Let Parliament review the budget, properly fund the Judiciary

One of the more progressive aspects of our 2010 Constitution was “devolution” of power from the “imperial presidency” to other organs of government. Prior to 2010 the Executive, nay the Presidency, exercised almost every power of the State. Whether it was the power of the purse, the power of appointment or even the power of mercy, these powers were unchecked and exercised absolutely by an all-knowing President.

Many of us may still remember President Moi’s famous “siasa mbaya maisha mbaya” edict that exhorted people to vote “wisely” if they were interested in development and other state largesse. Sometimes this was comical as the 1995 Kipipiri by-election when Kanu deposited electricity poles all over the constituency during the campaigns only for the poles to be collected the morning after the Kanu was beaten by the Democratic Party!

The 2010 Constitution therefore exhibited the ultimate de-empowering of the Executive by taking away from it, at least in theory, of the power of the purse. The Constitution democratised revenue sharing in two ways. On the one hand, it made most of the revenue allocation process rule based including the application of a Parliamentary approved revenue sharing formula for revenue allocation between regions.

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On the other hand, it also increased the entities responsible for determining the quantum of revenue that different regions and institutions accessed. While in previous ages, the Treasury decided the ultimate budget allocations between Ministries Departments and organs of state, now Parliament was to be the ultimate determinant of this critical question.

The thinking behind this change was that Parliament, representing the people of Kenya, was most attuned to making judicious and equitable decisions on how the people’s revenue was shared. Has Parliament added value to this process in the manner anticipated by the Constitution? The reality is that while 11th Parliament the House tried to flex its muscle on this question and attempted to either benefit or punish those who it disagreed with by denying them revenue, there was more restrained exercise of this power.

I remember numerous warnings to defund the CIC, in which I chaired the Finance Committee, but which were never implemented. Either because the House had not really appreciated the extent of its power, or that the Budget Committee, under Hon Mutava Musyimi was more nationalistic in ideology, there was no significant abuse of the power of the purse.

Unlike its predecessor, the 12th Parliament has showed its hand in current allocations and the message is disconcerting. The most obvious slashing of budget was visited upon the Judiciary which had demanded an ambitious Sh31 billion but was awarded only Sh17 billion. This may not look shocking until one realises that the bulk of this allocation is on recurrent expenditure and that development budget for this critical organ of governance was allocated a mere Sh50 million! What was interesting in the explanation of the budget cuts was the link of this budget slash to the repeat elections.

One senses that the Judiciary was being punished for nullifying the elections 2017! While I believe the Supreme Court was fundamentally wrong in nullifying the election, it would be ill advised to punish the Judiciary as an institution through reduced budget allocations.

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What many people forget is that salaries and allowances of judicial officers, especially judges, are protected and are not affected by budget cuts. What suffers when the Judiciary is underfunded is delivery of justice. The Judiciary is unable to operate sufficient courts, and is generally crippled in its ability to fund any improvements in the judicial infrastructure. It has to reduce its budget on capacity enhancement, once again hurting the citizenry. The ultimate sufferer is not the judges, but the constituents who the MPs represent. If indeed the judicial budget cuts were a response to the Supreme Court ruling, this would represent a non-acceptable ultimate abuse of power. Either way, Parliament must “revisit” the budget and properly fund the Judiciary for the benefit of its customers; the Kenyan public.

- The writer is an advocate of the High Court of Kenya

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