To mark the tenth anniversary of Kenya’s constitution, broadcaster NTV interviewed current and former government officials on how the law has been applied.

Chief justice David Maraga told NTV that while the 2010 constitution had sought to strengthen the judiciary’s independence, funding was a perennial headache.

“[Budget cuts] hit the judiciary sometimes to a point that its operations grind to a halt,” Maraga said in the interview, published in August 2020.

In recent months the chief justice has been vocal on how cuts have hampered the delivery of judicial services.

In his interview, Maraga made several claims. We looked into their accuracy. 

Claim: The judiciary does not even get 1% of the national budget

Verdict: correct

Maraga, who assumed office in 2016, asked for more funding as “the judiciary does not even get 1% of the national budget”.

“We have said, over and over again, that for the judiciary to operate properly we should get at least 2.5% of the national budget,” he said.

Africa Check has previously found there isn’t a “recommended global percentage” of funding for the judiciary from the national budget. In 2018 Maraga also claimed it was 2.5%. 

To determine how much has been allocated to the judiciary in recent years we consulted the appropriation acts, the laws that show budget allocations to government departments.  

For the national budget, we checked budget statements.

Judiciary amounts as share of Kenya budget

Year                       Judiciary budget (KSh billion)                       National budget (KSh trillion)                     Share

2014/15                  17.5                                                                   1.58                                                               1.1%

2015/16                  16.7                                                                   2                                                                    0.8%

2016/17                  17.3                                                                   2.3                                                                 0.8%

2017/18                  17.6                                                                   2.3                                                                 0.8%

2018/19                  14.5                                                                   2.6                                                                 0.6%

2019/20                  18.9                                                                   2.8                                                                 0.7%

2020/21                  17.4                                                                   2.8                                                                 0.6%

Sources: Budget speeches for 2020, 2019, 2018, 2017, 2016, 2015 and 2014  and Appropriations Acts for 2020, 2019, 2018, 2017, 2016, 2015 and 2014.
Note: The figures shown have been rounded up.

Only once in the last seven financial years, in 2014/15, did the judiciary receive more than 1% of the national budget. We therefore rate this claim as correct.

Claim: We have an average of 400,000 cases being filed in our courts every year

Verdict: correct

The most recent state of the judiciary report covers the 2018/19 financial year. Released in January 2020, it shows that more than two million cases were lodged in all courts between 2014/15 and 2018/19.

The report said: “The number of filed cases provides quantitative information on the extent of demand for court services by the public.”

Total number of cases filed in the judiciary

Financial year                           Cases

2014/15                                      334,685

2015/16                                      460,961

2016/17                                      344,180

2017/18                                      402,243

2018/19                                      484,349

Average                                     405,283

The average number of cases filed in the period covered by the report works out to 405,283 a year. We therefore rate this claim as correct. 

Claim: We only dispose of about 300,000 cases

Verdict: correct

Discussing the country’s case backlog, Maraga said the judiciary settles about 300,000 cases every year. This number was determined by the number of judges and magistrates and would only continue to pile up.

“Unless the judiciary is given enough resources to have enough manpower, Kenyans will continue crying about delayed cases,” he said.

The most recent state of the judiciary report has data covering 2014/15 to 2018/19. It shows an average of 321,652 cases settled across the five financial years. As of 2018/19 there were 153 judges and 546 magistrates in Kenya.

Number of cases resolved by the judiciary

Financial year                             Cases

2014/15                                        272,605

2015/16                                        191,625

2016/17                                        304,182

2017/18                                        370,488

2018/19                                        469,359

Average                                        321,652

We therefore rate the claim as correct.

Claim: In Kenya now with a population of about 48 million, we have one judge serving over 300,000 people

Verdict: correct

There are 47.6 million people in Kenya, according to 2019 census data. The most recent data from the judiciary shows there were 153 judges as of June 2019.

This works out to one judge for every 311,000 people. We rate this claim as correct.

Claim: We have one magistrate serving over 77,000 people

Verdict:understated

The most recent data from the judiciary shows there were 546 magistrates in Kenya as of June 2019. The state of the judiciary report was released in January 2020. 

Using a population of 47.6 million, this works out to one magistrate for every 87,114 people.

The chief justice’s figure was off by over 10,000 but it was still “over 77,000” people per magistrate. We therefore rate it as understated.

Claim: There is a ‘global average’ for the number of judges and magistrates to number of people

Verdict: unproven

A calculation for a “global average” can be achieved by directly comparing the number of judges and magistrates to the world population.

But to account for population differences, rates (per 100,000 people) are widely used. (Note: See box below for more context.)

The chief justice has in the past spoken of a “recommended global percentage” of funding for the judiciary. 

We have contacted the judiciary for the source of the “global average” cited by the chief justice and will update this report with their response.

Wachira Maina is a constitutional lawyer in Kenya who has written about the progress of institutions, including the judiciary, following the adoption of the 2010 constitution. He directed us to the UN Office of Drug and Crime (UNODC) for data on the administration of justice professionals against a country’s population.

It shows there were 1.3 judges or magistrates for every 100,000 people in Kenya in 2014, 3.6 for South Africa in 2015, and 0.8 for the US and 8.7 for China in 2017. 

But the UNODC noted key weaknesses in the data when comparing countries. 

“The numbers reported are not restricted to judges deciding criminal cases,” it said. “The comparability problem might get even worse because some countries might still only report the number of judges whose duty is the judgment of criminal cases.

“Apart from this, it is not clear whether really all judges are included in the reported figures in all countries.”

Without a source for the chief justice’s claim of a global average, we can only rate this final claim as unproven.

Is calculating the ratio of judges and magistrates to the population useful?

The ratio of judges and magistrates to the population is useful depending on what you’re using it to show, Wachira Maina, a constitutional lawyer in Kenya told Africa Check.

He gave an example of using the ratio of the number of doctors to the population as a metric for access to health, and of police officers to measure access to security services.

However, he said, ratio data leaves a lot unstated, such as the distribution by region and by urban and rural areas. Therefore “to determine access to services, you will almost certainly need additional information”.

“A high ratio by itself does not prove that most people have access to services, merely that if services were equitably distributed, and they rarely are, more people would have access,” Maina said.

“Keep in mind though that you cannot increase access unless you have the numbers, so the ratio does still say something useful.”

Chris Kerkering is a litigation manager at Katiba Institute, an organisation in Nairobi that promotes the knowledge of Kenya’s constitution. He told Africa Check that population does not automatically equate to a judge’s caseload.

A very litigious society would have more cases per population, he said.

Caseload and caseload weighting, which Kerkering described as not only counting the number of cases but also being able to determine how much time each respective case would take, may be the best way to determine whether a judiciary has the appropriate number of judges.

But since doing a comparison between different countries with different legal systems and different cultures would be near impossible, “judges per population is a decent aggregate”, Kerkering said.

He said the chief justice’s focus was on access to justice. “If there are not enough judges and the staff that support them then they are unable to provide the services that the judiciary requires. Case backlogs become one of the more obvious problems. Fewer judges mean that each judge is taking more cases.”

“The more cases a judge has, the more time it takes to get through them. Access to justice requires timely decisions. The phrase ‘justice delayed is justice denied,’ is so commonly used for a reason. Often, as a case winds its way through the court system, avoidable delays result in long term harm.” 

“A judiciary that can’t get through its caseload promptly can’t ensure access to justice as required by the constitution.”

Researched by Carlos Mureithi, Africa Check, a non-partisan fact-checking organisation. View the original piece on their website