The Kenyan judiciary has transformed in the post-2010 period and has robustly carried out its role as the custodian of the Constitution. However, these gains are now under threat following an attack on the financial autonomy of the institution and failure by the other arms of government to respect court orders and directives.
Following the annulment of the August 8th 2017 presidential election, the executive made a decision to slash the budgetary allocation for the judiciary and a number of independent constitutional offices. The government rationalized this reduction of budgetary allocation on the basis that it needed money for the repeat presidential elections and to enhance free day secondary education. Earlier in 2015, the National Assembly slashed the budgetary allocation to the Judiciary and the Senate as a punishment for the Supreme Court’s Advisory Opinion to the effect that the Senate had to be involved in the approval of the Division of Revenue Bill that determines the allocation of funds between the National and County governments.
However, the worst attack on the financial independence of the judiciary has been through the 2018 Appropriations Act where the judiciary has been allocated a paltry Kshs 50 million for its developmental needs. This compares unfavorably with the previous allocation of kshs. 2.5 billion allocation for development for the judiciary in the recent years. The judiciary had requested for a sum of kshs.31.2 billion for the financial year 2018-2019, but was allocated a paltry kshs. 14.5 billion. It is also noteworthy that the budgetary allocation to the judiciary is less than the allocation it was given in 2012. This compares unfavorably with the allocation to parliament that has gone up by 50% since 2012. The main consequence of the drastic budgetary cuts is that more than 70 ongoing court construction projects will stall as will the planned roll out of ICT infrastructure for the courts.
The intentional withholding of funds from the judiciary shows that the institution continues to be under-resourced thus compromising its ability to deliver justice effectively. The process of budgeting and monetary allocation remains a political process as the political branches of government use this as a mechanism to reward or punish the Judiciary depending on the stance that the Judiciary takes in political disputes. The executive and the legislature should realize that the budgetary cuts hurts litigants and goes against the constitutional right of access to justice.
While the judiciary has achieved the goal of playing its role within the separation of powers, the exercise of its powers has been met with attacks from the executive, and most alarmingly, non-compliance with court orders on the part of the state. In order for a democratic system to function effectively, it is essential that the different branches of government adhere to the rule of law and submit to the checks and balances which the other branches exercise over it. Rule of law means both citizens and politicians respect the law and its institutions. Furthermore, judicial independence cannot be secured if the impression given by the government is one where judgments are only adhered to when politically expedient to do so. If the decisions of the courts are not obeyed and if their orders are not effectively implemented, the ‘bite’ of the Constitution will disappear and it will become largely a semantic document. This follows from the truism that courts are in fact unable to bring about significant policy change without the political will to enforce their decisions.
The concerns relating to the financing of the judiciary and respect for court orders reflect a lack of ability, willingness or commitment to achieve the goals of the Constitution. There is an important question here as to the need for wise political leadership in the country. It is clear that without wisdom and respect for constitutionalism, the Kenyan transition might not succeed. It is The Platform’s call for a recommitment to the vision of the 2010 Constitution, respect for judicial independence, and a rededication to efforts to achieve its goals by the country’s leadership.