Sustainable – not bare-minimum – funding

By NLM Writer

Sustainable funding levels are a prerequisite if state judiciaries are to dispense fair and timely justice and play their constitutionally mandated role in government. Achieving such funding should be a priority for the legislative and executive branches – which together control the purse – as well as the judiciary itself.

It is often said in public discourse that court systems must be funded adequately to carry out their responsibilities in an expeditious and constitutional manner – which is to say “open and accessible” and can administer justice wholesomely and without undue delay. Yet “adequate” is usually defined at the barest, most basic level. 

Can a court reasonably be expected to dispense due process in disposing of cases before it in a manner that passes minimum constitutional or statutory muster if the funds necessary to facilitate even this low threshold are simply not guaranteed? In the present circumstances, courts services are sharply curtailed, delayed or altogether eliminated, dockets are severely backlogged, and people suffer without recourse or justice – all because of a blanket order for government departments and ministries to cut spending by half as ordered by the Cabinet minister for Treasury, Ukur Yatani.

The cornerstone of democracy—the rule of law—cannot survive with this meagre mindset as its standard. A definition of an “adequate” level of funding for the courts must recognise both the duty of the court system to provide justice without delay and, further, must encompass the responsibility of sustaining the institution of the judiciary as a viable, separate and equal branch of government.

Because of law’s expanding mandate, courts today are expected to do more than has ever been required of them, and they do so in a system of government that is indifferent and adversarial to the role vested in them. The continued underfunding of Kenyan courts – in recent times dating back to when the budget statement was read in June – has and will continue to negatively affect judicial functions in a number of ways. For example, courts may be forced to prioritise case processing by focusing on criminal cases – invariably considered more pressing – at the expense of civil cases. As it is, advocates continue to cry foul about bounced hearings as judges juggle their dockets to attempt a balance at what they can clear and what can be rescheduled; however, there can be no justification for it. As Paul De Muniz notes in ‘Maintaining Institutional Independence: Funding Sustainable State Courts During Economic Crisis’, this could eventually cause severe and unacceptable delays in processing certain genres of cases, ultimately driving many litigants from courtrooms to alternatives such as arbitration and mediation.

While settling matters out of court is, in itself, laudable, even ideal, the danger is that when it is done out of necessity and not choice, this would effectively create two systems of justice: one for those who can afford alternative dispute resolution and another for those who cannot. Such a division undermines the important role that a country’s justice system is expected to play – that of ensuring equal justice for all.

As a result of the drastic budget reductions, most court officers have had to empty their drawers, sweep spare change from under their cushions and dig into their pockets to sustain public services; it is a travesty, in a country where state and public officers are armpit-deep in state coffers.

Where court officers used to attempt to execute their duty while contending with state interference, particularly from the Executive, they must now do so without the barest of necessities. 

Adequate funding must recognise both the duty of the court system to provide justice without delay and encompass the responsibility of sustaining the institution as a viable, separate, equal branch of government

But the concept of the Judiciary as an institution requiring budgetary protections is one that should not even arise. At the heart of the doctrine of separation of powers is independence of institutions, which extends to assured funding – including provision for development, remuneration and other allowances. Montesquieu wrote, “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” 

The solution to his problem was to divide government into different branches. But neither he, nor his other contemporaries in John Locke or James Harrington, suggested that the judiciary should be a co-equal branch of government. As a result, the judiciary was given the short end of the stick. In our scenario, despite express constitutional provisions, Parliament and the Executive ganged up to deny the Judiciary development funds, and now government is tightening the noose by denying judges the tools to execute their mandate effectively.

For a court system to meaningfully provide due process and timely justice as intended and deserved in a liberal democracy, it must be able to do more than pay lip service in meeting the bare minimums of a mechanical process. Courts must be funded and supported to deliver the best outcomes for justice as required. In other words, the judicial branch of government must be funded at a sustainable level. 

“Sustainable” necessarily means having enough funding to not just dispense justice daily, but to do so as a separate and equal branch of government that has meaningful resources to manage, analyse, develop, and plan for both its short-term and long-term objectives. An adequate budget for the courts is one that allows them to provide access and meaningful—not just mechanical or bare—due process. 

Because national budgets are inherently political declarations of priorities for functions and regions, President Kenyatta through his budget cuts essentially is saying that his legacy, in an environment of waste, trumps the requirements of justice. But, in economic and political terms, social democracy prospers when the other branches of government and the public have confidence and trust in the judicial branch; that can hardly be the case if it is strangled beyond functional consciousness, where workload has increased and judges work under difficult conditions.

But, as important as independence among the arms of government is, there is yet another entity whose support the judicial branch must actively seek to cultivate: the public. The current funding crisis is the result of many things, the biggest being theft of public money. It must, however, be realised that the judiciary does not occupy flattering conversational presence on the public radar because of its often injurious decisions to the common man, not just because of corruption in the corridors of justice but because its leadership makes no meaningful attempt to win over the public.

The ongoing economic meltdown does not allow people to worry about mundane matters like judicial funding – they have more pressing needs of their own – yet it is a matter that greatly affects their everyday lives. Yet, this lack of public awareness and support for this crucial institution is not something that can be allowed to continue. Until the public is able to anchor buy-in to an institutional presence, instead of making reference to a single issue, the gravity of what is at stake, and the necessity for changes that will facilitate sustainable funding, will remain illusory.