By Billy Mijungu
In the fervour of Kenya’s ongoing constitutional debates, few issues have ignited as much contention as the proposal for a Judicial Ombudsman a role envisioned to tackle grievances that the Judicial Service Commission has long struggled with. Yet, as the debates rage on, it appears that the BBI proposal, far from being a mere administrative adjustment, is set to haunt those who opposed its inception.
The call for a Judicial Ombudsman was once seen as a progressive measure to ensure that the intricacies of judicial conduct and administration received the scrutiny they deserve. Proponents argued that this office would provide an essential counterbalance to the limitations of the Judicial Service Commission. Critics, however, dismissed it as an unnecessary complication, a triviality amid the myriad issues bedeviling Kenyans. Ironically, history may well judge those skeptics harshly.
The debate has taken a particularly heated turn when it comes to the future of key figures in our judiciary. The current controversy over whether to remove or retain figures such as Martha Koome, alongside other Supreme Court judges, underscores the potential perils of a self-referential judicial system. According to the law, even a judge removed from office has the right to appeal the decision to the Supreme Court a clause that, in practice, pits judges against their peers in what can only be described as a legal quagmire. It is a conundrum that suggests the judiciary might ultimately decide its own fate, thereby undermining the very principles of impartial oversight.
Looking ahead to 2027, there looms a disquieting prospect: if the Supreme Court finds itself forced to adjudicate on its own members’ conduct, the institution might adopt a defensive posture. There is a growing concern that, in the event of a failed removal process, the Court could become even more hostile toward government initiatives like Kenya Kwanza, which advocate sweeping reforms across the political and judicial spectrum.
This is not merely an academic debate. The ramifications of such legal entanglements extend to the very fabric of our constitutional order. Consider the case of Ahmed Nassir, who has been banned from appearing before the Court. While this exclusion might appear draconian, it is not without precedent other jurisdictions have imposed similar restrictions on advocates who are deemed to have openly disparaged the courts, even as they continue to practice law. Such measures, though harsh, have served as effective means of maintaining the dignity and authority of the judiciary. Yet, they also serve as a stark reminder of the inherent dangers of allowing unchecked criticism within an institution that is meant to be above reproach.
Ultimately, this ongoing saga compels us to ask whether our Constitution, a document that should be a living blueprint for justice, is in dire need of a thorough review. The BBI proposal was designed with an eye toward modernizing our governance structures, but if its intended safeguards end up entangling us in legal and political limbo, then perhaps it is indeed time to revisit and refine the very framework that underpins our national life.
In a nation where every reform is scrutinized under the harsh light of political ambition and legal paradoxes, the proposal for a Judicial Ombudsman may well become the spectre that haunts future administrations. It is incumbent upon us to ensure that our constitutional reforms do not sow the seeds of our own undoing, but rather have more transparent and accountable system of justice
