Yatani rejects MPs push for courts to retain fines

Court fine concept. FILE PHOTO | NMG

By CONSTANT MUNDA
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Summary

• The Treasury has rejected a resolution by lawmakers allowing courts to retain fines and forfeitures to offset administrative expenses in what could potentially rekindle its unresolved budgetary feud with the Judiciary.
• Exchequer filings show revenue from fines, penalties and forfeits amounted to Sh2.27 billion in the year ended June, a measly 2.9 percent growth over Sh2.21 billion in the prior year.
• The Budget and Appropriations Committee of the National Assembly in March resolved, while approving the 2021 Budget Policy Statement, that the Judiciary retains and utilises user fees it collects for services it renders.

The Treasury has rejected a resolution by lawmakers allowing courts to retain fines and forfeitures to offset administrative expenses in what could potentially rekindle its unresolved budgetary feud with the Judiciary.

Treasury secretary Ukur Yatani argues that allowing the Judiciary to keep the cash it collects from penalties it hands out to convicts would create a funding gap in the budget.

“The National Treasury wishes to clarify that this resolution is contrary to government policy, which seeks to convert user fees retained by MDAs (Appropriation In Aid) to revenue due to the exchequer,” Mr Yatani has written in the 2022 Budget Policy Statement, which is before the House for debate and approval.

“The importance of this policy is to ensure visibility of all national resources, eliminate conflict of interest and to let the Exchequer cushion the relevant MDAs (ministries, departments and agencies) whenever shortfalls arise in the collection of these fees.”

Exchequer filings show revenue from fines, penalties and forfeits amounted to Sh2.27 billion in the year ended June, a measly 2.9 percent growth over Sh2.21 billion in the prior year.

The Budget and Appropriations Committee of the National Assembly in March resolved, while approving the 2021 Budget Policy Statement, that the Judiciary retains and utilises user fees it collects for services it renders.

The committee, led by Kieni lawmaker Kanini Kega, said the retained cash would be spent on setting up a long-delayed Judiciary Fund as provided for under article 173 of the Constitution and Judiciary Fund Act 2016.

The Treasury was required to implement the resolution endorsed by MPs by the start of the current financial year in July in what was seen as kick-starting financial independence of the Judiciary as provided for in the Constitution.

Judiciary’s bid to open the account last year, after facilitating regulations were approved, was thwarted by Central Bank of Kenya governor Patrick Njoroge for lack of backing from Treasury and the Controller of Budget as required under the Public Finance Management Act.

Dr Njoroge asked chief registrar Anne Amadi to also put in place mechanisms on budgeting, funding, expenditures, controls, monitoring, reporting and auditing of the account.

The Judiciary, however, maintained it was independent of the Treasury, adding that it has robust finance and accounts as well as audit directorates which were “fully capacitated” in terms of personnel and policy wherewithal.

Mr Yatani cites the State Department of Immigration and Ministry of Foreign Affairs which he says surrender the fees they collect to the exchequer as A-I-As for national budgeting in line with the government policy.

“The bulk of the fees collected by the Judiciary are fines and forfeitures, which are fees not intended to defray any court or administration expenses but are legal impositions and penalties required and demanded by law,” Mr Yatani insists.

“It is important to remit these fines and forfeitures to the exchequer to avoid any conflict of interest. The Judiciary should retain only fees charged on services they offer in order to defray administration expenses.”

The latest move could rekindle the long-standing budgetary feud between the Judiciary and the other two arms of the government – the Executive and Legislature.

The Judiciary has in the past accused the Treasury of colluding with the National Assembly to “cripple its operations by starving it funds”.

The judicial arm of the government has lamented that its cash allocation has consistently fallen below a percentage of the national budget, which the International Commission of Jurists-Kenya said in May fell short of global standards of between two and six percent.

The Treasury has raised the budget ceiling for the Judiciary for the year starting July 2022 by 5.39 percent to Sh18.88 billion, an equivalent of 0.57 percent of the proposed Sh3.31 trillion total budget.

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