CJ Koome tells Parliament to respect judiciary decisions despite linkages

The Chief Justice, Martha Koome, told Members of Parliament (MPs) that the judiciary’s decisional independence must always remain sacrosanct despite linkages between the arms of government.

Justice Koome said that at an institutional level the arms of government can engage; however, decisional independence must always remain sacrosanct.

She said that despite each arm of government having a distinct mandate, the functions are exercised in mutual suspicion or through adversarial relations, leading to paralysis and missed opportunities.

The CJ spoke in Mombasa during a National Assembly leadership retreat that brought together the Director of Criminal Investigations, the National Intelligence Service (NIS) and the Attorney General.

The high-level meeting saw the media locked out despite being invited.

“Therefore, institutional independence and dialogic engagement by the various branches of government are not contradictory but complementary,” said Justice Koome.

On Thursday, the National Assembly invited the CJ to discuss the Bills declared unconstitutional by the courts despite being passed by Parliament.

In a joint statement yesterday, Parliament and the Judiciary said their collaboration was not aimed at eroding institutional independence.

The two arms of government vowed to adopt a collaborative approach to address common issues that impact the delivery of their mandate, saying it was necessary for them to work together for the greater good of constitutionalism and service to the people.

At their first-ever joint retreat, Speaker Moses Wetang’ula described the meeting as historic, saying it would strengthen ties between Parliament and the Judiciary for the good of the country.

Wetang’ula assured Parliament’s support in enhancing the Judiciary’s budget.

Koome dismissed fears that cooperation would undermine judicial independence.

The two institutions also agreed to expand knowledge-sharing and called for laws to address cyberbullying and disinformation targeting judges.

National Assembly Minority Leader Junet Mohammed said in recent years, more than a dozen pieces of legislation have had certain provisions declared unconstitutional by the courts.

Mohammed said in many such cases, those provisions remain on the statute books until Parliament takes action to amend or repeal them.

“This creates confusion in the application of the law and undermines the clarity of our legal framework. As the leadership of Parliament, we must establish a clear and efficient mechanism to ensure that whenever a court declares a law unconstitutional, prompt steps are taken to align our statutes with judicial determinations,” said Mohammed.

He said that Parliament must work closely with other relevant state agencies such as the National Council for Law Reporting, which monitors the development of jurisprudence in Kenya and highlights judicial decisions where laws have been invalidated.

Mohammed said the Kenya Law Reform Commission and the Office of the Attorney General are indispensable partners in this process, as they play central roles in law reform, law revision, legislative drafting, and legal advisory services.

“Together, these agencies are critical stakeholders in our legislative business, and close collaboration with them will strengthen the quality, clarity, and constitutionality of our laws,” said Mohammed.

The CJ, in her response, said that when the arms execute their mandates in a spirit of respect, consultation, and shared commitment, the result is social transformation.

Justice Koome said that institutional comity does not erode independence and that there exists institutional independence and decisional independence.

However, the CJ raised concerns over the delicate balance between parliamentary privilege and judicial oversight, which has too often been portrayed as adversarial, yet in truth both principles safeguard constitutionalism.

She noted that from the Judiciary’s perspective, the courts have adopted a posture of restraint where ongoing parliamentary processes are concerned.

“The Supreme Court articulated this approach in Justus Kariuki Mate & another v Martin Nyaga Wambora & another (2017), counselling courts to avoid interfering prematurely with constitutional processes in the legislature, and to intervene only after completion,” said Justice Koome.

She said that the courts recognise the need to preserve parliamentary privilege while recognising that judicial review remains vital to ensure that parliamentary processes comply with the Constitution.

The CJ said that by striking this principled balance, it would strengthen rather than weaken democracy.

Justice Koome told the MPs that for a long time, the Judiciary has not received funding commensurate with its constitutional obligations, limiting its ability to perform optimally.

She said the goal has been to establish a magistrates’ court in each constituency.

She said that currently there are only 143 magistrates’ courts as compared to 210 constituencies.

The CJ said that in a constrained fiscal environment, collaborative constitutionalism calls on us to prioritise so that constitutional mandates are not unduly hampered.

“Adequate resourcing of the Judiciary is therefore a safeguard for the rights of the people, your constituents, to access justice, by ensuring the infrastructure of justice—from court buildings, our Small Claims Courts roll-out programme, to the digital transformation of our systems—is sustained,” said Justice Koome.

She, however, said that in the financial year 2025/26, the budgetary allocation has seen some increase, even in the context of competing national priorities.

The CJ also raised concerns over the enactment of legislation necessary for the effective administration of justice.

She said that the Tribunals Bill, approved by Cabinet in June 2023, remains pending before the National Assembly.

Justice Koome also called for the enactment of the Judges’ Retirement Benefits Bill, 2025.

“The welfare of State Officers, including judges, reflects the value a nation places on its public service. I must note that efforts to secure a retirement benefits framework for judges have been ongoing since 1992, yet to date, unlike in neighbouring Uganda and Tanzania, we lack a tailor-made legislative framework to guarantee dignity for judges in retirement,” said Justice Koome.

She noted that judges and judicial officers are also currently being subjected to cyberbullying, disinformation and misinformation that threaten public trust and confidence in the administration of justice.

The CJ said that it is important that the Legislature considers necessary legislative intervention to tackle this emerging threat to the independence of the Judiciary.

“Advancing these laws will demonstrate Parliament’s commitment to strengthening our own system of administration of justice and promoting judicial independence,” said Justice Koome.