Judiciary budget cuts blow to anti-graft war

By Ken Opalo | Saturday, Jul 28th 2018 at 00:00
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The Judiciary. (File, Standard)

Parliament has conspired with the Treasury to cut the Judiciary’s budget. This is a big blow to the administration of justice. In the recent past, the Judiciary has experienced impressive growth – hiring judges and magistrates, building field stations, and modernising recording systems.

These efforts have brought justice closer to Kenyans. However, significant gaps still plague the institution. A study conducted last year found more than 315,000 backlog cases in the Judiciary and Kenyans listed the slow pace of court processes as their number one complaint.

This problem will only get worse. Population growth, increasing rates of urbanisation and literacy, the expansion of the economy, and increases in legal literacy in the country will only result in greater demand for judicial services. Under these circumstances, it is right to conclude that budget cuts are likely to exacerbate the backlog.

We can only speculate about the motives behind the budget cuts. A leading theory is that the Jubilee administration is using parliamentary majority to get back at the Judiciary for exercising constitutional independence – especially in light of contentious cases before and after the General Election last year.

Another theory might be that the Treasury and Parliament have not fully internalised the importance of having a functional and effective judicial branch. Thus cutting the Judiciary’s budget would deny the institution the ability to stand on its own feed and accomplish its constitutional mandate.

A third theory is that the Judiciary is being put on the fiscal chopping block because of the difficulty of stealing money from its budget. It is common knowledge that the theft of public funds in this country starts with the budgeting process. All three theories can plausibly explain what is being done against the Judiciary. At the same time, a common thread runs among all three: the executive and legislative branches of government have conspired to weaken the judiciary. This should worry all Kenyans of good will.

The Judiciary’s independence rests on two pillars. The first is the institution’s political autonomy. The Judicial Service Commission (JSC) is independent from Parliament and State House. Out of the JSC’s 11 members, the president only appoints three. The rest come from the courts and the legal profession. The second is financial autonomy.

Under the Constitution, the Judiciary (through the Chief Registrar) is mandated to submit annual estimates of its budget directly to Parliament. While giving the Treasury the power to set the upper limit of annual expenditures, the Constitution also grants Parliament the power of virement. Parliament can reallocate monies across votes. It is only through the complicity of Parliament that the Judiciary’s budget can be slashed by the Treasury.

The fiasco surrounding attempts by MPs to vet Justice Mohammed Warsame before appointment to the JSC was a direct attack on the first pillar. The budget cuts target the second pillar. One hopes that Chief Justice David Maraga and his team will optimise the little resources to deliver justice for Kenyans. 

- The writer is an Assistant Professor at Georgetown University

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