal and financial regulations.
At the heart of the controversy highlighted in the audit is the illegal appointment and remuneration of NCIC commissioners.
The audit reveals that the current team of commissioners was appointed in April 2020 under terms that directly contravene a court judgment delivered on January 14, 2019.
In that judgment, the High Court declared the appointment process outlined in Section 17(1)(a) and (b) of the National Cohesion and Integration Act unconstitutional, null and void.
However, despite the ruling, the commissioners were appointed and have since been drawing salaries and benefits reserved for constitutional commissions and independent offices.
As per the audit, the letters of appointment falsely designated them as full-time officials serving a single six-year term.
The auditor argues that the privilege is exclusively granted to members of constitutional commissions appointed under Article 250(6)(a) of the Constitution.
The audit notes that no explanation was provided for this blatant disregard of the court’s decision, casting doubt on the legality of their tenure and the financial benefits they have accrued.
A circular from the head of public service in April 2015 also directed that the provisions of Mwongozo Code be complied with by all state agencies in regards to appointment of chairpersons, board members and CEOs of state corporations.
“In the circumstances, the legal existence of the commissioners under the current terms could not be confirmed,” Gathungu said.
The audit further highlights the commission’s failure to comply with public finance laws, pointing to possible misuse of confidential expenditure votes.
Gathungu raise concerns that a staggering Sh39 million in long-outstanding payables remains unresolved, with Sh30 million owed to creditors who supplied goods and services as far back as the financial year 2022-23.
The Public Procurement and Asset Disposal Act mandates that accounting officers ensure sufficient funds are available before initiating procurement.
The NCIC’s management has thus breached the law, leaving suppliers unpaid and undermining trust in public procurement processes.
“Management was in breach of the law,” the auditor said, further faltering the commission on tax compliance.
The audit uncovered Sh3.6 million in unpaid Value Added Tax (VAT) owed to the Commissioner of Domestic Taxes, outstanding for over two years.
Regulation 23(2a) of the Public Finance Management (National Government) Regulations requires accounting officers to settle tax obligations promptly.
Additionally, the commission failed to withhold Sh775,527 in VAT on payments for contracted services and rentals, as required by the Tax Procedures Act.
To auditors, the omissions not only breach legal requirements but also deprive the government of much-needed revenue.
The audit further flagged glaring governance lapses at the entity mandated to checkmate hate speech and inflammatory remarks, especially by political leaders.
It emerged that the position of Commission Secretary has been filled in an acting capacity since May 2023, far beyond the six-month limit stipulated by the Public Service Commission Act.
The acting officer continued to draw allowances unlawfully, with management offering vague explanations about an unresolved court case but providing no documentary evidence to justify the delay.
“Although management explained that recruitment of a substantive CEO was put on hold pending the outcome of a court case, documentary evidence in support of the position was not provided for audit review,” the report reads.
On confidential security expenditures, while the commission provided a certificate affirming proper use of these funds, the Auditor General flagged the need for clearer regulations and stricter oversight to ensure accountability.
Without robust mechanisms to track such expenditures, the risk of misuse remains high, the auditor points out.
The queries followed after the NCIC management had offered little beyond unsubstantiated explanations.
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