Judiciary, MPs clash over billions paid as allowances

Aparliamentary committee has questioned the rationale of allowing the Judiciary to determine its own rates outside the recommendations of the Salaries and Remuneration Commission (SRC).

The National Assembly Public Accounts Committee (PAC) yesterday wondered why allowances running into billions are not set by SRC, despite the constitutional provision that the Commission regulates public officers’ pay.

The matter was the subject of heated debate during a PAC session, as MPs questioned why the Judiciary’s autonomy extends to financial decisions that could have a serious impact on taxpayers.

The MPs argued that the Judiciary should not appear to enjoy preferential treatment in allowances, given that SRC sets rates for other public servants.

Mathioya MP Edwin Mugo led the charge, pressing Chief Registrar of the Judiciary Winfridah Mokaya to explain the regulation of judges’ allowances, and whether benchmarking with other countries was involved.

He noted that SRC conducts surveys while factoring in economic conditions to set standard allowances, warning that unchecked discretion could lead to disparities across state institutions.

“Who regulates these allowances? An allowance can be as little as Sh200 but if someone decides to peg it at Sh1,000, who checks that? How are these rates determined? Is it the Judicial Service Commission?” Mugo asked.

Samburu West MP Naisula Lesuuda added: “I would like to know from the Registrar what you based your decision on when setting these rates. Was it a ruling, and if so, what did it say? Or was it the Constitution? Were you initially guided by SRC rates, and if so, at what point did you stop using them?”

The issue arose as the committee examined the Judiciary’s Auditor-General’s report on financial statements for the year ended June 30, 2023. Auditor-General Nancy Gathungu flagged irregular domestic travel and subsistence allowances paid to senior judicial officers, including the Chief Justice, Deputy Chief Justice, all judges, the Chief Registrar, Deputy Chief Registrar, chief magistrates, and staff in job groups PLS 16 and 17. She said the Judiciary had breached SRC guidelines, resulting in irregular payments.

“The SRC circular dated February 2, 2022, set out the applicable domestic travel and subsistence rates for all state and public officers. However, the Judiciary has been paying at rates higher than those authorised by the SRC,” the report noted.

Former Registrar Anne Amadi, in a letter to the committee, defended the contested payments and outlined a review of daily subsistence allowances — commonly known as per diems — backed by a Judicial Service Commission (JSC) resolution of July 22, 2019.

“The JSC, at its meeting on July 22, 2019, considered a proposal to review subsistence allowances/per diems payable to judges, judicial officers and staff, and approved amendments,” Amadi wrote.

The revised structure introduced three bands of entitlement: the Chief Justice and Deputy Chief Justice each at Sh30,000 daily; judges and the Chief Registrar at Sh25,000; and magistrates, the Deputy Chief Registrar, the Chief Kadhi, and staff in job groups PLS 16 and 17 at Sh20,000. Rates for the rest of the staff remained unchanged.

Mokaya defended the allowances, saying JSC pegged its rates on those applied by the Parliamentary Service Commission (PSC).

“The JSC benchmarks especially with PSC, and so the rates we use are comparable to what applies there,” she said.

The Office of the Auditor-General (OAG) was also pressed to clarify whether Judiciary’s self-regulated allowances conformed with constitutional principles of accountability and prudent use of public resources.

OAG’s Director of Audit, Philip Cheboiwo, disputed the Judiciary’s stance, pointing out that it nominates a member to SRC to represent its interests.

But MPs dismissed this defence as misleading, noting that PSC operates under its own benchmarks for members’ benefits — most of which SRC has nullified.

According to the lawmakers, the Judiciary should not be exempt from the broader public service remuneration framework.

Mokaya cited Article 172 of the Constitution, which empowers the JSC to “review and make recommendations on the terms and conditions of service of judges and judicial officers”, adding that JSC conducted its own benchmarking exercise before SRC released its rates.

“We have never used SRC rates. JSC interpreted its mandate under Article 172 vis-à-vis Article 230, which empowers SRC, and after benchmarking set the applicable rates. It was only later that SRC provided its own,” she said.

“This raises the question — does the Judiciary see itself as superior to the Public Service Commission? If you are part of such a commission, then fairness should apply across the entire public sector,” he said.