Chief Justice: There are deliberate attempts to undermine Judiciary

In all democratic states governed by their respective Constitutions, constitutional power is constrained power.

I am making this statement to correct some of the misleading statements made last week regarding Judiciary budget cuts and to give Kenyans the big picture behind the move. I would like the public to know why we are currently unable to offer certain services.

Under our Constitution as stated in Article 1, all sovereign power belongs to the people and shall be exercised only in accordance with the Constitution. Kenyans have delegated the exercise of that power to the three arms of government; the Judiciary, Legislature and the Executive as well as Independent Commissions established under the Constitution.

For these organs to operate properly, they require to be reasonably funded. Article 95(4)(b) bestows upon National Assembly authority to appropriate funds for expenditure by National Government and other State organs. Article 127(6)(c) provides that Parliamentary Service Commission prepares the annual estimates of expenditure and forwards them to Parliament for approval.

Article 173(3) requires Chief Registrar of the Judiciary to prepare and submit estimates of Judiciary’s expenditure each year to the National Assembly for approval. Under Article 221(1) of the Constitution, the Cabinet Secretary responsible for finance submits to the National Assembly estimates of revenue and expenditure of the national government for the next year.

Limited control

Upon consideration and approval of the budget estimates of Parliament, the Judiciary and the National Government, Article 221(3) & (6) provides that those estimates be included in an Appropriation Bill which shall be introduced in the National Assembly for purposes of authorising the withdrawal from the Consolidated Fund of the money needed for the expenditure. Once the Appropriation Act is passed, “the CS for Finance has no control over the parliamentary or judiciary budget. However he has, with the approval of the National Assembly, limited control over the National Government’s budget Under Article 225 of the Constitution.”

Upon approval of the Judiciary budget by the National Assembly, Article 173(6) directs the Treasury to deposit the Judiciary budget in the Judiciary Fund. To the best of my recollection, the Constitution does not give such direction in respect of the budget of any other State organ.

To that extent, the Constitution accords the Judiciary special treatment, and one may ask: Why such a special treatment for the budgeting process for the Judiciary?

In all democratic states governed by their respective Constitutions, constitutional power is constrained power. The Judiciary is entrusted with the duty of safeguarding and enforcing constitutionalism. As a result, full autonomy and independence of the Judiciary is guaranteed. This is to enable the Judiciary to function without any interference.

In essence, what this means is that no single arm of government is authorised to exercise all the sovereign authority of the people. The three arms are equal and each has to keep to its lane. To put it in simple terms, none of these arms should control or direct how any other should exercise the power the people have delegated to it as stated above.

Under our Constitution, it is the Judiciary which has been given the power to ensure each arm of government keeps to its lane; that each arm exercises only the powers delegated to it.

This means if Parliament passes any law that violates the Constitution, anybody can go to court and get an order declaring that law unconstitutional. This includes the President (head of the executive) who is bound to act within constitutional confines.

Fellow Kenyans, we are human beings and not many of us would like to be told they are wrong. You don’t expect a government official to be happy when told he has corruptly taken government resources. Therefore, in some decisions the Judiciary makes, it is bound to clash with officials in other arms of government.

It is for this reason, in order to avoid such officials crippling the operations of the Judiciary by starving it of funds, that our Constitution established the Judiciary Fund and Article 173(6) directs the Treasury to deposit the Judiciary Budget in that Fund.

However, the provisions above have not been implemented by the Treasury as required by the Constitution. Immediately after the promulgation of the Constitution, and pursuant to Article 173, the Judiciary tabled its 2011/12 and 2012/13 budget proposals in the National Assembly and they were approved. In 2013/14 financial year, the National Assembly allocated to the Judiciary Sh17.827 billion, representing 0.99 per cent of the national budget — the highest budget the Judiciary has ever received.

The following year, however, the acting Chief Registrar of the Judiciary was directed to take the Judiciary Budget Estimates to Treasury and the Judiciary was thereafter put into the category of Governance, Justice, Law & Order Sector (GJLOS), comprising the Ministry of Internal Security, Police, the Attorney-General, IEBC, prisons, and others;

The main challenge with these arrangements is that some of the institutions in the GJLOS Sector (Internal Security, the Police, the Prisons, the State Law Office, etc) have some of the resources ring-fenced. The result is that the Judiciary is made to share the remaining little resources, resulting in serious underfunding of core judicial functions. This is evidenced by the declining budgetary allocation to the Judiciary over the years: 2017/18—Sh14.652 billion (0.69 per cent of the national budget); 2018/19—Sh16.096 billion (0.66 per cent); 2019/20 — Sh18.857 billion (0.69 per cent)

As the Judiciary’s budget dwindles, the workload has been rising tremendously. As you all know, many Kenyans come to court to have their disputes resolved. On an average 400,000 cases are filed annually. With the current manpower, the Judiciary is only able to clear an average of 300,000 cases every year. You will recall that in the last financial year, we were given a paltry Sh50 million as the development vote. And as if the reductions are not bad enough, we have serious challenges with what we call Treasury Releases through the IFMIS system.

Playing politics

After a long struggle, we have now got the Judiciary Fund Regulations passed by Parliament and the Judiciary Fund is finally fully operationalised. Last week, the Judicial Service Commission, as required by the Judiciary Fund Regulations, authorised the Judiciary to open a Judiciary Fund Account at Central Bank.

I have now instructed the Chief Registrar of the Judiciary to take our next Budget Proposals to Parliament, and not the Treasury, so that when we have no funds to build courts or even to operate as is happening now, the people of Kenya will know who to ask—their MPs. Contrary to remarks that have been expressed by politicians and others who have denied existence of budget cuts in the Judiciary, the fact is a number of critical processes in the courts and the Judiciary will be severely crippled. We have been accused of playing politics whenever we raise these concerns.

The implication of these statements is that we may be deliberately holding funds to make a statement. However, I want Kenyans to understand that we cannot play games, especially with an important issue such as resourcing the Judiciary.

The truth of the matter is that the amount available to us in the system has been reduced. Only the amount that goes to salaries has been spared; our development and recurrent expenditure has been slashed by 50 per cent, which works out to Sh2.9 billion; and the entire ICT vote of Sh400 million has been cut!

Some of the areas of operation affected include transport and fuel costs for judicial officers and the Judiciary, suspension of over 53 mobile courts across the country–which were important for purposes of enhancing judicial services to inaccessible/marginalised areas with no coverage of physical courts.

We have had to suspend circuit courts of the Court of Appeal. This is additionally because of the few number of the judges of appeal. We have been able to clear 77 per cent of cases older than five years. However, this process will slow down because of lack of funds to implement strategies.

Court annexed mediation, another innovation that is meant to enhance expeditious disposal of matters will be stalled as a direct result of the budget cuts. The current programmes have managed to unlock billions of shillings through mediation and this progress is endangered as a result of denial of resources.

Digital transformation through ICT is the most hit by the cuts. There is zero per cent of resources available at this very moment. We are not even able to pay for WiFi services in the courts! This has also thrown the plans we had put in place for harnessing technology into disarray—the e-filing project which we had started cannot go on and the electronic revenue collection initiative has been hampered.

Plans to fully automate proceedings of the anti-corruption courts to speed up the hearing of cases have come a cropper, and so have plans to set up a virtual court to serve the Kenyan diaspora. The key message here to Kenyans is that the strangling the Judiciary results in a failure to get expeditious delivery of services.

Budget cuts have been a consistent phenomenon and not an accident or isolated incident. Some of the incidents that we encounter are deliberate attempts to undermine the Judiciary. On many occasions, the Judiciary has not been given treatment that is commensurate to other organs of government. For instance, what public policy informs the decision to deny the Chief Justice the same official cars as those of the Speakers of Parliament?

Kenyans may recall that in the recent past, there was an attempt to deny the Chief Justice traffic clearance, which was accorded to other heads of arms of government and to officers in the executive who are far junior to the Office of the Chief Justice. Public condemnation and outcry led to a reversal of this decision.

The same contempt has been extended to public and State functions and access to important government facilities such as the Ground VIP lounge at the airport. The Judiciary, for instance, is not able to host visiting Chief Justices in these facilities. Even letters of invitation to the Chief Justice are signed off by very junior officers, in complete disregard of protocol.

The Office of the Chief Justice is an integral part of the State structure and I am exercising a mandate that is bestowed on me by the Constitution through the Kenyan people. I am not serving at the pleasure of a few people in the Executive who are bent on subjugating the Judiciary. I am demanding all these, not for personal gain. I want the Judiciary and the office of CJ to be accorded its rightful place in the institutional architecture of this country.

Nobody is doing me a favour; the Judiciary should not be given its budget on the basis of how well the CJ speaks to those who control public funds. The budget is from public funds for service delivery to the public. I am told some people are even talking of vetting our judges and magistrates once again. But we will not allow that to happen. We are tired of being the punching bags. We have been vetted twice. If there is going to be another vetting, let it start from the Executive, then Parliament before coming to the Judiciary.

Let me say something about court decrees against the Government. The Government should lead in obeying the law. It should not lead in impunity; As though to hit at the Judiciary, the Government is not settling court decrees against it. And it’s the decree holders who are being hit.

Regarding the fight against corruption, I am totally with the President. However, equally important is that due process must be followed. We have to manage our expectations and let due process run its course. We have started hearing corruption cases and are proceeding well on a day-to-day basis. But due to the complexity of the cases, the volume of documentation, the number of accused persons in each case and their lawyers, these cases will take time. Therefore, please bear with us.

Legal threshold

As I have said before, we can’t accept to be used as a scapegoat, and the claims that the Judiciary is the weak link in the fight against corruption cannot be further from the truth. We call on other agencies to do their work and we will do ours dutifully and promptly. If there is evidence, we will convict but if the evidence does not meet the legal threshold, we will acquit. I will defend my magistrates and judges if they do what’s right, but I will also be the first to condemn any judicial officer who disgraces the Judiciary.

I want to remind Kenyans that Judiciary staff are working under very difficult circumstances. My final plea to fellow Kenyans is this: Defend the Judiciary. You need a strong Judiciary to defend the rule of law and attract foreign investment. When there is a crisis and country is on the brink (as you will recall), the Judiciary will keep this country together.

For the Judiciary to effectively operate, it has to have financial autonomy. In the past, the Judiciary has recommended a minimum of 2.5 per cent of the national budget so as to function optimally. If our economy does not allow, give us a reasonable percentage.

 

Mr Maraga is the Chief Justice and President of the Supreme Court. This is an abridged version of the statement the CJ issued on Monday.