Fulfilling The Promise Of The Constitution
October 23, 2012
Speech by the The Hon. Dr. Willy Mutunga, D.Jur.,SC, EGH, Chief Justice and President of the Supreme Court of Kenya on the occasion of the Inaugural State of the Judiciary and the Administration of Justice Report, on October 19, 2012 at the Supreme Court Grounds, Nairobi
Mr Prime Minister,
Mr Vice President,
Mr Speaker, Sir,
Judges of the Superior Courts,
The Attorney General
Members of Parliament,
Members of the National Council on the Administration of Justice
Members of Commissions and Independent Offices
Chief of the Kenya Defence Forces
Members of the Diplomatic Corps,
The Judicial Staff throughout the Country,
Fellow Citizens, Friends, Ladies and Gentlemen:
Our Constitution commands me to stand before you today, to report what I have done in the past year, and I am only too happy to oblige. As one of the three State organs, the Judiciary is bound by the national values and principles in Article 10 of the Constitution. Further, Section 5 (2) (b) of the Judicial Service Act, 2011, requires the Chief Justice to give an annual report to the nation on the State of the Judiciary and the Administration of Justice. This is the inaugural State of the Judiciary Report. It takes stock of our achievements in the past year and discusses the challenges in delivering on this institution’s constitutional and statutory mandate. It is the Report I want to present, again on the eve of an iconic day, Mashujaa Day, a day that demonstrates that the struggle to liberate a country or an institution is not without peril but the challenge must be borne with cowardice or hesitation.
Exactly a year ago today, I presented to the nation A Progress Report of the First 120 Days, which described the Judiciary at the time, and signaled plans for the future. The past 12 months has produced tremendous effort and sacrifice on the part of many people in the Judiciary, and I am pleased to report that their labour has not been in vain. We have, for example, finalized 421, 827 cases, hired 251 senior staff, established four (4) new High Courts, launched two new magistrates courts, launched a mobile courts initiative for the marginalised areas, developed simplified rules, concluded stalled construction of court buildings, conducted Judicial Marches, operationalized the Judiciary Fund, and established a public complaints system, among others.
The Judiciary’s core mandate is to ensure access to justice for all, irrespective of status. For many ordinary people, the quest for justice has been hampered by lack ofphysical access to courts because of long distances, complex and unfriendly procedures, lack of information on court processes and procedures, delays in determining cases, and alienation from the justice system. This is why the overall goal of The Judiciary Transformation Framework 2012 – 2016, which was launched on May 31, 2012 as the blueprint for turning around this institution, is the access to and expeditious delivery of justice.
The JTF seeks to reset the relationship between this institution and other arms of government, to alter its organisational culture, and to make it a service institution that focuses on people. It is what the decency of democracy requires. These are minimum tests that a normally functioning democracy in the modern age must meet. Only the least confident, most parochial, or excessively pathological should find threats in them. The public understands this; the elite need to join them.
When the drafters of our Constitution and laws thought it necessary to provide for the giving of this Report, they were — rightly so — raising the bar of public accountability. Making the fine but poignant point that those who hold public office must always reconnect and remain answerable to the people, they were alive to the often-forgotten connection between taxation and democracy. It is a scorecard they demanded and I am happy today to give it.
Our work in the past year has rested primarily on the need to regain public confidence through better services and continuous accountability; provide access to justice by increasing the number of judges and magistrates to preside over cases, expansion of court infrastructure throughout the country, particularly in marginalized areas, reduction of case backlog, application of ICT to deliver better services and fight corruption, expansion of training, mobilization of resources to finance our operations, and a re-affirmation of our independence. These are the issues on which I will report. Again, I do not understand why these should be threatening ambitions – unless we want to remain a backward country with third rate institutions. Well, happily, the Constitution demurs.
Reconnecting with the Public
The Judiciary has historically appeared distant and remote from the public. In the past year, the Judiciary has undertaken measures to promote public engagement by its judicial and administrative branches. The annual Judicial Marches Week, which was marked in all court stations around the country, was launched to inform the public on how the institution works, and receive feedback on how to do better. Judges gave lectures at institutions of higher learning, staff visited prisons and children’s homes. Students and the public were encouraged to the courts.We also established the Office of the Judiciary Ombudsperson in August 2011 to receive and respond to complaints from staff, as well as from the public. Since then, the Office has received 9, 773 complaints from the public. Of these, 5,256 files, representing 54 per cent, have been successfully closed. There are still 2,227 files still open that are being processed. Nearly 50 per cent of the complaints are in connection with the inadequate quality of service, followed by failure to find case files.
As the office expands throughout the country, every court will have a customer care desk. The complaints received sometimes touch on other arms of government, and the DPP’s office and the Commission on administrative Justice have been the most responsive in dealing with our referrals. I want to thank them. The office can be accessed through email as well as by short text message on the short code 5834. The short code, as well as the mobile phone traffic court fines payment system, Faini Chap Chap – at the Kibera and Milimani law courts — are some of the radical but simple uses of ICT being employed to increase access to justice, and will be rolled throughout the country.
Next year, all the High Court stations in the country, as well as all the magistrates’ courts in Nairobi and the Judiciary Training Institute, will be linked by cable to a single network that enables staff to send and receive information online. By the end of the current financial year, all stations are expected to be on the network.
And just about time, too. The Judiciary is besotted with technology because it has the ability to increase efficiency, reduce opportunities for corruption and save costs. Various case management systems have been tried in Eldoret, Kapsabet, Machakos and the Court of Appeal in Nairobi. Once the lessons from these pilots have been absorbed, an upgraded case management system will be launched in these stations by the end of this year, and extended to Mombasa and Kericho, before rolling out to the rest of the country over the next three years. New courts will, however, be expected to be ICT ready from the first day.
A Court Fees Calculator, which is being tested, will be available online to eliminate opportunities for corruption, obviate the need for advocates and litigants to visit the courts, and reduce congestion in the registries. The Judiciary is in the final phases of piloting audio-visual recording system at the Supreme Court, Court of Appeal and selected High Courts. After the pilot, there are plans to extend the project to 300 courtrooms across the country over the coming three years.
Infrastructural Development and Access to Justice
Heavy investment in physical infrastructure has been one of the main areas where we have had interventions in the past one year. Keenly aware that many places in Kenya remain disadvantaged in accessing physical infrastructure, the Judiciary has launched a Mobile Courts Initiative to increase access to justice for underserved areas. The High Court in Kitale will supervise and deliver mobile court services to Kapenguria, Lodwar and West Pokot; the Busia High Court will serve Budalang’i; the Homa Bay High Court will oversee Mbita as well as the Mfang’ano and Rusinga islands, while the Kisii High Court will supervise Migori. Garissa will supervise mobile court services in Daadab, Wajir and Mandera while Malindi will be responsible for Mpeketoni and Lamu. The High Court in Machakos will oversee mobile services for Mwingi, Kitui and Mutomo. Every court station has a Land Rover to facilitate easy movement as judicialofficers set up mobile courts. We are buying two boats and acquiring tents so that sun, sand or sea do not stand in the way of delivering justice to Kenyans who have hitherto been marginalised because of where they live or their economic activities.
We do not intend to be lulled into believing that mobile courts are a permanent solution. They are only a temporary answer to an urgent need for physical infrastructure, a platform on which the Judiciary is quite thin.
By June 2011, there were 16 High Court stations and 111 magistrates’ courts across the country. The law requires a High Court in every county. In the past year, four High Court stations have been established in Homa Bay, Garissa, Kerugoya and Murang’a. With the budgetary allocation from the Government in the current financial year, the Judiciary will construct a further three High Courts, raising the number to 23, with priority given to areas that were previously marginalised.
It is anticipated that, subsequently, ongoing negotiations with the World Bank will yield resources to finance the construction of 10 more High Courts in the next six years. In that time, it is hoped that budgetary support from the Government will finance the construction of the remaining 14 High Courts so that every county has a High Court.
Two magistrates’ courts have been opened in Shanzu and at the Mavoko Weighbridge this year. The Judiciary aims to construct a magistrate’s court in each of the 285 districts in order to take justice closer to the people. There is, therefore, a shortfall of 172 magistrates’ courts. As a medium term strategy, the Judiciary is building 11 prefabricated courts even as it continues with the scheduled construction of courts. Subsequently, a further 30 prefabricated courts are expected to be built in the next six years using finances committed by the World Bank.
Even as we embark on these ambitious construction projects, we are aware that, the Judiciary has previously faced numerous challenges in managing buildings and land in its possession. Construction work for eight court stations, valued at over Sh1.5 billion had stalled but is now on course. In the past year, the High Courts in Busia and Sirisia have been completed and handed over. Gatundu and Naivasha will be ready for handover by the end of this year. The Malindi court will be handed over early next year, while the Kisumu one is expected to be handed over later in the year. Construction work on the Narok court is expected to commence in February next year.
Almost all the courts in the country were in a poor state of repair and needed massive rehabilitation because of the many years of underfunding and neglect. Some of the work carried out in recent years was substandard. Many court buildings had been condemned. Many others had been constructed using poor quality materials and workmanship, and often did not respond to the needs of the court staff or its users. In order to standardise court facilities, the Judiciary ran an architectural competition involving artists, architects, designers and the public to submit their entries on the ideal court facilities. The competition generated good ideas and we have now developed the Judiciary Construction Guidelines.
Property that was unaccounted is being brought into a national Judiciary asset register. Land belonging to the Judiciary in Garissa, Kerugoya, Kisumu, Eldoret and Mombasa had fallen into private hands. Some of the titles have since been revoked, and efforts to reclaim more are ongoing. The ongoing cooperation between the Ministry of Lands and the Judiciary has facilitated the repossession of land that had been allocated to private developers in Mombasa and Eldoret. Heads of court stations have been instructed to secure both the station and its property.
I would also like to report on how we have managed our caseload. Across all the courts — Supreme Court, Court of Appeal, High Court, Magistrates and Kadhis Courts — 428,827 cases were lodged between June 2011 and June 2012. Some 421,134 cases were finalised in the same period. On average, we were concluding 1,700 cases every working day, but a similar number was being filed. The pending cases carried over were 802,570.The Supreme Court, which was launched on October 26, 2011, has since received 17 cases. In order to support the court’s research capacity, 16 legal researchers have been appointed. The Court of Appeal, which consists of 11 judges — seven of whom were appointed in 2012, received 833 new cases between June 2011 and June 2012, and 822 finalised in the same period.
The Vetting of Judges and Magistrates Board, which is independent from the Judiciary, found four judges of the Court of Appeal and one judge of the High Court unsuitable to continue to serve. The vetting is an important constitutional mechanism for restoring public confidence in the Judiciary by auditing the efficiency, integrity and effectiveness of judicial officers serving before the promulgation of the Constitution on August 27, 2010. After the board’s decision, some 109 judgments in cases that had been concluded could not been delivered. The Court of Appeal Rules allow that if one judge leaves the Bench, the decision of two judges is still valid. Hearings have had to start afresh in some 32 appeal cases where two of judges that heard them were suspended. The Acting President of the Court of Appeal reconstituted panels to deal with the 234 cases scheduled to be heard at the Court of Appeal, significantly scaling down the effort to clear the case backlog.
There are 6,707 cases pending in this court, meaning that each of the 11 judges has a burden of 669 cases if they were to be divided between them. Court of Appeal cases are, however, heard by a bench of three judges at a time.
In 2012, the Judicature Act was amended to increase the number of judges to a maximum of 30. In the coming month, the JSC will conclude interviews to recruit 15 judges for this court, paving the way for its decentralisation to Nyeri and Kisumu, where the highest number of cases has been filed. Even though the law allowed for 70 judges of the High Court, the number stood at 42 for many years. After the recruitment of 36 judges in the current year, the Bench strength in the High Court stands at 69. Of these, 29 judges are stationed in Milimani Law Courts in Nairobi while the rest serve in stations throughout the country.
A total of 37,954 cases were lodged in the High Court between June 2011 and June 2012, and 51,604 were resolved. Some 299,472 cases are pending. During the reporting period, the specialised divisions of the High Court in Nairobi and Mombasa were reorganised to facilitate the easier administration of justice. Currently, the High Court has the Constitution and Human Rights, Judicial Review, Family, Commercial and Admiralty, and Land and Environment divisions. The Judicature Act was amended in 2012 to raise the ceiling on the number of High Court judges to of 150.
The JSC recruited 12 judges of the Industrial Court, who have since been posted to various stations across the country, in Nairobi, Kisumu, Nyeri, Mombasa and Nakuru as part of the Judiciary’s decentralisation strategy. The Industrial Court took over 4,033 cases from its predecessor as at September 2012. This works out to 336 cases for every judge.
Additionally, JSC recently recruited 15 judges of the Land an Environment Court. I have published practice directions with regard to proceedings relating to environment and land cases. Matters that are pending judgment or are partheard in the Court of Appeal, High Court and magistrates’ courts shall continue in those courts until their conclusion. Subsequently, all new cases relating to the environment and the use and occupation of, and title to, land shall be filed in the nearest Land and Environment Court.
These two new courts, which enjoy the same status as the High Court, are expected to ease the case burden on the High Court considerably.The Magistrates Courts carry the bulk of cases brought to the Judiciary. Between June 2011 and July 2012, a total of 387,803 cases were filed in the magistrates’ courts, with 363,095 cases being finalised during the year. The number of pending cases in July 2012 stood at 493,370. There are 436 magistrates against an established capacity of 880.
These courts bear the greatest burden in terms of volume, with 80 per cent of all cases filed in these courts being criminal or traffic-related. The same two categories constitute 40 per cent of all pending cases — the highest proportion across the entire Judiciary. In recognition that the majority of litigants first make contact with the justice system at the Magistrates Court, the pecuniary jurisdiction of all magistrates has been doubled, with a Chief Magistrate able to hear matters whose value is Sh7 million from the previous Sh3 million. The posts of 53 legal researchers and 93 resident magistrates have been advertised to support these courts.
There are 15 Kadhis in office, and the JSC has concluded interviews for another 24, to fill up the total capacity of 39. In the year under review, 2,212 new cases were filed in the Kadhis courts countrywide. Some 5,563 cases were resolved in the same year, leaving the number of pending cases at 3,012. Based on the available data, it appears that the Kadhis courts are the most efficient. Even so, there is an access question that seems to restrict the number of cases being filed. It is hoped that the introduction of mobile court services in Lamu, Mpeketoni, Daadaab and other places will serve more Kenyans who require this court’s assistance.
The Constitution has further moved responsibility for all tribunals that were previously under the Executive to the supervision of the Judiciary. In the past year, the Judiciary has taken over the Co-operatives Tribunal and the Political Parties Dispute Resolution Tribunal. More are expected to follow. During the period under review, the justice to population ratio was one judge for every 500,000 Kenyans and one magistrate for every 90,000.Emerging from such a complex background, it is little wonder that one of the commonest indictments of the Judiciary is inability to dispense justice without delay. Whatever reasons for delays in the past, the Constitution now demands that justice shall not be delayed. Administrative and judicial processes were initiated last year to conclude cases that have been in the court system for years. One of the challenges around this issue is finding agreement on an operative definition of backlog. It is a continuing conversation from which we hope some clarity can emerge on how cases in the Judiciary are classified and dealt with. Be that as it may, there are cases that have not been heard for a long time.
A deliberate, innovative approach was adopted to tackle case backlogs and deliver the quickest benefits for the Kenyan public. In adopting the rapid results approach, the Judiciary used the Court of Appeal as well as in five divisions of the High Court as sites of experimentation. Some 1,600 records of proceedings, some of which were holding up criminal appeal cases at the High Court, were typed by National Youth Service cadre seconded to the Judiciary. Court of Appeal Rules were revised to allow parties to file written submissions, and parties with cases going as far back as 2004 took hearing dates to enable the court to dispose of their matters. An initial audit of the case backlog in the High Court revealed that many files recorded as pending were no longer active and could be closed.
Overall, out of the 58,800 cases captured as backlog in these courts, 30,670 were disposed of in just 100 days.The more enduring lesson from the rapid results initiatives was that the Judiciary was grossly understaffed and operated at 47 per cent of the established staff capacity.
Percentages have a way of covering the truth until it suffocates. So I will speak plainly: Every person who worked in the Judiciary was expected to do the jobs of two people. Where there were supposed to be 70 judges of the High Court, there were only 42; where the establishment figure for magistrates was 880, there were only 330, and where the system was designed to function with 8,800 administrative staff, there were only 3,500. In the Information Communication Technology directorate, one worker bore the load of five people.
Many of the staff had received neither pay rise nor promotion for 10 years. Often, staff were required to combine several roles – such as magistrates also supervising court construction. The artificial staff shortage created a dysfunctional system that could not deliver on its mandate. In response, the Judicial Service Commission embarked on an aggressive recruitment programme, focusing first on the senior staff levels. In the past year alone, the Judiciary has recruited 109 new magistrates and 23 Kadhis.
It has promoted another 278 magistrates as well as 12 Kadhis who were already in service. Further, seven High Court judges were promoted to the Court of Appeal after successful interviews. Further, 36 judges of the High Court have been hired, 12 judges of the Industrial Court and 15 judges of the Land and Environment Court appointed. It has also appointed judges of the Supreme Court, and is interviewing applicants for 15 positions of Court of Appeal judge.
In the past year alone, 251 senior staff were appointed, with 143 of them being female. Overall staff numbers in the Judiciary stand at 4,192, with a 54:46 per cent gender split.
Judges and magistrates have been progressively freed from administrative duties to enable them to concentrate on their judicial functions. In order to eliminate the problem of part-heard cases, transfers are communicated in advance. In order to deal with this issue in its entirety, a transfer policy is under development.
Talking about backlog, let me now turn to the Chief Justice’s burden. In the performance of my ceremonial role, I have presided over the swearing-in of 15 constitutional and statutory commissions, and 951 advocates in the past year. I expect to clear the backlog of 322 advocates next month – all at once. Daunting as it is, hiring more people is the easy part. Organising them into a team that shares ethics, values and objectives is another kettle of fish altogether.
National Council on Administration of Justice
Justice is the product of an assembly line of actors working together towards a common purpose. The Judiciary is only one of these. Other actors include the Directorate of Public Prosecutions, the Police, the Prisons Service, the Attorney General, various ministries, and civil society organisations.For the justice chain to work effectively, a synergistic collaboration of corresponding and complementary roles is necessary. The establishment of the National Council for the Administration of Justice (NCAJ) under the Judicial Service Act has provided a forum for various actors in the administration of justice to meet and exchange ideas. Launched in August 2011, the council has held six full meetings as required by law, and developed guidelines for the Court Users Committees. A culture of continuous and open consultations between the Executive, the Legislature and the Judiciary is beginning to take root. In the past year, these consultations have paved the way for important legislative and administrative measures that support national goals and objectives. However, weaknesses in law enforcement, especially with regard to court orders, persist partly due to a continuing culture of impunity, and they remain on the agenda of the NCAJ.
To this end the council has reviewed and considered the Contempt of Court Bill, as well as six other Bills. The Council, which meets every quarter, has reviewed legislation on the Kenya Police Service and advised on amendments to bring it in line with Article 49 (1) (h) of the Constitution. It has also discussed amendments to the Evidence Act and finalised the Contempt of Court Bill, 2012, the Office of the Director of Public Prosecutions Bill, 2012, The Office of the Attorney General Bill, 2012, The Transfer of Prisoners Bill, 2012, and The National Coroner Service Bill, 2012.
In order to ease access to justice, the Rules Committee of the Judiciary is simplifying various court procedures contained in different laws. These include rules under Article 22 of the Constitution, the Supreme Court Presidential Election Petitions Rules, the Supreme Court Rules, the Sexual Offences Rules, the Court of Appeal Rules, the Civil Procedure Rules, the Criminal Procedure Code, and the Children Adoption Rules. In the current financial year, the Judiciary budget for Pauper Briefs and Legal Representation increased from Ksh68 million in the 2011-2012 to Ksh114 million.
The Judiciary continues to liaise with stakeholders through NCAJ to develop a legal aid policy to mainstream this area in legal practice in Kenya. The Judicial Training Institute is leading the development of a sentencing and bail handbook for judicial officers. Studies and consultations on the development and implementation of alternative dispute resolution mechanisms are under way.
The Judiciary Transformation Framework recognises the need to establish Small Claims Court under the critical pillar of improving access to justice. The Small Claims Court Bill (2007) is still awaiting debate, amendment and passage by Parliament.
Leadership and Transformation
Under the Judiciary Transformation Framework, a country-wide series of culture change workshops for all staff in all stations began in July 2012 by democratising, decentralising, delegating and devolving. In less than six months, over 30 per cent of staff have been introduced to the JTF. The rest will be reached by early next year.
Stations have embraced change and transformation, but they have also highlighted the urgent need to strengthen technical and managerial capacity at that level. Technical and managerial capacity is not uniformly distributed between and within regions. Responding to this need will be a priority in the next financial year.Leadership in the Judiciary is shared. A representative Leadership and Management Committee at the headquarters brings together the managers as well as representatives of staff at all levels. Similar management committees are active at each court station across the country.
Over the past year, the Judiciary has coalesced court stations into 17 administrative regions for efficient and effective administration. The Judiciary has innovated mechanisms — through internal institutional organisation, recruitment, and delivery of services — that allow communities across the country to be part of decision making and to facilitate more efficient delivery of services. Representation in the Court Users Committees is robust, and the recruitment of junior staff has been devolved to the station level. Firms and community organisations are increasingly being encouraged to bid to provide supplies and services such as cleaning and security at the court station level.
An organisational structure is being developed that clearly delineates judicial functions from administrative ones and supports the effective devolution of the Judiciary. The Office of the Chief Registrar has vertically delegated responsibility to five registrars and horizontally between seven directorates. All 12 new position holders are now in place, playing a crucial role in leading the Judiciary’s transformation. A professional Judiciary Transformation Secretariat, headed by a Judge, has also been established to coordinate the overall transformation, and Justice Joel Ngugi has been doing a great job.
The Judiciary has been characterised by imbalances between judicial and administrative staff in the context of artificial under-staffing. The focus in the days to come will be on giving staff the skills to perform their jobs competently as the institution seeks to attract the necessary skill sets. The quality ofprofessional support to judicial officers was inadequate, with many people lacking professional training and skills. Human resource management and development policies were outdated, even in comparison to the rest of the public service, training and career development was haphazard, and remuneration was poor and unequal.
The appointment processes in the current year improved the Judiciary’s staffing proportions – which are already constitutionally compliant – between genders. The overall year-end gender proportion of 54:46 across the entire Judiciary is broadly mirrored by that for judicial staff. A disability audit has been carried out among the staff of the Judiciary, which includes their needs. The Judiciary is working progressively towards employing 5 per cent of its staff from people with disability in order to act as a beacon to the implementation of the Constitution.
I am pleased that young people have a true home in the Judiciary, where women and men under 40 continue to fill positions on the bench as well as in thprofessional cadres. Low pay and poor benefits undermine performance in the Judiciary. A comprehensive pay review for all judicial officers and staff was completed, fully costed and approved for fairness and affordability by the Judicial Service Commission in early 2012.
This proposal has been submitted to the Salaries and Remuneration Commission for approval as required by the Constitution. Last week, the Judicial Service Commission provided the latest data requested by the Salaries and Remuneration Commission on job evaluation, skills and competence. We urge the Commission to move with speed in considering these proposals for there is no doubt that the delivery of the judiciary transformation is heavily dependent on the competence and morale of our staff. It is not humane to keep a person on the same salary without promotion for 10 years!
Meanwhile, a staff recognition and reward scheme is in being developed, just as prompt disciplinary processes are being entrenched. Internally, the Human Resources Staff Advisory Committee has been established. During the year, the committee handled 424 staff matters relating to promotions, upgrading, complaints and staff deployments. It finalised 63 of them.
For the first time ever, performance management is being institutionalised in the Judiciary under a fully-fledged directorate for judicial and administrative staff and a Director appointed.
In the past one year, the Judiciary Training Institute has done a great job and has held no fewer than 46 training sessions for all cadres of staff. It has also demonstrated its potential to train for the region by running courses for judges from South Sudan. It is recruiting increased capacity and continues to coordinate training throughout the Judiciary.
The Chief Justice’s Legal Scholarship Initiative — was inaugurated in July 2012. Under it, two magistrates were competitively selected to pursue Masters degree courses in the United States. Two judges have also been granted leave to pursue similar qualifications.
JTI will be nurtured into a centre for robust intellectual exchange, a vibrant think tank, and a space for judicial thought on the intersection between law and other disciplines. Next year, a Bill will be prepared to entrench JTI firmly in legislation. With the attendant autonomy that would follow, it is envisaged that it will ultimately offer accredited graduate degree programmes. Emerging from decades of the country not reporting legal decisions, the National Council for Law Reporting has made great strides in supporting a transforming Judiciary to record and publish its emergent jurisprudence in the context of a new Constitution. Even as the Council innovates new services like its e-KLR Case Updates, CaseBack, and Wakilishare, it is working to recover this ‘lost jurisprudence’ so that current and future generations have the benefit of past judicial opinions of great value in the development and heritage of law omitted from earlier reports.
The Constitution has secured not only the operational independence of the Judiciary, but also its financial autonomy. The establishment of the Judiciary Fund to cover administrative expenses and other purposes necessary for the discharge of institutional functions, was operationalised when Parliament allocated Ksh15.9 billion in the current financial year.
The new constitution placed enormous responsibilities on the Judiciary not simply as the arbitrator of disputes and custodian of justice, but also as an important actor and player in the transformational path that Kenyans now seek. Our engagements with the Legislature and Executive have been particularly important in the past two years, during which time our overall budget has grown four-fold, from Ksh3.9 billion two years ago to Ksh15.9 billion in the current financial year. For this, we are grateful for the support we have received from Parliament and the National Treasury in appropriating these increased resource allocations.
The business of transformation, however, requires committed investment for the long-term, and I expect that the journey that the Judiciary has embarked upon is one that will outlive my tenure, and that of my successors as well. Our engagement with Parliament and the National Treasury will continue to emphasise this notion of transformation as a long-term investment, and, as we have noted in our report, we will maintain our pursuit of a share of the national budget that is both equitable in its quantum, and progressive in its developmental impact on our national socio-economy.
Only five years ago, the Judiciary’s overall budget was Ksh2.1 billion, or approximately 0.5 per cent of the overall National Budget.The 2011/12 financial year represented the first budget following passage of the Constitution in August 2010. By acting proactively at the onset, the Judiciary was able to secure an increased budget from a total of Ksh3.9 billion in 2010/11 to Ksh9.8 billion in 2011/12, which was reduced to Ksh7.5 billion in the revised estimates.
The Judiciary has always been able to spend all the money it has requested from Parliament. On the recurrent account, spending levels were at 99.9 per cent across the Judiciary.
The Judiciary is emerging from a culture of chronic underfunding. Its ambitious development plans are unlikely to entirely fit in the National Budget. It is for this reason that the Judiciary continues to receive support for some of its activities from development partners who are keen to support the institution’s rapid transformation. In this regard, the World Bank has committed to support the Judiciary with $120 million for the construction of courts over the next six years. In the future, however, the Judiciary envisages a situation where its funding comes entirely from the National Budget. Not only would this secure the independence of the institution, but also promotes accountability.
In the coming financial year, the Judiciary will be seeking an overall increase of 37 per cent of financial resources to build new court stations, expand and rehabilitate existing ones to accommodate more judicial officers, automate case management, network court stations, pay new staff, and meet costs related to hiring more judicial officers.
The current budget level represents 1.3 per cent of total discretionary expenditure, which is a vast improvement on the past but still significantly below the international benchmark of 2.5 per cent of the national budget for judiciaries.
We seek to secure a greater proportion of the national budget over time. Even so, we are sensitive to the fact that there are other alls on the public purse. The Judiciary intends to achieve the 2.5 per cent financing target progressively. Indeed, over the next three years, it is expected that the Judiciary’s share of the budget will still be closer to 2 per cent.
Finally, we can no longer just talk about numbers of cases, as if they were a stock item in a retail shop. Future allocations of judicial officers will be driven by a combination of performance indicators and actual workload assessments since we know that not all cases are the same. We must pay as much attention to the expeditious delivery of justice as we do to wider access to justice issues. We must develop a service mentality that sees each case as a person and not a file.
And always, we must remember that, the bottom line: “justice delayed is justice denied”.
The events of the past year, which are captured in this report, affirm that the Constitution is alive and well, and that the Kenyan people were right to choose this as the direction they would like their nation to take.