By Jerameel Kevins Owuor Odhiambo
Kenya’s 2010 Constitution was heralded as a watershed moment in the nation’s judicial history, promising to transform a judiciary once characterized by executive interference into an independent, accountable institution capable of delivering justice to all citizens. The Constitution enshrined judicial independence as a fundamental principle, allowing judges to make decisions based on law and conscience, particularly given the historical context where the Executive controlled judges’ appointments, career progression, and budgets, abandoning the Judiciary’s mandate. Article 160 categorically states that in exercising judicial authority, the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority. This constitutional guarantee was expected to usher in an era of judicial excellence, where decisions would be grounded in legal principle rather than political expediency. Fifteen years later, however, a troubling paradox has emerged: the very principle designed to protect judicial decision-making has morphed into an impenetrable shield that protects judicial officers from accountability for manifestly incompetent decisions.
The concept of decisional independence, while noble in its original conception, has been stretched beyond its constitutional limits to create what can only be described as judicial immunity from professional scrutiny. The Judicial Service Commission (JSC), mandated under Article 172 of the Constitution to promote and facilitate the independence and accountability of the judiciary and ensure efficient, effective and transparent administration of justice, has adopted an interpretation of decisional independence that effectively places the quality of judicial decisions beyond reproach. When confronted with complaints about patently erroneous judgments, procedural violations, or decisions that fly in the face of established legal principles, the JSC’s standard response has become as predictable as it is unsatisfactory: they cannot conduct a merit review of judicial decisions, and aggrieved parties should seek redress through appeal or review mechanisms. This position transforms what should be a delicate balance between independence and accountability into a one-sided equation that favors protection over performance.
Consider the absurdity of this position through a satirical lens: imagine a surgeon who consistently operates on the wrong limb claiming “surgical independence” as a defense against disciplinary action, arguing that only peer review through medical appeals can assess their work. Or picture an engineer whose bridges routinely collapse invoking “engineering independence” to avoid professional consequences, insisting that structural failures can only be addressed through technical appeals processes.
Such scenarios would be laughable in any other profession, yet this is precisely the logic that has come to govern Kenya’s judicial accountability framework. The medical profession understands that clinical autonomy does not shield practitioners from responsibility for gross negligence; the legal profession should embrace similar principles regarding judicial competence.
The constitutional architecture itself provides no support for this expansive interpretation of decisional independence. Article 159 establishes that judicial authority is derived from the people and vests in courts and tribunals, emphasizing the delegated nature of judicial power. This delegation comes with inherent responsibilities and expectations of competence. The Constitution’s framers could not have intended to create a system where judicial officers, entrusted with the people’s power to adjudicate disputes, would be immune from accountability for the quality of their work. The distinction between protecting judges from external pressure and shielding them from professional accountability represents a fundamental misunderstanding of what decisional independence truly means.
International jurisprudence and comparative constitutional law reveal that decisional independence has never been understood to preclude accountability for judicial incompetence. In mature democracies, judicial independence coexists with robust accountability mechanisms that distinguish between inappropriate external pressure and legitimate professional oversight. The English system, from which Kenya’s common law tradition derives, maintains judicial independence while ensuring that gross judicial misconduct including persistent incompetence can result in removal from office. The American federal judiciary, with its strong independence traditions, nevertheless maintains impeachment procedures for judicial officers who demonstrate unfitness for office. These systems recognize that independence and accountability are not mutually exclusive but rather complementary principles essential for judicial legitimacy.
The current interpretation of decisional independence has created a perverse incentive structure within Kenya’s judiciary. Judges and magistrates operate with the knowledge that virtually no decision, however flawed or incompetent, will expose them to meaningful professional consequences. This assurance of immunity inevitably influences decision-making quality, as the natural human tendency to maintain high standards diminishes when external accountability mechanisms are absent. The result is a system where legal practitioners and litigants have become accustomed to expecting a certain percentage of manifestly wrong decisions, treating judicial lottery as an unfortunate but unchangeable feature of the legal landscape.
The JSC’s rigid stance on merit review has effectively institutionalized a two-tier justice system. Wealthy litigants and well-resourced parties can afford multiple appeals to correct judicial errors, while ordinary citizens who constitute the majority of court users are left to bear the full weight of incompetent decisions. While judges must be accountable to legal and ethical standards, judicial conduct review must be performed without invading the independence of judicial decision-making, but the current approach fails to strike this balance, erring too heavily on the side of protection rather than accountability. When a magistrate issues a final order at an ex parte stage without proper notice, or when a judge fails to grant timely injunctive relief to prevent ongoing illegality, the consequences extend far beyond the immediate parties they undermine public confidence in the entire judicial system.
The appellate safety net argument that appeals and reviews provide adequate protection against judicial incompetence fundamentally misunderstands both the practical limitations of appellate review and the nature of justice itself. Appeals are expensive, time consuming, and often come too late to remedy the harm caused by incompetent first-instance decisions. Moreover, appellate courts review only a fraction of trial court decisions, meaning that most judicial errors escape any form of correction. More troublingly, the JSC’s logic suggests that appellate judges also enjoy the same decisional independence shield, creating the possibility of compounding errors at each level of the judicial hierarchy. This creates a surreal scenario where incompetence begets incompetence, protected at each level by the very principle designed to ensure quality decision-making.
Here lies perhaps the most satirical aspect of the current system: the JSC has essentially created a judicial performance evaluation system where the only criterion for success is showing up to work. A judge who consistently misapplies basic legal principles, ignores procedural requirements, or demonstrates fundamental misunderstanding of their role faces no professional consequences as long as their misconduct remains within the broad boundaries of “decision-making.” It would be akin to evaluating teachers solely on attendance while ignoring whether their students actually learn, or assessing doctors purely on punctuality while disregarding patient outcomes. Such an approach would be considered professionally negligent in any other field, yet it has become the accepted norm in Kenya’s judicial accountability framework.
The long-term consequences of this approach extend far beyond individual cases or personal grievances. Public confidence in the judiciary the foundation of any legitimate legal system erodes when citizens perceive that judicial officers operate without meaningful accountability. The Constitution’s promise of access to justice becomes hollow when that justice is delivered incompetently and without recourse. Independence empowers judges to uphold justice without fear or favor, while accountability ensures they remain ethical and responsible, but Kenya’s current system has achieved only half of this equation. Unless the JSC recognizes that decisional independence must coexist with professional accountability, the judiciary risks losing the very public trust that constitutional independence was designed to protect. The donated power of the citizenry comes with expectations of competence and responsibility expectations that the current interpretation of decisional independence systematically undermines. The time has come to recalibrate this balance before the shield of independence becomes a sword pointed at the heart of justice itself.
The writer is a Legal Researcher and Writer.
John Kamau 
Mt Kenya Times