Constitutional Crossroads

A significant constitutional confrontation is unfolding in Kenya, pitting the National Assembly against the Judiciary in a dispute over the issuance of court orders that Parliament deems disruptive to its legislative agenda and national development. The conflict intensified following sharp criticism from National Assembly Speaker Moses Wetang'ula, who, on Friday, November 7, 2025, accused the Judiciary of an “alarming trend” of issuing “careless” conservatory orders that stall government laws and programmes. Speaking at a forum with the Kenya Private Sector Alliance (KEPSA) in Mombasa, Wetang'ula argued that such injunctions are stifling economic progress and undermining the legitimate authority of Parliament.

“Injunctions are not cakes to be dished to everybody carrying a plate,” Wetang'ula stated, proposing a dialogue between Parliament, the Judiciary, and the private sector to address the issue. He lamented that courts are halting major government initiatives, referencing historical opposition to projects like the Jomo Kenyatta International Airport (JKIA) and the Kenyatta International Convention Centre (KICC) as examples of how legal challenges can impede national progress.

The Flashpoints: Cybercrime Act and Constituency Funds

At the heart of the current dispute are several high-profile court rulings. A key example cited by the Speaker is the High Court's decision in October 2025 to suspend controversial sections of the Computer Misuse and Cybercrimes (Amendment) Act, 2025. Justice Lawrence Mugambi of the Milimani Law Courts issued conservatory orders on October 22, 2025, halting the implementation of Section 27(1)(b), (c), and (2) of the Act following a petition by activist Reuben Kigame and the Kenya Human Rights Commission (KHRC).

The petitioners successfully argued that the amended sections—which criminalised the publication of information deemed “false, misleading or fictitious” and imposed harsh penalties of up to KES 20 million or a 10-year jail term—were unconstitutionally vague and posed a significant threat to freedom of expression, privacy, and media freedom. Critics, including civil society groups, warned the law's broad language could be weaponised to silence dissent and investigative journalism.

Another major point of friction involves Parliament's attempt to amend the Constitution to entrench funds such as the National Government Constituencies Development Fund (NG-CDF). This move has been consistently challenged in court by organisations like Katiba Institute, which argue that it violates the principle of separation of powers by assigning executive functions to legislators and undermines devolution. These legal challenges have successfully stalled the constitutional amendment process, further fueling frustration within Parliament.

Judiciary’s Defence: Upholding the Constitution

In response to the criticism, the Judiciary has maintained a firm stance on its constitutional mandate. Chief Justice Martha Koome has repeatedly defended the independence of the courts, stating that judicial officers are bound to uphold the law without fear or favour. While not directly responding to Wetang'ula's latest comments, CJ Koome has previously addressed accusations of judicial overreach by stating that courts are merely “breathing life and spirit to the constitution.” During a joint retreat with Parliament leadership in August 2025, she distinguished between institutional engagement and decisional independence, asserting that the latter “must always remain sacrosanct.”

Legal experts and civil society organisations have largely supported the Judiciary's position. They argue that the courts are performing their essential watchdog role as envisioned in the 2010 Constitution, which established a more independent judiciary to act as a check on the executive and legislative branches. The Katiba Institute, a key litigant in many of these cases, frames its actions as necessary to defend constitutionalism, ensure prudent use of public funds, and demand adequate public participation in the legislative process.

Implications for Governance in Kenya

This standoff between two co-equal arms of government carries profound implications for Kenya. The legislature's frustration stems from its perception that judicial review is impeding its ability to deliver on its agenda and respond to the needs of the electorate. Speaker Wetang'ula has even questioned the motives of some petitioners, suggesting they are “surrogate litigants for competitors” rather than public-spirited citizens.

Conversely, the Judiciary and its defenders warn that attacks on the courts and threats to disregard their orders are a path toward constitutional crisis and anarchy, eroding the rule of law. This tension reflects a deeper, ongoing struggle to define the boundaries of power within Kenya's democratic framework, a decade and a half after the promulgation of the 2010 Constitution. The resolution of this conflict will be a critical test of the resilience of Kenya's institutions and their commitment to the principles of separation of powers and mutual respect. As of now, the Judiciary continues to assert its role as the ultimate arbiter of constitutional questions, even as Parliament signals growing impatience with legal checks on its authority. FURTHER INVESTIGATION REQUIRED into the specific economic data supporting claims of stalled development.