Billions in taxpayer-funded allowances for judges have sparked a storm in Parliament, with Members of Parliament (MPs) demanding to know why the Judiciary sets its own rates outside the Salaries and Remuneration Commission (SRC).

During a heated Public Accounts Committee (PAC) session at Parliament Buildings on Wednesday, the MPs who sit in the committee questioned why the Judiciary continues to set its own allowance rates independently of SRC benchmarks, despite the constitutional mandate that SRC regulates public officers’ pay.

Legislators argued that while the Judiciary is independent, its autonomy should not extend to unchecked financial decisions that could burden taxpayers.

MPs Raise Accountability Questions

“Who, then, regulates these allowances? Who sets the bar? Because an allowance could be as little as two hundred shillings, but who checks that if someone decides to peg it at a thousand shillings? How are these rates determined?” asked Mathioya MP Dr. Edwin Mugo.

“Do you benchmark, perhaps with the United Kingdom or other Commonwealth countries? How exactly? Because, you know, the SRC usually conducts surveys—looking at economic conditions and circumstances, including hotel rates—to arrive at a standard allowance. But then, who actually regulates this? Is it the Judicial Service Commission?” added Dr. Mugo warning that unchecked discretion could lead to disparities across state institutions.

Auditor-General’s Report on Irregular Payments

The contention arose during the committee’s consideration of the Auditor General’s report on the financial statements of the Judiciary for the financial year ended June 30th, 2023.

In her findings, Auditor-General Nancy Gathungu flagged irregular domestic travel and subsistence allowances paid to top 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.

“The Salaries and Remuneration Commission (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 authorized by the SRC,” the report stated in part.

The Auditor-General concluded that, by doing so, the Judiciary’s management had breached SRC guidelines, resulting in irregular payments.

JSC’s 2019 Allowance Review

In a letter dated July 23, 2019, tabled before the committee in defence of the contested payments, the then Chief Registrar and Secretary to the Judicial Service Commission (JSC), Anne Amadi, formally communicated a review of daily subsistence allowances commonly known as per diems.

Addressed to the Director of Human Resource Management and Administration, the letter outlined resolutions passed during a JSC meeting held the previous day Monday July 22nd 2019.

“The Judicial Service Commission at its meeting held on Monday 22nd July 2019 considered a proposal to review the subsistence allowance/per diem payable to judges, judicial officers and staff and approved the same noting the following amendments,” wrote Ms. Amadi.

The new structure introduced clear bands of entitlement. At the top were the Chief Justice and Deputy Chief Justice, each entitled to a daily local per diem of Ksh. 30,000.

They were followed by all Judges and the Chief Registrar, who were placed in a second tier with an allocation of Ksh. 25,000 per day.

A third band grouped together Chief Magistrates, the Deputy Chief Registrar, the Chief Kadhi, and staff in job groups PLS 16 and 17, with each drawing Ksh. 20,000 daily. For all other officers and staff, the existing rates were left unchanged.

In her directive, Ms. Amadi instructed the Human Resource Director to enforce the revised structure and copied the memo to the Chief Human Resource Officer (Welfare) to ensure immediate implementation.

Judiciary Defends Allowances

In her response, Chief Registrar of the Judiciary Winfridah Mokaya, who also serves as the institution’s accounting officer, defended the contested allowance structure.

She explained that the Judicial Service Commission (JSC) had pegged the rates on those applied by the Parliamentary Service Commission (PSC).

“Let me just confirm that the Judicial Service Commission benchmarks particularly with the Parliamentary Service Commission. So the rates we apply are comparable to what obtains in the PSC,” Ms. Mokaya told the committee.

Her remarks, however, drew protests from MPs, who dismissed the comparison as misleading. Legislators argued that the PSC operates under its own internal benchmarks for members’ benefits, many of which had already been nullified by the Salaries and Remuneration Commission (SRC).

They insisted that the Judiciary could not act as though it was exempt from the broader public service remuneration framework.

MPs Demand Clarity

“I would like to know from the Registrar what exactly you based your position on to come up with these rates. Was it that ruling, and if so, what did the ruling say? Or was it solely the Constitution? Initially, were you guided by SRC rates, and at what point did you stop using them, if at all you ever did?” asked Samburu West MP Naisula Lesuuda.

Nevertheless, the Chief Registrar of the Judiciary defended the institution, citing 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.”

According to the Registrar, the JSC conducted its own benchmarking exercise before SRC released its rates.

“Let me say we have never used, the SRC rates. The Judicial Service Commission (JSC) interpreted its mandate as provided for under article 172 vis-à-vis article 230 of the Constitution which gives the mandate to SRC. So they interpreted their mandate and after benchmarking set the applicable rates, so it is later that SRC provided the rates,” she said.

“So the SRC rates came after the Judicial Service Commission had set the rates, and then the issue came up in court, and again, it affirmed the position that the Commission had taken,” she added.

Auditor-General’s Office Opposes Judiciary’s Stance

During the meeting, the Office of the Auditor-General was also dragged into the dispute, as MPs pressed it to clarify whether the Judiciary’s self-regulated allowances align with constitutional principles of accountability and the prudent use of public resources.

Mr. Philip Cheboiwo, Director of Audit at the Office of the Auditor-General opposed the Judiciary’s stance, noting that the institution already nominates a member to the Salaries and Remuneration Commission (SRC) to represent its welfare and interests.

Cheboiwo argued that the Judiciary should therefore not appear to grant itself preferential treatment in the allowances paid to its officers, especially when compared to the rates set by SRC for other public servants.

“But again, it begs the question, the Judiciary also sits in the SRC as a member. Could it be that they see themselves 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 held.

Growing Scrutiny of State Officers’ Perks

The controversy comes against the backdrop of growing scrutiny of state officers’ perks, with taxpayers footing hefty bills for allowances ranging from travel to sitting fees.

The committee has now demanded that the Judiciary furnish it with a copy of the Supreme Court ruling cited as the legal basis for its stand, as well as clarity on how benchmarks were arrived at.

A photo of Kenyan parliament in season
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