Tempers flared this week in Kenya’s legal and political spheres as Chief Justice Martha Koome issued a stern warning to President William Ruto and the executive branch, urging respect for judicial independence in the wake of escalating criticism over the use of anticipatory bail. The exchange, which unfolded over two days at high-profile national events, has reignited debate about the judiciary’s role in the fight against corruption and the delicate balance between the branches of government.
The controversy began on August 13, 2025, when President Ruto, speaking at the National Devolution Conference in Homa Bay, leveled pointed accusations at the judiciary. He argued that anticipatory bail—a legal measure allowing suspects to seek temporary protection from arrest—was being misused as a shield by those accused of corruption. "Somebody who has stolen public funds and then goes to the court and gets something called anticipatory bail makes it impossible for such a person to be arrested and prosecuted endlessly," Ruto declared, questioning, "How does that support the fight against corruption?" According to The Star and Capital FM, Ruto described anticipatory bail as a "Kenyan innovation that takes us backwards," suggesting it undermined efforts to tackle graft.
The following day, Chief Justice Koome delivered a forceful response at the Law Society of Kenya (LSK) Annual Conference in Kwale. Addressing a packed audience of legal professionals, Koome defended the judiciary’s use of anticipatory bail, emphasizing its constitutional foundation and critical role in protecting individual rights. "Anticipatory bail is a very interim relief and is issued for a limited number of days (14). It cannot be a threat to the administration of justice," Koome said, as reported by Capital News.
Koome’s remarks went further, warning the executive against public attacks on judges and cautioning that such rhetoric threatened the rule of law. "No one has the right to choose which court orders to obey and which to ignore," she asserted. "Judicial independence is not a privilege for judges; it is a safeguard for all citizens." She stressed that grievances with court decisions—whether from ordinary citizens or the government—must be addressed through lawful appeals or reviews, "not through defiance or vilification of judicial officers."
The Chief Justice did not shy away from confronting the president’s narrative directly. She argued that the real threat to judicial processes was not anticipatory bail, but rather the withdrawal of anti-corruption cases by the state. "The real danger to the administration of justice was complete failure to prosecute corruption cases," Koome said, referencing recent instances where cases were dropped before reaching trial. Her position was echoed by Attorney Dorcas Oduor, who pointed out that while anticipatory bail was sometimes misunderstood as a shield from prosecution, its implementation was strictly limited and subject to judicial review.
Koome also highlighted the judiciary’s broader efforts to uphold constitutional rights in the face of political pressure. Over the past year, she noted, courts had issued numerous habeas corpus orders to protect individuals from unlawful detention and had prioritized the release of minors arrested during protests. These actions, she contended, demonstrated the judiciary’s commitment to justice and the rule of law, even in politically charged circumstances.
Her speech struck a historical chord, recalling darker periods in Kenya’s past when court authority was routinely undermined. "Threatening rhetoric against judges is a grave affront to the rule of law," Koome said. "Kenyans rejected that in 2010." The reference was a pointed reminder of the constitutional reforms enacted that year, which enshrined judicial independence as a fundamental safeguard for Kenyan democracy.
LSK President Faith Odhiambo, speaking at the same conference, mounted a robust defense of anticipatory bail, describing it as a "historically embedded" legal principle rooted in both Kenyan and Commonwealth jurisprudence, and affirmed by the Supreme Court of India. "The high standard required for the grant of anticipatory bail is well documented and provides sufficient safeguard against potential abuse," Odhiambo explained. "Anticipatory bail is neither a Kenyan innovation granted on whims, nor does it amount to judicial endorsement of crime." She dismissed claims that the measure undermines anti-graft efforts, insisting that law and evidence, not "political sensationalism," guide the judiciary, which must remain free from threats or coercion from other arms of government.
Attorney Dorcas Oduor, for her part, acknowledged that some beneficiaries of anticipatory bail mistakenly believe it shields them from prosecution, but she emphasized that the relief is temporary and subject to strict judicial oversight. Koome reinforced this point, stating, "The bail terms must always be reasonable. The only concern is to ensure that the accused persons attend trial and nothing more. Appellate mechanisms exist to review the bail terms to ensure that they are reasonable. We do not need to be told how to do our jobs."
The backdrop to this legal and political tug-of-war is Kenya’s ongoing struggle with corruption—a challenge that remains deeply entrenched. According to a report by the Ethics and Anti-Corruption Commission (EACC), Kenya loses an estimated Ksh608 billion annually to graft, representing a staggering 7.6% of the nation’s GDP. The scale of the problem has fueled public frustration and heightened scrutiny of the country’s anti-corruption framework.
President Ruto’s criticism resonated with some segments of the public, who view judicial delays and perceived loopholes as obstacles to accountability. However, legal experts and civil society leaders warn that undermining judicial independence could have far-reaching consequences. As Koome noted, "Judicial independence is not a privilege for judges; it is a safeguard for all citizens."
The debate over anticipatory bail is not unique to Kenya. Globally, courts have long grappled with balancing the rights of the accused against the public interest in prosecuting crime. In Kenya, as in other Commonwealth countries, anticipatory bail is granted only under strict conditions and for a limited period—typically 14 days—pending further investigation or court proceedings. Its purpose, supporters argue, is to prevent abuse of power and protect against unlawful detention, not to provide a permanent shield for suspects.
As the dust settles from this week’s heated exchanges, the underlying issues remain unresolved. The tug-of-war between the executive and judiciary over corruption, accountability, and the limits of legal protections will likely persist. For now, Chief Justice Koome’s message is clear: the rule of law must prevail, and the integrity of Kenya’s courts is not up for negotiation. The coming months may reveal whether this latest confrontation marks a turning point in the relationship between the branches of government—or merely the latest chapter in a long-running saga.
