Oburu defends Ruto’s ‘God-given’ tours, backs domestic borrowing strategy

A recent defense by ODM Party Leader Oburu Oginga of President William Ruto's frequent county tours and the government's domestic borrowing strategy has ignited legal and constitutional debate in Kenya. Oginga characterized the tours as development missions, dismissing claims of premature campaigning, while advocating for internal financing over external debt. This article examines the legal implications of presidential conduct concerning public resources and the constitutional framework governing public finance, particularly the Public Finance Management Act, 2012, and the Constitution of Kenya, 2010. It highlights the delicate balance between executive functions, political activities, and parliamentary oversight in ensuring fiscal responsibility and accountability.

The political landscape in Kenya is frequently shaped by the interplay between executive action and public scrutiny, particularly concerning the use of state resources and the management of public funds. A recent statement by ODM Party Leader Oburu Oginga, defending President William Ruto's extensive county tours as development-focused and supporting the government's domestic borrowing strategy, has brought these critical issues to the forefront. Oginga's remarks, which dismissed accusations of early campaigning, underscore a persistent tension between official presidential duties and perceived political activities, alongside the broader legal framework governing national finance.

This defense prompts a deeper legal examination of the constitutional and statutory provisions that delineate the powers and responsibilities of the President, particularly regarding public engagements and fiscal policy. For legal practitioners, understanding the boundaries of executive authority, the requirements for transparency in public finance, and the mechanisms for parliamentary oversight is crucial. This article will delve into the relevant legal frameworks in Kenya, analyzing the implications of such presidential tours and the domestic borrowing strategy within the context of accountability, good governance, and the separation of powers.

The Constitution of Kenya, 2010, establishes a presidential republic where the President serves as both the Head of State and Head of Government, wielding executive authority and coordinating the executive branch. While the Constitution outlines the President's functions, including assenting to bills and presiding over Cabinet meetings, it also implicitly requires adherence to principles of public finance and ethical conduct. The distinction between official government functions and political party activities is particularly pertinent, especially given Article 77(2) of the Constitution, which stipulates that an appointed State officer shall not hold office in a political party, aiming to ensure political neutrality in public service.

Regarding public finance, Chapter Twelve of the Constitution and the Public Finance Management Act, 2012 (PFM Act), provide the foundational legal framework for government borrowing and expenditure. Article 211 of the Constitution empowers Parliament to legislate on the terms of national government borrowing and impose reporting requirements. Furthermore, Article 214 declares public debt a charge on the Consolidated Fund, emphasizing the gravity of borrowing. The PFM Act details the principles guiding borrowing, including ensuring domestic financial market stability and promoting inter-generational equity. Parliament, through its oversight role, is mandated to scrutinize public expenditure and debt management, with the Auditor-General independently auditing and reporting on the use of public resources.

The defense of President Ruto's county tours as purely developmental, despite criticisms of them being early campaigns, raises significant questions under Kenyan law. While the President, as Head of State and Government, is expected to engage with citizens and oversee development projects, the line between official duties and political campaigning can be blurred. The Election Offences Act, 2016, prohibits public officers from using public resources to initiate new development projects for the purpose of supporting a candidate or political party. This statutory provision aims to prevent the misuse of state assets and ensure a level playing field in electoral politics. The challenge lies in objectively determining the primary intent and impact of such tours, especially when they involve direct engagement with local leaders and citizens on development priorities, as highlighted by Oburu Oginga.

Similarly, the government's domestic borrowing strategy, while defended by Oginga as a prudent alternative to costly external loans, must adhere strictly to the constitutional and statutory requirements for public finance. The PFM Act, 2012, and the Constitution mandate transparency and accountability in all borrowing activities. Parliament's role in approving borrowing terms and imposing reporting requirements is critical to ensuring fiscal responsibility. Concerns have been raised regarding insufficient disclosure on domestic debt components and the clarity of budgetary allocations for debt servicing, which can undermine fiscal accountability. The Supreme Court of Kenya has consistently emphasized the importance of public participation in legislative processes, including money bills like the Finance Act, 2023, stressing that while Parliament is not obligated to provide reasons for accepting or rejecting proposals, reasonable measures for considering public input must be in place.

The interplay between the executive and legislative branches in public finance is a continuous area of legal scrutiny. The Auditor-General's reports regularly assess the lawfulness and effectiveness of public resource utilization, including public debt. These reports often reveal discrepancies and areas of non-compliance, underscoring the ongoing need for robust oversight. The legal framework aims to prevent executive overreach and ensure that public funds, whether raised domestically or externally, are managed prudently and transparently, for the benefit of all Kenyans. The ongoing debate surrounding the Finance Act, 2023, and previous challenges to similar legislation, such as the National Government Constituencies Development Fund (NG-CDF) Act, highlight the judiciary's role in upholding the separation of powers and constitutional principles against legislative or executive actions perceived to undermine them.

For legal practitioners, the ongoing discourse surrounding presidential tours and domestic borrowing in Kenya highlights the critical importance of constitutional fidelity and statutory compliance in public governance. Attorneys advising government entities or engaging in public interest litigation must remain vigilant regarding the strictures of the Constitution of Kenya, 2010, the Public Finance Management Act, 2012, and related electoral laws. The blurred lines between official duties and political activities, particularly concerning the use of public resources, demand careful legal analysis and robust advocacy for accountability.

Practitioners should closely monitor parliamentary proceedings related to public debt management, including the annual Budget Policy Statement and Auditor-General's reports, which provide crucial insights into fiscal health and compliance. Furthermore, the evolving jurisprudence on public participation, as articulated by the Supreme Court, will continue to shape challenges to legislative and executive actions. The imperative for transparency, accountability, and adherence to the separation of powers remains paramount, requiring legal professionals to actively engage with and interpret these dynamic areas of law to safeguard public interest and constitutional governance.