JSC moves to tighten accountability for judges without crossing removal threshold

The Judicial Service Commission (JSC) is preparing a new accountability framework for judges whose conduct may warrant disciplinary action but does not rise to the constitutional threshold for removal from office.

The move marks a significant attempt to address a gap that has become increasingly contentious in Kenya’s justice system: what happens when a judge is accused of misconduct, but the alleged conduct is not serious enough to trigger the constitutional removal process?

The JSC announced the proposed reforms on Friday, August 14, following joint deliberations with the Judiciary Leadership Team on judicial accountability, integrity, performance and public confidence.

The commission said it would continue discussions on strengthening the system for dealing with judicial misconduct, including cases that fall short of the threshold for removing a judge.

At the same time, it drew a firm line around judicial independence.

“Judicial independence cannot be invoked to shield corruption, misconduct, incompetence, or other conduct inconsistent with the Constitution and the judicial oath,” the JSC said.

It added that a judge should not face disciplinary action simply because a decision was unpopular.

That distinction could become central to the debate over the proposed rules.

A response to growing pressure

The announcement comes less than a month after the Law Society of Kenya (LSK) staged a nationwide court boycott, citing concerns over judicial accountability, delays in the administration of justice, registry problems and complaints against judicial officers.

The dispute escalated when LSK named 12 judges and a magistrate for a targeted boycott over court orders that had halted or restricted investigations and disciplinary processes involving judicial officers.

The Kenya Magistrates and Judges Association, however, urged lawyers to abandon the boycott and pursue dialogue, warning that litigants could ultimately bear the cost of disrupted court proceedings.

The latest JSC announcement therefore comes at a delicate moment for the relationship between the Bench, the Bar and the public.

The commission says it recognises concerns raised by court users, lawyers and other stakeholders over delays, integrity, judicial performance, transparency and the handling of complaints.

What the new framework could change

Kenya already has a formal process for dealing with complaints against judges.

Under Article 168 of the Constitution, the JSC can receive petitions seeking the removal of a judge. If a petition meets the constitutional requirements, it can be forwarded to the President for the appointment of a tribunal to investigate the allegations.

The JSC also handles complaints against judicial officers and staff, with possible outcomes including reprimand, dismissal or retirement in the public interest, depending on the circumstances.

But the commission's latest proposal points to a different category of cases — conduct that may require accountability without necessarily justifying removal.

The proposed framework could therefore provide a middle ground between doing nothing and initiating the constitutionally prescribed removal process.

The JSC said it would also pursue clearer and complementary statutory and institutional arrangements, including possible legislative changes, to define the responsibilities of different institutions.

Complaints against judges have risen

The pressure for reform comes against a backdrop of a growing number of complaints.

In its 2024/25 annual report, the JSC said it processed 214 petitions against judges. Of these, 82 had been concluded while 132 remained pending at the end of the reporting period.

The commission also reported a 45 per cent increase in petitions, which it attributed partly to greater engagement with stakeholders and the media.

The allegations recorded by the commission included claims relating to gross misconduct or misbehaviour, delays in delivering rulings and judgments, and other concerns about judicial conduct.

The figures do not, however, mean that all allegations were proven. A complaint or petition is an allegation until it has gone through the appropriate process and a finding is made.

The JSC currently allows any person to lodge a complaint or petition against a judge, judicial officer, judicial staff member or court station. It says no fee is charged for filing such complaints.

JSC promises a clearer complaints process

The commission said it would also engage the National Assembly's Committee on Delegated Legislation on regulations intended to create a clearer and more predictable system for handling complaints against judges and judicial officers.

The aim, it said, is to ensure that complaints are dealt with through procedures that are fair to both complainants and judicial officers.

That balance will be important.

For critics of the Judiciary, stronger accountability is necessary to maintain public confidence. For judges and their supporters, however, disciplinary mechanisms must not become a way of punishing judicial decisions simply because they anger powerful individuals or sections of the public.

The JSC's latest position appears to acknowledge both concerns.

The bigger test will now be whether the proposed framework can provide meaningful consequences for misconduct while preserving the independence judges need to make decisions without fear or favour.

About the Author

Maureen Onyango is a journalist passionate about storytelling, life coaching and spiritual lessons. She studied at the Kenya Institute of Management and enjoys telling stories that inform, inspire and empower communities.