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Sometimes courts in Kenya produce decisions so startling that the law itself seems to recoil. Litigants leave courtrooms bewildered, clutching decisions that read like accidents rather than judgments. The standard response is ritualistic, appeal if dissatisfied.
The doctrine invoked in quiet defence is judicial independence. It protects the judge who reasons boldly, and equally the judge who reasons badly. Recently, however, a rising number of complaints against judges have met a familiar fate before the Judicial Service Commission (JSC).
That is dismissal on the ground that reviewing the decision would trespass upon independence or that the complaint violates the principle itself. The consequence is a paradox. Independence shields courage, but it may also conceal incompetence. Article 168(1)(d) recognises incompetence as a ground for the removal of a judge. However, the Constitution leaves the term floating in abstraction.
The JSC, therefore, confronts a conceptual riddle. How does one evaluate incompetence without interrogating the decision itself? A judgment is the craft of a judge. To inspect the craft is to inspect the craftsman. But the fear persists that such inspection risks converting disciplinary review into appellate review.
Employment law offers a useful analogy. Termination for incompetence generally requires two elements. The alleged deficiency must relate to duties for which the employee was engaged. Further, a single misstep rarely suffices; employers typically demonstrate a pattern of unsatisfactory performance. If the same reasoning were applied to judges, a complaint grounded in incompetence would require a series of defective decisions rather than an isolated one.
At first glance, this approach seems prudent. Patterns are safer than impressions. The analogy in the context of a judge, however, limps. Judicial decision-making differs from ordinary employment. A single decision can reshape liberty, property, or political order.
One catastrophic decision may distort justice more profoundly than a dozen minor errors. To insist on repetition before recognising incompetence risks tolerating profound harm merely because it occurred once.
The law would then treat a judicial earthquake as if it were a passing tremor. Scholars of judicial discipline have long warned of this dilemma. Cynthia Gray observed that the boundary between legal error and misconduct is “not always bright,” particularly where persistent misunderstanding of the law begins to resemble incapacity and incompetence. Similarly, Steven Lubet argued that disciplinary bodies must avoid both extremes, punishing honest disagreement while ignoring sustained incompetence. Between these poles lies a narrow but necessary path.
The challenge, therefore, is not whether judicial decisions may be examined, but how they should be examined. A disciplined framework can preserve independence while exposing incompetence. I propose what may be called the “Judicial Competence Threshold Test,” built upon four cumulative inquiries.
First, functional relevance. The impugned act must arise directly from the core judicial function: interpreting law, assessing evidence, or applying binding authority. Administrative lapses or courtroom discourtesy may justify discipline, but they do not by themselves establish incompetence in adjudication. Secondly, objective unreasonableness. The decision must depart so dramatically from settled legal method that no reasonably competent judge, properly directing their mind, would have reached the same conclusion. This is not mere disagreement with precedent. It is a collapse of legal reasoning, ignoring binding authority, misreading plain statutory language, or inventing principles detached from law.
Thirdly, demonstrable harm to the integrity of the process. The error must affect the fairness or legitimacy of the proceedings. A trivial doctrinal slip does not suffice. The mistake must distort the administration of justice in a visible and material manner. Fourthly, evidential context. Here lies the balancing valve. In most cases, a pattern of decisions will confirm incompetence. But the test must also recognise exceptional cases where a single decision reveals profound incapacity. That is where the reasoning is so fundamentally defective that repetition becomes unnecessary. The Commission should therefore examine whether the decision exposes a structural misunderstanding of law rather than an isolated misinterpretation.
This framework preserves judicial independence because it does not punish ordinary error. Judges remain free to interpret law creatively, even controversially. Independence, after all, includes the freedom to be wrong. But it does not include the freedom to misunderstand the basic tenets of law. Irony shadows the current system. Independence was designed to protect the Judiciary from intimidation. When used indiscriminately to dismiss complaints, it risks protecting incompetence from scrutiny. A shield becomes a curtain. The JSC therefore stands at a constitutional crossroad. If incompetence remains undefined, the constitutional provision becomes decorative. An elegant provision with no teeth. But if standards are articulated carefully, accountability need not devour independence. The two principles are not enemies. They are uneasy partners, each restraining the excess of the other.
Comparative experience reinforces this need for calibrated scrutiny. In several jurisdictions, disciplinary councils distinguish sharply between “mere error” and “manifest incompetence.” The latter arises when reasoning displays a persistent disregard for legal sources or a demonstrable inability to apply elementary doctrine. Such standards acknowledge an uncomfortable truth, that appellate correction alone cannot cure systemic incompetence. Appeals repair outcomes, and disciplinary review protects the institution. Where judges repeatedly produce decisions unintelligible to law itself, the problem ceases to be jurisprudential and becomes constitutional and urgent.
In the end, the question is not whether judges may err. They will. The question is when error stops being human and starts being reckless. The Judicial Service Commission should reflect on this as a national emergency.
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Sometimes courts in Kenya produce decisions so startling that the law itself seems to recoil. Litigants leave courtrooms bewildered, clutching decisions that read like accidents rather than judgments. The standard response is ritualistic, appeal if dissatisfied.
The doctrine invoked in quiet defence is judicial independence. It protects the judge who reasons boldly, and equally the judge who reasons badly. Recently, however, a rising number of complaints against judges have met a familiar fate before the Judicial Service Commission (JSC).
That is dismissal on the ground that reviewing the decision would trespass upon independence or that the complaint violates the principle itself. The consequence is a paradox. Independence shields courage, but it may also conceal incompetence. Article 168(1)(d) recognises incompetence as a ground for the removal of a judge. However, the Constitution leaves the term floating in abstraction.
The JSC, therefore, confronts a conceptual riddle. How does one evaluate incompetence without interrogating the decision itself? A judgment is the craft of a judge. To inspect the craft is to inspect the craftsman. But the fear persists that such inspection risks converting disciplinary review into appellate review.
Employment law offers a useful analogy. Termination for incompetence generally requires two elements. The alleged deficiency must relate to duties for which the employee was engaged. Further, a single misstep rarely suffices; employers typically demonstrate a pattern of unsatisfactory performance. If the same reasoning were applied to judges, a complaint grounded in incompetence would require a series of defective decisions rather than an isolated one.
At first glance, this approach seems prudent. Patterns are safer than impressions. The analogy in the context of a judge, however, limps. Judicial decision-making differs from ordinary employment. A single decision can reshape liberty, property, or political order.
One catastrophic decision may distort justice more profoundly than a dozen minor errors. To insist on repetition before recognising incompetence risks tolerating profound harm merely because it occurred once.
The law would then treat a judicial earthquake as if it were a passing tremor. Scholars of judicial discipline have long warned of this dilemma. Cynthia Gray observed that the boundary between legal error and misconduct is “not always bright,” particularly where persistent misunderstanding of the law begins to resemble incapacity and incompetence. Similarly, Steven Lubet argued that disciplinary bodies must avoid both extremes, punishing honest disagreement while ignoring sustained incompetence. Between these poles lies a narrow but necessary path.
The challenge, therefore, is not whether judicial decisions may be examined, but how they should be examined. A disciplined framework can preserve independence while exposing incompetence. I propose what may be called the “Judicial Competence Threshold Test,” built upon four cumulative inquiries.
First, functional relevance. The impugned act must arise directly from the core judicial function: interpreting law, assessing evidence, or applying binding authority. Administrative lapses or courtroom discourtesy may justify discipline, but they do not by themselves establish incompetence in adjudication. Secondly, objective unreasonableness. The decision must depart so dramatically from settled legal method that no reasonably competent judge, properly directing their mind, would have reached the same conclusion. This is not mere disagreement with precedent. It is a collapse of legal reasoning, ignoring binding authority, misreading plain statutory language, or inventing principles detached from law.
Thirdly, demonstrable harm to the integrity of the process. The error must affect the fairness or legitimacy of the proceedings. A trivial doctrinal slip does not suffice. The mistake must distort the administration of justice in a visible and material manner. Fourthly, evidential context. Here lies the balancing valve. In most cases, a pattern of decisions will confirm incompetence. But the test must also recognise exceptional cases where a single decision reveals profound incapacity. That is where the reasoning is so fundamentally defective that repetition becomes unnecessary. The Commission should therefore examine whether the decision exposes a structural misunderstanding of law rather than an isolated misinterpretation.
This framework preserves judicial independence because it does not punish ordinary error. Judges remain free to interpret law creatively, even controversially. Independence, after all, includes the freedom to be wrong. But it does not include the freedom to misunderstand the basic tenets of law. Irony shadows the current system. Independence was designed to protect the Judiciary from intimidation. When used indiscriminately to dismiss complaints, it risks protecting incompetence from scrutiny. A shield becomes a curtain. The JSC therefore stands at a constitutional crossroad. If incompetence remains undefined, the constitutional provision becomes decorative. An elegant provision with no teeth. But if standards are articulated carefully, accountability need not devour independence. The two principles are not enemies. They are uneasy partners, each restraining the excess of the other.
Comparative experience reinforces this need for calibrated scrutiny. In several jurisdictions, disciplinary councils distinguish sharply between “mere error” and “manifest incompetence.” The latter arises when reasoning displays a persistent disregard for legal sources or a demonstrable inability to apply elementary doctrine. Such standards acknowledge an uncomfortable truth, that appellate correction alone cannot cure systemic incompetence. Appeals repair outcomes, and disciplinary review protects the institution. Where judges repeatedly produce decisions unintelligible to law itself, the problem ceases to be jurisprudential and becomes constitutional and urgent.
In the end, the question is not whether judges may err. They will. The question is when error stops being human and starts being reckless. The Judicial Service Commission should reflect on this as a national emergency.
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By Ndong Evance