Robbing the judiciary: a setback for the right to access justice in Kenya

The battle of supremacy between the Executive and the Judiciary in Kenya has for the past three years trickled down to the deprivation of funds required for judicial services. The decision by the treasury to slash Judiciary funds is a decision that threatens the underlying purpose of Article 48 of the Constitution and renders it a useless if not paralyzed right. Budgetary cuts causes’ adjournment of cases due to transport challenges, leads to closure of court services due to lack of adequate resources, stalls development projects across the country, and jeopardizes the principle of judicial independence. Every mature democracy should endeavor to ensure that the Judiciary is adequately funded so as to ensure that administration of justice is never disrupted. Administration of justice is critical for the rule of law and sustainability of the economy. By Mafumbo Allan Wafula

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Introduction

The right to access justice in Kenya is a right expressly guaranteed under Article 48 of the Constitution whereby, the State shall ensure access to justice for all persons.1 The right has equally gained universal acceptance and is safeguarded in recognizable instruments such as the International Convention on Civil and Political Rights,2 the Universal Declaration of Human Rights,3 the 2006 Convention on the Rights of Persons with Disabilities, the European Convention on Human Rights4 and the EU Charter of Fundamental Rights.5

The justice sector includes the criminal justice system and the civil justice system. As a human right therefore, the State and every State organ is obliged to observe, respect, protect, promote and fulfill the right.6 This implies both a positive and negative obligation on the Sate and State organs whereby, they should encourage the respect of this right by everyone and also refrain from infringing this right in the exercise of their duties and obligations, respectively.

 

Adjudication particularly focuses on development of capacities to determine the most adequate type of redress or compensation. Means of adjudication can be regulated by formal law, as in the case of courts and other quasi-judicial and administrative bodies, or by traditional legal systems.8 The quasi and non-judicial avenues includes he national human rights institutions (NHRIs) such as the Human Rights and anti-discrimination commissions and the Ombudsman offices. According to Justice Kollapen:

“Justice is not the exclusive preserve of the courts. The Constitution is designed to achieve justice in the broader sense including social justice and various functionaries including government, independent institutions, the private sector and indeed civil society takes on a special responsibility for the achievement of justice and thus access to justice is more, much more than simply access to courts.”9

The Kenyan Experience For the last three years, the budgetary allocation to the Judiciary has been experiencing a wave of slashes often accompanied by flimsy excuse from the National Treasury. Notably, in 2017 the Judiciary and a number of Independent offices and Constitutional Commission faced budget cuts as the government sought to raise money for the fresh presidential elections and enhanced free day secondary election. In the financial year 2018/2019 the Judiciary Had been allocated Ksh 17.3 billion but was further slashed down to Ksh 14.5 billion by Parliament through the Appropriation Act.10 Most recently, the Judiciary faced a 2.8 billion cut despite the fact that the budget allocated to the judiciary was half of what had been requested.11 Through a circular dated September 24, the Treasury boldly cited revenue shortfalls and need to raise funds for the Governments Big Four agenda as the core reason for the budget cut.12

The decision by the Treasury to slash the budget is one that fits the description “mean and irrational”. The reasoning that accompanied the said circular was laughable and one which any sober juristic mind will confidently describe as a display of power by the Executive rather than a sober expression of the willingness to serve the interests of Kenya in the name of the ‘Big Four agenda’. The effect of slashing the Judiciary budget on the right to Access justice13 can be categorized into two categories: direct effects and long-term effects. Direct effects refer to those consequences that imminently follow the budget slash whereas long-term effects are those that cripple the justice system over time. Direct effects are often harsh and difficult to ignore.

It is imperative to note that our judicial system is committed to expeditious settlement of disputes with the key objective of decongesting the Court matters and ensuring justice is not delayed. This is firmly anchored under the Constitution which expressly provides that the judicial authority which is derived from ‘the people’14 should be exercised in conformity with the principle that justice should not be delayed, inter-alia.15 The Civil Procedure Act also reflects this commitment in a very thesaurus: audible manner. The famous Section 1A provides that the overriding objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.16 The Chief Justice also made a commitment to enhance access to justice by speedy disposal of cases; a new digital strategy; and effective leadership and governance and ethical practices with clear timelines for all the pillars.17

Slashing the judicial funds is often accompanied by a slow- down that adversely affects the expeditious settlement of matters. Whenever the budget cuts affect the transport and fuel costs for judicial officers, court proceedings will be marred by adjournments and other key programmes suspended. Undoubtedly, imposing transport burden on the judges, whether partially or wholly, may be an unwelcomed decision that makes it hard if not impossible for the Judges to arrive at their respective workstations in time. The recent slashing of judiciary budget for instance occasioned the adjournment of a case filed by Joseph Kimetu ole Mapelu and 12 others in which they were challenging the impending eviction of 600 settlers from the Maasai Mau Forest. The case was scheduled for hearing before a three-judge bench at the High Court in Nakuru. A message pinned on the notice bard by the court registrar blamed the recent budget cuts for the adjournment.18

In addition, offices, courts and tribunals require proper funding for it to be in constant operation. A cut of the judicial budget threatens the day to day operations of the courts and even worse, it leads to closure of several courts across the country. Following 2019 budget cut, several courts were suspended and a number of courts such as the Court of Appeal in Nyeri closed indefinitely.19 The cut also occasioned belt-tightening measures such as suspension of all mobile court sessions. Kapenguria High Court judge- Ruth Sitati- for instance announced the suspension of mobile court services because of budget constraints. The mobile courts had been introduced in 2018 to serve Alale in Pokot North and Sigor in Pokot Central sub-counties which were about 100km away from Kapenguria.20

This begs the question ‘what remedies will such citizens have? What is the fate of citizens who rely on mobile courts as the fastest and only available means to access justice? Or is the right to access justice in Kenya a reserve for only ‘a few’ people? It is shameful for any court to be closed on the grounds of lack of funds: fund which the treasury re- directs to other activities branded as more important. What is the essence of providing other services to citizens at the expense of having a reliable justice system? Where will they run to when the other services are provided in a manner that violates their fundamental human rights? A functioning and reliable justice system is the cornerstone of all other services including the successful implementation of the ‘Big Four Agenda’. The importance of the Courts in any mature democracy cannot be put in any better terms than in the words of Hon. Justice Aggrey Muchelule when he stated that:

“A judiciary that upholds the rule of war serves a political function in the state by providing a neutral arbiter of disputes outside the political processes, hence creating an important apolitical arena of state action. The Judiciary protects and enforces legal and human rights, enforces the contracts of laissez faire economy, defines and interprets the law, imposes and releases individual actors of legal responsibility, free from political interference.

The judiciary, like any other arm of government, makes its budget estimates on the basis of several projects and activities that are projected to effect the efficient delivery of justice. The said projects include the development of new courts, the renovation of several courts which are in an undignified state, and the provision of mobile courts in several parts of the country. The infrastructure development and establishment of High Courts in all counties lies at the center of the ongoing Judiciary transformation and is not only a mere management commitment but also a Constitutional mandate.22 The rationale underlying these development projects is the need and demand to have justice brought closer to all citizens regardless of their geographical positioning.

Slashing the Judiciary budget estimates adversely affects the planning, initiation, continuance and completion of the several development projects across the country. This in turn cripples the realization of access to justice for several Kenyans. Mobile courts become inaccessible and citizens in the affected areas have to incur the expense of travelling far and wide to access the courts. With inadequate court facilities across the country, only a limited number of Kenyans can access the Courts at a time, therefore slowing the entire process and occasioning the backlog of cases in our courts.

In the year 2018 for instance, the cut of the judicial budget put the construction of seventy courts at the risk of stalling.23 The slash also threatened the suspension of fifty Mobile Courts, discontinuation of the ICT and modernization of court systems and halted the construction of new courts. In 2019, the development and recurrent expenditure was slashed by 50% and the entire ICT vote of Ksh. 400 million was cut. The slash not only affected transport and fuel costs for judicial officers and the judiciary but also occasioned the suspension of over 53 mobile courts across the country which is important for purposes of enhancing judicial services to inaccessible/marginalized areas with no coverage of physical courts. Plans to fully automate proceedings of the anticorruption courts in order to speed up hearing of cases were disrupted, and so were plans to set up a virtual court to serve the Kenyan diaspora.24

Budgetary cuts also threaten the independence of the judiciary. The role of the courts as resolver of disputes, interpreter of the law and defender of the constitution requires that they be completely separate in authority and function from all other participants in the justice system.25 R.W.M Dias in his classical work, “Jurisprudence”, observes that:26

“The success or failure of judicial control of the abuse of power, whatever form such control may assume, depends on the judges being independent of those wielding the power. Independence means far more than immunity from interference; it means that they are free to bring their own sense of values to bear in considering legislation and do not simply reflect the values of government…”

The slashing of judicial budget makes the Judiciary a slave of the Executive which is a violation of the principle of judicial independence as enshrined under Article 160 of the Constitution.27 Once the Judiciary begins to beg for funds required for completion of projects and provision of transport to judicial officers, the judiciary seizes to be in control. The English adage that advocates, ‘Never cut the hands that feed you” then become a bitter pill that the Judiciary must swallow. The will to serve justice will remain a vision that has no prospects of becoming a reality.

The judiciary cannot survive on a shoe-string budget and therefore we are likely to experience a return of corrupt magistrates and judges. At the end of the day, the ordinary citizen who is not able to buy justice becomes a victim of ‘miscarriage of justice’. Many citizens will also shy away from the Courts once they realize that they have no money to buy justice. The Constitutional requirement that justice should be done to all irrespective of status28 then becomes a mere statement of fashion.

It is also imperative to note that the value of judicial independence is not limited to the protection of the citizen from power-abuse; it also feeds into the general quality of governance, and the interplays of the different organs of government. Lord Lloyd in his classic, The Idea of Law wrote:29

“ The notion that the third arm of the constitution, the judiciary, should be entirely separate from both the legislative and the executive powers, seemed…to based on more solid foundations than the somewhat arbitrary division between the legislature and the executive…If laws are to be interpreted and impartially applied it is obviously important that the judiciary should enjoy an independent status and be free from the political pressures engendered by association  with the executive or even the legislature itself, dominated as the latter is likely to be by the divisions of party politics.”

A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other protections fail, it provides a bulwark against any encroachments on its rights and freedoms under the law.30

Conclusion

The decision by the treasury to slash Judiciary funds is a decision that threatens the underlying purpose of Article 48 of the Constitution and renders it a useless if not paralyzed right. Every mature democracy should endeavor to ensure that the Judiciary is adequately funded so as to ensure that administration of justice is never disrupted. Administration of justice is critical for the rule of law and sustainability of the economy.

Mafumbo Allan Wafula is an undergraduate student, Moi University School of Law.

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