President Uhuru Kenyatta's refusal to gazette new judges and meagre budgetary allocations to the Judiciary is hurting delivery of justice in the country.
The stalemate over the gazettment of 41 new judges presented to the President by the Judicial Service Commission (JSC) has left the Court of Appeal and the High Court with a depleted human resource.
The budgetary cuts have forced the Chief Justice David Maraga-led JSC to close some of the court branches countrywide.
Of the 41 new judges, 11 were for the Court of Appeal while the other 30 were to serve at the High Court.
Court of Appeal President William Ouko blamed the lack of enough judges at the appellate court for the increasing backlog of cases at the court.
Justice Ouko said when he took over at the appellate court in March, 2018, the backlog of appeals stood at 6, 000 and his mission was to reduce the number to 2, 000 every year and clear them by 2021.
However, this has not been possible as the backlog has instead grown to 7, 000.
The court has 15 judges after the retirement of judges who are yet to be replaced.
“We wanted to operate on real time basis, dealing with appeals as they are filed by 2021 but this has not been possible. We are only left with 15 judges as most have retired and the President is also holding onto swearing of the new judges yet more appeals are being filed,” said Justice Ouko.
He was speaking during the opening ceremony of a two-day virtual training workshop for Court of Appeal judges on cybercrime, electronic evidence and related issues. The event was organised by the Judiciary Training Institute (JTI) and the Attorney General Alliance (AGA- Africa).
President Kenyatta has failed to gazette the 41 judges nearly a year after the JSC presented the names to him following a successful interview and selection by the Commission in July last year.
In February, a three-judge branch of the High Court ruled that the President had no mandate to review, reconsider or decline to appoint those recommended for promotion by the JSC and is bound by the commission’s recommendations on persons to be appointed with the failure to make the appointments a violation of the Constitution and JSC Act.
This is after the Head of State, through a letter to the JSC by the head of Public Service Joseph Kinyua, cited “integrity” of the selected judges for his inaction.
The President has failed to act despite court orders directing him to appoint the individuals to bridge the human resource gap.
The lack of enough budgetary allocations, according to Justice Ouko, has hindered the realisation of fully digitised Judiciary even though the future of Judiciary operations lying in its digitization.
He said that the intended digitisation of court processes was aimed at clearing backlog at the Judiciary but that also took a hit as a result of lack of enough resources to achieve the same even though the current online court sessions have shown that a lot can be achieved by digitising court operations.
The Court of Appeal boss said the appellate court has heard more appeals since the switch to online court sessions amid Covid-19 pandemic as a result of lack of adjournments witnessed in normal sessions.
“We have constituted four benches sitting between Monday and Thursday each hearing three. This means that we have been doing 12 appeals each day translating to 48 in a week. There is no going back as a lot can be done,” he said.
In the current financial year ending June 30, the Judiciary was allocated Sh18.9 billion against its request for Sh33.3 billion. This was slashed further by Sh1.2 billion owing to the Covid-19 pandemic that hit revenue performance.
In the next financial year, it has been allocated Sh18.05 billion, an amount Judiciary Registrar Anne Amadi recently said in a Judiciary Magazine will create a Sh23 billion budget deficit.