The Judicial Service Commission (JSC) has proposed new legal reforms aimed at strengthening accountability in Kenya’s Judiciary by allowing it to discipline judges for minor misconduct, instead of being limited to recommending their removal.
Currently, the JSC can only recommend dismissal or exonerate judges, a binary approach critics say undermines judicial oversight. The commission presented its proposals to the National Assembly’s Constitutional Implementation Oversight Committee (CIOC) as part of ongoing efforts to rid the Judiciary of corrupt or underperforming elements.
“The commission can only recommend removal of a judge or dismiss petitions and complaints, with no provision for immediate sanctions when minor violations are identified,” JSC Vice-Chairperson Isaac Rutto told the CIOC, chaired by Suba South MP Caroli Omondi.
Rutto explained that both the Constitution and the Judicial Service Act are silent on reprimanding judges for minor infractions, leaving the commission without intermediate disciplinary measures.
“This binary approach (dismissal or exoneration) fails to provide proportionate disciplinary responses and undermines the intended purpose of judicial accountability,” he added.
The High Court has previously limited the commission’s effectiveness, ruling that the lack of specific regulations renders many JSC actions legally null and void, even when it attempts to recommend removal of judges.
The proposed reforms aim to introduce intermediate sanctions, including procedures for reprimanding judges for minor violations and establishing comprehensive disciplinary regulations. These changes would allow the JSC to address misconduct more proportionately, rather than being forced to choose between dismissal or inaction.
Under Article 168 of the Constitution, judges can currently be removed for incapacity, breach of the code of conduct, bankruptcy, incompetence, or gross misconduct. The removal process requires either a JSC recommendation or a petition, followed by a tribunal investigation and, if justified, presidential suspension – a framework designed to balance judicial independence with accountability.
Rutto highlighted that other countries, such as South Africa and Uganda, have established procedures for judicial reprimands, while Kenya’s system lacks mechanisms for minor breaches.
The reforms follow high-profile incidents last year, when Supreme Court judges led by Chief Justice Martha Koome obtained High Court orders blocking the JSC from hearing petitions for their removal over alleged misconduct and incompetence. The judges argued that the JSC lacked proper regulations and jurisdiction, prompting the court to temporarily halt proceedings.
The JSC now faces the challenge of drafting amendments that would allow proportionate disciplinary action, marking a potential turning point in Kenya’s judicial accountability framework.
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