NAIROBI – Kenya – Over the recent past, members of the public have witnessed a sustained attack on the Judiciary through political rallies, press statements and social media. These developments have now compelled us to address the critical balance between Judicial Independence and Accountability as a core pillar of our constitutional democracy.
The independence of the Judiciary gives concrete expression to two essential principles of democratic governance which include the rule of law and the separation of powers. In a constitutional democracy like Kenya’s[1] , the political process and any state function must take place within the confines of the law. The Judiciary is tasked and mandated to uphold the rule of law without improper influence as the Judiciary is independent from the Executive and Legislative branches of power. The Judiciary’s role in democracy is particularly important in safeguarding the constitution by practicing impartiality, approaching cases in an unbiased manner, displaying no prejudice and remaining politically independent.
Our assessment is that the Judiciary faces significant challenges in fulfilling its constitutional mandate. Recurring issues such as corruption and political interference have been cited as among the most damaging to the institution[2] . Further, obstacles such as resource constraints, case backlogs, and external pressures that affect[3] its operations. Notably a public trust deficit exacerbated by persistent allegations of bribery against judges and judicial staff has led to increased attacks on the Judiciary. The net effect of these challenges is that citizens incrementally start distrusting the institution.
An Infotrak nationwide public perception survey released in December 2024 showed that 57% of the sample[4] did not trust the Judiciary, and only 34% moderately trusted it. These deficiencies are manifest in delayed rulings, inconsistent judicial decisions, and public controversies surrounding judicial conduct. Clashes between the Judiciary and the Executive as well as ongoing allegations of bribery and political bias have led to sustained petitions toward the removal of all seven Supreme Court judges through the Judicial Service Commission.
It is on this premise that Kenyan Civil Society Organizations have convened to release a press statement on the importance of Judicial Independence.
- Strained Relations with the Executive and the Consequences
The Judiciary has experienced strained relations with other arms of government, particularly the Executive. Tensions that emerged during the 2017 election nullification have persisted to-date. Since then, the Judiciary has made several bold decisions, including nullifying elections, nullifying government appointments, suspending illegal policies, and halting various government initiatives. These decisions have led to public attacks and vilification of the Judiciary for issuing orders that are perceived to be against the State. These actions have led to multiple court defeats for the national administration which has responded with accusations of “judicial overreach” leading to non-compliance of unfavourable rulings. This breach of the rule of law not only delays justice but also creates instability by weakening the Judiciary’s role as an impartial arbiter and eroding its credibility as an effective check on the other branches of government.
Recent retaliatory measures further illustrate this tension. The withdrawal of security for Hon. Justice Lawrence Mugambi following his ruling in a contempt case against the then Acting Inspector-General of Police represents a concerning attempt to intimidate judicial officers. Similarly, the withdrawal of security for Chief Justice Martha Koome in January 2025 marked a further escalation, reinforcing concerns about undue influence on the Judiciary’s constitutional mandate. These sustained attacks appear to be part of a concerning pattern to delegitimize the Judiciary.
- The Conundrum Regarding the Removal of Supreme Court Judges
The issue of judicial accountability has reached a critical juncture with multiple petitions filed with the Judicial Service Commission (JSC) seeking the removal of Chief Justice Martha Koome and six other Supreme Court judges. Prominent figures have accused the judges of gross misconduct, incompetence, and misbehaviour. The JSC began processing these petitions, requiring the judges to submit responses to the allegations. However, the judges challenged the JSC’s authority, arguing that the Commission lacked the constitutional mandate to review decisions made by the Supreme Court. This has led to multiple legal actions and interim orders from the High Courts in Narok and Nairobi, effectively halting further action by the JSC until these legal challenges are resolved.
- Accountability: The Other Side of Judicial Independence
Insisting on judicial independence does not absolve judicial officers from accountability. We must emphasize that no judge, including those serving on the Supreme Court, is above the law. When allegations of unprofessional conduct or impropriety arise, they must be addressed through established constitutional mechanisms that uphold due process and the rule of law.
However, we must equally guard against the politicization of accountability processes. When judicial accountability becomes weaponized for political aims, it threatens the very foundation of judicial independence. The line between legitimate scrutiny and politically motivated attacks can be thin, requiring vigilance from all stakeholders.
Judicial officers must perform their duties according[5] to high ethical standards, with court proceedings remaining transparent and accessible. Decisions should be accompanied by reasoned judgments subject to established appeal procedures. Effective complaints systems and disciplinary mechanisms are essential—not to undermine the judiciary, but to strengthen it by ensuring public confidence in its integrity.
The critical question facing Kenya today is not whether judges should be accountable, but how to ensure accountability mechanisms serve their proper purpose without becoming tools for political interference. As allegations against Supreme Court judges proceed, we urge strict adherence to fair trial guarantees and procedural safeguards, ensuring that accountability reinforces rather than undermines judicial independence.
- Safeguarding electoral justice ahead of the 2027 General Election Recognizing of the critical and independent role of the Judiciary in Electoral Dispute Resolution
As the court with exclusive jurisdiction over any dispute touching on the election of the president, its role in the electoral cycle—particularly in resolving electoral disputes—cannot be downplayed. Currently, there is a pending request for an advisory opinion from the IEBC seeking clarity on:
- Whether the IEBC can conduct a review of names and boundaries of constituencies and wards when the timelines under Article 89(2) and 89(3) of the Constitution (as read with Section 26 of the County Governments Act) have lapsed;
- Whether the Constitution allows for an extension of these timelines, and if so, under what circumstances such an extension is permissible;
- Whether the IEBC can undertake a process of delimitation of constituencies and other electoral processes in the absence of commissioners or the requisite quorum of commissioners.
The Supreme Court’s exclusive jurisdiction over presidential election disputes makes it essential that the entire bench remains intact to ensure a proper quorum. A complete bench is necessary for timely, impartial, and authoritative resolution of presidential electoral disputes. Without a full quorum, the Judiciary’s capacity to provide effective oversight during the electoral cycle would be compromised, potentially destabilizing the electoral process and weakening a key check and balance that upholds the rule of law.
The Supreme Court plays a critical role in the electoral justice system. As the court with exclusive jurisdiction over presidential election disputes, its function in resolving electoral conflicts cannot be understated. It is our view that this is a matter that directly impacts the upcoming electoral preparations.
Conclusion
The ongoing legal battles—including the contested removal petitions against the Supreme Court judges and the pending advisory opinion from the IEBC—highlight the persistent challenges to judicial independence in Kenya. Despite reforms under the Judiciary Transformation Framework and the Sustaining Judiciary Transformation Agenda that have strengthened the Judiciary’s credibility, recent corruption allegations and political conflicts have reignited public mistrust.
As the last bastion of defence for the rule of law in Kenya and a critical actor in electoral justice, the Judiciary must be fiercely protected. Equally important, accountability must remain integral, ensuring that judicial officers perform their duties ethically and transparently. The future of Kenya’s democracy depends on a Judiciary that is both independent and accountable—a combination essential for restoring public confidence and upholding the Constitution.
