In Summary
  • Chief Justice David Maraga spoke boldly on November 4, 2019. He was was concerned about the rule of law.
  • Any weakening of the Judiciary directly interferes with its ability to perform its most basic role.
  • Most African countries, including Africa’s strong economies, fund their judiciaries poorly.
  • Chief Justice Maraga’s statement, though polarising on many fronts, correctly channels the tone of concern any rational actor would have towards the budgetary cuts threatening our Judiciary.

Chief Justice David Maraga spoke boldly on November 4, 2019. He was deeply concerned about the budgetary cuts that are gradually crippling the Kenyan judiciary. Central to his address was the role of the judiciary in Kenya’s institutional architecture.

Days after CJ Maraga’s statement, the Executive seems to have done a 180-degree reversal. So what was going on? Was the Executive simply flexing its muscles to remind the Judiciary that “he who pays the piper calls the tune”. But it may also be true that there is no money, and when money is scarce, you cut expenditure where it seems, at least in a short-term perspective, to pain less like in our courts and our prisons.

While many a critic would look with disdain upon what they perceive to be his unfounded tantrums and lamentations on the interrelationship between the arms of government, an analysis of his stern admonitions concerning the Judiciary’s budgetary allocations would reveal a cause for alarm.

Chief Justice Maraga was concerned about the rule of law. “Rule of Law” is a difficult and abstract concept. It has been overused and manhandled. In the last one month, it has appeared in more than 40 news and opinion articles (more than once a day), and almost 9,250 times since the Nation started its e-version, which accounts for at least once a day for the last 25 years.

The rule of law is complex and unattractive

The understanding of the rule of law is not uniform, even or constant. It is one thing in Oxford, another in Beijing and a different one in Lagos or Dubai. Whatever the case, we are sure of at least two of its elements. First, it entails a reasonable predictability of the rules that guide behaviour in a society. Second, reasonable predictability is independent of the identity of the parties involved.

The rule of law is crucial to democracy and to development, and legal certainty is at its core. This certainty is aligned to human and societal behaviour, and in Kenya, the 2010 Constitution is the ultimate parameter of legal certainty.

In order to ensure predictability, the content of rules governing behaviour needs to be decipherable even and especially when there is doubt. While a society is able to determine the meaning and content of rules through political engagement, adjudication is usually a reserve of the courts.

The promulgation of the Constitution of Kenya 2010 was intended to strengthen Kenya as a constitutional democracy. The content of rules is subject to the Constitution and neither politics nor public opinion should undermine, waylay or subvert its dictates.

It follows that any weakening of the Judiciary directly interferes with its ability to perform its most basic role: the adjudicatory function between competing interpretations of the content of the rules in question at any one time.

Why cut expenditure where we are not spending?

The Judiciary’s share of the national budget is virtually unsubstantial. Even though the national budget has gradually increased over time, the same trajectory is not evident in the Judiciary’s budget, which if compared against the Executive’s budget is negligible, as seen in the chart below.

Data source: http://www.treasury.go.ke/

While one may reasonably argue that the Executive requires the lion’s share of the budget, the chart below below illustrates the crux of the Chief Justice’s argument. If independently evaluated, it is evident that the Judiciary’s budgetary allocation is in decline.

Data source: http://www.treasury.go.ke/

The highest recorded percentage allocation to the Judiciary was in the 2013/2014 financial year. Since then, the amount has fallen by 33 percent. Ironically, demand on the Judiciary has grown over the years and has been particularly exacerbated by the new Constitution. As citizens become more civically empowered, the chance that they will result to formal adjudication mechanisms increases.

Why the Judiciary needs money

The Judiciary has in turn responded by increasing its reach through the modernisation of some of its facilities, the funding of mobile courts and tribunals, increasing its personnel, including mediators and arbitrators, and the introduction of several information management systems. The reason for this is that a Judiciary that is available, efficient, sufficient and adequate is now constitutionally mandated.

Judicial accessibility hence requires spending and it is at this juncture that the tension between the judiciary and the other arms of government becomes most evident. In most countries, the judiciary’s budget is subject to oversight by parliament as the legislature holds what Webb and Whittington, in the article Judicial Independence, the power of the purse and inherent judicial powers, call “the power of the purse”.

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