Participatory Budgeting Key to Judicial Accountability
Hon. Anne Amadi, Chief Registrar of the Judiciary & Secretary, Judicial Service Commission (JSC)
Justice through an independent Judiciary remains the foundation upon which democracy, rule of law and socio-economic development depend in our increasingly diverse society. And as we focus on the issue of an independence and well-funded Judiciary, the conversation on our accountability is equally important. Judiciary independence and Judiciary accountability are mutually-reinforcing values which, if well applied can advance the establishment of a modern, responsive, and effective institution of justice. We therefore assign equal weight to the twin issues of independence and accountability in our daily engagements, including the budgeting process.
The preparation of the Judiciary budget proposals for the 2021/22 Financial Year and the 2021/2022 – 2023/2024 Medium-Term Expenditure Framework/MTEF) is underway. The budget proposal is to be submitted to the National Assembly by 30th April 2021. These budget proposal is prepared against the backdrop of Article 201 of the Constitution and the Public Finance Management Act which demand public participation as an avenue to achieving transparency and accountability in the management of public finances and in service delivery.
In the past, the Judiciary budget proposal has been submitted as part of the Governance, Justice, Law and Order Sector (GJLOS), which is one of the ten MTEF budget sectors created by the Government for efficiency in planning. GJLOS brings together 19 Semi-Autonomous Government Agencies (SAGAs) and about 20 Tribunals, with different functions and mandates, grouped into 14 sub-sectors. Through the years the judiciary as an arm of government has had to compete for funds with all these agencies, a hugely disadvantageous process for the Judiciary.
In the Financial Year 2019/2020, the Judiciary transitioned to a budgeting process that is detached from the GJLOS, in conformity with the dictates of the Constitution and the Judiciary Fund Act. Last year, for the first time in history, the Judiciary prepared its budget proposal separately. This is only the second time the Judiciary is submitting its own budget proposals as an independent and co-equal arm of government.
The budgeting process this year is different from past in a significant way. The Judiciary is undertaking public hearings on the institution’s budget proposals for the Financial Year 2021/2022, not just in Nairobi, but in other regions as well. The Judiciary is the first arm of government to conduct such public hearings outside Nairobi, recognizing that different people in different parts of the country experience justice differently. The devolution of the budget hearings by the Judiciary is in conformity with the national values and principles of governance as espoused by the Constitution, particularly the requirement for participation of the public in implementing public policy decisions. It is further informed by the need to infuse responsiveness into the Judiciary budget, taking into account the unique needs of the consumers of justice.
During the month of November, 2020, the Judiciary has held four public budget hearings in Mombasa, Kisumu, Nakuru and Nyeri. The fifth and final public hearing is scheduled for December 4, 2020 at the Kenyatta International Convention Center (KICC) in Nairobi. We consider the inclusion of the public from different regions in our budgeting process as a key part of transparency and accountability to the people of Kenya who fund the Judiciary, and from whom judicial authority derives.
These regional hearings have enriched our budgeting process with perspectives from multiple stakeholders. Some of the views we have received would not have been captured through centralized hearings in Nairobi. At the regional budget hearing in Nyeri, for instance, a representative of the Prison Service raised live concerns on behalf of inmates who have been forced to wait for inordinately long periods of time before their criminal appeals are concluded at the Court of Appeal due to the debilitating shortage of Judges of Appeal. In Mombasa, a participant raised the concern that the Judiciary has not been applying a requirement of the law in drug related crimes, that proceeds of crimes be applied towards the rehabilitation of drug addicts, drawing to our attention the responsibility to apply all laws available to us as collectors of revenue.
Through these hearings we have heard voices of lawyers, civil society organizations, business people, women, judicial officers and staff, among others, all of which will be incorporated into our budget proposal. In addition to its traditional justice sector partners who are represented in the National Council for the Administration of Justice, we have made deliberate efforts to invite historically marginalized communities like the youth and persons with disabilities whose active participation has greatly enriched the discussions in the budget hearings.
Other than the budget public hearings, we continue to employ other mechanisms of guaranteeing financial and judicial accountability as we implement the budget. These include the strict implementation of the recommendations of the Auditor General and those of our small yet robust Internal Audit Directorate. Our Internal Audit unit provides a constant check on expenditure by all court stations and other spending units within the Judiciary. From the observations of the auditor, we have continued to enhance the existing controls for greater accountability.
The other accountability tool for the Judiciary is the annual State of the Judiciary and the Administration of Justice Report (SOJAR) which the Judiciary has been publishing and publicizing since 2012. Just last week, the Chief Justice released the 7th edition of the report. Through SOJAR, the Judiciary and other justice sector institutions report to the people of Kenya their achievements, challenges and lessons learned in the preceding year. We appreciate the support we have received from the National Assembly and the Senate to whom we have faithfully presented all the previous annual reports as required by law. From the robust discussions with the National Assembly Departmental Committee on Justice and Legal Affairs (JLAC) on the previous reports, we have incorporated their feedback in our proposal and we anticipate more opportunities to engage them in the near future, with a view to improving service delivery.
Additionally, the Judiciary has a robust Performance Management and Measurement Understanding Framework through which individual officers, court stations and administrative units are held accountable within the institution and to the public. There is also the Office of the Judiciary Ombudsman and the Judicial Service Commission which hold judicial officers and staff accountable by receiving and addressing complaints from members of the public on poor service delivery or misconduct.
The month-long public hearings are therefore a natural next step in our quest for a truly open and accountable institution that is responsive to the needs of the people.
It is important for the public to understand the context within which the 2021/2022 budget is to be implemented.
Firstly, The Covid-19 pandemic has occasioned great adversity across the globe, delivery of justice included. Government restrictions aimed at limiting the spread of the coronavirus resulted in unforeseen and unprecedented disruptions in the work of the Judiciary and other institutions involved in the administration of justice. This may continue into the next financial year.
Some of the measures applied by the judiciary in response to the pandemic included the immediate closure of all courts in the first weeks of the pandemic, followed by a gradual scale-up of court operations in the months that followed. To ensure the wheels of justice did not grind to a complete stop during the closure of the courts, the Judiciary developed and implemented numerous digital solutions that have allowed Kenyans to file new cases and our Judges, Magistrates, Kadhis and Tribunals to continue to safely hear matters. These interventions have been extremely useful given that some 8 months after the pandemic was first reported in Kenya, our Courts have not resumed full operations, with the bulk of court sessions taking place online.
The Covid-19 pandemic has exposed the gaps in our traditional systems and processes while highlighting the tremendous potential that technology holds in enhancing access to justice during such challenging times. While the Judiciary has achieved some commendable results with various digital solutions, numerous challenges remain. Many of these challenges can be attributed in part to underfunding in previous financial years which has greatly undermined the uptake of technology in the dispensation of justice. In the circumstances, the need for significant investment in information and communication technology cannot be overstated.
While some development partners have funded technological interventions to minimize disruptions during this period, it is of utmost importance that these costs are taken up primarily by the Government and only supplemented, if need be, by development partners. This will go a long way towards enhancing the security, ownership and sustainability of the digital solutions deployed in the justice sector.
Secondly, the Judiciary is facing a transition in its leadership following the imminent retirement of Chief Justice David Maraga who is set to leave office in January 2021. The JSC will commence the recruitment process for his successor soon thereafter, and this has attendant cost implications. There is also a vacancy to be filled in the Supreme Court. Previous experience has taught the Judiciary and the Judicial Service Commission to anticipate and to budget for eventualities that arise from transitional processes.
Thirdly, the current budgeting process is taking place in the run up to the general elections anticipated in 2022, and with it electoral disputes. Although the election itself will be held in the 2022/2023 financial year, all the preparatory activities at the level of the Political Parties Disputes Tribunal and at all levels of the courts, must be undertaken starting from the 2021/2022 financial year, to ensure we are adequately prepared to perform our crucial electoral dispute resolution mandate.
The centrality of free and fair elections to the sovereignty of the Republic of Kenya, demands that the Judiciary’s expenses related to election preparedness be catered for primarily by the Government and supplemented, only where necessary, by external partners.The Judiciary remains committed to ensuring expeditious delivery of justice in electoral disputes as prescribed by the law and in strict compliance with the substantive electoral law. Towards this end, and from the experience of the 2013 and 2017 elections, we must invest adequately in capacity building through the Judiciary Committee on Elections, and make the necessary infrastructural adjustments as appropriate.
Finally, the current budget process takes place within the context of the proposed legal and institutional reforms initiated under the Building Bridges Initiative. The Judiciary has taken note of the proposals made under the initiative and how these may affect its mandate. These include the proposal that the IEBC should not handle any electoral disputes, which means that hundreds, or perhaps thousands of nominations disputes that were previously handled by the IEBC Dispute Resolution Panel may end up in the courts, and wit it with a huge resource demand. The anticipated boundary review process also comes into play. We must therefore prepare for any eventualities that may arise out of these and other proposals in the BBI report should it be adopted.
In light of the above context and the views expressed by members of the public the Judiciary budget for the 2021/2022 financial year and the medium term will focus on four priority areas.
The first of these is Enhancing the Delivery of Justice through the adoption of ICT, facilitation of Court Annexed Mediation, undertaking Service Weeks for backlog reduction, facilitation of Pro bono legal services to ease the cost of justice for the poor, payments for witness expenses to ensure speedy conclusion of matters, entrenchment of Alternative Dispute Resolution (ADR) initiatives such as arbitration and traditional justice systems, the operationalization of Small Claims Courts including recruitment and facilitation of adjudicators, and the fast tracking of Anti-Corruption Cases.
The second priority area is Improving Access to Justice through the establishment of courts in unserved counties and sub counties, the opening of new Magistrates Courts stations at the constituency level, the establishment of Mobile Courts in marginalized and far-flung areas and the facilitation of Judges and Magistrates through purchase of motor vehicles and facilitation of movement for court hearings.
The third priority area is Enhancing the Judiciary’s Human Resource Capital through the recruitment of Judges, Judicial Officers, Tribunal Members and Staff as well as the implementation of the Judiciary Organisation Review Report which is expected to enhance efficiency and effectiveness in service delivery.
The final priority area is Court Infrastructure which will include the provision of generators, power backups and fittings for court stations, renovations and refurbishment of court buildings and residences, the removal of asbestos roofs from the older court buildings and the construction of public ablution blocks in courts stations across the country.
Even as we budget within the current legal framework, the Judiciary reiterates its calls for constitutional reforms to guarantee the institution a minimum of 2.5% of the national budget in accordance with international standards. Coupled with a fully operational Judiciary Fund, this allocation will go a long way towards ensuring the financial and decisional independence of the Judiciary, and – more importantly, that the institution is able to deliver on its constitutional mandate and the above priorities which are in line with the justice needs of the Kenyan people and their submissions during the regional budget hearings.
We appreciate the progress made so far towards the operationalization of the Judiciary Fund. These include the enactment of the Judiciary Fund Act 2016 and the Gazettement of the Judiciary Fund Regulations, 2019. The Judiciary is also engaged in ongoing consultations with the relevant agencies with a view to firming up the mechanisms for the roll out of the fund. We thus remain optimistic that the funds allocated to the Judiciary in the next financial year will be managed from the Judiciary Fund.
The Judiciary is greatly encouraged by the strong and positive public feedback so far received from the public. We shall continue to engage our stakeholders at all levels in a bid to ensure that we provide justice outcomes that resonate with the needs and expectations of Kenyans.