Principles of financial independence

By Ndung’u Wainaina 

Judicial independence is enshrined in the Constitution of Kenya 2010. The independence of the judiciary underpins the rule of law and human rights and must be guaranteed by states both in law and in practice. An independent and impartial justice system not only ensures the implementation of the right to a fair trial but also acts as a fundamental check and balance against executive and legislative action. As such, judicial independence is integral to the functioning of a democratic state. The principle of the separation of powers is the foundation of the rule of law and ensures that no state power – whether the executive, the legislature or the judiciary – can exercise absolute authority.

While international law does not prescribe a model system for safeguarding judicial independence, it does stipulate that the body responsible for overseeing all functions associated with the administration of justice – including the management of judges’ careers – must act independently of the executive and legislative powers:

Judicial independence is a central pillar of any constitutional system. It is fundamental in any democracy that individual judges and the judiciary as a whole are independent of all external pressures and improper influence from the other branches of government, including funding bodies. The minimum conditions for judicial independence include financial security.

An adequate budget, based upon objective and transparent criteria, makes the judiciary less vulnerable to undue influence, and, at the same time, it can ensure integrity and competence of the judges through the proper allocation of resources on judicial salaries and training the budget can be a source of pressure and can influence the judicial independence.

First, despite the separation of powers principle, the judicial funding is in the hands of the other two powerful arms, which have some “extra weapons” and can potentially reduce the judicial budget if some disagreements between the branches arise. Secondly, if judges’ salaries are not adequate, judges can be vulnerable to undue influences.

A proper budget allocated to judicial training can also improve the integrity and the competence of the court staff. For these reasons, a judiciary funding mechanism based upon transparent criteria is necessary to maintain the independence of the judiciary, as long as the judiciary is closely involved in setting these criteria. Courts have tried to adopt a more business-like approach to management and finance is desirable, as it promotes, on the one hand, the functioning of the courts, and gives stronger incentives for the efficient use of public funds. On the other hand, it promotes the independence of the judiciary by making one of the vulnerable links between the judiciary and the other state powers much more transparent: more cases means more budget; otherwise court delays will increase.

The judiciary in Kenya adopted the performance-based budgeting whose reasons are to: increase accountability and transparency; encourage an evidence-based approach to policy making; rationalise the allocation of public expenditure; prioritize services; and increase efficiency and productivity. The performance-based budget is primarily to ensure a rational and fair distribution of resources among courts. The calculation of the resources needed to make the judiciary function properly is not based on just an incremental approach from the year before but it takes into consideration the past and forecasted performance, to better estimate the resources needed, and then allocate them to the courts in the most effective possible way. The budgeting system has enabled the judiciary to “coordinate the principles of allocation and ensure equality and objective rules.

Through the weighting caseload scores, apparently, there is a more balanced resources distribution among courts, with an increase in allocative efficiency. The following results have emerged: better internal knowledge and control as well as increased transparency among courts and accountability to the citizens. The performance-based budget has made the resource allocation process more transparent and based on clear and shared criteria, which contribute to improving allocative efficiency. Since the introduction of performance-based funding, the cost of a court case stabilised after having increased for a long period of time and the cost differences between courts and cases have declined. It is reasonable to assume that this is due in part to the introduction of performance-based funding.

To ensure and strengthen the separation of powers, a judiciary budget council or a body on which the Judiciary is represented, should be closely involved and fully informed at all stages in the budgetary process and should have an opportunity to express its views about the proposed budget to Parliament

The preparation of the budget for the judiciary, including the administration of courts and the training of judges, should be wholly or at least partly under the control of a Council for the Judiciary or equivalent independent and autonomous bodies. If a Council does not exist, judges should still have a decisive influence on the budgetary process.

Courts must be resourced to a level which enables them to discharge their obligation to provide an effective and efficient system for the delivery of justice. The state should therefore allocate adequate resources, facilities and equipment to the courts to enable them to function in accordance with the standards laid down in the Constitution of Kenya 2010 and to enable judges and court staff to work efficiently.

The maintenance of the rule of law requires long-term financial stability in the funding of the judiciary. Courts should not be funded on an annual basis but should have the certainty of longer-term financial budgets. Funding of courts should be protected from fluctuations caused by political instability. Budgetary constraints effect the efficient functioning of justice at the risk of denying or delaying access to justice for potential litigants. This can take the form of budgetary restrictions but can also be the result of budgetary stagnation in the face of adverse influences such as an increase in caseload. Moreover, the structure of budgets can be quite different from one State to another which makes it difficult to compare.

Budgetary constraints may lead to the necessity to prioritise the allocation of resources. Any prioritisation must be determined by the judicial authority itself. These budgetary priorities must be defined in collaboration with the relevant judiciary according to transparent criteria such as caseload and the number of judges. Budget transparency involves the extent to which citizens and members of the judiciary or other public groups can access information about and provide and/or obtain feedback on government revenues, allocations and expenditure. For this to be actualised, transparency around the sources of data and information used to frame decisions on revenue priorities and expenditure allocations, and transparency in the budget process in important and necessary.

An increase of judges’ workload can lead to their inability to satisfy all the requirements of how cases should be properly handled. Prioritisation of litigation should be avoided. Nevertheless, if the resources of the Judiciary require it, such prioritization should only be effected after consultation with all relevant stakeholders. Any prioritization policy should be open and transparent.

In order to retain and attract the highest quality judges and maintain judicial independence, judicial remuneration must at all times be commensurate with their professional responsibilities, public duties and the dignity of their office. Remuneration must be based on a general standard and rely on objective and transparent criteria, not on an assessment of the individual performance of a judge. Judicial remuneration includes salary, sickness pay, paid maternity/paternity leave and pensions.

The remuneration of judges must be constitutionally guaranteed in law and not altered to the disadvantage of judges after their appointment. Except for times of economic emergency, when there is a general reduction in comparable public service salaries and judges are treated no less favourably than others paid from the public purse, there should be no reduction in judicial remuneration. There should be an independent body established to make informed recommendations to the government in relation to judicial remuneration, which governments should accept and implement. Where such recommendations are not followed, the reasons should be clearly and publicly explained by the government.

To guarantee the quality of justice, adequate funding must be made available to ensure that judges are appropriately trained, initially and continuously throughout their career. If members of the judiciary are given responsibility for the administration of the courts, they should receive appropriate training and have the necessary resources in order to perform that function. Such judges should therefore be trained in relevant accounting and budgetary procedures. (

— Writer is Executive Director, International Centre for Policy and Conflict; @NdunguWainaina