Throwing money at Judiciary won’t cure ills

By Pravin Bowry

For over a century the Judiciary had toiled under the Treasury for its financial requirements until the 2010 Constitution made it semi - autonomous with the creation of the “Judiciary Fund”. Now the lawyer - turned – budget - guru, Ndei MP Robinson Githae, has given the Judiciary a whooping Sh15.4 billion to embark on its reforms.

This almost 100 per cent mouthwatering increase from last year’s budget must augur well and, good governance and controls under the leadership of Chief Justice Willy Mutunga will bring hope to all those involved in the legal system.

No regulations

This generous allocation is only a faint silver lining in matters of money and the Judiciary. Many important matters need to be addressed if the Judiciary is to be transformed effectively — and Parliament is yet to enact regulations to control the Judiciary Fund as required under Article 173 (5)!

Millions of shillings are lost annually in non collection of court fees and manipulation of payment of court fees by conspiring lawyers, litigants and court clerks. Since introduction of electronic payments of court fees – but not in all judicial stations in the country – the court fees has in some stations tripled.

Despite annual audits we have never been told where and how the funds were disappearing. Why not?

In its criminal jurisdiction, the Judiciary is a huge cash cow for revenue collection. The recent policy to favour cash bail for most accused charged has resulted in millions being deposited daily.

Unaccounted for

On any working day, in petty and serious cases, hundreds of Kenyans are ordered released on cash bail pending trials which sometime last up to four or more years. Imagine an accused paying Sh2 million cash bail on a charge of murder and not receiving any interest for say three years when the case is finalised.

Which account does this money go to does it earn interest for the state? (Or why is this money not returned to accused after the trial process with interest at bank rates?)

In the same tone, courts daily order Kenyans to pay fines which, too, are colossal. Where does all this money go under the new constitutional order and how it is used or likely to be used by the Judiciary should be made clearer to the general public.

Days of greater transparency in the Judiciary are here. Some questions beg clarification and lucid answers.

Let us take the case of the recent appointment of Honourable Lady Justice Kalpana Rawal as a chairperson of the Commission of Inquiry into the ‘Saitoti ‘crash. Who will suffer the loss of the Judge being seconded to the inquiry when four other Judges are already sidelined by the ongoing vetting saga. Can Kenyans afford financially and otherwise to loose – for whatever period – yet another Court of Appeal Judge?

In previous Commission of Inquiries Judges were paid huge sums in benefits and sitting allowances. Surely this was duplication of remuneration and morally perverse, for were not the Judges dispensing a judicial function and biting into judicial time?

There is yet another money making device which needs to be addressed when judicial officers are asked to travel during the course of their duties. It is known as the ‘per diem’ syndrome; payments to the officers are based on number of days and officers habitually and indiscreetly elongate their travels.

It would be interesting to know how the Court of Appeal Judges are paid when they go on circuit.

Make crime costly

Breaking the law, any law, should be made more punitive and breakers in many countries are being asked to defray the cost of dispensing justice and assisting victims of crime. In New Zealand every convicted offender has to pay a mandatory fifty NZ dollars as “Offenders Levy” and this levy is not part of the sentence – the fear of this levy has reduced routine traffic and petty regulatory offences and helped the cause of justice.

The levy is utilized as a fund for a range of new services for victims of serious crime and ensures that offenders contribute to addressing the harm that their crimes cause.

This idea is worth considering perhaps in the next budget.

It was sad that whilst the Finance Minister addressed the matters of the aged and infirm, the IDPS and other disadvantaged citizens, he forgot about the constitutional requirement of legal aid. Every Kenyan can now demand the services of a lawyer and the court must assign a lawyer. So far there exists no specific vote for this item.

It is not quite clear whether this requirement must be fulfilled by the Judiciary or the Director of Public Prosecutions but the matter of ‘pauper briefs’ in cases of murder and manslaughter and robbery with violence does need intervention in the budgetary provisions.

Online payment of fines or payment by M-pesa, mobile courts, spot and predetermined fines, at least in traffic and municipal offences, automatic bail on arrest, 24 hour and weekend courts are all financial decisions which hopefully the Chief Justice will address now that his rucksack is full and has all that additional load.

The writer is a lawyer. [email protected]