20/20 judicial vision

In 2012 two members of the Judicial Service Commission wrote an amazing piece in Kenya's tabloid of record on why members of the Judiciary deserved to weep driving Mercedes-Benz motor vehicles. Their constitutional and legal reasoning were sound - a testament to their keen legal minds. But the position they adopted on behalf of judges was tone-deaf. 2012 was the year that it became apparent that the privileges and benefits we extended to senior government officials had been abused for dogs' years and, therefore, in the spirit of pulling together to lower the cost go government, no one would be spared when it came to cost-cutting.

The Commissioners, in their wisdom, didn't believe that such measures should be applicable to their core constituents without, shall we say, "fine-tuning". In other words, hand the whole thing over to a committee and watch the zeal fade away like mist in the noontime sun. In any case, it soon emerged that the judiciary's stand on the question of "cheaper" vehicles for judges wasn't the most troubling - it had somehow managed to find a loose three hundred million shillings to pay for an "official" residence for the Chief Justice that has not been occupied by either Dr Mutunga, the Chief Justice then, not his successor, D.K. Maraga, today.

Which brings me to the "sweeping cuts" ordered by the acting Cabinet Secretary for the National Treasury and Planning. For the past seven years, according to those who should know, Government has been on an unsustainable debt trajectory, loading up on expensive sort term commercial loans to pay off other short term commercial loans. Government mandarins claim, quite often without a scintilla of evidence, that the proceeds of the loans have been poured not "development" projects, though the existence of the projects is very much in doubt. Sure, there are a few show-pieces like the new Mombasa - Nairobi railway, new bits of tarmac along Ngong Road and Outer Ring Road, and new bits of concrete for the Lamb Port (part of the no-one-is-sure-it-still-exists LAPSSET Corridor Program).

What was apparent when Government sold the first Eurobond was that these cuts were inevitable. It was apparent when the Eurobond projects couldn't be publicly identified or verified. It was apparent when NYS I (and NYS II) couldn't be resolved without plunging the ruling coalition not disarray. It was apparent when we apparently paid twice for election-related expenses - including electronic registration and verification equipment. It was apparent when, instead of facing the pernicious effects of the debt treadmill head-on, we were treated to a series of red herrings - from the unsustainability of the "public wage bill" to the unsustainability of 49 legislative chambers (hence the need to "punguza mizigo"). Every economics expert worth his salt agrees that the trillions we have poured in railways, urban roads, electricity generation and transmission, inland container depots and mobile medical facilities, were largely wasted. For example, Dr David Ndii has argued that had that money been invested in improving smallholder agricultural yields, the rise in national economic productivity would have been accompanied by an increase in wealth creation and employment.

It was therefore, inevitable that there would be sweeping cuts across the board in Government when the music finally stopped - the annual national revenue (which has been declining for years) is insufficient to pay down the loans or the interest payments on the loans. The Judiciary, for complicated political reasons, is an easy target. It will not be the only one. Other soft targets are the constitutional commissions, independent offices, non-commercial state corporations, semi-autonomous government agencies, and non-core regulatory authorities. Soon enough the cuts will spread to national and county governments, including cuts in the funds appropriated for Parliament and county assemblies. The pain is coming; the only question is when and how severe.

In 2012 the judiciary was riding high, insulated from the public opprobrium visited on Parliament and the national Executive. Some of its more excitable members made unfortunate statements from the Bench and in other public forums that painted the other arms of Government in a very harsh light. It enjoyed the support of foreign governments, and the door agencies affiliated with them. But it had enough old school serikali types for the praise, money and newfound independence to go to its collective head. Today it has no friends. Its foreign supporters back home are facing the same economic headwinds bedevilling Government; they will not be riding to the rescue any time soon. No matter how passionately the Chief Justice makes his case in the court of public opinion, the larder is bare and the judiciary will be the first victim of austerity. Had the judiciary bitten its tongue in those early years of the new constitutional dispensation, its fate may have been postponed a bit longer. Like the say in the USA, hindsight is 20/20.