It is time for Kenya to rethink judicial accountability design

July 22, 2026, will go into history as a remarkable day when the advocates showed that it is possible to push for urgent reforms and efficiency of our judiciary. The national boycott by advocates of our courts and a resolve to permanently boycott the proceedings by certain judicial officers, signified an extra-legal but very necessary measure in pushing for what has appeared untenable through the normal pipeline of the Judicial Service Commission as an institution. As expected, in such a discourse, social media became a very powerful tool for messaging and advancing the debate of the different ways of which the agenda of judicial accountability can be advanced. The events of the day, from the courts to the presser that was held by the Law Society of Kenya ultimately reveal that all advocates would agree on the clarion call to judicial accountability as there has been a serial and severe misuse of the independence accorded to the Judiciary and its officers.

From a casual view, the tension between judicial independence and accountability appears to be a simple one but very complex when viewed from the architecture of our constitution. We must, at this juncture, reflect deeply whether the framers of the Constitution were overambitious of the kind of judicial safeguards on the Judiciary and its officers. This problematising of these two equally critical concepts must begin from understanding that they play different but complementing roles. Judicial independence serves the purpose of ensuring that a judicial officer does not mark-time looking left and right before undertaking their judicial mandate. It ensures that key principles of juridical power are exercised in a manner that meets the ends of justice without interference from disciplines such as political power, social nuances and economic inducements that at times are multilayered and interconnected within a particular setting of a state.

On the other side, judicial accountability ensures that in the exercise of judicial power, there are enough valves to regulate the conduct of judicial officers so that we do not end up with judicial impunity and recklessness that is a shield in the garb of judicial independence. In our structural frame of the Constitution, I suspect they weighed heavily on the protection of judicial officers compared to calling them to accountability. This may have been so either by design or by simply the innocence of failure to foresee the practicalities of implementing our constitutional framework of the Judiciary. From an institutional perspective, as citizens, not just the legal profession, we must ask whether a Judicial Service Commission (JSC) that weighs heavily on the representatives of the judicial officers can best serve the purpose of holding their colleagues to account. This is important because there is always an automatic sense of self-preservation common to a particular class of people. Those who have participated in litigation against police excesses, for instance, will tell you how the police service self-preserved through the ‘blue-code silence’ where it becomes almost impossible for an officer to testify adversely to a fellow officer.

As currently constituted, the judicial service is practically dominated by the bench, the representative of the magistrates, judges of the High Court, judges of the Court of Appeal and judges of the Supreme Court and definitely the chair who is automatically the sitting Chief Justice, making it two judges from the Supreme Court at all times. This makes the judicial officers on that commission five in total. The rest are two representatives from the Law Society of Kenya, one male and the other female, one person appointed by the JSC, two representatives of the general public appointed by the President with approval of the National Assembly, one being male and the other female but strictly not being lawyers, the Attorney General and the Secretary of the Commission being the Chief Registrar of the Judiciary. The commission is one of the most unique ones, for it is the employer of five of its members and the secretary as well. This overpopulation by the members of the bench is one we need to rethink and possibly change in the future discourse of constitutional amendments, this is a conversation we must have.

I suggest that part of the key reasons why the JSC has gained an inertia on a heightened accountability for judicial officers is their dominance on the very commission that oversees them. This is not a simple problem as it is webbed in our constitutional design and we should be ready to rethink it looking at this decade of our constitution. Secondly, is the problematic Article 160(5) which provides that ‘a member of the judiciary is not liable in action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.’

The Supreme Court in the Bellevue decision found that one cannot attempt to sue judicial officers in personal capacities for any judicial function as the same is exercised in good faith. This interpretation clearly erased a possibility of holding judicial officers of actions which fall outside good faith in the performance of judicial functions and put in all actions at the door of JSC. Interestingly,in the Chitembwe Tribunal removal decision, the same apex court at paragraph100 accepted that not all judicial functions are performed in good faith and that there are actions that fall outside the good faith contemplated under 160(5). We all accept that there is a problem, let us rethink our judicial accountability design.