A legal battle over delayed rules for handling complaints against judges has renewed calls for Parliament to give Kenyans the power to petition it when public institutions fail to carry out duties required by law.
A group of lawyers, led by Advocate Ekaterina Handa, has petitioned the National Assembly to urgently pass the Statutory Instruments (Amendment) Bill, 2024, arguing that public bodies should not be allowed to leave laws unimplemented by failing to make regulations within the required time.
In a memorandum submitted to the Clerk of the National Assembly on September 3, the lawyers said the proposed changes would help prevent institutions from ignoring Parliament’s legislative decisions through prolonged inaction.
The Bill has already been passed by the Senate and is now undergoing public participation in the National Assembly.
Among the key changes proposed is the introduction of deadlines for authorities responsible for making regulations needed to operationalise Acts of Parliament.
The legislation would also give members of the public the right to petition Parliament where a regulation-making authority has failed, neglected or refused to prepare a required statutory instrument within the prescribed period.
In addition, the Bill proposes criminal penalties for responsible authorities that fail to carry out the duty.
Handa pointed to the Judicial Service Commission as a case that shows why such powers are needed. She accused the Commission of failing for years to formulate and gazette rules setting out how complaints against judges and judicial officers should be handled.
She said the absence of formal regulations had left a gap in which complaints could be processed through procedures that were not clearly known or predictable to those involved.
“This is not merely a procedural nicety. It is a fundamental safeguard against the atrophy of legislative will and the subversion of Parliament's intent by administrative inertia,” Handa said.
The lawyers’ memorandum followed a media notice from the National Assembly seeking public views on the Bill.
Handa relied on Section 47 of the Judicial Service Act, which requires the JSC to make regulations for the efficient and transparent performance of its functions, including the handling of petitions against judges.
She also referred to the High Court ruling in Lubengu v Judicial Service Commission & another; Ojiambo t/a Acorn Law Advocates LLP (Interested Party), where a three-judge bench considered the lack of formal rules for dealing with complaints against judicial officers.
According to Handa, the court established that the absence of gazetted rules had resulted in the JSC using ad hoc procedures, leaving judges facing disciplinary proceedings without certainty over how their cases would be handled.
She said the findings raised questions over the right to fair administrative action and the principles of natural justice.
“Without clear, pre-ordained rules, a judge is exposed to the possibility of being judged by standards and procedures devised ex post facto or, worse, tailored for the specific case at hand,” the memorandum states.
Handa also cited the Supreme Court judgment in Shollei v Judicial Service Commission & another, saying the court ordered the JSC to formulate and gazette rules and regulations governing complaints against judges and judicial officers within 90 days.
The directive was issued following the judgment delivered on February 17, 2022.
Handa said almost five years later, the directive had yet to be implemented.
“This is not a matter of interpretation or legal complexity; it is a simple, direct, and binding order that has been ignored,” Handa said.
She said the continued absence of the rules had consequences for both people making complaints and judges responding to them.
For members of the public, she said, there was no clear and open process for pursuing complaints against judicial officers. Judges, on the other hand, could face disciplinary procedures they may view as unfair or unpredictable.
Handa dismissed concerns that Parliament requiring the rules would interfere with the independence of the Judiciary.
She argued that putting clear procedures in place would instead protect judicial independence by ensuring that disciplinary matters are handled according to rules established beforehand rather than processes developed for individual cases.
“This legislative proposal is not an intrusion into judicial independence; it is a vital mechanism for its preservation,” she said.
The lawyers want MPs to consider their memorandum and the court decisions they have cited when examining the proposed legislation.
Handa also urged Parliament to fast-track the Bill and specifically consider the JSC’s alleged failure to comply with the Supreme Court directive.
She further called on the relevant National Assembly committee to ensure that regulations governing complaints against judges are prepared and gazetted without further delay.
She said this could be done by the JSC or through the mechanism proposed under the Bill.
Handa said Parliament had a responsibility to ensure that public institutions remained accountable to the law and could not simply fail to perform duties imposed on them by legislation.