Judiciary supports Devolution

BY WILLY MUTUNGA

We have just concluded the first in what I believe will be a series of dialogues between the Council of Governors and the Judiciary.
The Judiciary supports devolution of power and resources, not as an act of political posturing but as a constitutional duty to give voice and meaning to the principles outlined in Article 10. Though devolution is a broad concept, in Kenya, the county governments are its most visible emblem and representation, and we welcome their representatives to dialogue.
We in the Judiciary promote dialogue with all stakeholders not with the intention of breaking any law, but rather with the purpose of entrenching the Constitution and realising its benefits for Kenyans in the shortest time possible.
Only a month ago, we jointly trained the legal officers and county attorneys for Council of Governors on devolution as a way of demonstrating our commitment to constructive engagement. The Constitution commands the Judiciary to do justice to all without regard to status and without delay. Access to justice is a right for all persons. That is why the Judicial Service Act requires the establishment of a High Court in every county and a magistrate’s court in every district.
Demand for judicial services is growing, but the budgetary allocation to the Judiciary does not match it. We are grateful that most counties have made generous offers of land and the construction of infrastructure to enable the Judiciary to meet its constitutional and legal obligations to ensure access to justice. We are appealing to those who experience the shortcomings of low budgetary allocations most to speak up so that the National Assembly and the Senate can make the appropriate adjustments.
Each county government is encouraged to provide or establish infrastructure which can be used for courtrooms and residences for both judicial officers and staff in the respective counties. The Judiciary already has ongoing discussions with various governors who have either allocated land or buildings as resources in this area.
Where such infrastructure in the form of courts and residences have been established by the county governments, the Judiciary will endeavour to provide staffing in a coordinated and structured manner giving priority marginalised areas.
The exercise of judicial authority is constitutionally protected as a function of the National Government and preserved for the Judiciary, but we are also aware of need for collaboration and partnerships that accelerate the achievement of the objectives outlined in the Constitution. The Council of Governors Concept Paper has made many important recommendations on how to strengthen the partnership with the Judiciary. Since many of these proposals affect other stakeholders, I am proposing the convening of a consultative forum that brings together all the actors in the administration of justice.
The proposal on the waiver of court fees for cases filed by the county governments is important, especially when viewed against the backdrop of the principle of equity and equality. However, this would involve a considering its constitutionality and legality with the national government as it touches on revenue collection by the courts. Specifically some counties, have proposed the sharing of fines and penalties collected by the courts as a source of revenue for the county governments. However, the current legal regime requires that all revenues collected by the Judiciary be sent to the Consolidated Fund.
The Local Government Act, Cap 265, which established the former city and municipal courts and created the offenses and penalties arising out of violations of the various local authorities by-laws has now been repealed by The County Government Act, 2012. In other words, such courts created under the retired Act ceased to exist after the first general election under the Constitution 2010. The Judiciary has mitigated the effect of repealing the Local Government Act, Cap 265, by transitioning the functions of the defunct municipal or city courts to designated Magistrates’ Courts within the various counties.
We undertake to designate a separate registry or register in such magistrate’s courts specifically for cases carried over from the old municipal and city courts and the current cases arising out of violation of the new county legislations.
By the authority vested in me under Article 262 (22) on the Transitional and Consequential Provisions, I have asked the Chief Registrar of the Judiciary to recall all judicial officers posted to the former city and municipal courts and in their place post new magistrates who will take stock of all judicial proceedings currently before these courts to bring them in line with the Constitution.
Finally, many issues raised in this partnership have a multi-tier effect on various stakeholders and transcends the Judiciary and Council of Governors. Therefore, for effective implementation of the partnership, various stakeholders in the Administration of Justice such as the Office of the Attorney General, the Director of Public Prosecution (DPP), Treasury and Parliament will have to be brought on board for deliberations in a consultative forum to give effect to the object of the partnership.
A technical committee will be formed comprising of representatives from the Council of Governors and the Judiciary with specific terms of reference including timelines and implementation time table of the partnership agreement.