It’s wrong to defund the Judiciary

Supreme Court of Kenya
The Supreme Court of Kenya. FILE PHOTO | NMG 

There has been uproar and furore after the Treasury issued a circular directing that the Judiciary’s budget has been cut by half. The chain of events that followed showed a well-coordinated scheme that may point to the “revisit” we were promised after the Supreme Court nullified the 2017 presidential election.

It didn’t take long before Government spokesman Cyrus Oguna went to a radio station justifying the Judiciary’s budget cut saying that they were general austerity measures the government is undertaking and every sector has had its budget cut by half.

But within the Executive, budget cuts have only affected non-essential items of ministries like trips, training and car expenses which are estimated at about 0.003 percent of the total budget. Though the President seems to have been exempted in this austerity measure, it was at the same time that the government hired a luxurious private jet at a cost of Sh1.8 million per hour for his trips to Japan and Russia.

Exposing the ill-intentioned move by the Treasury was what followed next afterMr Oguna’s remarks. A smear campaign by government’s twitter propagandists was unleashed running the hashtag #WastageInJudiciary to discredit the Judiciary’s budget allocation.

What seems always lost to many when discussing about austerity is that the Judiciary’s budget is 0.0046 percent of the total budget and if we are to have a conversation about prioritising Exchequer release by looking at where a lot of wastage is spilling over then the Judiciary will be the last arm of government we will be looking at.


One of other thing that confirms a possible “revisiting” get-back by the executive is that no other entity has seen its budget cut by half, other than the Judiciary. So why only the Judiciary?

But my grievance is about how the whole issue, the nonsensical circular released by Treasury defunding the Judiciary, has been handled and it speaks much about why Treasury behaved in this manner.

Starting from Judiciary’s reaction, to Law Society of Kenya and media reporting, the impression given out is that Treasury seems to virtually possess powers to defund Judiciary when they clearly don’t have even an inch of it.

But in essence, the Treasury doesn’t have the powers to defund the Judiciary and the circular should have been treated with the contempt its deserved.

The law is quite clear that its Parliament as the constitutional body that can defund any arm of government.

So, this fight was for Parliament to put the Treasury in check because it’s not the first time we are having an executive exercising powers and authority far beyond its mandate.

But, unfortunately, ambitions of legislators do not provide them with sufficient incentive to resist executive encroachment on House powers and the dangerous precedence we are creating of crippling Judiciary and Parliament being an appendage of the executive is a one-man rule presidency.

The constitutional architecture counts on Parliament and Judiciary to tame the Executive’s lust for power and each branch should fight any domination of their authority.

In this case, the key factor has been Parliament abdicating its duty, the near-total failure to defend its constitutional prerogatives against the Executive on many occasions.

In the US, from where we heavily borrowed our presidential system, this would have been a showdown between House of Representatives Speaker Nancy Pelosi against President Donald Trump’s administration, with the president and his administration quickly reminded where they belong in their constitutional prerogatives.

If Parliament continues to be emasculated by the Executive to the extent that it cannot hold the forte, which is the Judiciary’s financial independence, insulating it from crippling by the Executive, it’s a chilling invitation to the public that there is no else left to defend the Constitution other than them, the representative government is no longer representing them.