Caught Between a Progressive Framework for Judiciary Financing and an Unpredictable Political Terrain: The Case of Kenya

Abstract

Kenya’s current Constitution fundamentally altered the structure, operations (including financial operations) and mandate of the Judiciary. Judicial power, like all other state power, is now recognised as emanating from and accountable to the common sovereignty of the people. There are independent structures, processes, and institutions, to ensure the financial and institutional independence of the Judiciary. Prior to 2010, the Judiciary was wholly subordinated, alongside all other public institutions, to the executive. With regard to finances, the Judiciary’s budgeting process is provided separately and independently from sectoral ministries and the legislature. The Judiciary develops and presents its own budget estimates directly to parliament for debate and approval; other institutions have to submit estimates to the National Treasury.

Furthermore, any moneys allocated to the Judiciary are to be deposited into the Judiciary Fund, which is established under Article 173 of the Constitution. Despite the framework above, Kenya’s Judiciary faces a number of challenges to its financial independence. While there was a substantial increase in the overall resources to the Judiciary after the 2010 Constitution, the Judiciary’s funding has been on a steady decline over the last four years, in what has been credibly linked to reprisals by the executive to the Judiciary, over the latter’s independent decisions. On many occasions, the Judiciary faced abrupt, irregular, and sometimes illegal budget cuts mid-stream the financial year, which end up disrupting service delivery and court operations. Furthermore, the Judiciary Fund that is provided for in the Constitution has never been operationalised. Against the above context and framework, the chapter will critically examine both the framework (and its effectiveness) and the actual funding of the Judiciary. The argument proposed in the paper is that the progressive constitutional and legal framework to protect the judicial financial independence of the Judiciary translates to little in practice. The executive (through the Treasury) has held on to powers that were taken away by constitutional alignment, and used these powers to undermine the financial independence of the Judiciary. In turn, the full realisation of the financial independence of the Judiciary depends on whether the relevant agencies of the national executive will align their operations to the constitutional, legal, and policy framework envisaged for the Judiciary, and thereby, guarantee financial independence.