Inside SRC, judges’ war over fat perks

 At the centre of the high-stakes row is the Judges’ Retirement Benefits Bill, 2025, that the SRC has declared unconstitutional, untenable financially and an attempt to usurp its mandate.

 The state-sponsored Bill seeks to provide for a lifetime medical cover for judges, diplomatic passports, as well as hefty pension and retirement perks.

 The pensions, benefits and gratuities shall be drawn from the Consolidated Fund, the Bill reads, further indicating that the same would be increased over time.

 Medical cover would be applicable to the retired judge and their spouse on the same terms as enjoyed by serving judges.

 It also provides that judges would be granted unrestricted access to government VIP lounges at all airports in the country, usually a preserve for the president and top state officials.

 The judges and spouses would also be furnished with diplomatic passports, benefits that would be extended to judges who attained retirement age after August 2010.

 Besides these, a judge who qualifies for pension would be entitled to a monthly transport allowance equivalent to a seventh of their basic salary at retirement.

 The travel allowance would cover 10 years (120 months) and would be paid as a lump sum upon the eligible judge’s retirement.

 Even in death, the benefits would keep flowing—if the Bill is approved—with the judges’ spouse set to receive 50 per cent of the pension for five years.

 Their children would pocket up to 100 per cent of the pension if the judge and spouse(s) die. For judges with multiple spouses, the Bill provides for an equal share of the spoils.

 The Bill sponsored by the majority party seeks to create a Judges' Retirement Benefits Fund where the contributions would be paid in and benefits paid out.

 Judges would pay 7.5 per cent of their monthly pay, while the government would top up at 15 per cent of the pensionable emoluments.

 But in a scathing memorandum to Parliament, the SRC warned that the Bill’s provisions could trigger a Sh15 billion ripple effect across the public sector, worsening the tight fiscal space.

 “The ripple effect would be Sh15,017,387,628. If implemented, it may trigger legitimate clamour for similar benefits by other state officers,” the memo reads.

 It argues that the benefits will be fully funded by the government, as members are exempt from making contributions to fund the benefits.

 “This would result in a significant ripple effect across the public sector, thereby exacerbating an already constrained fiscal space and undermining efforts towards sustainable public compensation management.”

 The commission is expected to appear before the Justice and Legal Affairs Committee Thursday, where it is expected to wage the war against judges.

 In its six-page memorandum to MPs, addressed to the Clerk of the National Assembly, the SRC accuses the Judiciary of attempting to bypass constitutional safeguards.

 SRC further argued that the judges are attempting to legislate perks that were never subjected to the commission’s scrutiny.

 “Judges of the superior courts are designated as state officers. As such, SRC is the sole body mandated to set and regularly review its remuneration and benefits, including retirement benefits,” SRC acting CEO Margaret Njoka said.

 She cited Article 230(4)(a) of the Constitution, which designates the SRC as the sole arbiter of state officers’ remuneration, including retirement benefits.

 The commission has invoked a 2015 High Court ruling (Kenya National Commission on Human Rights v Attorney General) to underscore that the moves are illegal.

 But the judges’ camp is digging in. Proponents of the Bill argue that enhanced retirement packages are essential to shield the Judiciary from executive interference.

 “The Bill has been in development since the late 1990s and marks a significant step towards realising the principles of the constitution in respect to the judiciary,” Majority leader Kimani Ichung’wah said.

 The pension as calculated in the Bill would translate to annual payouts exceeding Sh1 million for senior judges after just a decade of service.

 Added to the proposed five per cent annual pension increase, the payout would double the current rate under the Pensions Increase Act.

 SRC holds that its calculations reveal the staggering cost of these perks, adding that they have not been subjected to evaluation against the principle of fiscal sustainability.

 It projects that in one year alone, the post-retirement medical and transport benefits would consume Sh1.7 billion.

 “Such uncoordinated enhancement of benefits for one category of state officers without comprehensive analysis of its implications for the entire public sector wage framework contravenes the holistic approach of SRC’s constitutional mandate.”

 The memo also exposes glaring inconsistencies in the Bill. While it lavishes defined benefits (fully funded by taxpayers) on current judges, some section imposes a defined contribution scheme (with shared funding) on future appointees.

 The SRC calls this “discriminatory” and demands uniformity, proposing a hybrid model where judges contribute 10 per cent of their salary, matched by a 20 per cent government contribution.

 The SRC wants the proposed perks for retired judges scrapped, noting that some civil servants pay for their own post-retirement medical schemes. 

 For years, judges have argued that their pensions—pegged to the archaic Pensions Act (Cap. 189)—are inadequate compared to their counterparts in regional judiciaries.

 A retired High Court judge, who spoke anonymously, lamented, “We spend decades dispensing justice, only to retire poor while politicians loot billions.”

 The SRC has raised technical objections about the Bill. It faults the Bill for defining “pensionable emoluments” as basic salary plus house allowance, contrary to its 2023 directive limiting it to basic pay.

 SRC argued it had already established a group life cover for the Judiciary, after months of protracted negotiations.

 Judges who retired before August 2010 have been excluded from the proposed benefits, a move likely to trigger grumbles from among the affected lot.

 SRC said the proposal was discriminatory and wants the section deleted to await the commission’s policy on contributions to the post-retirement medical scheme.

 Pundits hold that by attempting to self-award perks, the judiciary risks eroding the very checks and balances it exists to uphold.

 It is not the first time judges and SRC are clashing over perks, the most notable being in 2013 when the commission cut their travel and medical allowances.

 INSTANT ANALYSIS

 As Parliament prepares to debate the Bill, the stakes couldn’t be higher. The SRC has shown it is willing to fight, urging MPs to either amend it to align with its recommendations or reject it outright. But with the Judiciary’s allies in Parliament, the stage is set for a bruising legislative war. For taxpayers already suffering the negative impact of the austerity measures, additional wages may mean more taxes to boot.