GLADYS BOSS SHOLLEI
CHIEF REGISTRAR OF THE JUDICIARY
BEFORE THE PARLIAMENTARY BUDGET COMMITTEE AND THE JUSTICE AND LEGAL AFFAIRS COMMITTEE OF THE TENTH PARLIAMENT
April 25th, 2012
Chairperson Hon. Elias Mbau, Chairpersons of the various Parliamentary Departmental Committees, Committee Members, Members of Parliament, I am Gladys Boss Shollei, the Chief Registrar of the Judiciary. I come before you to testify on the Judiciary’s budgetary estimations for fiscal period 2012-2015 as per Article 173 of the Constitution.
The Judiciary is undergoing a transformation programme to correct and cure decades of neglect and positioning itself in line with the changes in the new Constitution and the high public expectations.
JUDICIARY ESTIMATES FOR THE FINANCIAL PERIOD 2012/2013
I appear today on behalf of the Judiciary by thanking the Committee for increasing the Judiciary budget in the last financial year. Whereas this constituted a notable increase in our budget, it is still not sufficient. The new responsibilities imposed by the new Constitution and the enduring legacy of chronic underfunding of the judiciary calls for accelerated investment in the same.
In the exercise of its legislative mandate and in consonance with the Constitution, Parliament through a series of Act have provided for the following:
· The establishment of the Industrial Court
· The establishment of the Environment and Land Court
· Establishment of the Political Parties Tribunal
· The establishment of a fully functional secretariat of the Judicial Service Commission
· Establishment of the National Council for the Administration of Justice
· Provision of legal research assistant to each individual judge
The Judiciary is not only underfunded but also grossly understaffed. We are operating at staffing levels of 47% of the approved establishment. This partly explains the poor service in our courts as evidenced by huge case back log. Therefore we are hiring more judicial staff to get the work done. This has in turn resulted in an increase of our budgetary estimates to 16.8 billion. It is important to highlight at this point that the recruitment will be done in phases and spread over three years initially.
CONSTITUTIONAL BASIS OF JUDICIARY ESTIMATES
Kenya’s constitutional architecture has radically changed the practice of budgeting largely driven by interest in reinforcing the separation of powers and granting autonomy to each of the arms of government and independent institutions. In this regard, the Constitution through Article 173 has created the Judiciary Fund which shall be used for administrative expenses and such other purposes as may be necessary for the discharge of the functions of the Judiciary.
The effect is that previous approaches to budgeting, that is, engaging with Treasury have changed. The power has now reposted to Parliament. It is important for Treasury to realise that there has been a fundamental shift and therefore powers and duties it performs largely been taken by Parliament. For Judiciary to consult with Treasury, it is as a matter of courtesy and inter-branch relations and not so much that Treasury has veto powers.
JUDICIARY STAFFING AND WORKLOAD
I previously mentioned the expanded mandate of the Judiciary and the resultant increase of staffing levels. I must point out that we are way behind in having adequate number of judicial officers serving the public. According the last census in 2009, Kenya has a population of about 38.6 million. The current threshold number of High Court judges is 70 as per the Judicature Act. This means that we have 2 judges for every 1 million Kenyans. The proposed amendment to the Judicature Act will take the threshold to 150 and result in a ratio of 4 judges per million Kenyans. This number is still very low as compared to other jurisdictions albeit more developed ones. Statistics from sixteen years ago show that ago the numbers of judges for per million people were 41 judges in Australia, 75 judges in Canada, 51 judges in England and 107 judges in the USA.
Regarding the other judicial staff I must point out that 47% of the positions are vacant so we are only operating with half the staff we need. Indeed the Chief Justice is on record stating that his office only has two secretaries and six bodyguards! Given the scope of his duties, his office is grossly understaffed.
We understand the fiscal constraints under which you are operating and we will appreciate the funding levels you will able to provide. I am compelled to report to the Committee, however, that continued funding at Treasury levels could imperil the high quality of justice on which our nation yearns for.
We must take note that the elections are around the corner and judging by the last elections, there will be a large number of election petitions in court. Now, Parliament in its wisdom through section 75 (2) of the Elections Act of 2011, has provided for a six month duration for the conclusion of an election petition from the date of lodging the petition. Another requirement is that the petitions should be heard at the High Court within the County or the environs. We currently have 17 High Court stations out of the 47 counties. We foresee congestion of election petitions in some counties.
In exercising judicial authority, the Constitution provides that the courts should not delay justice. Further that justice should be accessible to all. The principle of devolution that is threaded throughout the entire Constitution necessitates having courts close to the people. Currently, the courts are found in major towns and at times far from rural areas. Many people therefore have to travel long distances to access the courts. For example, Ouko Task Force notes that in Northern Kenya courts are situated as far as 500 kilometres away from the users and that in such marginal areas, there is a dearth of legal service providers.
In response to the foregoing, the Judiciary plans to have High Court stations in all 47 counties. In addition subordinates courts will have to be constructed to reduce the distance between the litigants and the courts. This will not only help decongest some stations but will make justice affordable. For instance people of Mbita need to take a boat to go to court. The Judiciary has already liaised with other Government Departments and Ministries with a view of obtaining land to put up structures. For instance Mavoko County Council has allocated the Judiciary land to set up premises. The documents provided show a list of the locations the Judiciary proposes to put up court.
GOOD STEWARDS OF PUBLIC MONEY
The Judiciary endeavours to use public money in a prudent and responsible manner as provided for by Article 201 of the Constitution. Indeed our Judiciary transformation Framework is grounded on value for money activities. To that end, we intend to harness ICT to ensure efficiency and effectiveness. We are developing standardized approaches to delivering information technology products and services to the courts.
REVENUE GENERATION BY THE JUDICIARY
The Judiciary is streamlining processes to ensure haemorrhage of funds is a thing of the past. We are now deploying accountants and auditors to administrative regions. Come the new financial year we shall no longer rely on District treasury officials. Further, we are working on introducing an electronic cash receipting system to eliminate fraud.
Parliament through legislative amendments and new statutes is steadily increasing the fines that were outdated and did not reflect the gravity of offences. This coupled with the efficiency of our financial system, the revenue collection of the Judiciary is projected to improve from the 800 million collected in the last financial period to at least 1.5 billion in the next financial year.
As I mentioned before, we are aware of the economic environment. We remain concerned, however, that across the board budget cuts could negatively impact the Judiciary. Unlike many Ministries, we do not have programs or grants that we can cut in response to a budget shortfall. Consequently, we could not reduce the scope or volume of our work if we faced deep funding cuts. People will still file cases in court.
We recognize fully the serious fiscal condition of the country and the need to restrain spending. However, a functional Judiciary is critical to the enhancement of our productivity as a country. Therefore spending on the Judiciary is an investment decision both for justice and for the economy.
As you consider Judiciary funding, we ask the Committee to take into account the nature and importance of our work. The Judiciary performs constitutionally-mandated core government functions that are a pillar of our democratic system of government. If sufficient funding is not provided to the courts, we cannot function in the way the Kenyans envisioned when they overwhelmingly voted for the new Constitution.
Finally, the Judiciary is one of the pillars of Vision 2030. As the economy grows, the cases in court will increase exponentially. We should take this opportunity to put in the building block of a vibrant and accessible Judiciary.
Chairperson Hon. Mbau, I hope that my testimony today provides you with some insight into the Judiciary budget estimates. We are committed to containing costs and exploring new and better ways of conducting court business. We are very concerned we are approaching a point where we may be sacrificing the quality of justice as a result of budget constraints. I know you agree that a strong, independent Judiciary is critical to our nation. I urge you to continue making the Judiciary a funding priority to enable us to establish high standards of the Kenyan Judiciary.
Thank you for your continued support of the Judiciary. I would be happy to answer any questions the Committee may have.