NAIROBI,Kenya Sep 3 – A lawyer has asked Parliament to enact legislation that would give ordinary Kenyans the power to challenge public institutions that fail to formulate regulations needed to give effect to laws passed by Parliament.
In a memorandum submitted to the Clerk of the National Assembly, Advocate Ekaterina Handa argued that the Statutory Instruments (Amendment) Bill, 2024 would help tackle delays and institutional inaction by government agencies that leave laws passed by Parliament without the regulations required to implement them.
The Bill, which has already been approved by the Senate, is now before the National Assembly for public participation.
Ms Handa has cited the Judicial Service Commission (JSC) as an example of what she considers prolonged administrative failure, accusing the commission of failing to formulate and gazette regulations governing complaints against judges and judicial officers despite being legally required to do so.
She warned that the absence of formal rules had created uncertainty around how complaints against members of the Judiciary should be processed, leaving parties to rely on procedures that may not be clearly defined or consistently applied.
“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,” she said.
The memorandum, dated September 3, 2026, was filed after the National Assembly invited members of the public to submit views on the proposed amendments.
Under the Bill, institutions given the responsibility of making regulations would be subjected to specific deadlines for completing the process.
More significantly, members of the public would be able to petition Parliament where a body responsible for making regulations had failed, neglected or refused to do so within the prescribed timeframe.
The proposed amendments would also make it an offence for a responsible authority to deliberately fail to perform the statutory obligation.
Ms Handa said the JSC’s handling of regulations on complaints against judges demonstrates why such a mechanism is necessary.
She pointed to Section 47 of the Judicial Service Act, which requires the commission to formulate regulations for the efficient and transparent discharge of its functions, including the handling of petitions and complaints against judicial officers.
She also relied on 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 implications of the absence of formal rules governing complaints against judicial officers.
According to Ms Handa, the court found that the lack of gazetted regulations had resulted in the JSC relying on procedures developed on a case-by-case basis, raising concerns about certainty and fairness for judges facing disciplinary action.
She argued that such an arrangement could undermine constitutional guarantees relating to fair administrative action and 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.
Ms Handa further cited the Supreme Court decision in Shollei v Judicial Service Commission & another, which she said required the JSC to formulate and gazette rules governing complaints against judges and judicial officers within 90 days of the judgment delivered on February 17, 2022.
She said the directive has still not been implemented nearly five years later.
“This is not a matter of interpretation or legal complexity; it is a simple, direct, and binding order that has been ignored,” she said.
The lawyer said the regulatory gap hurts both members of the public seeking to lodge complaints and judges who are subjected to disciplinary proceedings.
For complainants, she said, the lack of clearly published procedures makes it difficult to know how and where complaints should be lodged and how they will be handled.
For judges, she argued, the absence of predetermined rules creates the risk of being subjected to processes that could appear arbitrary or inconsistent.
Ms Handa dismissed concerns that Parliament’s intervention in the matter would amount to interference with the Judiciary.
Instead, she said, establishing clear rules would reinforce judicial independence by ensuring that disciplinary proceedings are governed by transparent standards rather than procedures created after a dispute has arisen.
“This legislative proposal is not an intrusion into judicial independence; it is a vital mechanism for its preservation,” she said.
She has asked MPs to admit her memorandum and the court decisions she cited into the parliamentary record as they consider the Bill.
She further wants Parliament to fast-track the legislation and specifically examine the JSC’s alleged failure to comply with the Supreme Court order.
Ms Handa also urged the relevant National Assembly committee to ensure that regulations governing complaints against judges are finally formulated and gazetted, either by the JSC or through the mechanism contemplated in the proposed law.
The petition argues that the principle that institutions entrusted with public functions must remain accountable to the law and to Parliament.
“The National Assembly will act decisively to restore the primacy of legislative intent, enforce the authority of the courts, and ensure that no institution, however exalted, is permitted to operate beyond the reach of the law,” she said.
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