Rule of law is slowly collapsing as we watch

By Luis Francheschi

We often forget that colour is irrelevant below the skin, a name is something we don’t choose for ourselves, and economic status can be fleeting.

We frequently think that law can resolve societal problems, the problems we have created for ourselves, and which we do not really want to or don’t know how to resolve.

Thus, we hide behind the law, and blame the law as a bad manager hides behind company policies to avoid facing a bad, absurd decision.

We also fail to recall that law without the spirit and the will to enforce it is irrelevant and useless. We should not place the Judiciary at the level of the Executive or Parliament, which are elected bodies.

The Judiciary is not elected, but selected. Law is not about opinion. The people do not grant the Judiciary’s mandate; rather, it is granted for the people.

In 1781, Lord Chief Justice William Murray, First Earl of Mansfield, faced one of the most dramatic decisions a British Chief Justice ever had to make: the case of the Zong Massacre.

Chief Justice Murray was a British lawyer, politician and judge noted for his reforms of English Law. Murray was the most powerful British jurist of the century, and his decisions reflected the Enlightenment and moved England on the path to abolishing slavery and the slave trade.

The Zong Massacre was the killing of more than 130 enslaved Africans by the crew of the slave ship Zong in 1781.

After losing a good number of slaves due to the harsh and inhuman transportation conditions, the Zong’s owners decided that it was more profitable to drown the slaves and claim insurance compensation.

No one was concerned about the slaves. They were just cargo and had been insured. The bottom line was simply whether the Zong’s claim was genuine or fraudulent.

Slaves ‘not mere cargo’

When this came to the hands of Lord Chief Justice William Murray, the rival parties expected him to decide purely on the issue of fraud or compensation. Instead, he went further into the issue of slavery.

This unexpected twist was triggered by the Chief Justice’s own family story. His nephew, an Admiral, had a daughter with a black woman out of wedlock. The girl was born a mulatto, or mixed race. The Admiral took her to the house of his uncle, the Chief Justice, where she grew up.

Dido Elizabeth Belle, as the girl was called, had access to the privileges of high society, but faced deep prejudices. She was never allowed to have dinner with the white family, as was the social custom of the time.

She was beautiful. She received a sizeable inheritance from her deceased father, but societal customs and prejudices mattered more than beauty, more than humanity, and even more than money.

Law has a duty to uphold progress and morality, a duty to protect us from ourselves. Laws that allow us to diminish the humanity of anyone turn into a framework for criminality; they make countries and societies lose hope.

In his final decision, CJ Murray had the courage to assert that slaves were not mere cargo. He stated that evidence showed the ship docked in eight ports where water could have been replenished.

More than further changes in the law, Kenya needs a change in our attitude towards the law. We need to let the Judiciary do its job, even when it makes uncomfortable decisions.

Subtler than racism

Pounding the gavel, he said, “Let justice be done though the heavens may fall.”

This story, immortalized by Amma Asante’s film Belle, repeats itself again and again in our modern society. Perhaps it is no longer about racism, but against subtler, equally dangerous prejudices.

We blame law for our disorganisation, poverty, and misuse of public funds, yet law without the will is of little help. We blame the Constitution for what is perceived as a devolution failure that has more to do with prejudices and the reluctance to work together, and less to do with the law itself.

This is the mistake of men and women who see in every problem the same solution, to change the law.

More than further changes in the law, Kenya needs a change in our attitude towards the law. We need to let the Judiciary do its job, even when it makes uncomfortable decisions, which is part of the Judiciary’s job description.

No one can reach an agreement with the Judiciary to “work together”.

Budget

Chief Justice David Maraga spoke boldly on November 4. He was deeply concerned about the budgetary cuts that are gradually crippling the Kenyan judiciary. Central to his address was the role of the judiciary in Kenya’s institutional architecture.

Days after Maraga’s statement, the Executive did a 180-degree reversal. So what was going on? Was the Executive simply flexing its muscles to remind the Judiciary that “he who pays the piper calls the tune”. But it may also be true that there is no money, and when money is scarce, you cut expenditure where it seems, at least in a short-term perspective, to pain less like in our courts and our prisons.

While many a critic would look with disdain upon what they perceive to be his unfounded tantrums and lamentations on the interrelationship between the arms of government, an analysis of his stern admonitions concerning the Judiciary’s budgetary allocations would reveal a cause for alarm.

Maraga was concerned about the rule of law. “Rule of Law” is a difficult and abstract concept. It has been overused and manhandled. The understanding of the rule of law is not uniform, even or constant. It is one thing in Oxford, another in Beijing and a different one in Lagos or Dubai. Whatever the case, we are sure of at least two of its elements. First, it entails a reasonable predictability of the rules that guide behaviour in a society. Second, reasonable predictability is independent of the identity of the parties involved.

The rule of law is crucial to democracy and to development, and legal certainty is at its core. This certainty is aligned to human and societal behaviour, and in Kenya, the 2010 Constitution is the ultimate parameter of legal certainty.

In order to ensure predictability, the content of rules governing behaviour needs to be decipherable even and especially when there is doubt. While a society is able to determine the meaning and content of rules through political engagement, adjudication is usually a reserve of the courts.

The promulgation of the Constitution of Kenya 2010 was intended to strengthen Kenya as a constitutional democracy. The content of rules is subject to the Constitution and neither politics nor public opinion should undermine, waylay or subvert its dictates.

It follows that any weakening of the Judiciary directly interferes with its ability to perform its most basic role: the adjudicatory function between competing interpretations of the content of the rules in question at any one time.

Why cut expenditure where we are not spending?

The Judiciary’s share of the national budget is virtually unsubstantial. Even though the national budget has gradually increased over time, the same trajectory is not evident in the Judiciary’s budget, which if compared against the Executive’s budget is negligible, as seen in the chart below.

While one may reasonably argue that the Executive requires the lion’s share of the budget, the chart below illustrates the crux of the Chief Justice’s argument. If independently evaluated, it is evident that the Judiciary’s budgetary allocation is in decline.

The highest recorded percentage allocation to the Judiciary was in the 2013/2014 financial year. Since then, the amount has fallen by 33 percent. Ironically, demand on the Judiciary has grown over the years and has been particularly exacerbated by the new Constitution. As citizens become more civically empowered, the chance that they will result to formal adjudication mechanisms increases.

Why the Judiciary needs money

The Judiciary has in turn responded by increasing its reach through the modernisation of some of its facilities, the funding of mobile courts and tribunals, increasing its personnel, including mediators and arbitrators, and the introduction of several information management systems. The reason for this is that a Judiciary that is available, efficient, sufficient and adequate is now constitutionally mandated.

Judicial accessibility hence requires spending and it is at this juncture that the tension between the judiciary and the other arms of government becomes most evident. In most countries, the judiciary’s budget is subject to oversight by parliament as the legislature holds what Webb and Whittington, in the article Judicial Independence, the power of the purse and inherent judicial powers, call “the power of the purse”.

While this is reasonable, given the intimate connection between democratic representation and control over government taxation and spending, control over treasury or at times, collusion between parliament and the executive over the treasury transforms into a powerful political weapon that can be used against the judiciary. An effective power of the purse then gives the colluding government institutions a trump card when disagreements arise between them and judiciary.

While there is no customary percentage that ought to be given to a country’s judiciary, a comparative analysis of the states represented in the chart above displays that most countries would reserve at least one percent of their national budget to cater to the judiciary’s needs.

How much should judiciaries get?

While it would seem that a judiciary’s budget allocation of at least one percent of the national budget is sufficient to sustain the its function across jurisdictions without adversely interfering with judicial independence, the data reveals an interesting observation concerning both Russia and Poland.

Russia and Poland seem to be making a strenuous effort to fund their judiciaries against their comparatively low GDPs but still fare dismally on the rule of law rankings and their judiciaries are heavily criticised as lacking in independence. One cannot purport to state with certainty that the additional funding is meant to increase judicial independence. There may also be an element here of “catch-up” funding to compensate for historic under-funding.

In the 2015-2016 European Network of Councils for the Judiciary (ENCJ) report on funding of the judiciary, Poland stated that it was focussed mainly on the remuneration of judiciary personnel, the improvement of facilities, and the modernisation and computerisation of the judiciary’s services.

Poor justice funding equals poor development patterns

Most African countries, including Africa’s strong economies, fund their judiciaries poorly. In order to achieve substantial growth, they will need to allow their judiciaries more financial resources.

In the event of a ruling against the government of the day, a disgruntled executive may use parliament to “punish” the judiciary. Reducing the financial resources available to a judiciary may indeed threaten judicial independence and create a more subservient judge but it also hampers the entire institution’s effectiveness. It reduces its adjudicatory capacity by lessening its accessibility.

Defunct tribunals, the abolition of mobile courts, less efficient judicial systems, and reduced personnel among other consequences of reduced funding, directly influence the markets. These actions hamper the ability of economic actors to not only resolve disputes but to also reliably predict the consequences of their actions – effectively chipping away at the most basic component of the rule of law.

Maraga’s statement, though polarising on many fronts, correctly channels the tone of concern any rational actor would have towards the budgetary cuts threatening our Judiciary, the effect of such an undertaking on the market in the country and generally, on the durability of our rule of law. The Executive’s change of heart should not lull us into a false sense of security: until Parliament and the Executive consider the Judiciary a cornerstone of our constitutional architecture rather than an inconvenient appendage, we need to remain vigilant and guard against attempts to emasculate the judiciary.

The Judiciary must be obeyed, for like in the Zong Massacre, a good Judiciary makes history constantly. This history must be judged in a historical context, and not in the eyes of immediate political gain.

The rule of law is fractured every time anyone, Parliament or the Executive, claims to have the power to decide which court decisions to accept or reject.

This is why working together with the Judiciary simply means obeying the courts, no matter how absurd their decisions may seem to be.

The Judiciary judges the actions of Parliament and the Executive. But the Judiciary is judged by history.

Independent judiciary

The 2010 Constitution came into place and shook the judiciary to the core by causing the most amazing revolution ever, peacefully… This revolution was called ‘’judicial independence’’ and it caught one too many legislators, politicians and lawyers unawares.

Before 2010, there were no institutional mechanisms to guarantee judicial independence. It was simply pegged to the character and honesty of whoever was at the helm of the judiciary, and independent-minded chief justices usually did not last long.

But, judicial independence made the judiciary free and therefore uncontrollable and unpredictable – which is a double edge sword. Now no CJ may coerce a judge to decide on a specific direction.

The success of this new independence formula rests solely on the good selection of honest and competent judges, carried out by the Judicial Service Commission.

Judicial independence has exposed the judiciary. Independence is a good thing, but it also throws you into the arena, puts you in the limelight. A responsible organ is also accountable to the people at large and it must resolve its own administrative challenges.

A lot has been achieved in terms of independence. However, there are still some painful truths that require urgent action. First, the agonisingly slow pace of the justice machine, which is constantly increasing the embarrassingly huge backlog of cases, impossible to clear.

Secondly, the chaotic jurisprudential mayhem we are now witnessing, where judges too often come up with decisions in total disregard of precedent, and even legislation.

Outdated system

And finally, we have got stuck in a court process that was designed for a different world; a physical world where justice’s greatest interest was to prevent intimate physical contact between the judge and the parties. That process that cannot cater for the speed of today’s world. It must be redesigned.

Lawyers have compromised great justice ideals for the sake of a stable and predictable income. We turned law into an unpredictable mess to keep a predictable income, where justice is just a lucky outcome.

We will analyse each of these truths and propose solutions for the courts of the future in next week’s piece. The time to disrupt this safe space, where lawyers and judges feel too comfortable, has come. This must change.  (

— This article first ran in the Daily Nation. It is researched and co-authored by: Prof Luis Franceschi, founding dean of Strathmore Law School and Visiting Fellow, University of Oxford; Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates; Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates; Wandia Musimi, Research Associate ALN Anjarwalla & Khanna, Advocates.