“Revisiting” Kenya’s Judiciary.  

The close of last year (2019) saw the Judiciary revolt against what it termed as ‘control by the executive’ due to budgetary cuts from treasury. Chief Justice David Maraga lashed out at the executive and the current finance Cabinet Secretary Ukur Yattani and sought answers as to why the judiciary was the main target of huge budget cuts. In his press conference, Maraga explained how budget cuts were affecting the judiciary’s ability to reduce the number of unresolved cases that lie in files.  

Is the judiciary under-funded or is it failing in its mandate and finding excuses to distort the reality?  

There is no global standard for funding the justice system, the UN only recommends that member states provide adequate funds to the judiciary, how much, is a political decision. 

The Kenyan Judiciary presented a budgetary request of KES 31.2 billion in the 2019/2020 financial year. This budgetary request was first drastically reduced to KES 17.4 billion, and later suffered a further reduction to KES 14.5 billion, an over 50% deficit cut. In the previous financial year, the Judiciary received only 40% of its budgetary requirement with a resultant effect that it is unable to sufficiently fulfil its core constitutional mandate of delivering justice to Kenyans. This trend is consistent with previous budgetary cuts in the last five years. 

The 50% reduction in development funding to the Judiciary equates to suspension of over 100 court construction and rehabilitation works that are at various stages of progress which are meant to improve physical access to courts and reduce the distance travelled in search of justice. 

Is there a correlation between funding the judiciary and delivery of justice?  

According to Prof Luis Franceschi, founding dean of Strathmore Law School, “Reducing the financial resources available to a judiciary may indeed threaten judicial independence and create a more subservient judge, but it also hampers the entire institution’s effectiveness. It reduces its adjudicatory capacity by lessening its accessibility.” 

Defunct tribunals, the abolition of mobile courts, less efficient judicial systems, and reduced personnel are among other consequences of reduced funding of the judiciary. 

This article does not assume that efficient funding of the judiciary will miraculously heal the institution of its bad manners, for instance, the ministry of devolution has so far had two major scandals, NYS I and NYS II- but no case has been fully mentioned and no key suspect has been arrested in relation to the same. Assistant Director of Public Prosecutions Gitonga Riungu in 2017 said that Ksh. 11 billion may have been lost in the case. But why have the cases taken too long to be exhaustively prosecuted? There have been cases that have been completed at a faster rate. Unfortunately, most of those cases have been around low-profile citizens. 

The public has been treated to a war of words between the office of the Director of Public Prosecutions and the office of the Directorate of Criminal Investigations, the former accusing the later of shoddy investigations which cannot stand trial. The judiciary has also accused the ODPP of not arguing its cases effectively and sending inexperienced lawyers to court. All this time, many judges have been accused of corruption, most recently through confessions of the Akasha brothers who have been jailed in the USA for dealing in narcotics.  

Additionally, there is a distinct lack of adequate training for probation officers to build competencies to address emerging demands from criminal activities and to adapt modern evidence-based supervision and rehabilitation programs. The number of probation officers is not adequate to meet the demands of magistrates and high courts in the country.  

Improving the performance of our justice system is a complex and long-term issue which goes beyond budgetary improvements. Funding will undoubtedly help us deal with the backlog of cases in our courts. However, injecting money to the courts will have to be augmented with an ethics and integrity check among the judges and court officers.