By: Tioko Ekiru Emmanuel.
The recent debate on the ‘underfunding’ of the judiciary by the Kenyan parliament signals a very serious clarion call for the courts to reclaim their special space in the Constitutional architecture and design. It is something that should shock the foundation and the deep conscious of every Kenyan.
Chief Justice, David Maraga, in a move to defend the courts’ while expressing his disappointment made one of the robust remarks on the reduction of the funds arguing that a number of over 40 projects will be stalled for instance the suspension of fifty mobile courts, clearing of cases backlog and installation of ICT and ongoing modernization of the courts system, including construction of new courthouses following the budget cut. The government has failed to understand that they are not punishing the courts instead they are denying justice to litigants.
It should be appreciated that Article 173 of the Constitution creates the Judiciary Fund and Section 3(c) of the Judiciary Fund Act speaks on similar voice rallying for adequate funds for the delivery of justice.
Courts are altars of justice administration. They are an independent branch of government with clear profound Constitutional mandates whose efficiency is essential for a functioning democracy. Dr Stephen Colbranin, ‘Independence and integrity as a criterion for judicial Performance Evaluation’ intellectually put that independence and integrity are without doubt essential requirements for a judge to render justice. The drastic funding, therefore, is meant to undermine and weaken courts integrity. The Constitution anticipates the inherent tension in the separation of powers, hence, to avoid any institutional rivalry public participation ought to be a prerequisite parameter in resource distribution to enhance transparency and accountability.
A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other public protections fail, it provides a bulwark to the public against any encroachment on its right and freedom under the law.
Kenya’s current constitutional dispensation is based on the doctrine of constitutional supremacy. This is a great departure from the 1963 constitutional order under which parliament and the executive were considered supreme.The implication of this principle is that state organs and institutions are subordinate to the Constitution and are therefore bound and have to abide by provisions of the constitution. This is, for example, different from the concept of parliamentary sovereignty that is applied in the United Kingdom. The Constitution vests the courts with the authority to safeguard the Constitution and specifically empowers courts to scrutinize any laws, actions of institutions and persons and any other processes to determine whether they accord with the text and spirit of the constitution.
In his own wisdom emeritus chief justice Willy Mutunga pointed out that:
“The Courts must patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercise their constitutional mandates, being conscious that their very infancy exposes them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order”.
Undoubtedly, the drastic cut of the judiciary funds by the parliament is a manifestation of inviting the past horrors and madness of the one party regime to our post-authoritarian state, something that is contrary with the spirit and the vision of the new dispensation.
By promulgating the new dispensation, the people of Kenya rejected the cliff of violence, dictatorship, hatred, misappropriation of public funds, jealousy, and executive impunity and the whims and fancy of parliamentary sovereignty. Toward this end, the Preamble to Kenya‘s Constitution reflects the aspiration of all Kenyans for a government based on the essential values of human rights, integrity equality, freedom, democracy, social justice and the rule of law.The existence of the values side by side indicates that Kenyans expect to live under the rule of law within a democratic state that respects fundamental rights as opposed to a conception of the rule of law as a matter of law enforcement in an authoritarian regime. Judicial independence even in funding aspects therefore emerges as a crucial means to this end.
Du Plessis‘ perception of memorial constitutionalism views the constitution both as memory… coming to terms with a notorious past, and promise, along the way towards a … transformed future’. Importantly, judicial independence must be viewed in the light of Kenya‘s past experience with an emasculated judiciary and also in view of the desire reflected in the preamble for government based on human rights and the rule of law. The constitution therefore signals an end to a past marked with inadequate judicial independence and accountability and heralds a new era where both values underpin the execution of the judicial mandate.
In addressing the above mentioned challenges, institutional radical surgery was proposed following the aftermath of the violence that rocked the country during 2007 hotly contested presidential election. The importance of reforms to make the judiciary more accountable and independent was incorporated as a central recommendation in the National Dialogue and Reconciliation Agreement that was negotiated to bring an end to the 2007 post-election violence.A number of institutional reforms were proposed in this agreement including financial independence; transparent and merit-based appointment, discipline and removal of judges; strong commitment to human rights and gender equity; and reconstitution of the Judicial Service Commission to include other stakeholders and enhance independence and autonomy of the Commission. The 2010 Constitution reflects many of these reforms intended to guarantee the independence of the judiciary.
Judicial independence a vital pillar of democracy
One of the vital measures of democracy in a polity is the existence of an independent judiciary. It is well settled that judges cannot discharge their mandates impartially, competently efficiently and fairly if there is no independent judiciary. Only an independent judiciary is able to render justice impartially on the basis of law, thereby protecting human rights and fundamental freedoms of individual.
A strong judiciary is the pillar and foundation of the rule of law in a democratic system. It necessitates intellectual, structural and financial independence, coupled with professionalism. The judiciary is the lubricant that facilitates and harmonizes institutional and personal relationships in a society. When the judiciary weakens other institutions collapse and this causes a domino effect that ultimately undermines the rule of law in its entirety, and eventually destroys democracy. Judges develop the law; they constantly expand the limits of the law through their decisions. Judges are the guardians of democracy; a judge is called to be the guardian of the constitution…and the guardian of every individual, against every power’.
The founding fathers of the American Constitution, James Madison and Alexander Hamilton in their wisdom appeared to suggest that judicial independence was a crucial aspect and pillar of the constitutionally hallowed doctrine of separation of powers. Scholars have attempted to define what judicial independence entails by describing the results it seeks to obtain, such as the promotion of the rule of law. Paul Bator argues that judicial independence seeks to ensure that, at the end, judges are free from executive and parliamentary control in order to allow them determine whether some power asserted by any of the arms of government against a citizen, is consistent with the law.
The element of independent adjudication underlies judicial independence and implies that any disputes over the legality of acts of government must be settled by judges who are wholly independent of the executive. It is commonly assumed that a judiciary with some degree of independence is significant for the protection of liberal values including private property rights, individual liberty and the sustenance of democratic governance itself.iWhere there is no independence, the judiciary is prone to be manipulated and barred from effectively scrutinizing illegal or arbitrary exercise of power by state organs while the corollary is that where judicial independence exists, courts are better suited to act as powerful agents of constitutionalism.
Scholars have established that the concept of judiciary independence is twofold:
Second, judicial independence is external in the essence that the institution must be free from any outside institutions, including legislative, executive, political parties, civil societies, other legal bodies, litigants, or any other forces outside the judiciary itself that can encroach on the autonomy of the judiciary or of the individual judges.
In one of the path breaking decision deployed by the Canadian Supreme Court, Judicial independence was said to “connote not only a state of mind but also a status of relationship to others-particularly to the executive of government –that rests on the objective condition or guarantees.” It further noted that judicial independence “ involves both individual and institutional relationships: the individual independence of a judge as reflected in such matters as security of tenure,finances,appointments,rendering decisions and the institutional independence of the courts as reflected in its institutional or administrative relationships to the executive and legislature arms of government.
Karen Eltis and Fabien Gelina in their commentary, ‘Judicial Independence and the Politics of Depoliticization’ argue that judges carry neither purse nor sword. Their power and legitimacy are anchored in the public trust –the public’s perception and faith to shield them from inappropriate external influence and political pressure. It is imperative to note that the Constitution of Kenya vests judicial authority to the people thus the same people should be ready to defend the courts integrity from external influences.
“To be the judges and magistrates…we need to be intelligent, Knowledgeable about the law, but more importantly perhaps ,wise in the ways of the world ,sensitive to others from different backgrounds to our own ,fair and open-minded and balanced, independent in spirit, courageous to do what is right even when it will be unpopular.
The relationship of the executive and legislative machinery of the government with the judiciary has in the recent been characterized by three attitudes as coined by Justice. E.Gicheru. The first is taking the Court as a necessary step before extra-judicial (and illegal) mass action to justify the subversion of rule of law in pursuit of the litigants’ interest. Secondly, the process of the court and its decisions have been made in outright contempt and have been disobeyed by factions of the executive and legislature that are adversely affected and thirdly, the legislature has arrogated itself the role of a supervisor of the discharge by the Court of its judicial function.
None of these attitudes comes near to the desirable demands of mutual respect between institutions of the government under the constitutional doctrine of separation of powers which requires the trio to operate in.
The rule of law upon which the principle of Constitutionality is founded depends on an independent judiciary to authoritatively interpret and enforce the law.
The political theory and Constitutional arrangements require none of the three organs of the state should encroach and interfere the other .Each branch has its own functions, duties and boundaries of operations within the legal restraints. The division of authority is meant to provide checks and balances to safeguard the liberty of the individual. Each of the organs is autonomous. Each of the organs should be separate from each other as much as much as they can.
The Founder of separation of powers doctrine Montesquieu, in his most quoted book De L’Esprit des Lois (Spirit of the Laws) in classifying the functions of government stated: ‘In every government there are three sorts of power: that of making laws, that of executing public affairs and that of adjudicating on crimes or individual causes’. In Montesquieu‘s view there is a threat to liberty where powers are united in the same person or body. This is especially the case where judicial power is not separated from the legislative and executive power. Montesquieu also canvasses the idea of checks and balances by which the branches of government can legitimately influence or impose a number of restrictions on the actions of the other branches. It is however understood that a complete separation of powers is undesirable and would grind down the operations of government. Therefore, what is sought is not a mechanical and complete separation of powers but a system of checks and balances.
In the post-2010 era there are rigorous manifestations of threats to judicial independence in Kenya today. Though in ideal democracies judiciary should be free from external influence, it goes without saying that since Independence, the Kenyan judiciary has had to endure immense interference from other quarters particularly executive and legislative arm. The best case to illustrate this is the scathing attack of the judges by president Uhuru Kenyatta when he called them crook “wakora” on 2nd September 2017 after the Supreme court judges handed down one of the world shocking judgment in (Raila Odinga& Another V IEBC &Others)by nullifying the sitting president election. The parliament similarly has been exercising displeasure toward courts as result of decisions that doesn’t go their own wishes. The courts have been occasionally used as political punching bag when justice is not rendered in favour of one interest or wishes.
As a matter of legal principle judicial independence lies at the heart of our judiciary .For the legislature, if the laws are made are interpreted or constrained in a way not anticipated by it, it is healthy phenomenon for our democracy. When judiciary frustrates Executive it is equally healthy phenomenon to our democracy. For the community, or the governed, the judiciary is not about populism it is about safeguarding the rule of law and administration of justice to all; the small and great; poor and the rich.
Reclaiming the courts’ integrity through Adequate Funding
Integrity is an important virtue that mean soundness or moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts bestowed upon him or her; it is synonymous with ‘probity’, ‘honesty’ and ‘uprightness’. For the purpose of judicial officer or the judiciary as institution integrity is an important pillar in the administration of justice thus it must go hand- in -hand with adequate funding. A court of law will be crippled if there is no adequate funding, and at the same time its integrity will be doubted and ultimately public confidence will be lost in the process. Integrity is more than a virtue in the judiciary; it is a necessity.
In enhancing courts integrity in financial matters, the judiciary has been guaranteed financial autonomy through the establishment of the Judiciary Fund that is administered by the Chief Registrar of the Judiciary.This fund must only be used for administrative expenses of the judiciary or for other purposes necessary for its functions.The Chief Registrar is required to prepare estimates of expenditure every financial year for the following year and to submit these estimates to the National Assembly for approval.Upon approval, this budget is to be charged on the Consolidated Fund and the funds are to be paid directly into the Judiciary Fund.The fact that the judiciary can accept grants, gifts, donations, or bequests towards the achievement of its objectives further strengthens its fiscal autonomy.These funds cannot however, be accepted if they are meant to direct or influence the judiciary to perform its duties in favour of the party giving the funds. The fact that the judiciary can receive funds from other bodies has largely eliminated the ability of the executive or parliament to starve the judiciary of Funds.The Judiciary Fund Act of 2016 has additional safeguards to promote the judiciary‘s financial accountability.The Act provides that the objectives of the Judiciary Fund are to: a) safeguard the financial and operational independence of the judiciary, b) ensure accountability for funds allocated to the judiciary, and c) ensure that the judiciary has adequate resources for its functions.
It should be noted that adequate funds enables judiciary to perform its functions efficiently, professionally and to the highest standard it could. Proper salaries, support staff, resources and equipment are essential to the proper functioning judiciary. As matter of best principle, judicial salaries and benefit should be set by an independent commission or de-linked from the treasury and executive as in the case of Ghana. The Constitution has set clear provisions on the remunerations of judges.However, while the Constitution make provisions towards the formation of judiciary funds, the control of and disbursement of funds still remain out of judiciary. It therefore follows that independence of judiciary would not be realized if the funds are handled by different entity.
Lessons from South Africa
Following the heavy burden of colonialism and apartheid regime in South Africa until 1994 when the country ushered in the first black president as result of transitional democracy to a new Constitution. The issue of judiciary independence has been emotive and contested one.
Throughout the apartheid ,like in many other democracies like Kenya, South Africa, has been a victim of many challenges such as transition from an authoritarian racist state to one founded on the pillars of human rights based, including the transition from a system of parliamentary sovereignty, to one of constitutional democracies with considerable challenges of separation of powers.
“The appearance of judicial independence and adherence to legalism under the guise of “rule of law” serves as powerful legitimating mechanisms for the exercise of governmental authority. It is all the more useful to a government which is pursuing judiciary, while being able to rely on the courts not to delve too deeply in their interpretation and enforcement of the law”.
One of the case to illustrate the Country’ judiciary inclination to the executive was the cases of Boem v State concerning the validity of the state of emergency that was declared on 12 June 1986, and more specifically Chief justice Steyn. In this case, justice Steyn spoke about the role of court in striking the balance between the power of executive and individual rights, however, he prefaced his decision “with a politically partisan attitude, one-sided and emotive exposition of the government’s view on the declaration of the state of emergency.
According to Justice Steyn the South Africa was undergoing a period of constitutional, socio-economic, political and cultural reform which was “accompanied by social turbulence and unrest generated mainly by resistance to that charge and reform not only as to its tempo but also to its ambit, nature and direction.
Taking into account the role of the judiciary during apartheid regime and its lack of legitimacy among many South Africans, transformation was identified as fundamental to creation of legitimate and effective judicial arm. Reformation of judiciary was identified one of the vital means towards development of a democratic state. During the transformation, the necessity to make judges accountable was also established as a tool in enhancing effectiveness of courts and promoting the constitutional values. Similarly, it was noted whereas the actions and decisions of judges during apartheid often paid greater allegiance to the ruling party than to the people the courts were supposed to be pro-people.
Judiciary was established as a critical component of democracy from the flow of that the 1993 interim Constitution established 34 principles that the final constitution was to comply in order to be certified by the Constitutional court.
Essentially, two of these principles ensured the final Constitution would create an independent judiciary that could prevent abuse of powers other state organs. Specifically, principle IV established that there would be separation of powers between the three branches, with proper checks and balances to ensure accountability, responsiveness and openness. Principle VII provided that the judiciary must “be appropriately qualified, independent and impartial and shall have power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.
Chapter eight of the Constitution of South Africa defines the structures of the judicial system in the state. The chapter guarantees the independence of the courts and require other organs to assist and protect the courts in order to ensure independence, impartiality, dignity, accessibility and effectiveness.
Regarding the funding of the courts which is essential for this inquiry, the administration and funding of courts are timely connected to the ability of courts to administer justice in efficiently, timely and fair manner. The core aspect of court administration range from the cases management, staff, provision of other services such as libraries, registries and the enforcement of court orders.
For the purpose of court administration and budgetary control South Africa, has established two separate systems. Pursuant to the Constitutional Court, the Constitutional Complementary Act 1995 sets out provisions concerning court administration and budget.
Section 15(2) of the same Act, sets out procedure for the determination of the judicial budget which vests mandates to the chief justice with consultation of the minister, which then shall be addressed to the parliament in a manner prescribed for the budgetary processes of departments of state.
These sections provide important lessons for Kenya since it gives the President of the court (Chief Justice) the power to take the lead in determining the needs of the court and then enter into discussion with the minister as what is appropriate.
The challenges encountered by judiciaries in post-authoritarian regimes for instance Africa continent, are however, not merely imagined or perceived; they are also real in nature. They exist both out at the institutional level and decisional level. At the institutional level, African’s new constitutions pay great tribute to conventional separations of power doctrine by organizing the courts into a separate, self-managed branch of government with exclusive mandates and jurisdiction. In practice however, the judiciary, is lacking the power of the purse, must depend on the legislative and executive branches for resources to operate. This dependence is made worse by the fact that the judiciary has historically been severely under-resourced ,leaving it with inadequate and outmoded technology, dilapidated and overcrowded courthouses, and underpaid judges and staff.
The smooth functioning of any judiciary depends with adequate funds/budgetary allocation to hire and appoints staffs, build its institutional capacity, install ICT and to administer justice to all.
The reduced funding should be viewed in light of the supremacy wars between parliament and the judiciary. It is a clear attempt to take the courts to the executive-minded route under one party regime.
Kenyans need to renew and rededicate their efforts to implementation of a transformative project that was ushered in 2010 through a well functioning and equipped judiciary. Underfunding of the courts is a mockery to our Constitution. It is denying justice to litigants and bending the rule of law at the altar of impunity. Judicial integrity and independence may be weakened through inadequate funding as such the judge will be exposed to vulnerable situations and the court of law will be an instrument of oppression from the executive, legislative and elite class.
Judiciary has been termed as watchdog and sentinel of the people’s right and the final custodian of the Constitution thus it requires concerted effort to carry out its mandates effectively.
Instructive lessons from South Africa demand that the Kenya’s judiciary should be ready to stand tall as custodian of people’s right even during turbulence moments. It should not bow low to any threats such as underfunding but rather it should strive to move forward by upholding the Constitution
Tioko Ekiru Emmanuel is a finalist student at Moi University School of Law
He is also the President of Law students’ Society of Kenya (LSK)-Annex Chapter
Can be contacted through firstname.lastname@example.org