Judiciary's quiet alignment should worry every Kenyan

Supreme Court in Nairobi. Concerns about judicial integrity have also resurfaced in public debate. [File, Standard] The Standard's weekend headline landed with unusual force: 'Unholy trinity: Kenyans left alone as three arms of government close ranks'. Most readers probably nodded when they reached the sections about the Executive and the National Assembly. That alignment no longer surprises anyone. In recent years Parliament has often appeared willing to run errands for the Executive, and the political relationship between President William Ruto and Speaker Moses Wetang'ula or even Senate's Amason Kingi reflects the pragmatic bargaining that defines Kenyan politics. When politicians negotiate power, Kenyans recognise the incentives at play. But the Judiciary's place in this emerging alignment is a different matter entirely. And it should give every Kenyan who still believes in separation of powers reason to pause. I write from a vantage point shaped by years spent in Kenya's civic spaces. As a young activist, I participated in Bunge la Mwananchi, the open-air "people's parliament" at Jeevanjee Gardens where citizens debate national issues freely. Through that organisation, I experienced a front-row view of how civil society operates and how its leading voices rise to prominence. Having once believed deeply in that transformative promise, the present moment feels particularly sobering. What I witnessed over time was a pattern that political economist Thomas Sowell once described as the mindset of "the anointed", a self-appointed elite convinced that its moral vision places it above ordinary scrutiny. In that worldview, good intentions substitute for evidence and slogans substitute for hard institutional thinking. The danger of that mindset is not simply intellectual arrogance. It is institutional capture. When careers are built on moral rhetoric rather than measurable outcomes, principles can quickly become stepping stones toward influence and proximity to power. Kenya's recent judicial history illustrates the tension between rhetoric and reality. When the first Chief Justice under the 2010 Constitution, Dr Willy Mutunga, took office, he arrived with enormous expectations. Civil society celebrated his appointment as the beginning of a transformative judicial era. Yet over time, many of those expectations gave way to the ordinary compromises that accompany political pressure and institutional inertia. His successor, David Maraga, came from a different background. He was not a celebrated activist or a fixture of civil society campaigns. Yet in 2017, he presided over the Supreme Court decision that nullified a sitting president's election victory; arguably the most consequential judicial ruling in Africa and Kenya's democratic history. That act required neither revolutionary slogans nor activist credentials. It required only fidelity to the law and the institutional independence of the court. Today, under Chief Justice Martha Koome, the Judiciary again carries the expectations of those who promised a new era of constitutional vigilance. Yet recent developments have left some observers questioning whether those expectations are being met. In the 2022 presidential election petition, the Supreme Court unanimously upheld the controversial victory by William Ruto. The bench dismissed several Opposition's claims as unsubstantiated, describing some submissions as "red herrings" or unsupported allegations. While the ruling resolved the legal contest, critics argued that the court did not fully address broader public concerns about electoral transparency. More recently, procedural controversies have added to public unease. In January 2026 the High Court declared certain presidential advisory offices unconstitutional in a case brought by Katiba Institute. Shortly afterwards, the Court of Appeal issued a temporary stay of that decision pending appeal. Katiba Institute has argued that the stay was granted without proper notice to all parties, raising questions about procedural fairness. Episodes like these have led critics to question whether the Judiciary is gradually converging with the political branches it is meant to check. Concerns about judicial integrity have also resurfaced in public debate. Allegations that once circulated quietly have increasingly been voiced publicly by senior members of the bar. High Advocates such as Ahmednasir Abdullahi and Nelson Havi have repeatedly raised concerns about corruption within sections of the Judiciary. The Chief Justice has convened meetings to address these claims, but restoring public trust requires more than exchanges between critics and institutional leaders. It requires visible accountability and transparent processes. Perhaps the most striking example of the blurred lines between civic activism and state power involves Prof Makau Mutua. For years he was a prominent critic of executive overreach and a vocal advocate for constitutional liberalism. Yet he later accepted the role of Senior Adviser on Constitutional Affairs in President Ruto's office; a position linked to the advisory structures that the High Court subsequently declared unconstitutional, though enforcement of that ruling is currently suspended on appeal. The issue here is not any individual appointment. Democracies routinely absorb critics into government. The deeper concern is the recurring pattern: Figures who once built reputations defending institutional independence often become quiet once they enter the corridors of power. That pattern helps explain why the Judiciary's perceived alignment with the other arms of government feels particularly unsettling. The Executive and Legislature have never claimed moral exceptionalism. Their behaviour reflects the incentives of electoral politics. The Judiciary, by contrast, has long presented itself as the guardian of constitutional restraint. When the guardian appears indistinguishable from the actors it is meant to restrain, public trust inevitably suffers. This critique has nothing to do with gender, personalities, or partisan loyalties. It concerns the expectations created by decades of civic rhetoric about constitutionalism, independence, and the rule of law. If those ideals were meant seriously, they must be defended consistently; especially when doing so is inconvenient. The Standard's headline therefore should not be dismissed as sensationalism. It captures a deeper anxiety within Kenya's political life: The possibility that the institutional safeguards designed to balance power are gradually converging instead of checking one another. Healthy democracies depend on tension between institutions. When that tension disappears, citizens are left with fewer avenues of accountability.

Judiciary's quiet alignment should worry every Kenyan

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