The guardians of justice have crossed the political line: A Constitutional reckoning for the Judicial Service Commission

Recent public discourse has brought renewed attention to the constitutional boundaries that govern the conduct of members of independent commissions, particularly those entrusted with oversight of the Judiciary. Reports and images circulating in the public domain have suggested that the Vice Chairperson of the Judicial Service Commission (JSC) Mr. Isaac Ruto recently attended a meeting of a political party, the United Democratic Party (UDA), a high-level gathering convened at State House. These reports raise serious constitutional and ethical concerns that transcend individual personalities and instead implicate foundational principles of judicial independence and institutional integrity. At stake is a central question in constitutional governance: whether a serving member of the Judicial Service Commission can openly participate in partisan political activities while continuing to credibly discharge the Commission’s mandate. Within the framework of the Constitution of Kenya, 2010, the answer must be approached with caution but clarity. The constitutional architecture governing independent commissions leaves little room for overt political alignment by those entrusted with safeguarding the administration of justice. This controversy does not turn on the personal conduct or character of any individual office holder. Rather, it concerns the institutional office involved and the precedent that such conduct risks establishing. When a Vice Chairperson of the Judicial Service Commission is seen to engage openly in partisan political activity without apparent consequence, it raises a broader and more troubling question about institutional discipline and constitutional boundaries. Such conduct, if left unaddressed, may embolden other Commissioners to follow a similar path, encourage judicial officers to cultivate political affiliations, and gradually normalise the political capture of institutions that are meant to remain independent. Constitutional breakdowns rarely occur through sudden or dramatic events; more often, they unfold incrementally, through small departures from principle that are tolerated over time and reinforced by silence. The Judicial Service Commission occupies a unique and critical position within Kenya’s constitutional order. Under Article 172 of the Constitution, the Commission is responsible for recommending persons for appointment as judges, exercising disciplinary control over judicial officers, and generally promoting and facilitating the independence and accountability of the Judiciary. These functions place the JSC at the core of the justice system. Its decisions shape not only the composition of the courts but also public confidence in the fairness and impartiality of judicial processes. The effectiveness of the JSC does not depend solely on its formal independence. It also rests heavily on public perception. Judicial institutions derive legitimacy from trust, and trust is sustained when oversight bodies are seen to operate free from political influence. Where a senior member of the Commission is perceived to be closely associated with a political party, particularly one that exercises executive power, that perception alone is capable of undermining confidence in the Commission as an impartial constitutional actor. This concern is directly anchored in Article 249 of the Constitution, a provision that defines the character and obligations of constitutional commissions and independent offices. Article 249(1) affirms that such bodies are subject only to the Constitution and the law and are not subject to direction or control by any person or authority. Article 249(2) further requires them to protect the sovereignty of the people, secure the observance of democratic values and principles, and promote constitutionalism. These obligations are substantive, not symbolic. They demand conduct that reinforces independence in both reality and appearance. Kenya’s constitutional democracy is still young. Its resilience depends not on the text of the Constitution alone, but on the willingness of those entrusted with power to live by its spirit. Article 249 was designed to insulate commissions like the JSC from precisely the kind of political entanglement now alleged. To ignore its violation is to hollow out its meaning. Participation by a senior JSC official in the activities of a political party, especially in settings closely associated with executive authority, creates a reasonable apprehension of political alignment. Such conduct risks conveying the impression that the Commission, or elements of its leadership, may be susceptible to political influence. From a constitutional standpoint, that apprehension alone is sufficient to raise concerns of non-compliance with read more...