Parliament has dealt the Judiciary’s effort to attain financial independence a blow after cancelling new regulations meant to set up a Judiciary fund.
The National Assembly’s Justice and Legal Affairs Committee wants the Judiciary Fund Regulations published by Chief Justice David Maraga on May 31, 2018, scraped for contravening the Constitution and three Acts of Parliament. Gladys Shollei, who chairs the committee", said in a report to the House that they reached the conclusion: “Having scrutinised the Judiciary Fund Regulations 2018 against the Constitution, the Judiciary Fund Act, the Judiciary Fund Act, 2016, the Statutory Instruments Act, 2013, and the Interpretation and General Provisions Act”.
The fund will give the Judiciary more influence over funds allocated for operations as well as give judges control over cash such as fines paid to courts.
The decision is likely to re-ignite complaints from Mr Maraga who in October launched a scathing attack on Parliament following its decision to cut the Judiciary’s budgetary allocation to Sh5 billion, down from a cap of Sh17.3 billion.
The Judiciary Fund is established under Article 173 of the Constitution with Article 173(5) obligating Parliament to enact laws to provide for the regulation of the fund. The fund is to be used for administrative expenses of the Judiciary and such other purposes as may be necessary for the discharge of the functions of the Judiciary.
Parliament enacted the Judiciary Fund Act in 2016 but has failed to pass regulations to allow introduction of the fund. The regulations were submitted to the House on July 31, 2018.
The committee said it annulled the regulations because they are in breach of the law that demands that cash paid to courts such as fines and other penalties must first be deposited in the government’s main account — the Consolidated Fund.
The fund was also seeking to take over unclaimed assets in possession of the court, which the committee said was against the law that demands that such property be transferred to the Unclaimed Asset Authority, a State agency.
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