Chief Justice David Maraga spoke boldly on November 4, 2019. He was deeply concerned about the budgetary cuts that are gradually crippling the Kenyan judiciary. Central to his address was the role of the judiciary in Kenya’s institutional architecture.
Days after CJ Maraga’s statement, the Executive seems to have done a 180-degree reversal. So what was going on? Was the Executive simply flexing its muscles to remind the Judiciary that “he who pays the piper calls the tune”. But it may also be true that there is no money, and when money is scarce, you cut expenditure where it seems, at least in a short-term perspective, to pain less like in our courts and our prisons.
While many a critic would look with disdain upon what they perceive to be his unfounded tantrums and lamentations on the interrelationship between the arms of government, an analysis of his stern admonitions concerning the Judiciary’s budgetary allocations would reveal a cause for alarm.
Chief Justice Maraga was concerned about the rule of law. “Rule of Law” is a difficult and abstract concept. It has been overused and manhandled. In the last one month, it has appeared in more than 40 news and opinion articles (more than once a day), and almost 9,250 times since the Nation started its e-version, which accounts for at least once a day for the last 25 years.
The rule of law is complex and unattractive
The understanding of the rule of law is not uniform, even or constant. It is one thing in Oxford, another in Beijing and a different one in Lagos or Dubai. Whatever the case, we are sure of at least two of its elements. First, it entails a reasonable predictability of the rules that guide behaviour in a society. Second, reasonable predictability is independent of the identity of the parties involved.
The rule of law is crucial to democracy and to development, and legal certainty is at its core. This certainty is aligned to human and societal behaviour, and in Kenya, the 2010 Constitution is the ultimate parameter of legal certainty.
In order to ensure predictability, the content of rules governing behaviour needs to be decipherable even and especially when there is doubt. While a society is able to determine the meaning and content of rules through political engagement, adjudication is usually a reserve of the courts.
The promulgation of the Constitution of Kenya 2010 was intended to strengthen Kenya as a constitutional democracy. The content of rules is subject to the Constitution and neither politics nor public opinion should undermine, waylay or subvert its dictates.
It follows that any weakening of the Judiciary directly interferes with its ability to perform its most basic role: the adjudicatory function between competing interpretations of the content of the rules in question at any one time.
Why cut expenditure where we are not spending?
The Judiciary’s share of the national budget is virtually unsubstantial. Even though the national budget has gradually increased over time, the same trajectory is not evident in the Judiciary’s budget, which if compared against the Executive’s budget is negligible, as seen in the chart below.
While one may reasonably argue that the Executive requires the lion’s share of the budget, the chart below below illustrates the crux of the Chief Justice’s argument. If independently evaluated, it is evident that the Judiciary’s budgetary allocation is in decline.
The highest recorded percentage allocation to the Judiciary was in the 2013/2014 financial year. Since then, the amount has fallen by 33 percent. Ironically, demand on the Judiciary has grown over the years and has been particularly exacerbated by the new Constitution. As citizens become more civically empowered, the chance that they will result to formal adjudication mechanisms increases.
Why the Judiciary needs money
The Judiciary has in turn responded by increasing its reach through the modernisation of some of its facilities, the funding of mobile courts and tribunals, increasing its personnel, including mediators and arbitrators, and the introduction of several information management systems. The reason for this is that a Judiciary that is available, efficient, sufficient and adequate is now constitutionally mandated.
Judicial accessibility hence requires spending and it is at this juncture that the tension between the judiciary and the other arms of government becomes most evident. In most countries, the judiciary’s budget is subject to oversight by parliament as the legislature holds what Webb and Whittington, in the article Judicial Independence, the power of the purse and inherent judicial powers, call “the power of the purse”.
While this is reasonable, given the intimate connection between democratic representation and control over government taxation and spending, control over treasury or at times, collusion between parliament and the executive over the treasury transforms into a powerful political weapon that can be used against the judiciary. An effective power of the purse then gives the colluding government institutions a trump card when disagreements arise between them and judiciary.
While there is no customary percentage that ought to be given to a country’s judiciary, a comparative analysis of the states represented in the chart above displays that most countries would reserve at least one percent of their national budget to cater to the judiciary’s needs.
How much should judiciaries get?
One percent is still unnervingly low and that can be seen in charts fourth and fifth charts below where the judiciary’s budgetary allocation per capita is viewed against the country’s GDP per capita, revealing that for a country like Sweden, which in the third chart seemingly spends decently on its judiciary, is in reality spending very little upon juxtaposing the judiciary budget allocation against the State’s income.
While it would seem that a judiciary’s budget allocation of at least one percent of the national budget is sufficient to sustain the its function across jurisdictions without adversely interfering with judicial independence, the data reveals an interesting observation concerning both Russia and Poland.
Russia and Poland seem to be making a strenuous effort to fund their judiciaries against their comparatively low GDPs but still fare dismally on the rule of law rankings and their judiciaries are heavily criticised as lacking in independence. One cannot purport to state with certainty that the additional funding is meant to increase judicial independence. There may also be an element here of “catch-up” funding to compensate for historic under-funding.
In the 2015-2016 European Network of Councils for the Judiciary (ENCJ) report on funding of the judiciary, Poland stated that it was focussed mainly on the remuneration of judiciary personnel, the improvement of facilities, and the modernisation and computerisation of the judiciary’s services.
Polish and Russian roulettes
A report by the Organisation for Economic Co-operation and Development (OECD) acknowledged that despite the struggle by Russia and Polands with individual freedoms, there was a deliberate effort in both jurisdictions to improve the efficiency and competence of their judiciaries for economic development. In Russia, at the time of the report, the share of corporate firms that considered court administration as a major obstacle in their business activity had fallen from 21 percent to seven percent.
On the other hand, the expansive rate at which the Polish economy has been growing required the State to make substantive financial input into its judiciary to allow it to respond to growing market needs. Consequently, whilst these countries record threats on judicial independence, financing the judiciary is extra-political and funding and equipping the judiciary seems to directly and positively impact their economies.
Poor justice funding equals poor development patterns
Most African countries, including Africa’s strong economies, fund their judiciaries poorly as can be seen in the chart below. In order to achieve substantial growth, they will need to allow their judiciaries more financial resources.
In the event of a ruling against the government of the day, a disgruntled executive may use parliament to “punish” the judiciary. Reducing the financial resources available to a judiciary may indeed threaten judicial independence and create a more subservient judge but it also hampers the entire institution’s effectiveness. It reduces its adjudicatory capacity by lessening its accessibility.
Defunct tribunals, the abolition of mobile courts, less efficient judicial systems, and reduced personnel among other consequences of reduced funding, directly influence the markets. These actions hamper the ability of economic actors to not only resolve disputes but to also reliably predict the consequences of their actions – effectively chipping away at the most basic component of the rule of law.
Chief Justice Maraga’s statement, though polarising on many fronts, correctly channels the tone of concern any rational actor would have towards the budgetary cuts threatening our Judiciary, the effect of such an undertaking on the market in the country and generally, on the durability of our rule of law. The Executive’s change of heart should not lull us into a false sense of security: until Parliament and the Executive consider the Judiciary a cornerstone of our constitutional architecture rather than an inconvenient appendage, we need to remain vigilant and guard against attempts to emasculate the judiciary.
This article is part of a long series of articles on the rule of law in the context of politics and ethics. The series is researched and co-authored by:
- Prof Luis Franceschi, founding dean of Strathmore Law School and Visiting Fellow, University of Oxford.
- Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates.
- Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates.
- Wandia Musimi, Research Associate ALN Anjarwalla & Khanna, Advocates.