CJ: Inadequate funding threat to justice delivery

The current developments in the ODPP (office of Director of Public Prosecutions) are highly illustrative of the momentous constitutional and political transition that this country is going through. The reforms it is undertaking must be alive to this historic reality, aware that its conduct signal Kenya’s constitutional and political seismic shift.


Why do I say this? For a long time, prosecutorial services were delivered by Police Officers. This was done within the context of a repressive political environment, in which the police played a significant role. Prosecution thus came to be seen as an extension of the police state intent on persecuting political dissenters rather than as a professional service central to the administration of justice. This was the public face of prosecution service – of course an unfair and incomplete one given that police prosecutors doing ordinary work in other courts were doing an excellent job. And many still do.

Since its delinking from the State Law Office, the ODPP has effectively established institutional and governance structures that underpin its expanded Constitutional mandate. This includes the provision of timely prosecution services, the facilitation of victims/witnesses assistance, the professionalization of prosecution services, and the promotion of inter-agency cooperation.

The ODPP is clearly an important cog in the wheel of justice and thus occupies a pride of place in the National Council on the Administration of Justice (NCAJ). Mr. Keriako Tobiko has been one of the most outstanding and committed members of the Council.

The vision of the NCAJ is to establish a unified justice sector that serves the people. At the heart of our mandate as Council members, is the understanding that our independence and our interdependence are mutually reinforcing. The delivery of justice is an assembly line, and NCAJ is its institutional expression; every institution is chain-linked in the pursuit and attainment of justice.

The realization of NCAJ’s vision requires the strengthening of our respective institutional operational frameworks. The effective and efficient coordination of the justice sector calls for an urgent reassessment of our approach and attitude towards the sector. On one hand, we must see the value of collegiate action; on the other, we must be able to link justice, rule of law and national development.

Unfortunately, to an extent, our present priorities and approach as a sector speak to our individual institutional aspirations rather than to our shared possibilities. Similarly, beyond the sector, the link between investment in the justice sector and development outcomes is not sufficiently appreciated. These need to be reversed.

The realization of Kenya’s socio-economic rights agenda is directly predicated on the amount of resources allocated to the institutions mandated with their delivery, and the health of the justice system. The rule of law is fulcrum around which the wheels of development turn.

Based on the Judiciary’s experience, the allocation of more budgetary resources creates incentives and appetite for corruption. Even as we demand for more resources – as we should – NCAJ agencies must ensure that accountability mechanisms are in place. Those of us who bear the responsibility of investigating, prosecuting or determining cases of corruption when they occur, must do so with speed and within the law.

We must guard against temptations of political air cover, the allure of ethnic patronage, or the glamour of class solidarity as we execute our constitutional mandates. It is for this reason that the Constitution gives our institutions independence, and for some of us, such as the Judiciary, DPP and Police, security of tenure. The whole essence of our constitutional independence, and the oath of office that flows from it, is to free us to act in a manner that rises above parochial and sectarian interests.

 The NCAJ has emerged as a forum for dialogue, critique, peer review and, whereas we don’t always agree on things, the robust exchange of views occur in the interest of the justice chain and the Kenyan people. In order to revitalize the justice delivery system through collaborative partnerships, we ought to take cognizance of problems that bedevil our efforts. For example, we must adopt a common approach to planning, budgeting and financing the justice sector. We need to coordinate and standardize our reporting mechanisms and systems. We need to  synchronise our training programmes.

The asymmetries and imbalances in the justice sector risk creating discord which undermines service delivery for the Kenyan public. A collective case must be made for increased resources to each and every NCAJ agency.

ODPP is making remarkable progress in the face of serious limitations. With a 50% staff shortage, DPP has managed to extend its services to 41 out of 47 Counties. The perennially low budgetary allocation to DPP translates into unattractive terms and conditions of service. This severely affects the ability of the organization to recruit and retain the best professionals. The NCAJ Strategic Plan speaks to the need for the development of a sector retention strategy to stem staff hemorrhaging and other trends that weaken the system. As we have resolved to develop a joint-NCAJ resource mobilization strategy, we should submit joint proposals to the Salaries and Remuneration Commission (SRC) and make a stronger case for harmonized pay for harmonized work.

Take the example of the Probation and After Care Services. The Department was allocated 62.59% less than it requested, resulting in an impossible operational reality where Probation Officers were entitled to a measly Kshs. 5000 a station for fuel for the entire year. In the last two years, ODPP has received Kshs 3.08 Billion against a requested Kshs 9.77 Billion. NCAJ itself has so far received Kshs 20 million against a request of Kshs 680 Million. Prolonging this trend presents a very real danger to the rights and freedoms of Kenyans.

Condensed version of Chief Justice Willy Mutunga’s speech at the official opening of the

2nd Annual National Prosecution Service, Nairobi

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