Accountability exists when there is a relationship in which an individual or body, and the performance of

tasks or functions by that individual or body are subject to another oversight direction or request that they
provide information or justification for their actions. 1

Accountability is one of the corner stone’s of good governance. The 2010 constitution of Kenya outlines
the national values and principles of good governance. These values also bind all state organs, state
officers, public officers and all persons. 2The judiciary falls squarely under this provision. Notably the
exercise of judicial authority by tribunals and courts is derived from the people, it’s prudent thus for
judges and judicial officers to be accountable to the people when providing informative interpretation of
the constitution and laws. This can be achieved where there is judicial independence, where the
constitution guards this institution against the influence and manipulation of other branches of
government like the executive. A great responsibility behooves the institution, where justice is accessed
by the people without undue regard to technicalities or any delay. 3

In any modern democracy there is growing demand that government, public institutions, and officials
grant access to information concerning controversial actions and decisions. Such evaluation and
effectiveness of public institutions and officials always show that they perform their duties diligently. The
concept of democracy is looked at in regard to sovereignty 4 of the people and the people dictate what that
government need to do. Kenya has a devolved system of government both at the national level and county
level, more so public service values and principles of accountability, public participation, and
transparency apply to all state organs in both levels of government.

In this context what is the role of courts in achieving this objective?

Courts have the power through judicial review mechanisms to disregard or direct the disregard of acts
held to be unconstitutional and review executive and administrative conducts of the state, state organs,
state departments and state officials. Thereby ensuring that such actions or conducts conform to the spirit
of the constitution and the law.

The applicant was barred from contesting the Law Society of Kenya elections under section 18 of the
LSK Act 2014.One of the requirements for eligibility under the Act was that a member has to be qualified
to be a judge of the Supreme Court. This according to the applicant was unconstitutional and it
discriminated on the ground of age which is contrary to Article 27 of the Constitution. Justice Weldon
Korir, held that the decision of the society of barring the applicant was ultra-vires, unreasonable and made
in breach of the rules of natural justice. The order for mandamus was issued compelling both respondents
to include the applicants name in the ballot paper. 5

In conclusion any state organ has to show that they are accountable in governance lack of which court
will review there decisions or actions.
1
J.O. Abuodha,’Intergrating Accountability Mechanisms In Local Governments Mechanisms’ (2011) accessed at
<www.Kenya law.org> 23rd October 2020.
2
The constitution of Kenya 2010, Article 10(2) (a) & 10.
3
Prof.Ben Sihanya,’The Role Of The Judiciary In The Accountability And Governance Structure Of The Devolved
Government Structure’ (2012).
4
Patricia Kameri-Mbote & Muriuki Muriungi,’ Internal Mechanisms For Ensuring Independence And Accountability
In The Judiciary In Kenya (2016) VOL 12 (ICJ).
5
R v Law Society Of Kenya & I.E.B.C. Exparte Frank Ochieng Walukwe 2016] e KLR.
The enforcement of the constitution through protection of liberties, rights and freedoms of all irrespective
of anyone status. Courts play a crucial role by restraining executive and administrative agencies from
abuse of power and dictatorship. It’s the duty and obligation of courts to enforce the Constitution as law
through decision or orders.

The High Court issued an order of Mandamus directing the Attorney General and the Commission on the
Implementation of the Constitution to prepare the relevanant bills for tabling before Parliament for the
purposes of implementation of Articles 27(8) and 81(b) of the Constitution as read together with Article
100.6

In this case the Supreme Court directed the I.E.B.C to open serves they were using in storing the election
data. The I.E.B.C failed to avail the serves data and the court ruled that they were not accountable for
their actions. Despite this court decision, the court failed since the information contained in was of public
interest and many people would have wanted to know the details. Access to information is constitutional
right under article 35 and guarantees every citizen access to information. In this instance case the court
failed to enforce the orders there by the government agent could not be held accountable for the fraud that
took place during elections at that time and as a result this did undermine the institution independence. 7

The courts can also give advisory role. The Supreme Court may give an advisory opinion at the request of
the national government, any state organ, and county government. 8The advisory opinion is important
since it assists in solving emerging conflicts in both levels of government and to also enhance governance
in different levels of government in accordance with the 2010 Constitution.

The applicants were the Council of County governance and all the 47 County Government of Kenya.
They sought an advisory opinion pursuant to Article 163 (6) of the Constitution from the Supreme Court.
One of the issues was what was the effect of a failure between the Senate and National Assembly to agree
on division of Revenue Bill. Chief Justice DK Maraga on paragraph 26 of the judgement stated that the
division of Revenue Bill and County Allocation of Revenue Bill were not Money Bills within the
definition of Article 114(3) of Constitution. They were therefore not within the exclusive competence of
the National Assembly.9

Courts also play a major role in promoting structural government, the rule of law and constitutionalism.
Of particular concern is whether the judiciary can order institutions like parliament to pass an important
implementation bill if Parliament fails or refuses to do so. The recent advice to the President by the Chief
Justice to dissolve Parliament for failure to enact the gender rule under Article 261(7) as read with
Articles 27(3) & (8), 81 (b) and 10010 of the Constitution where after court issued four court orders
compelling Parliament to enact legislation required to implement the two thirds gender rule and
Parliament blatantly failed, refused and or neglected to do so.
6
Center for Rights Education & Awareness (CREWA) v A.G. & Another [2015] e KLR.
7
Raila Amollo Odinga & Another v I.E.B.C & 2 others [2017] e KLR.
8
The Constitution Of Kenya 2010, Article 163 (6)
9
Council Of Governors & 47 Ors v A.G. & 3 Ors, Katiba Institute & 2Ors [2020] e KLR.
10
The Constitution Of Kenya 2010, Article 261(7) if parliament fails to enact legislation the chief justice shall advice
the president to dissolve Parliament ,Article 27(3), 8 women and men have right to equal treatment & state shall
take legislative measures to implement two thirds gender rule in appointative bodies ,Article 81 (b) not more than
two thirds of members of the elective public bodies shall be of the same gender, Article 100, parliament shall
enact legislation to promote the representation of women,youth,person with disabilities.
Courts also have the power to interpret the Constitution and in so doing its legitimacy and independence
should not be compromised while at the same time declaring void any legislation or conduct which is
inconsistent with the Constitution.11The Anti-corruption and Economic Crimes Act section 62(6),
Banking Act section 33 B (1) & (2), Elections Act 2011 section 29 are some of sections which have been
declared unconstitutional.

In conclusion the courts role in achieving or advancing the principles of good governance such as
accountability will be achieved where judicial accountability and judicial independence are safe guarded
by the constitution and also adhered to by the various organs of governments.

11
The Constitution Of Kenya 2010, Article 2 & 159.