Web of accountability among the arms of government

Accountability is one of the national values under Article 10 of the Constitution, where it is linked with good governance, integrity and transparency. The word’s origin is related to “count” and the word “account” meaning to tell the story. The leading dictionary on English (UK version) says, “… liability to account for and answer for one’s conduct, performance of duties, etc.; responsibility.”

The forms of accountability are rather different for each of the three arms of government: the Legislature, the Executive and the Judiciary (we have little space to include here independent commissions and offices sometimes called a fourth arm).

The constitution creates a sort of network of accountability mechanisms, involving all three arms in each other’s accountability, and sometimes involving the people, too.

The forms of accountability are various. Internal (within each arm of government), by another arm of government or at the initiative of the people. Legal or political – or something of a hybrid. Theoretically quite easy or deliberately difficult. Precise in the consequences of an accountability process or vaguer, or providing only for recommendations but not orders. Sometimes accountability means someone has to “tell the story” while sometimes possible penalties and other consequences may flow. The former tends to assume that shame is a powerful incentive to behave appropriately, though this is far from clear.

The Executive

To begin with the President, Cabinet Secretaries and the whole system that carries out law and policy (traditionally called the administration). The President is accountable to the people electorally – he can be refused a second term in office by them (a purely political process, which ought not to be difficult if the people were clear in their minds).

He can be removed from office by Parliament – the people’s representatives (a highly political but also legal process a bit like a trial; and a difficult process because it needs a high level of agreement in Parliament). He is not accountable, while in office, through the criminal law. And the courts cannot order him to do anything – though they can say that something he has done is wrong and that other people should not carry out that wrong decision.

CSs are not electorally accountable. They are accountable to Parliament because the National Assembly can require the President to remove them (as individuals), not by a large majority. But, for very political reasons, this is unlikely so long as the President has majority support in the National Assembly. They are accountable to Parliament in a different way because they can be summoned to appear before a committee. And under the current government CSs appear before the full house on Wednesday afternoons to answer questions.

Another form of accountability is through the Controller of Budget and Auditor General.

Unlike the President, CSs and everyone else in the public service can be prosecuted for criminal offences. And the courts can declare their acts unconstitutional, or illegal, and issue orders, and if they violate the orders this is contempt of court.

There has been a trend to pass law protecting people who act “in good faith” in doing their job. I have a feeling this may be going too far. Accountability is, as we said earlier, a national value. In the normal world of work people are legally liable for faults they commit during their work – maybe criminally liable or maybe liable in civil law for things like negligence. Why should people in the public sector be privileged?

Finally there are internal accountability mechanisms. CSs can be sacked or redeployed by the President. Accountability is not the only motive for this, of course. And for the public service there is a system through the Public Service Commission.


Parliamentarians are accountable to the electorate – they may not be re-elected. They are supposed to be accountable in another way: voters have the right to recall them. Parliamentarians managed to eviscerate this idea, making it almost impossible to operate. That law was declared unconstitutional and Parliament seems to have suppressed the whole idea. But the constitutional provision is still there.

Internal accountability is important – Parliament may penalise its own members. The Speaker keeps order in the House and the chair of committees in committees. The Powers and Privileges Committee of a House may recommend penalising members for improper behaviour (as done recently for a senator who had made serious allegations in the Senate What’sApp group).

Many Acts, or parts, have been held unconstitutional by courts because of their content or inadequate public participation. But the courts take care not to judge draft laws before they are passed. The courts can hold that parliament’s own internal procedures are unconstitutional.

The Auditor General and the CoB, as well as the human rights commissions are also part of the accountability system for parliament.

The Judiciary

The centrality of the courts to the process of constitutionalism and accountability explains why there is so much resistance, even resentment, of them in other quarters.

And only the President is fully protected – while President – from being held liable by the courts for breaches of the law he may commit as President.

There are accountability mechanisms for the courts, most of them internal. The Ombudsman, an independent complaints office within the Judiciary, was set up under former Chief Justice Mutunga. There are no other forms of internal accountability. In fact the Judiciary’s annual report devotes more space to this than most annual reports.

Judges are protected from some legal liability – but only for anything done or omitted to be done (i) in good faith in the (ii) lawful performance of (iii) a judicial function. For anything they do that is not strictly a judicial function they can be sued or prosecuted. This would surely include taking bribes – this is hardly “lawful performance”.

The Judicial Service Commission is a partially internal body because four of its 11 members are judges and one a magistrate. Two are lawyers. Three can be said to be presidential appointees – the Attorney General and two members of the public. Anyone may make a complaint to the JSC, including the CJ (who sent nine cases in 2022-3).

The JSC can dismiss magistrates and other staff of the Judiciary. But for judges of the higher courts it is the starting point for any removal process. But removal matters would go to the President who would appoint a tribunal (but following the recommendations of the JSC), but has virtually no freedom of action in the matter. The JSC cannot in other ways discipline judges of the higher courts – like with a reprimand.

Another internal form of accountability is the appeal system – all cases (except those that being in the Supreme Court) can be appealed which should deal with clearly wrong decisions – including those resulting from corrupt dealings.

The judicial system is subject to scrutiny by the Auditor General and the CoB. And the Commission on Administrative Justice may look at some aspect of the courts, though not “the commencement or conduct of criminal or civil proceedings before a court.” Nor can Parliament discuss individual cases, or individual judges.

Whether judges should appear before Parliament is controversial everywhere. Interestingly the new CJ in England and Wales, Baroness Carr, recently appeared before a parliamentary committee. She was very firm about what government could not do with respect to the courts.

The people

A major type of accountability for all these agencies is the possibility of public comment – through the media including social media, and through organised civil society. It is precisely to support accountability that freedom of speech (and media) have such prominence in the constitution.

Ultimately accountability is to the constitution – and the people of Kenya. Politicians, especially, tend to think the constitution is about giving them power. But hand in hand with that is necessarily the limit on power – and the mechanisms for accountability to make sure that power is kept within constitutional bounds. They are the two sides of the same coin.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-01-28-ghai-web-of-accountability-among-the-arms-of-government/

Image: CJ Koome/X


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