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February 22, 2019

KATIBA: The Constitution and funding for the Judiciary

The Judiciary which hosts the Supreme court of Kenya. Photo/Monicah Mwangi
The Judiciary which hosts the Supreme court of Kenya. Photo/Monicah Mwangi

The Judiciary is central to the fulfilment of the constitutional promise of good governance. Judges have the last word on the constitutionality of the behaviour of all other state organs, including law passed by Parliament ( which the media like to call the “august House” (a word that means “respected and impressive”).

Precisely because of its important role as a check on the work of other branches of government, and indeed of other sectors of society, it is important that the Judiciary is fully independent.



The Judiciary asked for a budget of Sh31.2 billion for 2018-19. This included Sh19.8 billion for recurrent expenditure, especially salaries (except those of senior judges), Sh11.4 billion for development (mostly for expanding the court system to bring justice to the people). Sh891 million was for the Judicial Service Commission, which recruits judges, and is responsible for things like judicial education. There was the expectation of a Sh2.9 billion loan from the World Bank included in the Sh11.4 billion for development. Though government departments do not normally get everything they ask for, the Judiciary was particularly hard hit this year.

First, the Treasury wields its own machete. Most agencies suffered. The Judiciary emerged from this process with a maximum allocation of Sh17.3 billion, including recurrent expenditure of Sh13.3 billion, Sh4 billion for development and Sh479.6 million for the JSC.

When Parliament debated the Budget Policy Statement, it reduced the allocation further. And as actually enacted by Parliament the budget gives the Judiciary just under Sh13 billion for recurrent expenses, and the ludicrously small Sh50 million for development. The total is Sh14.7 billion, including Sh1.5 billion from the World Bank, but this will end in December this year unless the government makes an agreement with the Bank.



The Chief Justice recently told Kenyans that the main impacts of the cuts will be that as many as 70 court building developments will have to stop, as well as the mobile courts. It will be much harder (because of expense) to move judges and magistrates around for short periods to help deal with court backlogs. And computerising the system will be a “mirage”, he said.

The likely impact of financial uncertainty on the independence of the judiciary is easy to imagine. Judges may be reluctant to antagonise those who fix their resources. While Parliament cannot fix judicial salaries, and no one can reduce higher court judges’ salaries, the independence of the institution as a whole, and not just individuals, may be affected by cutting resources.

Imagine if the Executive or Parliament started to cut resources to the courts because certain individuals had or had not been convicted of crimes.



In a time of austerity, as far as possible, all agencies should share in the burden, though obviously some priorities have to be observed.

It is not realistic to compare the Judiciary with some of the larger aspects of government. It does not help us much to know that the defence forces were allocated Sh96 billion for recurrent expenditure, only one billion less than the ceiling fixed by the Treasury in the Budget Policy Statement.

But an interesting comparison is with Parliament. Both Parliament and the Judiciary are arms of government. Apart from the roughly 150 higher court judges, the Judiciary has about 5,500 staff, including over 400 professionally qualified magistrates and registrars, Kadhis, and various types of administrative staff, as well as drivers and security guards.

Parliament has 418 parliamentarians, while the Parliamentary Service Commission that provides support services has about 1,000 employees.

The Judiciary has courts all over the country, while Parliament has basically the Bunge buildings and associated facilities, including an office block under construction and premises leased for MPs’ offices.

While Parliament asked for a total of Sh42 billion for next financial year, it actually received Sh36 billion, including Sh21 billion for the National Assembly, a far less severe cut than for the Judiciary.

A few constitutions try to ensure proper funding for the courts. The Ukraine Constitution says: “The state provides financing and proper terms for functioning of courts and activity of judges”.

A bit like the rejected provision for our constitution (see below), this is a bit imprecise. The Constitution of El Salvador fixes a minimum percentage of national budget that must go to the Judiciary. And the UN Basic Principles on the Independence of the Judiciary include the need for “adequate resources”.

Kenya has accepted the International Covenant on Civil and Political Rights, which says the State (the government and all its institutions) must ensure any person whose human rights are violated has an effective remedy. The most effective remedy for an individual is often going to court.



Interestingly, our Constitution drafting teams tried to guarantee adequate resources for the Judiciary.

The Bomas draft said: “The State shall provide reasonable resources … to members of the Judiciary to enable them to deliver the highest standards of service to the public”. This was based on the original CKRC draft in 2002, and was repeated in the drafts of the Committee of Experts.

Where did it go? Consigned to the dust heap by the Parliamentary Select Committee in Naivasha.

The CoE felt unable to save it, though they did restore another provision the MPs removed: “Judicial authority is derived from the people”. How revealing this is of MPs’ attitudes: wanting to minimise restrictions on their power, and denying the sovereignty of the people when they can.

There are constitutional provisions about money designed to prevent interference with judges and protect their independence. “The remuneration and benefits payable to, or in respect of, a [higher court] judge shall not be varied to the disadvantage of that judge”.

Earlier this year the health insurance of judges had to be suspended because of lack of resources. If it affected higher court judges it was unconstitutional.

The salaries of judges of the High Court level and above are not actually required to be voted by Parliament. They are fixed (by the Salaries and Remuneration Commission) and that is enough to enable them to be paid. That is what the Constitution means when it says their pay and benefits are “a charge on the Consolidated Fund”.

The State (including Parliament) must respect, protect, promote and fulfil our rights. Article 48 says the State must “ensure access to justice for all persons”. Article 50 says everyone has the right to have any dispute that can be resolved by law decided by a court or another independent and impartial body. This must include above all the enforcement of their human rights.

Criminal trials must particularly begin and end without delay. These rights are all threatened by the cuts.

Miracles are not expected. Economic necessity may slow progress. But going backwards in the protection of rights is something that ought to be avoided, and is arguably unconstitutional, except in extreme circumstances. Pique on the part of parliamentarians about the courts doing their job cannot possibly qualify as constitutional justification for rolling back access to justice.




In the US, state courts have sometimes issued orders to state authorities to issue funds for the courts. And the courts in various other countries have been prepared to consider cases about government behaviour that affects independence of the Judiciary. Canadian courts have indicated a willingness to decide against government if judicial salaries were cut other than for goo­­d reasons and when other public servants were equally affected.

However, for the courts to decide cases affecting themselves would leave a bad taste in everyone’s mouths. And we can’t forget the notorious reluctance of the authorities to obey court orders.

It is up to government and Parliament to see sense, and for citizens to make their views clear. An independent, adequately funded, Judiciary is vital for the health of our Constitution and nation.













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