31 OCTOBER 2019,

Nairobi Kenya.

The Police Reforms Working Group Kenya (PRWG-K) brings together over 27 local, National and International Human Rights Organizations that seek to advocate for reforms within the National Police Service. The Police Reforms Working Group-Kenya is premised on four pillars namely; Quality Service; Accountability; Public Participation and Police Welfare.

The Police Reforms Working Group Kenya (PRWG-K) recognizes the role that the Judiciary plays in the criminal justice system in Kenya. The Judiciary, under the Constitution of Kenya 2010 is established as an independent organ of the State. Article 159 proclaims that Judicial Authority is derived from the people.

Particularly since the promulgation of the Constitution of Kenya 2010, the Judiciary has distinguished itself in taking up the challenge of enhancing access to justice, transparency and accountability in Kenya in line with Article 48 of the Constitution.

We wish to draw your attention to the National Treasury Circular No. 14A dated 24th September 2019 that was addressed to all cabinet secretaries and accounting officers to the effect that the budgets for government ministries, departments and agencies have received drastic cuts.

The circular, among other things purported to slash 50% of the Judiciary’s budget. Incidentally, the circular cited revenue shortfalls and the need to raise funds for the Big 4 Agenda as the justification for the budget cuts. 2

The PRWG believes that the Judiciary is an independent and co-equal arm of government, alongside the Parliament and the Executive. The Judiciary is neither a government ministry, department or agency and ought not to have been addressed, or even affected by the circular to ministries, departments or agencies.

Whether or not, and how the government funds its flagship Big Four Agenda, though important, is a matter of executive priority within its own departments and should not affect the budget of another organ/arm of government.

On the contrary, adequate housing, manufacturing, comprehensive healthcare and food security are dependent on low crime rates, human rights and a conducive business environment. These require a functioning Judiciary for the arbitration and settlement of disputes and dispensation of criminal justice in a timely and consistent manner.

Indeed, Article 173 of the Constitution of Kenya has provided for the establishment of an independent Judiciary Fund meant to provide the Judiciary with financial security. This is yet to be realised.

As a result of the budget cuts, the Judiciary has since announced that dozens of courts around the country will be suspended, which will affect more than 15000 cases. We believe that this will greatly affect access to justice by the people of Kenya including the very marginalised in society contrary to Article 48 of the Constitution. It will also cripple the fight against corruption despite the investments in the Directorate of Criminal Investigations (DCI), the Office of the Director of Public Prosecutions (ODPP) and police reforms.

The PRWG also notes that the President has declined to gazette the names of 41 Judges forwarded to him by the Judicial Service Commission, citing concerns about their character. We would like to remind the Executive arm of the Government that the Constitution of Kenya transferred the powers to select and appoint away from the President in order to inculcate 3

judicial independence. The role of the President in Judicial appointments is merely ceremonial. This position has been canvassed and confirmed by the Courts.

The PRWG believes that the budget cuts and the refusal to gazette Judges is a dangerous development that seeks to, in effect, subject the Judiciary to domination by the Executive.

We therefore recommend that: –

1. A. Treasury immediately recall/withdraw the circular that purported to effect the budget cuts to the Judiciary.
2. B. Treasury immediately disburse all the monies to the Judiciary as per the Annual Estimates passed by the National Assembly.
3. C. Executive acknowledge that the Judiciary is an independent arm of government and ought not to have been addressed by a circular to government ministries, departments and agencies.
4. D. National Assembly and Executive operationalise the Judiciary Fund as required by the Constitution – to ensure financial and functional independence.
5. E. Names of the 41 Judges forwarded to the President be immediately gazetted.

We, the undersigned Police Reforms Working Group:

1) Defenders Coalition

2) Kenya Human Rights Commission

3) Independent Medical Legal Unit

4) Federation of Women Lawyers Kenya

5) Kenya National Commission on Human Rights

6) International Commission of Jurists Kenya

7) International Justice Mission

8) Amnesty International Kenya

9) Usalama Reforms Forum

10) International Centre for Transitional Justice

11) Legal Resources Foundation

12) Rights Promotion and Protection Centre.

13) Catholic Justice and Peace Commission

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14) Coalition on Violence against Women.

15) Centre for Minority Rights.

16) Constitution and Reform Education Consortium

17) Kenyans for Peace, Truth and Justice.

18) Peace Brigade International

19) Chemi Chemi ya Ukweli

20) KATIBA Institute

21) Shield for Justice

22) Wangu Kanja Foundation

23) Women Empowerment Link

24) Transparency International – Kenya

25) Kariobangi Paralegal Network

26) HAKI Africa

27) Africa Centre for Open Governance (AfriCOG)